Outline of Recent WERC Developments – July 15, 2005
Presented to Weld, Riley, Prenn and Ricci, S.C., Davis & Kuelthau, S.C. and Ruder, Ware & Michler, L.L.S.C.
By Judy Neumann, WERC Chair and Peter G. Davis,
WERC General Counsel**
I. Agency Update
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
Budget Process Unfolding
Close to finish line.
** The speakers’ remarks do not necessarily reflect the views of the WERC.
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II. Case Law Update
MARKESAN SCHOOL DISTRICT, DEC. NO. 31379 (WERC, 6/05)
Commission determines that the following are “fringe benefits” in effect on the 90th day prior to contract expiration which must be maintained as part of an implemented QEO:
1. Unilaterally adopted Board policy providing post service medical benefit after retirement;
2. Practice as how non-compensated leave requests were granted under a unilaterally adopted Board policy; and
3. Practice as to how urgent personal leave requests were granted under contract provision.
District ordered to make employees whole.
Commission concludes that:
-All are “fringe benefits” within the “ordinary and accepted meaning” of that phrase.
-Statute doesn’t limit fringe benefits to those in collective bargaining agreements.
-QEO fringe benefit need not have an identifiable “QEO calculation cost”
-QEO statutory obligations are separate from contract obligations.
-QEO law does not allow employer to take away benefits which union cannot try to reacquire through interest arbitration.
-How discretion had been exercised under (2) and (3) above was clear and consistent. Could be difficult to identify contour of the “fringe benefit.
-Fact that District had given Union notice that it would be changing practice as to (2) and (3) above when contract expires not relevant for QEO purposes.
CITY OF PRINCETON, DEC. NO. 31041-B (WERC, 6/05)
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 Union’s objection to meet deadline imposed by insurance carrier.
Commission holds:
(1) Two day duration of change (i.e award was issued two days thereafter) was not de minimus.
(2) City did not establish that Union purposefully delayed completion of interest arbitration proceeding.
(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.
(4) Attorneys’ fees not warranted to deter future violations but Commission likely to look favorably on future fee requests because law is well established.
CITY OF WATERTOWN, DEC. NO. 31268 (WERC, 3/05)
Commission rejects City anti-fragmentation argument and finds departmental unit to be an appropriate unit.
CITY OF MILWAUKEE, DEC. NO. 31251 (WERC, 2/05)
Agreement to extend contract following its expiration does not bar election petition.
WAUKESHA COUNTY, DEC. NO. 30799-B (WERC, 2/05)
Circumstances surrounding layoff of active union president “arouse suspicion” but do not establish that employer acted out of illegal animus.
STATE OF WISCONSIN, DEC. NO. 30534-B (WERC, 2/05)
Employee seeks job from employer. Employer makes job offer to employee. Employee contacts union to see if job offered is correctly classified. Union persuades employer that job is not correctly classified but must be posted and interviews conducted before job can be filled. Employer decides not to fill job because it has other options which will not delay performance of the work in question. Even though there is nexus between the employee’s union activity and the withdrawal of the job offer, Commission concludes Employer did not illegally “chill” union activity. Commission reasons that because employer could legally have not offered job in first instance had it known about the contractual requirements, it does not engage in illegal activity when it acts based on those same contractual requirements after the offer was made. Commission acknowledges the potential for such employer conduct to “chill” union activity but reiterates its holding in CLARK COUNTY, DEC. NO. 30361-B(WERC, 11/03) that where employer is acting for legitimate reasons, the “understandable but mistaken” impressions as to why the employer acted do not render the employer’s conduct unlawful.
KAUKAUNA AREA SCHOOL DISTRICT, DEC. NO. 31208 (WERC, 1/05)
Tentative agreement on a successor contract ratified by only one party does not bar election petition filed after old contract expired.
QEO DECISION (AKA PRAIRE DU CHIEN, MAPLE-DALE AND BIG FOOT, DEC. NO. 31501 (WERC, 12/04)
As part of a QEO, employees should always be placed on the salary step that corresponds to their years of service even if QEO monies are not sufficient to pay them the salary amount provided at that step.
As part of a QEO, employees who have not received a full step of pay in prior QEO years are to be caught up so that their pay matches their step placement before any money can be used to increase the overall salary schedule.
Act 11 reduced WRS fringe benefit costs on a monthly basis beginning in February 2000.
VILLAGE OF HALES CORNERS, DEC. NO. 31137 (WERC, 11/04)
Election petitions filed after the 60 day period prior to the reopening date in the contract are untimely even where the parties had not in fact begun to bargain when the petition was filed.
DUNN COUNTY, DEC. NO. 31084 (9/04) APPEAL PENDING
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.
Rock County, Dec. No. 30805-A (WERC, 9/04)
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 Wisconsin would violate Due Process and Equal Protection clauses of U.S Constitution by including such a proposal in a contract though collective bargaining or interest arbitration.
Oconomowoc Schools, Dec. No. 31059 (WERC, 8/04)
Permanent substitute teachers who are regular full-time employees are clarified into existing professional employee bargaining unit.
State of Wisconsin, Dec. No. 30340-B (WERC, 7/04)
During employer’s investigation, union president engaged in lawful concerted activity when he contacted employee about her allegations that a co-worker had sexually harassed her and employer could not lawfully prohibit that conduct.
If union president attempted to coerce employee into recanting allegations, his concerted activity loses protection of the law and employer may discipline union president for that conduct.
Employer may warn union president not to attempt to coerce employee. Employer may also interrogate union president about contacts/conversations with employees, but only if employer has a substantial and reliable basis for believing that coercion or other misconduct occurred.
Seiu Local 150, Dec. No. 30871-B (WERC, 7/04)
Parties before the WERC are entitled to a fair hearing as a matter of due process of law and one of the rudiments of fair play in a legal proceeding is the right of a party to a hearing in which his or her substantial rights are unaffected by conflicts of interest or other professional misconduct by counsel.
When determining whether a conflict of interest is present, WERC will look for guidance to Wisconsin Supreme Court rules.
No due process violation where Respondent Union’s counsel previously had informed Complainant (a bargaining unit member) that the firm would not represent her in her Workers Compensation case because there was insufficient money at stake.
D.C. Everest Area School District, DEC. NO. 29946-M (WERC, 6/04) appeal pending
After concluding that a principal’s animus contributed to the Superintendent’s otherwise lawfully motivated decision to lay off a teacher, the Commission awarded the teacher only back pay as a remedy, refusing to order reinstatement or front pay. Calling the circumstances “unusual,” the Commission viewed the teacher’s highly disruptive behavior toward administrators and other teachers prior to his layoff to have made reinstatement inappropriate. As to front pay, while allowing for the possibility under other circumstances, the Commission concluded that front pay would not be appropriate where the teacher’s own misconduct had made reinstatement infeasible.
Clark County, Dec. No. 16648-B (WERC, 6/04)
Administrative assistant to department head who has day-to-day responsibility for administering two labor agreements and who is member of bargaining team is confidential employee. Assistant types confidential labor relations documents and is present at and participates in management meetings.
Milwaukee Schools, Dec. No. 30590-B (WERC, 5/04)
Where unanticipated remedial issues arise at the conclusion of arbitration proceedings, employer is obligated to complete arbitration process but retains right to de novo review of arbitrator’s resolution of such remedial matters to the extent issues of substantive arbitrability are created.
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
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