WISCONSIN SCHOOL ATTORNEYS ASSOCIATION
OCTOBER 12, 2000 MEMBERSHIP MEETING
WERC UPDATE
Peter G. Davis *
General Counsel
Wisconsin Employment Relations Commission
* The speaker’s remarks do not necessarily represent the views of the Wisconsin Employment Relations Commission.
-Steve Bohrer and John Emery
-Laura Millot and Steve Morrison
-Doug Knudson
-Assistant Attorney General John Niemisto
-Personnel Management
-Drop in Caseload
-1999 Wisconsin Act 9 deletes lane payments as a QEO component effective July 1, 2001.
-Can a QEO exceed 3.8%?
-Is a proposal to commence the "school term" before September 1 a mandatory subject of bargaining in light of Sec. 118.045, Stats.?
Pending before WERC in MONONA GROVE SCHOOLS DR(M)-614.
-Is the decision to install and use hidden video cameras in the workplace to investigate allegations of employee misconduct a mandatory subject of bargaining?
No. RACINE SCHOOLS, DEC. NO. 29846-A (JONES, 9/2000), appeal pending before the Commission.
-Is a grievance settlement agreement which includes a waiver of an individual employee’s federal statutory claims enforceable as a collective bargaining agreement?
No. THOMSEN V. WERC, 234 WIS.2D 494 (CTAPP 2000)
-Does a union’s refusal to bargain mid-term create an impasse which allows the employer to unilaterally implement?
No impasse is created but the employer can implement in the face of the union’s illegal conduct. RACINE SCHOOLS, DEC. NO. 29659-B (WERC, 4/2000)-Hempe dissents. Appeal pending.
-Is an employee who can hire and fire always a supervisor?
No. MONTELLO SCHOOLS, DEC. NO. 29958 (WERC, 8/2000)
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What distinctions can an employer make between its treatment of the collective bargaining representative and a minority union?Only matters which are necessary to meet the majority union’s obligations as the exclusive collective bargaining representative. STATE OF WISCONSIN, DEC. NOS. 29448-C, 29495-C, 29496-C, 29497-C (WERC, 8/2000) appeal pending.
-Must an employee engage in protected concerted activity before the employer can be guilty of illegal interference?
No. WESTOSHA SCHOOLS, DEC. NO. 29671-C (WERC, 8/2000)
-Is post decision employer conduct relevant when determining whether the employer acted adversely toward an employee at least in part because of the employee’s exercise of protected rights?
Yes. NORTHEAST WISCONSIN TECHNICAL COLLEGE, DEC. NO. 28909-D (WERC, 3/99) AFF’D CirCt Brown 99 CV 517 (1/2000).
-Does the employer’s duty to provide information to the union during bargaining extend to information the employer has not relied on when creating its own bargaining proposals?
Yes. TREMPEALEAU COUNTY, DEC. NO. 29598-B (WERC, 1/2000)
An -Are attorney fees and costs ever available to a respondent in a WERC complaint case?
No. WSEU, DEC. NO. 29177-C (WERC, 5/99) Hempe dissents.
-Do the statutory rules of evidence apply in WERC complaint cases?
Yes. Sec. 111.07(3), Stats. and BROWN COUNTY, DEC. NO. 29094-B (WERC, 11/99) appeal pending CirCt Brown 99 CV 1671
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When positions are added to a bargaining unit during the term of a contract, does the existing contract automatically apply to the position?-If not, is interest arbitration available to resolve any impasse in collective bargaining over wages, hours and conditions of employment?
GREEN BAY SCHOOLS, DEC. NO. 29827 (WERC, 2/2000)
Existing contract automatically applies if the parties’ contract
already establishes the position’s wages, hours and conditions of employment. No bargaining and no interest arbitration.
VERNON COUNTY, DEC. NO. 13805-I (WERC, 2/2000)
If existing contract does not already establish the position’s
wages, hours and conditions of employment, then the parties must bargain and interest arbitration is available to resolve any impasse.
-Can a union and employer settle and ratify two 2-year contracts at the same time? Can the ratification of each contract be contingent on ratification of both contracts?
Yes. Yes. NEW BERLIN SCHOOLS, DEC. NO. 29665 (WERC, 8/99) No. No. CirCt Waukesha, 99-CV-1814 (4/2000).
Appeal pending Court of Appeals.
-Is employee access to all of the employer’s computer files sufficient to make the employee a confidential employee?
-Is employee responsibility to monitor for and report improper use of the employer’s computer resources sufficient to make the employee a confidential employee?
No. No. MINERAL POINT SCHOOLS, DEC. NO. 22284-C (WERC, 9/2000)-Meier dissent as to monitoring.
-Where parties agree to exclude an employee from a bargaining unit because they agree that employee is not a "municipal employee" (i.e. is a supervisor, a confidential, managerial or executive employee), does that agreement bar a subsequent unit clarification petition seeking to include the employee in the unit?
No. MANITOWOC SCHOOLS, DEC. NO. 29771-B (WERC, 7/2000)-Meier dissents.
-Where the parties agree to include an employee in the bargaining unit because they agree that employee is a "municipal employee" (i.e. is not a supervisor, a confidential, managerial or executive employee), does that agreement bar a subsequent unit clarification petition seeking to exclude the employee from the bargaining unit as a supervisor, confidential etc.
No. RIB LAKE SCHOOLS, DEC. NO. 29625-B (WERC, 7/2000)-Meier dissents.
For litigation of related issues, see WONEWOC-UNION CENTER SCHOOL DISTRICT, DEC. NO. 29813-A (GRECO, 8/2000), appeal pending before the Commission.
-Did the WERC exceed its statutory authority when promulgating QEO rules ERC 33.10(3)(b), 33.10(5), 33.10(6) and ERC 33 Appendix?
-No. WEAC V. WERC, CirCt Dane, 98 CV 1473 (8/2000)
-Can permissive subjects of bargaining be "fringe benefits" which must be maintained as part of a QEO?
No. DODGELAND SCHOOLS, DEC. NO. 29490 (WERC, 1/99) Hempe dissents. Aff’d CirCt Dodge 99 CV 41 (12/99), appeal pending CtApp Dist IV.
-Does a QEO exist when the school district makes a written offer to provide whatever salary and fringe benefits are mandated by Sec. 111.70(1)(nc), Stats.?
Yes. ERC 33.10(3)(a) and RACINE SCHOOLS, DEC. NO. 29310 (WERC, 2/98) affirmed CtApp Dist II 99-0765 (6/2000) published opinion, citation unavailable, petition for review filed.
-Can a QEO exceed the minimum salary component established by Sec. 111.70(1)(nc), Stats.?
Yes. RACINE SCHOOLS, SUPRA. No. CtApp Dist II, SUPRA, petition for review filed.
-Is a school district allowed to correct mistakes in the calculation/implementation of a QEO?
Yes. RACINE SCHOOLS, SUPRA. petition for review filed.
-Does the law mandate use of a fixed complement of teachers when a QEO is calculated?
Yes. RACINE SCHOOLS, SUPRA. petition for review filed.
-When a school district self-insures, should stop-loss insurance costs, medical management service costs and an inflation factor costs be included as part of the fringe benefit QEO calculations?
Yes. RACINE SCHOOLS, SUPRA. petition for review filed.
-Will WERC resolve issues as to whether an attorney can properly represent a party before the WERC?
Yes. CITY OF KENOSHA, DEC. NO. 29715-A (NIELSEN, 1/2000) aff’d DEC. NO. 29715-C (WERC, 8/2000)
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