Outline of Recent WERC Developments
May 1, 2008
What’s the Word from
May 1, 2008 --
by Peter G. Davis
WERC General Counsel **
(**The speaker’s remarks do not necessarily reflect the views of the WERC.)
1. 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.
Sixteen attorneys (9 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.
-$800 (split equally between union and employer) for
grievance arbitration cases where
-Still 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.
Passing of John Niemisto, Neil Gunderman and Bob (Mac) McCormick.
** The speaker’s
remarks do not necessarily reflect the views of the
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.
As part of its final offer in Sec. 111.70 (4) (cm) interest arbitration, union or employer can include a policy or work rule the text of which will not be included in the contract (if that parties’ final offer is selected) so long as final offer contains at least some language incorporating the specific proposed policy or rule into the contract.
The union or employer cannot be compelled to arbitrate an issue that was already decided in a prior arbitration award involving the same parties unless material facts have changed. Party arguing that issue has already been decided and the material facts are the same bears a heavy burden.
Employer must process a grievance through the contractual
grievance procedure even where it believes that the grievance is not procedurally
arbitrable. Employer must present procedural arbitrability defenses to the
arbitrator and the arbitrator’s ruling is binding. However, employer has option
of either presenting substantive arbitrability defenses to the arbitrator (and
then is entitled to de novo review of the arbitrator’s ruling) or can refuse to
process the grievance/refuse to arbitrate on substantive arbitrability grounds
and obtain a ruling from
Decision of the City as to whether to classify EMTs as “protective occupation participants” for purposes of Wisconsin Retirement System under Sec. 40.02 (48) (bm), Stats. is a mandatory subject of bargaining primarily related to wages. Statutory language that City’s decision “may not be appealed” does not preclude collective bargaining/interest arbitration over the decision.
If the work of an employee does not require knowledge customarily acquired through a four year specialized degree, employee is not a professional employee even if the employer requires a four year specialized degree because it wants employees who are more likely to perform the work at a high level of competence.
If the employee fits within the scope of an appropriate bargaining unit as described in the contract or the WERC election decision, the employee is included in the unit without regard to a “community of interest” analysis.
Disagreement over scope of right to engage in protected
concerted activity on work time does not constitute a statutory interference
violation by the employer.
Commission lacks jurisdiction to modify a final order on any basis on 21st day after issuance.
PROTECTION DISTRICT, DEC. NO. 31247-C (
Where complaint alleges conduct which, if proven, could improperly influence employees’ vote, election petition is held in abeyance until existence and impact, if any, of alleged conduct has been resolved.
Dispatchers’ somewhat distinctive community of interest is not sufficient to warrant separating them from existing unit given statutory anti-fragmentation impact.
Under MERA, if one union replaces another during the term of a contract, new union assumes responsibility for administering existing contract (except does not assume union security benefits) and pending grievances.
Duty to bargain may require that bargaining over mandatory subject of bargaining begin/be completed before implementation of a permissive subject of bargaining but a proposal that would preclude implementation of permissive subject of bargaining until completion of bargaining/interest arbitration over related mandatory subject of bargaining is itself a permissive subject of bargaining.
At request of interest arbitrator,
Circuit Court remands the matter to
Cover letter accompanying WERC examiner decisions now advises litigants of WERC’s view that a litigant cannot file a petition for judicial review unless the litigant has exhausted WERC remedies by filing a petition for review with WERC and obtaining a Commission decision.
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.
Joint Employer Status. CITY OF
Minimum Manning (firefighters) CITY OF SOUTH MILWAUKEE, Case 114 and (law enforcement) CITY OF GREEN BAY, Case 450.
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_may_2008.htm . Last modified on 27 JUL 2008. Comments, questions and suggestions