Outline of Recent WERC Developments

September , 2008


STATE BAR OF WISCONSIN-LABOR AND EMPLOYMENT LAW

September 18-19, 2008

WERC UPDATE

By Peter G. Davis- WERC General Counsel **


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 Madison and 5 out state) and 4.5 support staff.

 

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 WERC staff or commissioners serve as arbitrators.

-Still no fee for election, unit clarification, referendum and declaratory ruling cases and no fee for requesting a panel of arbitrators who are not WERC staff or commissioners.

 

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 WERC.

 

 

II.Recent WERC/Court Decisions

 

POLK COUNTY, DEC. NO. 32536 (WERC, 9/08)

 

Consistent with DANE COUNTY, DEC. NO. 17400 (WERC, 1/79) AFF’D CIR CT DANE 80-CV-0097 6/80, Sec. 111.70(4)(cm) 6, Stats. interest arbitration is not available as a mater of right to resolve an impasse that arises during the term of a contract.

 

Proposing interest arbitration to resolve mid-term impasses is a mandatory subject of bargaining.

 

VILLAGE OF MOUNT PLEASANT, DEC. NO. 32562 (WERC, 9/08)

 

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 WAUSAU V WERC, CASE NO. 07 CV 1194 (9/08)

 

Circuit court affirms WERC decision (CITY OF WAUSAU, DEC. NO 20916-J (WERC, 9/07) that property appraisers are not professional employees; that head appraiser is not a supervisor or a managerial employee; that appraisers are automatically included in existing broadly defined non-professional unit without need for a de novo community of interest analysis; and that the fairness of the proceeding was not impacted by disclosed participation of two Commissioners who had been endorsed by and received campaign contributions from one of the parties during prior political campaigns.

 

MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 31602-G (WERC, 8/08)

 

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, WERC likely lacks statutory authority to do so and existing remedy (union payment of employee’s attorneys fees and costs attributable to litigating the breach of contract claim) has proven adequate.

 

CITY OF MILWAUKEE, DEC. NO. 24602-A (WERC, 8/08)

 

When Employer agreed to continue the existing allocation of positions between two bargaining units as part of bargaining over a departmental reorganization, WERC dismisses subsequent Employer unit clarification petition pursuant to “deal is a deal” policy.

 

WAUPACA COUNTY V WERC, CASE NO. 07 CV 652 (8/08)

 

Circuit court affirms WERC decision (WAUPACA COUNTY, DEC. NO. 32001-B (WERC, 11/07) that Employer violated collective bargaining agreement when it refused to process grievance at contractual step prior to arbitration.

 

CITY OF GREEN BAY, DEC. NO. 32463 (WERC, 7/08)

 

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.

 

MILWAUKEE BOARD OF SCHOOL DIRECTORS V WERC, APPEAL NO. 2007AP840 (CTAPP DIST 1 7/08)-to be published.

 

Court of Appeal affirms circuit court affirmation of WERC decision (MILWAUKEE SCHOOLS, DEC. NO. 31732 (WERC, 8/06-Gordon concurs in part and dissents in part) that employees are engaging in lawful concerted activity when placing bargaining related signs in classrooms.

 

MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 32143-B (WERC, 6/08)

 

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 WERC, 66 WIS 2D 524 (1975) at least where union provided attorney with “facts and merits of this case, the surrounding circumstances, and the employee’s work and disciplinary history.”

 

SHEBOYGAN COUNTY, DEC. NO. 8256-L (WERC, 4/08)

 

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.

 

GLENWOOD CITY, DEC. NO. 32214-B (WERC, 3/08)

 

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.

 

VILLAGE OF WEST MILWAUKEE, DEC. NO. 19013-C (WERC, 2/08)

 

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.

 

KENOSHA COUNTY, DEC. NO. 9533-B (WERC, 2/08)

 

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 (WERC, 2/08)

 

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.

 

CLARK COUNTY, DEC. NO. 32094-B (WERC, 12/07)

 

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 WISCONSIN, DEC. NO. 31865-D (WERC, 11/07)

 

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 SUN PRAIRIE, DEC. NO. 32276 (WERC, 11/07)

 

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.

 

BARRON COUNTY, DEC. NO. 15711-F (WERC, 11/07)

 

WERC’s “deal is a deal” policy never prevents a union or employer from obtaining a ruling on an employee’s status as a supervisor, confidential employee, managerial employee, executive employee, professional employee or craft employee.

 

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 WERC election decision, the employee is included in the unit without regard to a “community of interest” analysis.

 

BROWN COUNTY V WERC, 2007 WIS APP 247 (10/07)-PUBLISHED

 

Court of Appeals affirms WERC (DEC. NO. 31476-C 6/06) determination that employee’s just cause protection under collective bargaining agreement can be harmonized with the obligation of the County to provide proper patient care under the provisions of Sec. 50.065, Stats. and Ch HFS-12.  WERC has authority to interpret external statutes and constitutional provisions when determining whether prohibited practice has been committed.

 

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 is 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 V WERC, CASE NO 06 CV 1661 (8/07) Appeal pending CT APP.

 

Circuit court remands matter for further proceedings including evidentiary hearing on mandatory/permissive issue where WERC (SEE WERC BRIEF DENOMINATED DEC. NO 31345-D) disavowed Examiner decision which held that mandatory/permissive status of matter is irrelevant because employer cannot circumvent union and deal directly with employees even as to permissive subject of bargaining.

 

Cover letter accompanying WERC examiner decisions now advises litigants of WERC’s view that litigant cannot file a petition for judicial review unless litigant has exhausted WERC remedies by filing a petition for review with WERC and obtaining a Commission decision.

 

BROWN COUNTY V WERC, CASE NO. 06 CV 566 (8/07)

 

Circuit court affirms WERC conclusion (DEC. NO. 11983-J 3/06)  that Judicial Assistants are county employees, are not confidential employees and can be included in a collective bargaining unit without violating the judiciary’s constitutional authority (although certain contractual protections cannot be bargained/are unenforceable due to statutory authority to select own Assistant).

 

SUN PRAIRIE SCHOOLS V WERC, CASE NO. 2006 CV 3013 (7/07)

 

Circuit court reverses WERC determination (DEC. NO. 31990-B 3/06-Gordon dissents) that where long standing past practice conflicts with clear contract language, employer can renounce practice, union has burden of acquiring contract language supporting continuation of practice in next contract, but employer must maintain practice during any contract hiatus.

 

WERC elects not to appeal but advises parties that Commission majority continues to hold the above stated view of applicable law.

 

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

 

Commission lacks jurisdiction to modify a final order on any basis on 21st 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 given statutory anti-fragmentation impact.

 

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.

 

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 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.

 

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 MILWAUKEE, CASE 100.

 

Minimum Manning (firefighters) CITY OF SOUTH MILWAUKEE,  Case 114

 

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