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Outline of Recent WERC Developments

October 25, 2007

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Presented to Wisconsin School Attorneys Association

BY PETER G. Davis,

WERC General Counsel**

I. Agency Update

A. Filing Fees to Increase

-Effective with mediation, interest arbitration, fact-finding, grievance arbitration and complaint cases filed on or after January 2, 2008.

-Fees for mediation, interest arbitration, fact-finding and grievance arbitration increase from $500 to $800 (split equally between union and employer). Fee for filing an unfair labor practice or prohibited practice complaint increases from $80 to $100.

-Public hearing on fee increases to be held in Madison November 12 and Wausau November 13,

-Still no fee for filing unit clarification, election or declaratory ruling petitions, motions, or requests for grievance arbitration panels.

B. Retirements

-Karen Mawhinney

C. Web Site -- http://werc.wi.gov/index.htm.

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

. Case Update

CESA #3, DEC. NO. 31292 (WERC, 3/05, REV’D CIRCT GRANT; AFF’D CT. APP. DIST III 10/06 (UNPUBLISHED)-SUPREME COURT ORAL ARGUMENT 11/6/07

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.

Court requests pre-oral argument briefs regarding mootness because union subsequently dropped the proposal in bargaining. WERC argues the case is moot and Court should dismiss appeal.

BROWN COUNTY V WERC, 2007AP135-CT APP DIST III 10/07-TO BE PUBLISHED

Court of Appeals affirms WERC conclusion (Dec. No. 31476-C) that contractual just cause provision is not superseded by Sec. 50.065(5m), Stats. ("entity may refuse to employ a caregiver . . . convicted of an offense that is in the estimation of the entity substantially related to the care of a client.") and that County did not have just cause to discharge grievant.

EDGERTON FIRE PROTECTION DISTRICT V WERC, 05CV348-CT APP DIST IV 8/07-UNPUBLISHED-SUPREME COURT PETITON FOR REVIEW PENDING

Court of Appeals affirms WERC conclusion (Dec. No. 30686-B) that employer terminated all three unit employees at least in part out of unlawful animus and that employer decision to eliminate its full-time fire fighters while continuing the same level of service through volunteers is a mandatory subject of bargaining.

SUN PRAIRIE SCHOLS, DEC. NO. 31190-B (WERC, 3/06), DEC. NO. 31190-D (WERC, 8/06), REV’D IN PART AND AFF’D IN PART CIRCT DANE 7/30/07 2006CV3013.

WERC concluded: (1) that the District had violated the collective bargaining agreement by the manner in which it handled certain staffing changes; and (2) that a clear and long standing practice on a mandatory subject of bargaining that conflicts with contract language is the status quo during a contract hiatus (Commissioner Gordon dissenting).

Commission also held that if the practice has been properly renounced, it may be eliminated during the term of a successor agreement unless the party desiring to maintain the practice successfully bargains a change in the contract.

Circuit Court affirmed the WERC as to (1) but reversed as to (2). The Court viewed the District’s conduct as occurring during the term of a contract, rather than during a hiatus, and concluded the District did not violate the duty to bargain.

No party filed an appeal from the Circuit Court’s decision. WERC majority and dissent continue to adhere to the views summarized above as to (2). However, because Court decided (2) on a basis that was not the principal focus of the litigation before WERC and thus as to a matter the parties and WERC decision did not address in a significant way, WERC decided not to appeal to avoid potential that law in important area would develop without significant input from the WERC or the parties.

PRAIRIE DU CHIEN SCHOOLS, DEC. NO. 31942-B (WERC, 9/07)

WERC concludes District did not violate duty to maintain status quo during hiatus by only compensating employees in MS+12 salary lane for credits earned after receiving masters degree. WERC emphasizes that where dispute in one that would have proceeded to grievance arbitration if contract had been in effect, status quo analysis of language, practice and bargaining history is essentially the same as would be applicable in grievance arbitration proceeding.

STATE OF WISCONSIN, DEC. NO. 31272-B (WERC, 9/07)

Disagreement over scope of right to engage in protected concerted activity on work time does not constitute a statutory interference violation by the employer. WERC notes that right to engage in such activities during work time is not statutory but contractual.

MADISON SCHOOLS, “DEC. NO. 31345-D” (WERC, 3/07) REMANDED CIRCT DANE 8/07 06CV1661

WERC disavows Examiner decision which held that mandatory/permissive status of matter is irrelevant because District cannot circumvent the Union and deal directly with employees in addressing even a permissive subject of bargaining.

Circuit Court remands the matter to WERC for further proceedings including evidentiary hearing on the mandatory permissive issue.

BAYFIELD COUNTY V WERC, 05CV43-CT APP DIST III 7/07-UNPUBLISHED

Court of Appeals affirms WERC conclusion (Dec. No. 31291) that Confidential Secretary/Office Supervisor is not a supervisor or a confidential employee.

