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Outline of Recent WERC Developments – October 21, 2004



Presented to Wisconsin School Attorneys Association

By Judy Neumann, WERC Chairperson and Peter G. Davis,

WERC General Counsel**


October 21, 2004-Madison




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 –confirmed for a term expiring March 2005.


B. Activities


WERC Public Sector Labor Law Conference

April 29, 2005-UW Law School, Madison


WERC Public Forums

                   October 26-Eau Claire 

October 28-Milwaukee


Ad Hoc Arbitrator Training

                   September 2004


C. Status of Comprehensive Administrative Rule Revisions


Close to finish line.


D. Web Site




          ** The speakers’ remarks do not necessarily reflect the views of the WERC.


II. Case Law Update


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)


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.



UW Hospitals and Clinics Authority, Dec. No. 30202-C (WERC, 4/04)


The Commission affirmed the hearing examiner’s conclusion that the Hospital interfered with the employees’ right to engage in lawful concerted activity by ending Union access to Hospital e-mail system.


Commission balances the nature and weight of employee and employer interests and concludes that employee interests predominate.  Legitimate Hospital interests in avoiding interference with productivity and protecting integrity and functioning of e-mail system found to be of little weight because Hospital terminated access only after Union e-mail to employees accusing Hospital of using "union busting" tactics during bargaining, Hospital did not take action to block all outside access, and Hospital generally allowed personal use of its e-mail system by employees.


Commission notes that use of e-mail is potentially less disruptive to the workplace than telephone access.  Racine Schools, Dec. No. 29074-B (Gratz, 4/98), Aff’d Dec. No. 29074-C (WERC, 7/98) cited as an example where productivity concerns justified a measured limitation on employee protected activity when employer restricted employee telephone use.



Ozaukee County, Dec. No. 30551-B (WERC, 2/04)


Commission affirmed the hearing examiner’s conclusion that the County had refused to bargain in good faith by unilaterally implementing several changes in the health insurance plan during the pendency of an interest arbitration petition, even though the parties’ final offers as presented to the interest arbitrator were identical regarding health insurance and substantially consistent with the changes the County had unilaterally implemented, citing its decision in Green County (Dec. No. 20308-B, 11/84).  As to remedy, the Commission largely affirmed the examiner’s order regarding make-whole relief (out of pocket losses attributable to the changes up to the date of the interest arbitration award). However, the Commission reversed the examiner’s order to restore the status quo, since that could be disruptive under the specific circumstances of this case and since the interest arbitration award would inevitably reinstate the same health insurance changes.



Berlin School District, Dec. No. 30791 (WERC, 2/04)


Commission overturned its previous holdings in Door County, Dec. No. 27158 (WERC, 2/92) and Superior School District, Dec. No. 30347 (WERC, 5/02), and decided that its rules regarding objections to proposals in final offers required the Commission’s investigator to direct the filing of "written objections," and that a party could not inadvertently trigger the 10-day time period for filing declaratory ruling petitions simply by stating an objection in written form. In this case, the employer had stated its objection in an e-mail. When the employer eventually filed its petition for declaratory ruling, the union moved to dismiss the petition for not being filed within ten days of the e-mailed objection. The Commission refused to dismiss.



City of Medford and IBEW Local 953, Dec. No. 30537-B (WERC, 1/04)


A Complainant was constructively an "employee" for purposes of raising breach of contract claims against the employer, despite having been terminated two years earlier, because she could argue that the employer’s breach of the agreement, by which she had been terminated, would invalidate her termination. Discussion about "continuing violation" doctrine included.



Village of Sturtevant, Dec. No. 30378-B (WERC, 11/03)


Commission affirmed the hearing examiner’s conclusion that the Village had extended a firefighter’s probation and subsequently terminated him because of his involvement in grievance activity surrounding safety and staffing concerns. The Village’s Director of Public Safety had responded to the firefighter’s attempt to file a grievance with the remark, "You’d better think about your position here before you file this."  Commission concluded that the remark was a threat prohibited by Sec. 111.70 (3)(a) 1, and also constituted evidence along with other factors that the Village’s decision to extend the firefighter’s probation some nine days later was unlawful retaliation.  A couple months later, after discovering certain documents that the firefighter had drafted on his work computer, and after learning of a pending prohibited practice charge against the Village, the Director terminated the firefighter’s employment.  Commission held that the termination was unlawful retaliation.


As to remedy, Commission refused to consider “after acquired evidence" citing its simultaneously-issued Clark County decision (see case note below).  However, Commission noted that, after reinstating the firefighter, the Village could take whatever action it believed lawful and appropriate to address the firefighter’s alleged disability, subject to the firefighter’s rights to challenge that action under the collective bargaining agreement.



Clark County, Dec. No. 30361-B (WERC, 11/03)


Commission held that the County had terminated a probationary employee on the last day of her probation out of hostility to her exercise of protected concerted activity in vehemently challenging, on behalf of another co-worker, the employer’s and the union’s view of the salary requirements of the new collective bargaining agreement. Hostility toward the employee’s demeanor or manner during protected activity was tantamount to hostility to the activity itself, as long as the activity was not violent or otherwise beyond lawful boundaries.  Commission clarified that cases centering upon retaliation against protected concerted activity should be analyzed under the four-element framework of a Sec. (3)(a) 3 analysis, rather than the traditional Sec. (3)(a) 1 interference analysis.


Addressing certain remedy issues for the first time, the Commission rejected the County’s attempt to limit its back pay by presenting after-acquired evidence of the employee’s poor job performance, on the ground that such an exercise would be too speculative and that the Commission’s traditional remedies were already limited in comparison with those available in other forums.  Commission also rejected front pay, on the ground that the record evinced insufficient evidence of pronounced hostility between the parties so as to make reinstatement infeasible, and attorney’s fees, citing the Commission’s traditional standard that only exceptional circumstances would warrant such an exceptional remedy.

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