Outline
of Recent WERC Developments
September
, 2008
STATE BAR OF WISCONSIN-LABOR AND
EMPLOYMENT LAW
September 18-19, 2008
By Peter G. Davis-
I. Agency Update
Chairperson Judy Neumann-confirmed for a term
expiring March 2013.
Commissioner
Paul Gordon-confirmed for a term expiring March 2009.
Commissioner
Sue Bauman-confirmed for a term expiring March 2011.
Sixteen
attorneys (11 in
Filing
fees rose January 2, 2008 to fund five attorney positions.
-$100 unfair labor practice/prohibited
practice complaint cases.
-$800
(split equally between union and employer) for mediation, interest arbitration
and fact-finding cases.
-$800
(split equally between union and employer) for grievance arbitration cases
where
-Still
no fee for election, unit clarification, referendum and declaratory ruling
cases and no fee for requesting a panel of arbitrators who are not
Retirement
of Karen Mawhinney and Sharon Gallagher.
Hiring
of Mike O’Callaghan
Temporary
Job Share by Karen Mawhinney (LTE) and Stuart Levitan
Passing
of John Niemisto, Neil Gunderman and Bob (Mac) McCormick.
** The speaker’s remarks do not
necessarily reflect the views of the
II.Recent
Consistent
with
Proposing
interest arbitration to resolve mid-term impasses is a mandatory subject of
bargaining.
If
contract does not have a reopening date but a reopening notice has been given,
election petition is still timely as long as no bargaining has occurred.
If
contract has a reopening date, election petition is timely if filed within the
60 day period prior to the reopening date.
CITY OF
Circuit
court affirms
Remedy
for breach of duty of fair representation does not include union contribution
toward employer’s back pay obligation if employee is ordered reinstated.
Pursuant to Wisconsin Supreme Court decisions from 1940’s,
CITY OF
When
Employer agreed to continue the existing allocation of positions between two
bargaining units as part of bargaining over a departmental reorganization,
WAUPACA COUNTY V
Circuit
court affirms
CITY OF
Proposal
requiring Employer to promote most senior qualified unit applicant to
supervisory position is permissive subject of bargaining. Employer has
overriding interest in selecting the person it believes will best fulfill
supervisory responsibilities. Proposal requiring that unit applicants be given
information and equal opportunity to apply is a mandatory subject of
bargaining.
Court
of Appeal affirms circuit court affirmation of
Absent
evidence casting doubt on union’s “good faith and honesty of purpose”, union
decision not to arbitrate a discharge grievance based on union attorney’s
advice that union would likely lose in arbitration meets bare minimum requirements
of duty of fair representation under MAHNKE V
Deputy
Register of Deeds is a supervisor of six employees despite presence in office
of elected Register of Deeds. Deputy had independent authority to issue written
reprimands and effective authority to suspend or terminate (even over
Register’s objection), a “significant” role (but not effective recommendation)
in hiring, was paid substantially more ($4.27 per hour) than highest paid unit
employee, and generally doesn’t do same work as unit employees.
TAA, DEC. NO. 32388 (WERC, 3/08)
United
States Constitution requires that union taking union-security fees from
non-members must avoid the risk that objecting non-members fees will be used
even temporarily for purposes unrelated to collective bargaining and contract
administration.
Therefore,
during the period when non-members can request a rebate of union-security fees
unrelated to collective bargaining and contract administration and/or challenge
the union’s calculation of the fee amount related to collective bargaining and
contract administration, the union must escrow all non-member union security
fees (if the union did not have an independent audit of its expenditures) or
the portion of the fees that will be rebated upon request and the portion that
is “reasonably in dispute”(if the union did have an independent audit of its
expenditures) as being related to collective bargaining and contract
administration.
Employee
is a supervisor due to authority to hire and fire part-time employees (but not
full-time employees) and independent authority to direct and assign the work of
four employees.
Because
only one unit of sworn law enforcement employees is “appropriate” within the
meaning of Sec. 111.70 (4)(d) 2.a., Stats., part-time employees are added to
full-time employee unit even if the parties had a prior “deal” to exclude them.
Juvenile
Court Intake Workers are appropriately included in the same bargaining unit as
social workers whose professional judgments that can override. Any potential
conflict of interest is resolved by right of employer to discipline employees.
MIDDLETON FIRE PROTECTION
DISTRICT, DEC. NO 31528-B (
Modification
of traditional reinstatement and make whole remedy may be appropriate in mixed
motive discrimination case where employee’s position may ultimately have been
eliminated due to legitimate reasons.
As
part of its final offer in Sec. 111.70 (4) (cm) interest arbitration, union or
employer can include a policy or work rule the text of which will not be
included in the contract (if that parties’ final offer is selected) so long as
final offer contains at least some language incorporating the specific proposed
policy or rule into the contract.
STATE OF
The
union or employer cannot be compelled to arbitrate an issue that was already decided
in a prior arbitration award involving the same parties unless material facts
have changed. Party arguing that issue has already been decided and the
material facts are the same bears a heavy burden.
CITY OF
Decision
of the City as to whether to classify EMTs as “protective occupation
participants” for purposes of Wisconsin Retirement System under Sec. 40.02 (48)
(bm), Stats. is a mandatory subject of bargaining primarily related to wages.
Statutory language that City’s decision “may not be appealed” does not preclude
collective bargaining/interest arbitration over the decision.
If
the work of an employee does not require knowledge customarily acquired through
a four year specialized degree, employee is not a professional employee even if
the employer requires a four year specialized degree because it wants employees
who are more likely to perform the work at a high level of competence.
If
the employee fits within the scope of an appropriate bargaining unit as
described in the contract or the
BROWN COUNTY V
Court
of Appeals affirms
PRAIRIE DU
STATE OF
Disagreement
over scope of right to engage in protected concerted activity on work time does
not constitute a statutory interference violation by the employer.
Circuit
court remands matter for further proceedings including evidentiary hearing on
mandatory/permissive issue where
Cover
letter accompanying
BROWN COUNTY V
Circuit
court affirms
SUN PRAIRIE SCHOOLS V
Circuit
court reverses
CITY OF
Commission
lacks jurisdiction to modify a final order on any basis on 21st day
after issuance.
MIDDLETON FIRE
PROTECTION DISTRICT, DEC. NO. 31247-C (
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
Dispatchers’
somewhat distinctive community of interest is not sufficient to warrant
separating them from existing unit given statutory anti-fragmentation impact.
STATE OF
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.
CITY OF
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 until completion of bargaining/interest arbitration over related
mandatory subject of bargaining is itself a permissive subject of bargaining.
At
request of interest arbitrator,
III. Pending Issues
Rights/obligations
of employer under Sec. 111.70 (4) (d) 1, Stats. to meet with employees and
“representatives of their own choosing.” MILWAUKEE
SCHOOLS, Case 413.
Joint
Employer Status. CITY OF
Minimum
Manning (firefighters) CITY OF
Duty
to disclose serious consideration of subcontracting during bargaining of
successor agreement/scope of duty to bargain during term of contract WASHINGTON COUNTY-Case 163
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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_september_2008.htm . Last modified on 22 SEP 2008. Comments, questions and suggestions