Outline of Recent WERC Developments
January 20, 2006
Labor Relations Association
By Peter G. Davis,
WERC General Counsel**
I. Agency Update
A. Commission Composition
Chairperson Judy Neumann –confirmed for a term expiring March 2007.
Commissioner Paul Gordon –confirmed for a term expiring March 2009.
Commissioner Sue Bauman – term expired March 2005.
Hiring Process Completed
Future of LMC
C. Status of Comprehensive Administrative Rule Revisions
Close to finish line.
D. Web Site
** The speaker’s remarks do not necessarily reflect the views of the WERC.
II. Case Law Update
Employee is a supervisor because he directs the work of 13-23 employees, plays a significant role in the hiring process, doesn’t perform the same work as the employees he supervises, and is compensated in part for his responsibility over the employees.
WERC holds complaint alleging discrimination and interference in abeyance pending outcome of ongoing grievance arbitration which WERC concludes may resolve the dispute in a manner consistent with WERC law. After receipt of arbitrator’s award, either party can ask WERC to resume complaint proceeding if complaint matters are not resolved by the award or are resolved in a manner inconsistent with WERC law.
WERC concludes that employer did not have an obligation to bargain during term of contract over parking availability because that issue is already addresses by the contract.
1975 agreement to limit unit to employees working 19 hours or more prevents union from including employees working fewer than 19 hours in the unit by way of unit clarification.
-Even though the part-time employees/positions in question did not exist in 1975, there were regular part-time employees in 1975 working fewer than 19 hours and thus exception #1 to the “deal is a deal” rule (i.e. the positions did not exist at the time the deal was made) is inapplicable.
-Even though the part-time employees/positions in question are performing work
previously performed by full-time unit employees who retired or quit, exception #3 to the “deal is a deal” rule (i.e. material change in circumstances) is inapplicable because an hours based exception has the inherent potential for erosion of bargaining unit work and no evidence of bad faith by employer.
-Given WERC’s past tolerance of units with such hours limitations, WERC will not now conclude that such existing units are inappropriate in this context. However, WERC indicates that in future it will not look kindly on such proposed units given the presumptive community of interest among all regular part-time employees and the statutory anti-fragmentation policy.
MENOMONIE SCHOOL DISTRICT, DEC. NO. 14738-D (WERC, 9/05)
Incumbent in newly created position that directs the work of, evaluates, and authorized overtime for one employee is not a supervisor where she spends most of her time performing work similar to that of the subordinate and her authority to effectively recommend discipline/hire is as part of consensus decision-making model.
No breach of the duty of fair representation because
No breach of the duty of fair representation because no
Union’s failure to provide contractual notice of reopening did not automatically renew contract where term of the agreement was in dispute at time of reopening date.
Unless tentative agreement has been ratified by both sides, no contract bar as to election petition.
Amount of time spent filling in for supervisors plays key role in determination that disputed employees are supervisors.
WERC discards the “modified
MIDDLETON FIRE PROTECTION DIST. DEC. NO. 31247-A (WERC, 6/05)
Parties to election must honor their agreement as to who is eligible to vote.
City violated duty to bargain obligation to maintain status
quo during pendency of interest arbitration proceeding by implementing
tentatively agreed upon insurance benefit changes over the
(1) Two day duration of change (i.e award was issued two days thereafter) was not de minimus.
did not establish that
(3) City did not establish necessity for change nor did Union establish need for recission of benefit changes until next annual insurance contract renewal because City could have signed contract with new carrier and, at least in this instance, held employees harmless as to benefit changes. Commission emphasizes that where identity of carrier or plan administrator changes (as opposed to same carrier but different benefits as here) employer may not be able to hold employees harmless.
CESA #3, DEC. NO. 31292 (WERC, 3/05), REV’D CIRCT GRANT CASE 05-CV-217 11/05, APPEAL PENDING
Commission concludes that proposal which requires employer to provide “appropriate remedial assistance prior to instituting disciplinary procedures unless circumstances make such assistance impossible.” is a mandatory subject of bargaining primarily related to job security. Commission rejects argument that a prior decision of WERC and Wisconsin Supreme Court in Beloit Educ. Assoc. v. WERC, 73 Wis. 2d 43 (1976) warrants a contrary conclusion. Commission notes that the proposal does not dictate a specific type of assistance
Commission rejects City anti-fragmentation argument and finds departmental unit to be an appropriate unit.
EDGERTON FIRE PROTECTION DISTRICT, DEC. NO. 30686-B (WERC, 2/05) APPEAL PENDING
Commission concludes employer terminated all three bargaining unit employees at least in part out of unlawful animus. Commission further concludes that employer decision to eliminate its full-time fire fighters while continuing to provide the same level of service through volunteers is a mandatory subject of bargaining.
Agreement to extend contract following its expiration does not bar election petition.
Circumstances surrounding layoff of active union president “arouse suspicion” but do not establish that employer acted out of illegal animus.
Employee seeks job from employer. Employer makes job offer
to employee. Employee contacts union to see if job offered is correctly
Because contractual provisions can be interpreted and applied in a manner that does not intrude upon the Sheriff’s constitutional prerogatives, the provisions are not prohibited subjects of bargaining.
Proposal that provides insurance and leave
benefits to spouses but not to same-sex domestic partners is not a prohibited
subject of bargaining. WERC rejects contentions that union would breach
its duty of fair representation by agreeing to such a provision or that
employer or State of
III. PENDING ISSUES
Joint Employer status-CITY OF
Given the language of Sec. 111.70(4)(d) 1, Stats., does employer commit a prohibited practice when it does not meet with an individual employee who wishes to present a grievance directly to employer through a representative other than the employee’s union representative. MILWAUKEE SCHOOLS, CASE 413
Extent of employee (teachers) right to wear union buttons/place union signs in workplace. MILWAUKEE SCHOOLS, CASE 433
This page constitutes a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is http://werc.wi.gov/outline_recent_developments_january_2006.htm . Last modified on 20 JAN 2006. Comments, questions and suggestions