Outline of Recent WERC Developments

January  2009


Presentation to

 

WISCONSIN PUBLIC EMPLOYER LABOR RELATIONS  ASSOCIATION

January 29, 2009

WERC UPDATE

By Peter G. Davis- WERC General Counsel **


I.   Agency Update

Chairperson Judy Neumann-confirmed for a term expiring March 2013.

Commissioner Paul Gordon-confirmed for a term expiring March 2009.

Commissioner Sue Bauman-confirmed for a term expiring March 2011.

 

Sixteen attorneys (11 in Madison and 5 out state) and 4.5 support staff.

 

Filing fees rose January 2, 2008 to fund five attorney positions.

 

     -$100 unfair labor practice/prohibited practice complaint cases.

-$800 (split equally between union and employer) for mediation, interest arbitration and fact-finding cases.

-$800 (split equally between union and employer) for grievance arbitration cases where WERC staff or commissioners serve as arbitrators.

-Still no fee for election, unit clarification, referendum and declaratory ruling cases and no fee for requesting a panel of arbitrators who are not WERC staff or commissioners.

 

Retirement of Karen Mawhinney and Sharon Gallagher.

 

Hiring of Mike O’Callaghan

 

Stuart Levitan- Part-time until 1/1/2010.

 

** The speaker’s remarks do not necessarily reflect the views of the WERC.

 

 

II. Recent WERC/Court Decisions

 

WASHINGTON COUNTY, DEC. NO. 32185-B (WERC, 1/09)-Appeal to be filed

 

While bargaining a successor agreement, the County engaged in bad faith bargaining by failing to tell Union that it was seriously considering subcontracting certain unit work during the term of the successor agreement. Outcome very fact specific. Remedy does not provide retroactive back pay for the employees whose work was subcontracted but does require offer of reinstatement and bargaining over decision and impact of subcontracting in the context of successor contract bargaining=impasse is subject to statutory interest arbitration.

 

WISCONSIN RAPIDS SCHOOLS, DEC. NO 30965-B (WERC, 1/09)-Gordon dissenting

 

School District violated Sec. 111.70(3)(a) 3, Stats when school principal reduced employee hours and disciplined employee at least in part out of hostility toward employee taking (or believed to be taking) work place issues to Union (and Superintendent of Schools) rather than to principal.

 

STATE OF WISCONSIN, DEC. NO. 32019-B (WERC, 1/09)

 

Employer did not refuse to accept grievance arbitration award because the award in question did not conclusively determine issues (factual or language) that were present in a subsequent grievance. Party arguing there has been a refusal to accept an award (typically the union) has a relatively heavy burden of persuasion in such cases. Even where grievance arbitration award did conclusively determine the issues present in the subsequent grievance, if circumstances that affected the prior outcome to have changed, then there is no obligation to follow the prior award.

 

MILWAUKEE COUNTY, DEC. NO. 32257-C (WERC, 12/08)-Appeal pending.

 

County violated Sec. 111.70(3)(a)3, Stats. when Sheriff and other managers transferred two employees at least in part out of hostility toward the employees’ lawful concerted activity.

 

Commission rejects argument that the transfer of employees is a constitutional power of the Sheriff and thus that Commission lacks authority to remedy the illegal transfers.

 

TOWN OF SHEBOYGAN, DEC. NO. 32616 (WERC, 11/08)-Appeal pending.

 

Employer election petition is dismissed as untimely because filed prior to the 60 day window period applicable to bargaining a successor agreement but can be re-filed in July 2009.

 

POLK COUNTY, DEC. NO. 32536 (WERC, 9/08)

 

Consistent with DANE COUNTY, DEC. NO. 17400 (WERC, 1/79) AFF’D CIR CT DANE 80-CV-0097 6/80, Sec. 111.70(4)(cm) 6, Stats. interest arbitration is not available as a mater of right to resolve an impasse that arises during the term of a contract.

 

Proposing interest arbitration to resolve mid-term impasses is a mandatory subject of bargaining.

 

VILLAGE OF MOUNT PLEASANT, DEC. NO. 32562 (WERC, 9/08)

 

If contract does not have a reopening date but a reopening notice has been given, election petition is still timely as long as no bargaining has occurred.

 

If contract has a reopening date, election petition is timely if filed within the 60 day period prior to the reopening date.

 

CITY OF WAUSAU V WERC, CASE NO. 07 CV 1194 (9/08)

 

Circuit court affirms WERC decision (CITY OF WAUSAU, DEC. NO 20916-J (WERC, 9/07) that property appraisers are not professional employees; that head appraiser is not a supervisor or a managerial employee; that appraisers are automatically included in existing broadly defined non-professional unit without need for a de novo community of interest analysis; and that the fairness of the proceeding was not impacted by disclosed participation of two Commissioners who had been endorsed by and received campaign contributions from one of the parties during prior political campaigns.

 

MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 31602-G (WERC, 8/08)-Appeal pending

 

Remedy for breach of duty of fair representation does not include union contribution toward employer’s back pay obligation if employee is ordered reinstated. Pursuant to Wisconsin Supreme Court decisions from 1940’s, WERC likely lacks statutory authority to do so and existing remedy (union payment of employee’s attorneys fees and costs attributable to litigating the breach of contract claim) has proven adequate.

