Wisconsin Employment Relations Commission

Recent Developments at the
Wisconsin Employment Relations Commission


Presented by Peter G. Davis ***

General Counsel

(608) 266-2993 or peter.davis@werc.state.wi.us.

 

State Bar of Wisconsin Labor and Employment Law Section

 March 18, 1999-Milwaukee

March 19, 1999-Madison

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*** THE VIEWS EXPRESSED IN THIS PRESENTATION ARE THOSE OF THE SPEAKER AND NOT NECESSARILY THOSE OF THE WERC.

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THE AGENCY 

Commission Composition-Chair James R. Meier, Commissioner A. Henry Hempe, Commissioner Paul A. Hahn

Major Focus-Timeliness of Decisions

Technology-Web Site-See Appendix A-Marshall L. Gratz (414) 963-4695

Resources-Eau Claire Office staffed by Steve G. Bohrer and John R. Emery

New Madison Office Location-18 South Thornton, Madison WI 53703.

Phone number (608) 266-1381; P.O. Box (7870 53707-7870); fax number (608) 266-6930; and e-mail address (werc@werc.state.wi.us.) remain the same.

1999-2001 Budget-See Appendix B

 

RULE MAKING

Revision of ERC 33 to reflect 1997 Wisconsin Act 237 (3.8% minimum QEO)

Forms A and B unchanged

Form C revised-See Appendix C

 Completion of Filing Fee Rule Process

 

RECENT COMMISSION DECISIONS

 Dodgeland School District, Dec. No. 29490 (WERC, 1/99)-on appeal

  Preparation time still a permissive subject of bargaining.

  Permissive subjects of bargaining are not "fringe benefits"within the meaning of Sec. 111.70(1)(nc)1.a.,Stats. and thus need not be maintained as part of a qualified economic offer.

  Permissive subjects of bargaining are neither "economic" nor "noneconomic issues" within the meaning of Secs. 111.70 (1)(dm) and (4)(cm)5s., Stats. and thus there is no right to proceed to interest arbitration as to such subjects.

 City of Milwaukee, Dec. No. 29547 (WERC, 3/99)

  Pension proposal does not infringe on the constitutional due process rights of current pension system members.

 City of Eau Claire, Dec. No. 29546 (WERC, 2/99)

  13 (c) Agreement under Urban Mass Transit Act does not protect permissive subjects of bargaining from evaporation from contract upon its expiration.

UW Hospitals-Dec. No. 29093-B (WERC, 11/98)

  Attorneys' fees and costs not available to any party in non-complaint cases.

  Attorneys' fees and costs are never available to responding parties in complaint cases.

  Attorneys' fees and costs are not routinely available to victorious complainants in complaint cases.

State of Wisconsin-Dec. No. 28222-C (WERC, 7/98)

  Statute of limitations is an affirmative defense which can be waived by failure to raise in a timely manner.

Oneida County-Dec. No. 24844-F (WERC, 1/99)-on appeal

Ozaukee County-Dec. No. 22667-F (WERC, 1/99)

Chief Deputy for County Treasurer, Clerk of Court, County Clerk, and Register of Deeds are not automatically excluded from bargaining unit simply by virtue of their "chief deputy" status.

 Racine Schools, Dec. No. 29203-B (WERC, 10/98)

  WERC will not assert jurisdiction over a violation of status quo/duty to bargain complaint case filed after 10/22/98 if any applicable grievance procedure in an expired contract has not been exhausted.

  Allocation of burden of proof in violation of contract complaint cases involving the discipline of employes allegedly for just cause (i.e. complainant establishes a prima facie case and the burden shifts to respondent to establish just cause) does not necessarily apply to status quo/duty to bargain complaint cases involving discipline of an employe for just cause.

 Rock County, Dec. No. 29219-B (WERC, 10/98)

  Despite pendency of an election proceeding, County violated its duty to bargain by failing to place new professional positions in an existing professional unit and unilaterally establishing the employes' wages, hours and conditions of employment.

  County ordered to bargain the wages, hours and conditions of employment but the Commission rejects the Union request that the unilaterally created wages, hours and conditions of employment be rescinded before bargaining begins.

 City of Milwaukee, Dec. No. 29270-B (WERC, 12/98)-on appeal

  During promotional interview, City interfered with employe rights by asking employe about his grievance activity.

  No interference to ask about attendance record.

 Racine Schools, Dec. No. 29195-B (WERC, 7/98)-on appeal

  District did not violate its status quo obligation to provide "comparable" LTD benefits when it changed carriers. Comparability allows for the balancing of benefit improvements against benefit reductions.