CITY OF KENOSHA, DEC. NO. 30164-B (WERC, 7/07)

Commission lacks jurisdiction to modify a final order on any basis on 21^st day after issuance.

MIDDLETON FIRE PROTECTION DISTRICT, DEC. NO. 31247-C (WERC, 6/07)

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.

CITY OF MIDDLETON, DEC. NO. 15358-B (WERC, 6/07)

Dispatchers’ somewhat distinctive community of interest is not sufficient to warrant separating them from existing unit.

STATE OF WISCONSIN, DEC. NO. 31397-C (WERC, 6/07)

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.

What happens if incumbent union renounces right to represent and drops all exiting grievances before new union is certified?

CITY OF MILWAUKEE, DEC. NO. 32115 (WERC, 5/07)

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 arbitration until completion of bargaining/interest arbitration over related mandatory subject of bargaining is itself a permissive subject of bargaining.

RACINE COUNTY, DEC. NO. 31752-A (WERC, 5/07)

At request of interest arbitrator, WERC resolves a dispute over the meaning of a final offer and concludes that employer final offer can and does bind employer as to health insurance premium contribution level for two separate contracts.

ST. CROIX COUNTY V WERC, 05CV348, CT APP DIST III 4/07-UNPUBLISHED

Court of Appeals affirms WERC conclusion (Dec. No. 8932-M) that neither the Recycling Technician nor the GIS Mapper is a managerial employee.

KETTLE MORAINE SCHOOLS, DEC. NO. 30904-D (WERC, 4/07)

Employer did not violate Secs. 111.70 (3) (a) 1 or 4, Stats. by comments made to employees and Union in an effort to pressure Union into changing bargaining position. As long as direct communications to employees discuss an offer already made to union, are not deceptive, misleading or threatening, do not directly disparage the union and do not offer a better deal to employees, said communications remain within the employer's "free speech" rights and tactical choices.

At bargaining table, employer is entitled to predict the negative consequences of a settlement/interest arbitration award sought by the union so long as the prediction is based on demonstrable realities and not unlawful animus.

By unilaterally altering the number of hours that constitute the "normal" or "general" work year (and thus employee wages and fringe benefits) on a permanent rather temporary basis and by altering the number of hours of work for all employees without regard to seniority, the Employer breached its obligation to maintain the status quo during a contract hiatus and thus violated Secs. 111.70 (3)(a)4 and 1, Stats.

PORT EDWARDS SCHOOLS, DEC. NO. 32049 (WERC, 3/07)

If existing fringe benefit is illegal, Employer must propose and implement a legal fringe benefit of equal value if it wishes to make and implement a valid QEO.

WESTON SCHOOL DISTRICT, DEC. NO. 29633-B (WERC, 3/07)

Manager of Technology Services is neither a professional employee nor a managerial or confidential employee.

DODGELAND SCHOOL DISTRICT, DEC. NO. 31098-C (WERC, 2/07); APPEAL PENDING CIR CT DODGE

Employer's renunciation of unwritten practice of paying teachers for an extra period of work is effective with the execution of a successor agreement that does not have contract language continuing the practice. But Employer has obligation to continue the practice as part of status quo during contract hiatus.

WERC precedent (RACINE SCHOOLS, DEC. NO. 29203-B) that established the status quo obligation of union to exhaust grievance procedure during contract hiatus before breach of status quo complaint can be filed does not apply because grievance procedure does not apply to unwritten practice.

CITY OF MILWAUKEE, DEC. NO. 31936 (WERC, 11/06)

Interplay between duty to provide information pursuant to duty to bargain and recently created limitations on public record access to employee personnel records (see Sec. 19.36 (10), Stats.) discussed.

MILWAUKEE AREA TECHNICAL COLLEGE, DEC. NO. 10882-B (WERC, 11/06)

WERC will honor "deal" to exclude an employee/position from bargaining unit and a "deal" can be established by union's knowledge of employee/position and failure to seek inclusion for lengthy period of time. But no "deal" present where large workforce and frequent job title and composition changes means union is not aware of employee/position.

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

Statement by interest arbitrator that the "hearing is closed upon receipt of briefs" does not preclude arbitrator’s consideration of interest arbitration award issued by another arbitrator after briefs were received.

III. PENDING ISSUES

-Jurisdiction of interest arbitrator to select final offer that would create language (drug and alcohol policy) not to be placed in the contract. CLARK COUNTY.

-Right to bargain over number of firefighters on a shift. CITY OF SOUTH MILWAUKEE

-Rights/obligations of employer under Sec. 111.70 (4)(d) 1, Stats to meet with employees and "representatives of their own choosing." MILWAUKEE SCHOOLS.

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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_october_2007.htm . Last modified on 25 OCT 2007. Comments, questions and suggestions