Outline of Recent WERC Developments -- March 2005
WERC UPDATE
Presented to labor and employment section
state bar of wisconsin
By Peter G. Davis,
WERC General Counsel**
March 17, 2005-Milwaukee
March 18, 2005-Madison
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 –confirmed for a term expiring March 2005.
WERC Public Sector Labor Law Conference
April 29, 2005-UW Law School, Madison
Hiring Process
Budget Process
Close to finish line.
** The speaker’s remarks do not necessarily reflect the views of the WERC.
II. Case Law Update
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.
Scope of fringe benefits under QEO-MARKESAN SCHOOLS, CASE 8
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
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_august_2003.htm . Last modified on 21 MAR 2005. Comments, questions and suggestions