 Madison Schools, Dec. No. 28832-A (WERC, 9/98)

  Application of the "relevant and reasonably necessary" standard and the employer's asserted confidentiality interest to a union request for teacher performance information.

 City of Milwaukee, Dec. 29402 (WERC, 6/98)

Pre-employment contract is not a mandatory subject of bargaining but employer must bargain the impact of such a contract on employe wages, hours and conditions of employment.

Green Bay Schools, Dec. No. 28871-B (WERC, 4/98)

Commission does not determine whether a teacher's refusal to attend a school open house is lawful concerted activity or a strike within the meaning of Sec. 111.70(1)(nm), Stats.

Consideration of the interplay between conduct which may have a reasonable tendency to interfere with the exercise of rights under Sec. 111.70(2) and conduct based on a "valid business reason."

City of Madison, Dec. No. 28920-B (WERC, 4/98);aff'd CirCt Dane 98 CV 1397 1/99; may be appealed to Court of Appeals.

  Refusal to arbitrate-Interplay between Sec. 62.13, Stats. and collective bargaining agreement.

Racine Schools, Dec. No. 29310 (WERC, 2/98); aff'd CirCt Racine 98 CV 0887; appeal pending Court of Appeals

  QEO exists when district commits itself to do whatever law requires.

  District has opportunity to correct errors made in the implementation of a QEO.

  Statutory QEO definition establishes the minimum amount which can be offered.

  Forms A and B are not part of a QEO.

  Errors in Forms A and B can be corrected.

City of Marshfield, Dec. No. 28973-B (WERC, 3/98)

  Where a union has no reason to know that it should ask for "relevant and reasonably necessary" information, employer's failure to provide that information may violate the duty to bargain.

 Town of Madison, Dec. No. 28647-C (WERC, 5/98)-on appeal

  Grievant found to have violated Sec. 111.70(3)(a)5, Stats. by failing to comply with the terms of a settlement agreement. Grievant not entitled to rely on the contingency of subsequent attorney review unless the employer is advised of such a contingency.

Racine Schools, Dec. No. 28614-D (WERC,1/98)-aff'd in part and rev'd in part CirCt Racine 98-CV-752 11/98

Application of the doctrine of "necessity" to an employer claim that it needed to unilaterally increase employe wages to retain/acquire employes

Mayville School District, Dec. No. 25144-E (WERC, 1/98)

Municipal employer can waive the protections of Sec. 893.80, Stats. as to health and dental claims where the employer self-insures health and dental benefits.

 

PENDING COMMISSION CASES

Marathon County-Declaratory Ruling

Is the statutory forum for review of discipline imposed on county law enforcement employes exclusive or can alternative review mechanisms be bargained?

 

COURT DECISIONS

Madison Teachers, Inc. v. WERC, 218 Wis. 2d 75 (Ct. App. 1998)

Court affirms Commission and concludes district policy had no impact on employe wages, hours and conditions of employment so no "impact" bargaining required.

Local 60, Am. Fed. Of Mun. Employees v. WERC, 217 Wis. 2d 602 (Ct. App. 1998)

Court reverses Commission and concludes interest arbitration is available to establish wages, hours and conditions of employment of bargaining unit positions created during the term of a contract.

Racine Education Ass'n v. WERC, 214 Wis. 2d 353 (Ct. App. 1997)

Court affirms Commission and concludes that year round school is a permissive subject of bargaining. The year round school calendar in question did not require that teachers work more days than under the traditional calendar.

La Crosse Prof. Police Ass'n v. City of Lacrosse, 212 Wis. 2d 90 (Ct. App 1997)

Arbitrator exceeded his powers when he issued interest award which modified the offer selected.


[Appendix A]

WERC ELECTRONIC PUBLICATIONS UPDATE -- March, 1999

AGENCY WEBSITE -- (http://werc.wi.gov/index.htm) The WERC has launched a site on the World Wide Web. The site is intended to provide information about, and easy access to the WERC and its personnel and services. It includes a wide range of materials organized under the following categories: [services and personnel] [statutes, rules and ethics codes] [case processing forms and guides] [case databases and digests] [news and publications] [links to other resources] and [about this site]. The site includes address, phone, fax and e-mail listings for all WERC personnel; case handling manuals; forms; decision digests published by the WERC; ad hoc arbitrator bios, and links to the WisBar databases described below.

