Outline of Recent WERC Developments
March 16, 2006
Presented to the State Bar Labor and Employment Section
16, 2006 (
By Peter G. Davis,
WERC General Counsel**
I. Agency Update
A. Commission Composition
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
Future of LMC
Second Annual WERC Conference April 28, 2006.
C. Status of Comprehensive Administrative Rule Revisions
Close to finish line.
D. Web Site
** The speaker’s remarks do not necessarily reflect the views of the WERC.
II. Case Law Update
“What we have here is a failure to communicate.”
No bad faith by College but by direct dealing/individual bargaining with employee regarding extension of probationary period, College violates its duty to bargain with the employee’s collective bargaining representative.
College claim that Union violated its duty to bargain in good faith because
Commission concludes that
Because they are not seeking to represent employees for the purposes of collective bargaining, employees seeking to decertify incumbent union must do so in context of the existing bargaining unit.
Because it is seeking to represent employees for purposes of collective bargaining, rival union can obtain ruling that a bargaining unit other than the existing unit is appropriate for an election.
Union withdrawal of election petition is with prejudice to refiling for one year where withdrawal occurs after hearing has been held and resources expended on preparation of post-hearing briefs.
Commission concludes that parties did not intend that union failure to meet contractual reopener deadline would produce loss of union right to bargain a successor agreement.
Contract did not specify a consequence for failing to meet deadline and at time deadline arose, incumbent union’s ongoing status as bargaining representative was unclear as ballots had not yet been counted in election in which rival union was seeking to replace incumbent.
Pro se litigant files unfair labor practice complaint with WERC against State and union alleging violations related to alleged unfair application of sick leave and attendance policies. Pro se litigant subsequently files essentially same factual claims in federal court against State and union alleging discrimination based on disability, race and gender. Litigant’s action is dismissed by federal court for lack of prosecution.
Commission concludes that doctrine of claim preclusion (using federal preclusion law because it is the preclusive effect of a federal judgment that is at issue) warrants dismissal of any timely claims because: (1) there is an identity of parties; (2) dismissal for failure to prosecute is a “final judgment” for purposes of preclusion; and (3) there is an identity of causes of action because the federal court would have had supplemental jurisdiction over SELRA claims, if brought, because state courts and WERC share original jurisdiction over SELRA claims.
Employer refuses to arbitrate grievance alleging request for arbitration was untimely. When deciding whether employer committed prohibited practice by refusing to arbitrate, examiner resolves the timeliness issue on its merits and, finding the request timely, orders the employer to proceed to arbitration.
Commission affirms the order that the employer proceed to arbitration but sets aside the examiner’s decision on the timeliness issue because law is clear that procedural defenses are for the arbitrator to decide. Commission warns that given the clarity of the law in this regard, future refusals to proceed to arbitration based on a procedural defense will likely yield an award of attorney’s fees and costs against employer pursuant to Sec. 227.483 (b), Stats.
Commission concludes a unit of regular full-time and regular part-time paramedics is an appropriate bargaining unit and Commission majority (Commissioner Gordon dissenting) concludes that unit is not rendered inappropriate by broad scope of existing recognition clause between City and another union where said other union had previously sought inclusion of the paramedics predecessors and taken no action when the City refused to include the positions.
Employee is a supervisor because he directs the work of 13-23 employees, plays a significant role in the hiring process, doesn’t perform the same work as the employees he supervises, and is compensated in part for his responsibility over the employees.
WERC holds complaint alleging discrimination and interference in abeyance pending outcome of ongoing grievance arbitration which WERC concludes may resolve the dispute in a manner consistent with WERC law. After receipt of arbitrator’s award, either party can ask WERC to resume complaint proceeding if complaint matters are not resolved by the award or are resolved in a manner inconsistent with WERC law.
BROWN COUNTY, DEC. NO. 31367-C (WERC, 11/05)
When determining admissibility, Commission concludes that privacy and confidentiality interests of representatives/attorneys as to their collective bargaining notes taken during bargaining session are to be balanced against the relevance/materiality (including witness credibility) of said notes to the issues in the proceeding.
