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.
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.
(split equally between union and employer) for grievance arbitration cases
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
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.
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,
Employer agreed to continue the existing allocation of positions between two
bargaining units as part of bargaining over a departmental reorganization,
WAUPACA COUNTY V
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.
of Appeal affirms circuit court affirmation of
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.
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.
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.
the employee fits within the scope of an appropriate bargaining unit as
described in the contract or the
BROWN COUNTY V
of Appeals affirms
over scope of right to engage in protected concerted activity on work time does
not constitute a statutory interference violation by the employer.
court remands matter for further proceedings including evidentiary hearing on
mandatory/permissive issue where
BROWN COUNTY V
SUN PRAIRIE SCHOOLS V
Commission lacks jurisdiction to modify a final order on any basis on 21st day after issuance.
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.
Dispatchers’ somewhat distinctive community of interest is not sufficient to warrant separating them from existing unit given statutory anti-fragmentation impact.
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.
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.
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.
Employer Status. CITY OF
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
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