WERC DECISIONS AND GRIEVANCE AWARDS ON WISBAR WEBSITE -- (http://www.wisbar.org/werc/) In partnership with the State Bar of Wisconsin, the WERC has placed on the Bar's WisBar website separate databases of its decisions and of the grievance awards issued by WERC-employed arbitrators. Those documents, from about July 1989 to date, can be viewed on-line, copied and pasted in plain text format, saved in HTML format or downloaded in native word processor format (earlier files in WordPerfect versions 5.0 or 5.1 for DOS and later files in Microsoft Word versions 7.0 or 97). The WisBar site permits searching of the entire respective decisions and grievance awards databases by use of the WisBar's search engine software. The WisBar site also has respective sets of indexes of decisions and grievance awards indexed by calendar year and within each calendar year by tribunal/arbitrator, employer/respondent, date of issuance, and decision number/award type number.

Future Electronic Publications:

Decisions and Grievance Awards on CD-ROM -- The agency intends to publish the decisions and grievance awards databases described above from July, 1989 through December, 1999, in CD-ROM form. The single CD-ROM will likely include those databases with case lists hyperlinked to the files in both Word 97 and Rich Text Format, and an additional set of the files in WordPerfect 5.1 for DOS with a case list that is not hyperlinked. No search engine software will be included.

Interest Awards -- The agency intends to scan and publish in CD-ROM form interest awards issued since 1971. Because the scanning process will recognize most but not all of the award text accurately, the awards will likely be published in PDF Image + Hidden Text format with case tables hyperlinked to the award files and with software enabling limited but useful multi-file text searching included. Interest awards issued between CD-ROM publications will likely be downloadable from (but not multi-file text searcable on) the WERC website.

Digests -- All WEPA, SELRA and MERA digests published by WERC are already available on the WERC website for viewing, simple searching, printing, and downloading. The Wisconsin Association of School Boards, which has published MERA digests since 1975, has announced plans to publish all of its MERA digests in CD-ROM form in the near future.

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Please direct your questions, comments and suggestions about the matters above to Marshall Gratz, WERC, 4449 North Maryland Avenue, Shorewood, WI 53211; voice 414-963-4695; fax 414-936-4922; e-mail werc@werc.state.wi.us.

 

[The remainder of this Appendix consisted of a printout of the contents page from the WERC website. That page, as updated from time to time, can be viewed at http://werc.wi.gov/index.htm.]


[Appendix B]

[This appendix contains the Legislative Fiscal Bureau Summary of WERC 1999-2001 budget in Adobe PDF format, which requires use of the free Adobe Acrobat Reader software.]


[Appendix C]

EMPLOYMENT RELATIONS COMMISSION

 

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

QUALIFIED ECONOMIC OFFER INSTRUCTIONS

FORM C

Utilize the following instructions to determine the components of a minimum qualified economic offer.

Note: If payment of any appropriate salary increase would raise your fringe benefit costs (due to resultant social security and retirement cost increase) above 1.7% of the step 3 (base cost), then reduce the salary increase in the amount necessary to keep the combined cost of fringe benefits, steps, lanes/promotions, and average salary increase at 3.8% of the step 3 (base cost).

DEVELOPING A MINIMUM QUALIFIED ECONOMIC OFFER

When calculating any appropriate salary increase or decrease, include any increased or decreased salary cost in extended contracts, co-curricular pay, extra duty pay, etc., which is produced by salary schedule increases or decreases or payment of steps or lanes.

1. Complete Forms A and B.

2. Using the information on Form A, determine how the law requires you to proceed by identifying the cost combination that applies to the first 12-month period of your offer.

A. If the combined costs identified by Step 6 (fringe benefits), Step 8 (steps), and Step 10 (promotions/lanes) are less than 3.8% of Step 3 (base cost), then you must do the following for all employes who are actually represented by the labor organization for the purposes of collective bargaining and contract administration.

1. Maintain all fringe benefits identified on Form B and the district's percentage contribution toward the cost thereof.

2. Pay all eligible employes any salary increase to which they are entitled by virtue of an additional year of service on the salary schedule. Include longevity payments if they are part of the salary schedule.

3. Pay all eligible employes any salary increase to which they are entitled by virtue of a promotion or additional professional qualifications.

4. Pay an average salary increase to all employes in an amount determined by the difference between 3.8% of the Step 3 (base cost) and the combined cost of Step 6 (fringe benefits), Step 8 (steps) and Step 10 (promotions/lanes) and in a manner which does not alter the relationship between steps and lanes in your existing salary structure. The options available for distribution of the general salary increase are a uniform dollar amount increase on each salary cell; or a uniform % increase to each salary cell; or an increase in the base which increases each cell in accordance with the existing salary structure. 

B. If the combined costs identified by Step 6 (fringe benefits), Step 8 (steps) and Step 10 (promotions/lanes) are 3.8% of Step 3 (base cost), then you must do the following for all employes who are actually represented by the labor organization for the purposes of collective bargaining and contract administration.

