Outline of Recent WERC Developments

 November 2, 2006


Presented to Wisconsin Education Association Council Staff

 

By  Peter G. Davis,

WERC General Counsel

 

(The speaker’s remarks do not necessarily reflect the views of the WERC.)


 

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 term expired March 2005.

 

Dennis McGilligan and Dave Shaw retire.

 

Steve Morrison (Wausau office) and Danielle Carne (Madison office) hired.

 

Sixteen attorneys (9 in Madison and 7 out state) and 4.5 support staff.

 

Third Annual WERC Public Sector Labor Law Conference scheduled for May 3, 2007.

 

-Offices at 18 South Thornton Ave. Madison, Wisconsin.

-Mailing address is P.O. Box 7870, Madison, Wisconsin 53707-7870

-Phone is (608) 266-1381

-Fax is (608) 266-6930

-Email is werc@werc.state.wi.us.

 

-Website is http://werc.wi.gov/

 

 

II.               New WERC Administrative Rules

 

-Comprehensive revision of all WERC administrative rules relating to the Wisconsin Employment Peace Act, Municipal Employment Relations Act, and State Employment Labor Relations Act.

-Applicable to all matters filed on or after August 30, 2006.

-Revisions bring rules into conformity with law and agency practice and allow most matters to be filed with/sent to WERC electronically or by fax.

-However, matters requiring a filing fee (complaints and requests for grievance arbitration, mediation, fact finding and interest arbitration) are not filed until the fee is received (electronic payment not accepted) and the  showing of interest accompanying election or referendum petition must have “original” signatures and this cannot be filed electronically or by fax.

-Rules remain largely procedural and do not contain many changes of consequence for advocates.

-However, in complaint cases, affirmative defenses must be raised in the answer or are waived and the time for filing an answer or a motion to make a complaint more definite and certain has been lengthened and standardized.

 

 

III.           Recent WERC Decisions

 

CITY OF STURGEON BAY, DEC. NO. 31880 (WERC, 10/06)

 

Statement by interest arbitrator that “ the arbitrator will effect simultaneous exchange and declare the hearing closed upon receipt of the briefs.” cannot reasonably be understood to also mean that the record cannot be reopened, upon motion, for receipt of relevant evidence not available at the time of the hearing. Thus, the interest arbitrator did not err by considering interest arbitration award issued by another arbitrator involving a different bargaining unit of employees of the same municipal employer which award was relevant evidence as it constituted “Changes in  . . circumstances during the pendency of the arbitration proceedings.” within the meaning of Sec. 111.70 (4)(cm) 7r., Stats.

 

SAUK COUNTY, DEC. NO. 27107-B (WERC, 10/06)

 

Employee who participated in hiring decisions, independently evaluated employees, issued recorded verbal reprimands, and directed the work of four employees on a daily basis is a supervisor.

 

STATE OF WISCONSIN, DEC. NO. 31271-B (WERC, 8/06)

 

Employer has no duty to bargain-related obligation to provide presumptively relevant names and addresses of current unit members to incumbent union where sole purpose for said information identified by incumbent was communicating with employees to persuade to vote for incumbent in future representation election (i.e. for a purpose found to be outside the incumbent’s current statutory duty as bargaining representative.

 

MILWAUKEE BOARD OF SCHOOL DIRECTORS, DEC. NO. 31732 (WERC, 8/06); APPEAL PENDING CIR CT

 

Commission concludes that during bargaining over a successor agreement, teachers have right to wear bargaining-related buttons in classroom and Commission majority (Commissioner Gordon dissenting) concludes that teachers have right to place bargaining-related signs in classroom in same location as teachers are allowed to place personal pictures/posters.

 

CITY OF EAU CLAIRE, DEC. NO. 29346-D (WERC, 6/06)

 

Commission departs from normal practice of ordering interest (at statutory rate of 12%) on back pay because applicable rate of pay and/or number of hours of work could not determined until Commission issued decision.

 

RACINE COUNTY, DEC. NOS. 31377-C,31378-C (WERC, 6/06)

 

Commission exercises its remedial discretion and modifies Examiner order by eliminating employee obligation to repay monies saved by employees due to Employer’s unlawful unilateral modification of status quo as to health insurance premiums.

 

STATE OF WISCONSIN, DEC. NO. 31240-B (WERC, 5/06)

 

Applying doctrine of issue preclusion to question of whether the employer had failed to comply with an arbitration award by subsequently discipline of grievant for same conduct found improper by arbitrator, Commission concludes that no violation of law occurred because it could not be determined from the expedited/no rationale nature of the award what issue was decided.