WERC concludes that employer did not have an obligation to bargain during term of contract over parking availability because that issue is already addresses by the contract.
1975 agreement to limit unit to employees working 19 hours or more prevents union from including employees working fewer than 19 hours in the unit by way of unit clarification.
-Even though the part-time employees/positions in question did not exist in 1975, there were regular part-time employees in 1975 working fewer than 19 hours and thus exception #1 to the “deal is a deal” rule (i.e. the positions did not exist at the time the deal was made) is inapplicable.
-Even though the part-time employees/positions in question are performing work
previously performed by full-time unit employees who retired or quit, exception #3 to the “deal is a deal” rule (i.e. material change in circumstances) is inapplicable because an hours based exception has the inherent potential for erosion of bargaining unit work and no evidence of bad faith by employer.
-Given WERC’s past tolerance of units with such hours limitations, WERC will not now conclude that such existing units are inappropriate in this context. However, WERC indicates that in future it will not look kindly on such proposed units given the presumptive community of interest among all regular part-time employees and the statutory anti-fragmentation policy.
MENOMONIE SCHOOL DISTRICT, DEC. NO. 14738-D (WERC, 9/05)
Incumbent in newly created position that directs the work of, evaluates, and authorized overtime for one employee is not a supervisor where she spends most of her time performing work similar to that of the subordinate and her authority to effectively recommend discipline/hire is as part of consensus decision-making model.
No breach of the duty
of fair representation because
No breach of the duty
of fair representation because no evidence that
Union’s failure to provide contractual notice of reopening did not automatically renew contract where term of the agreement was in dispute at time of reopening date.
Unless tentative agreement has been ratified by both sides, no contract bar as to election petition.
Amount of time spent filling in for supervisors plays key role in determination that disputed employees are supervisors.
WERC discards the
MIDDLETON FIRE PROTECTION DIST. DEC. NO. 31247-A (WERC, 6/05)
Parties to election must honor their agreement as to who is eligible to vote.
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
(1) Two day duration of change (i.e. award was issued two days thereafter) was not de minimus.
not establish that
not establish necessity for change nor did
CESA #3, DEC. NO. 31292 (WERC, 3/05), REV’D CIRCT GRANT CASE 05-CV-217 11/05, APPEAL PENDING
Commission concludes that proposal which requires employer to provide “appropriate remedial assistance prior to instituting disciplinary procedures unless circumstances make such assistance impossible.” is a mandatory subject of bargaining primarily related to job security. Commission rejects argument that a prior decision of WERC and Wisconsin Supreme Court in Beloit Educ. Assoc. v. WERC, 73 Wis. 2d 43 (1976) warrants a contrary conclusion. Commission notes that the proposal does not dictate a specific type of assistance
Commission concludes that Confidential Secretary/Office Supervisor is not a supervisor or a confidential employee. As to supervisory issue, Commission determines that only one employee is allegedly supervised, incumbent has no disciplinary authority (independent or effective recommendation), incumbent’s role in hiring was significant but fell short of effective recommendation, and incumbent spends little time assigning work. Circuit Court reverses Commission as to supervisory issue concluding that incumbent has the effective authority to hire and and that Commission undervalued the authority of the incumbent to effectively recommend the performance evaluations the one employee.
Commission concludes that neither the Recycling Technician nor the GIS Mapper is managerial employees. Commission determines that while both are skilled professionals making significant contributions to county programs, neither have the level of influence on policy needed to establish managerial status. Circuit Court reverses as to the Recycling Technician and determines that the incumbent has both sufficient policy role and sufficient budgetary/financial authority to establish managerial status.
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.
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
Extent of employee (teachers) right to wear union buttons/place union signs in workplace. MILWAUKEE SCHOOLS, CASE 433
Role of a renounced past practice when determining the status quo during a contract hiatus. SUN PRAIRIE SCHOOLS, CASE 105
QEO implications if part of a fringe benefit (early
retirement) is/maybe illegal.
Implications of post-hearing receipt of another
interest arbitrator’s award. CITY OF
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