 

CITY OF MILWAUKEE, DEC. NO. 24602-A (WERC, 8/08)

 

When Employer agreed to continue the existing allocation of positions between two bargaining units as part of bargaining over a departmental reorganization, WERC dismisses subsequent Employer unit clarification petition pursuant to “deal is a deal” policy.

 

WAUPACA COUNTY V WERC, CASE NO. 07 CV 652 (8/08)

 

Circuit court affirms WERC decision (WAUPACA COUNTY, DEC. NO. 32001-B (WERC, 11/07) that Employer violated collective bargaining agreement when it refused to process grievance at contractual step prior to arbitration.

 

 

CITY OF GREEN BAY, DEC. NO. 32463 (WERC, 7/08)

 

Proposal requiring Employer to promote most senior qualified unit applicant to supervisory position is permissive subject of bargaining. Employer has overriding interest in selecting the person it believes will best fulfill supervisory responsibilities. Proposal requiring that unit applicants be given information and equal opportunity to apply is a mandatory subject of bargaining.

 

MILWAUKEE BOARD OF SCHOOL DIRECTORS V WERC, APPEAL NO. 2007AP840 (CTAPP DIST 1 7/08)-to be published.

 

Court of Appeal affirms circuit court affirmation of WERC decision (MILWAUKEE SCHOOLS, DEC. NO. 31732 (WERC, 8/06-Gordon concurs in part and dissents in part) that employees are engaging in lawful concerted activity when placing bargaining related signs in classrooms.

 

MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 32143-B (WERC, 6/08)

 

Absent evidence casting doubt on union’s “good faith and honesty of purpose”, union decision not to arbitrate a discharge grievance based on union attorney’s advice that union would likely lose in arbitration meets bare minimum requirements of duty of fair representation under MAHNKE V WERC, 66 WIS 2D 524 (1975) at least where union provided attorney with “facts and merits of this case, the surrounding circumstances, and the employee’s work and disciplinary history.”

 

SHEBOYGAN COUNTY, DEC. NO. 8256-L (WERC, 4/08)

 

Deputy Register of Deeds is a supervisor of six employees despite presence in office of elected Register of Deeds. Deputy had independent authority to issue written reprimands and effective authority to suspend or terminate (even over Register’s objection), a “significant” role (but not effective recommendation) in hiring, was paid substantially more ($4.27 per hour) than highest paid unit employee, and generally doesn’t do same work as unit employees.

 

TAA, DEC. NO.  32388 (WERC, 3/08)

 

United States Constitution requires that union taking union-security fees from non-members must avoid the risk that objecting non-members fees will be used even temporarily for purposes unrelated to collective bargaining and contract administration.

 

Therefore, during the period when non-members can request a rebate of union-security fees unrelated to collective bargaining and contract administration and/or challenge the union’s calculation of the fee amount related to collective bargaining and contract administration, the union must escrow all non-member union security fees (if the union did not have an independent audit of its expenditures) or the portion of the fees that will be rebated upon request and the portion that is “reasonably in dispute”(if the union did have an independent audit of its expenditures) as being related to collective bargaining and contract administration.

 

GLENWOOD CITY, DEC. NO. 32214-B (WERC, 3/08)

 

Employee is a supervisor due to authority to hire and fire part-time employees (but not full-time employees) and independent authority to direct and assign the work of four employees.

 

VILLAGE OF WEST MILWAUKEE, DEC. NO. 19013-C (WERC, 2/08)

 

Because only one unit of sworn law enforcement employees is “appropriate” within the meaning of Sec. 111.70 (4)(d) 2.a., Stats., part-time employees are added to full-time employee unit even if the parties had a prior “deal” to exclude them.

 

KENOSHA COUNTY, DEC. NO. 9533-B (WERC, 2/08)

 

Juvenile Court Intake Workers are appropriately included in the same bargaining unit as social workers whose professional judgments that can override. Any potential conflict of interest is resolved by right of employer to discipline employees.

 

MIDDLETON FIRE PROTECTION DISTRICT, DEC. NO 31528-B (WERC, 2/08)

 

Modification of traditional reinstatement and make whole remedy may be appropriate in mixed motive discrimination case where employee’s position may ultimately have been eliminated due to legitimate reasons.

 

MADISON SCHOOLS V WERC, CASE NO 06 CV 1661 (8/07) Appeal pending CT APP.

 

Circuit court remands matter for further proceedings including evidentiary hearing on mandatory/permissive issue where WERC (SEE WERC BRIEF DENOMINATED DEC. NO 31345-D) disavowed Examiner decision which held that mandatory/permissive status of matter is irrelevant because employer cannot circumvent union and deal directly with employees even as to permissive subject of bargaining.

 

Cover letter accompanying WERC examiner decisions now advises litigants of WERC’s view that litigant cannot file a petition for judicial review unless litigant has exhausted WERC remedies by filing a petition for review with WERC and obtaining a Commission decision.

 

III. Pending Issues

 

Rights/obligations of employer under Sec. 111.70 (4) (d) 1, Stats. to meet with employees and “representatives of their own choosing.” MILWAUKEE SCHOOLS, Case 413.

 

Joint Employer Status. CITY OF MILWAUKEE, CASE 100.

 

Minimum Manning (firefighters) CITY OF SOUTH MILWAUKEE,  Case 114

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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_2009.htm . Last modified on 30 JAN 2009. Comments, questions and suggestions