 

SCHOOL DISTRICT OF NEW BERLIN, DEC. NO. 31243-B (WERC, 4/06)

 

Employer can be critical of Union representative but commits illegal interference and domination when Employer adds that relationship would improve if identity of union representative changed and offers to help employees seek such a change.

 

SUN PRAIRIE SCHOOLS, DEC. NO. 31190-B (WERC, 3/06), DEC. NO 31190-D (WERC, 8/06), APPEAL PENDING CIR CT

 

Where long standing (20 year) past practice conflicts with clear contract language, employer can renounce practice (at least in presence of a zipper clause) and union has burden of acquiring contract language supporting continuation of the practice in the next contract. However, employer must maintain practice during any contract hiatus until new contract is reached.

 

 

 

STATE OF WISCONSIN, DEC. NO. 31207-C (WERC, 3/06)

 

Employer did not modify the status quo and thus did not violate its duty to bargain with Union by ending two year practice instituted by supervisor as to breaks and meals. Supervisor had no authority to create such practices and said practices were unknown to management.

 

BROWN COUNTY, DEC. NO. 11983-J (WERC, 3/06) APPEAL  PENDING CIR CT

 

Judicial Assistants who are selected and supervised by circuit court judges and can be removed from their positions at the judge’s discretion (but not from employment with the County) are employees of the County because Sec. 758.19(h), Stats. so states and because County establishes compensation, assists in supervision and hiring, controls discipline (except for removal from position) and has input into hours of work.

 

Judiciary’s “core zone of exclusive authority” and restrictions that authority establishes on what portions of a contract apply to the Assistants do not prohibit inclusion of the Assistants in a bargaining unit.

 

Potential for occasional: (1) advance knowledge of how a labor case will be decided; and (2) monitoring performance of other unit employees is not sufficient to make the Assistants confidential employees.

 

NORTHCENTRAL TECHNICAL COLLEGE, DEC. NO. 31117-C (WERC, 2/06)

 

“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.

 

Commission rejects College claim that Union violated its duty to bargain in good faith because Commission concludes that Union did not “lay in the weeds” until College missed statutory non-renewal deadline.

 

ST. CROIX COUNTY, DEC. NO. 31608 (WERC, 2/06)

 

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.

 

 

 

 

MILWAUKEE CHAMBER ORCHESTRA, DEC. NO. 31580 (WERC, 1/06)

 

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.

 

 

VILLAGE OF GRAFTON, DEC. NO. 31579 (WERC, 1/06)

 

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.

 

STATE OF WISCONSIN, DEC. NO. 30808-A (WERC, 1/06)

 

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. 

 

MONROE COUNTY, DEC. NO. 31346-B (WERC, 1/06)

 

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.

 

 

 

 

CITY OF SUN PRAIRIE, DEC. NO. 31564 (WERC, 12/05)

 

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.

 

MANITOWOC COUNTY, DEC.NO. 31547 (WERC, 12/05)

 

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.

 

STATE OF WISCONSIN, DEC. NO. 31384-B (WERC, 11/05)

 

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.

 

CITY OF MILWAUKEE, DEC. NO. 31221-B (WERC, 10/05)

 

 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.

 

CESA #3, DEC. NO. 31292 (WERC, 3/05), REV’D CIRCT GRANT CASE 05-CV-217 11/05, AFFIRMED CT APP. DIST III 10/06 (UNPUBLISHED)

 

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.

        BAYFIELD COUNTY, DEC. NO. 31291 (WERC, 3/05), REV’D CIRCT

          BAYFIELD, 05 CV 43 2/06; APPEAL PENDING CT APP

 

          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 supervising work. Circuit Court reverses as to supervisory issue concluding that incumbent has the effective authority to hire and the Commission undervalued the authority of the incumbent to effectively recommend the performance evaluations of the one employee.

 

 

 

EDGERTON FIRE PROTECTION DISTRICT, DEC. NO. 30686-B (WERC, 2/05) Aff’d circt rock  05-cv-348 2/06 Appeal  pending CT APP

 

Commission concludes employer terminated all three bargaining unit employees at least in part out of unlawful animus. Commission further concludes that employer decision to eliminate its full-time fire fighters while continuing to provide the same level of service through volunteers is a mandatory subject of bargaining.

 

 

ST. CROIX COUNTY, DEC. NO. 8932-M (WERC, 1/05) REV’D CIRCT ST. CROIX O5-CV-348 3/06, APPEAL  PENDING CT APP

 

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.

 

 

PENDING ISSUES

 

Joint Employer status. CITY OF MILWAUKEE, CASE 100

 

QEO implications if part of a fringe benefit (early retirement) is/maybe illegal. PORT EDWARDS SCHOOLS, CASE 14

 

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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_november_2006.htm . Last modified on 10 NOV 2006. Comments, questions and suggestions