1. Maintain all fringe benefits identified on Form B and the district's percentage contribution toward the cost thereof.

2. Pay all eligible employes any salary increase to which they are entitled by virtue of an additional year of service on the salary schedule. Include longevity payments if they are part of the salary schedule.

3. Pay all eligible employes any salary increase to which they are entitled by virtue of a promotion or additional professional qualifications.

 C. If the combined costs identified by Step 6 (fringe benefits), Step 8 (steps), and Step 10 (promotions/lanes) are more than 3.8% of Step 3 (base cost), but the combined costs of Step 6 (fringe benefits) and Step 8 (steps) are less than 3.8% of Step 3 (base cost), then you must do the following for all employes who are actually represented by the labor organization for the purposes of collective bargaining and contract administration.

1. Maintain all fringe benefits identified on Form B and the district's percentage contribution toward the cost thereof.

2. Pay all eligible employes any salary increase to which they are entitled by virtue of an additional year of service on the salary schedule. Include longevity payments if they are part of the salary schedule.

3. Calculate the prorated portion of Step 9 (Promotions/lanes) which can be funded by 3.8% of Step 3 (base cost) minus the cost of Step 5 (fringe benefits) and Step 7 (steps). To identify the proration percentage, identify the amount of money available to fund promotions/lanes and divide by the amount of money necessary to fully fund promotions/lanes.

 Pay the same prorated salary increase to all eligible employes entitled thereto by virtue of an additional promotion or the additional attainment of professional qualifications. For example, if the foregoing calculation would allow payment of one-half of the Step 9 (Promotions/lanes) salary increase to eligible Step 1 employes, you must pay one-half of the salary increase to which your actual employes are entitled by virtue of promotions/additional qualifications during the first 12 months of your offer.

 D. If the combined costs identified by Step 6 (fringe benefits) and Step 8 (steps) are 3.8% of Step 3 (base cost), then you must do the following for all employes who are actually represented by the labor organization for the purposes of collective bargaining and contract administration.

 1. Maintain all fringe benefits identified on Form B and the district's percentage contribution toward the cost thereof.

 2. Pay all eligible employes any salary increase to which they are entitled by virtue of an additional year of service on the salary schedule. Include longevity payments if they are part of the salary schedule.

E. If the combined costs identified by Step 6 (fringe benefits) and Step 8 (steps) are more than 3.8% of Step 3 (base cost), but the cost of Step 6 (fringe benefits) is less than 3.8% of Step 3 (base cost), then you must do the following for all employes who are actually represented by the labor organization for the purposes of collective bargaining and contract administration. 

1. Maintain all fringe benefits identified on Form B and the district's percentage contribution toward the cost thereof.

2. Calculate the prorated portion of Step 7 (steps) which can be funded by 3.8% of Step 3 (base cost) minus the cost identified by Step 5 (fringe benefits). To identify the proration percentage, identify the amount of money available to fund steps and divide by the amount of money necessary to fully fund steps.

Pay the same prorated salary increase to all eligible employes entitled thereto by virtue of an additional year of employment on the salary schedule. Include longevity payments if they are part of the salary schedule. For example, if the foregoing calculation would allow payment of half of the Step 7 (steps) salary increase to eligible Step 1 employes, you must pay one-half of the salary increase to which any of your actual employes are entitled by virtue of an additional year of service on the salary schedule during the first 12 months of your offer. 

F. If the cost identified by Step 6 (fringe benefits) is 3.8% of Step 3 (base cost), then you must do the following for all employes who are actually represented by the labor organization for the purposes of collective bargaining and contract administration. 

1. Maintain all fringe benefits identified on Form B and the district's percentage contribution toward the cost thereof. 

G. If the cost identified by Step 6 (fringe benefits) is more than 3.8% of Step 3 (base cost), then you must do the following for all employes who are actually represented by the labor organization for the purposes of collective bargaining and contract administration. 

1. Maintain all fringe benefits identified on Form B and the district's percentage contribution toward the cost thereof. 

2. You may decrease the salary of all employes in an amount determined by the difference between the cost identified by Step 6 (fringe benefits) and 3.8% of Step 3 (base cost) and in a manner which does not alter the relationship between steps and lanes on your existing salary structure. The options available for distribution of the average salary decrease are a uniform dollar amount decrease on each salary cell; or a uniform % decrease on each salary cell; or a decrease in the base which decreases each cell in accordance with the existing salary structure. 

For the second year or portion thereof, repeat your evaluation of options A-G utilizing the costs identified in steps 13-18 of Form A.

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