Outline of Recent WERC Developments
January 29, 2009
By Peter G. Davis-
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.
attorneys (11 in
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.
(split equally between union and employer) for grievance arbitration cases
no fee for election, unit clarification, referendum and declaratory ruling
cases and no fee for requesting a panel of arbitrators who are not
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
bargaining a successor agreement, the County engaged in bad faith bargaining by
failing to tell
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.
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.
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.
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.
Proposing interest arbitration to resolve mid-term impasses is a mandatory subject of bargaining.
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.
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,
Employer agreed to continue the existing allocation of positions between two
bargaining units as part of bargaining over a departmental reorganization,
WAUPACA COUNTY V
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.
of Appeal affirms circuit court affirmation of
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
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.
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.
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.
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 (
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.
court remands matter for further proceedings including evidentiary hearing on
mandatory/permissive issue where
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.
Employer Status. CITY OF
Manning (firefighters) CITY OF
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