Outline of Recent WERC Developments
September 15, 2005
Presented to AFSCME Council 40 Staff
By Peter G. Davis,
WERC General Counsel**
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 – term expired March 2005.
Hiring Process Completed
Close to finish line.
** The speaker’s remarks do not necessarily reflect the views of the WERC.
II. Case Law Update
No breach of the duty of fair representation because
No breach of the duty of fair representation because no
Union’s failure to provide contractual notice of reopening did not automatically renew contract where term of the agreement was in dispute at time of reopening date.
Unless tentative agreement has been ratified by both sides, no contract bar as to election petition.
Amount of time spent filling in for supervisors plays key role in determination that disputed employees are supervisors.
WERC discards the “modified
MIDDLETON FIRE PROTECTION DIST. DEC. NO. 31247-A (WERC, 6/05)
Parties to election must honor their agreement as to who is eligible to vote.
City violated duty to bargain obligation to maintain status
quo during pendency of interest arbitration proceeding by implementing
tentatively agreed upon insurance benefit changes over the
(1) Two day duration of change (i.e award was issued two days thereafter) was not de minimus.
did not establish that
(3) City did not establish necessity for change nor did Union establish need for recission of benefit changes until next annual insurance contract renewal because City could have signed contract with new carrier and, at least in this instance, held employees harmless as to benefit changes. Commission emphasizes that where identity of carrier or plan administrator changes (as opposed to same carrier but different benefits as here) employer may not be able to hold employees harmless.
Commission rejects City anti-fragmentation argument and finds departmental unit to be an appropriate unit.
Agreement to extend contract following its expiration does not bar election petition.
Circumstances surrounding layoff of active union president “arouse suspicion” but do not establish that employer acted out of illegal animus.
Employee seeks job from employer. Employer makes job offer
to employee. Employee contacts union to see if job offered is correctly
Election petitions filed after the 60 day period prior to the reopening date in the contract are untimely even where the parties had not in fact begun to bargain when the petition was filed.
Because contractual provisions can be interpreted and applied in a manner that does not intrude upon the Sheriff’s constitutional prerogatives, the provisions are not prohibited subjects of bargaining.
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
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) appeal pending
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.
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.
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.
Given the language of Sec. 111.70(4)(d) 1, Stats., does employer commit a prohibited practice when it does not meet with an individual employee who wishes to present a grievance directly to employer through a representative other than the employee’s union representative. MILWAUKEE SCHOOLS, CASE 413
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_august_2003.htm . Last modified on 22 SEP 2005. Comments, questions and suggestions