OUTLINE
OF RECENT DEVELOPMENTS
December
8, 2006
presented at WERC Staff Meeting,
BY PETER G. Davis
WERC
General Counsel**
I.
New WERC Administrative Rules
-Applicable to all matters filed on or after August 30, 2006.
-Fax and e-mail service and delivery
-New Forms
-Timing of motions to make complaint more definite and
certain
-Revised
service letter
-Complaint Conciliation
-Failure to Appear
-Answers to Complaint
-Timing
-Waiver of
Affirmative Defenses
-Revised
service letter
-Timing of objections to final offer.
** The speaker’s
remarks do not necessarily reflect the views of the WERC.
II.
Recent WERC Decisions
CITY
OF
Statement
by interest arbitrator that “ the arbitrator will
effect simultaneous exchange and declare the hearing closed upon receipt of the
briefs.” cannot reasonably be understood to also mean that the record cannot be
reopened, upon motion, for receipt of relevant evidence not available at the
time of the hearing. Thus, the interest arbitrator did not err by considering
interest arbitration award issued by another arbitrator involving a different
bargaining unit of employees of the same municipal employer which award was
relevant evidence as it constituted “Changes in . . circumstances
during the pendency of the arbitration proceedings.” within the meaning of Sec.
111.70 (4)(cm) 7r., Stats.
Employee who participated in hiring decisions, independently evaluated
employees, issued recorded verbal reprimands, and directed the work of four
employees on a daily basis is a supervisor.
STATE
OF
Employer
has no duty to bargain-related obligation to provide presumptively relevant
names and addresses of current unit members to incumbent union where sole
purpose for said information identified by incumbent was communicating with
employees to persuade to vote for incumbent in future representation election
(i.e. for a purpose found to be outside the incumbent’s current statutory duty
as bargaining representative.
Commission
concludes that during bargaining over a successor agreement, teachers have
right to wear bargaining-related buttons in classroom and Commission majority
(Commissioner Gordon dissenting) concludes that teachers have right to place
bargaining-related signs in classroom in same location as teachers are allowed
to place personal pictures/posters.
BROWN
COUNTY, DEC. NO. 31476-C (WERC, 6/06); AFF’D CIR CT BROWN 2006CV
1322 11/06. APPEAL PERIOD PENDING.
County
discharge of care giver pursuant to Sec. 50.065 (5m), Stats is subject to de
novo review under contractual/status quo just cause standard and County lacked
just cause to discharge employee. Circuit Court agrees.
CITY
OF
Commission
departs from normal practice of ordering interest (at statutory rate of 12%) on
back pay from date of violation because applicable rate of pay and/or number of
hours of work could not determined until Commission issued decision.
Commission
exercises its remedial discretion and modifies Examiner order by eliminating
employee obligation to repay monies saved by employees due to employer’s
unlawful unilateral modification of status quo as to health insurance
premiums.
STATE
OF
Applying
doctrine of issue preclusion to question of whether the employer had failed to
comply with an arbitration award by subsequent discipline of grievant for same
conduct found improper by arbitrator, Commission concludes that no violation of
law occurred because it could not be determined from the expedited/no rationale
nature of the award what issue was decided.
SCHOOL DISTRICT OF NEW
Employer
can be critical of Union representative but commits illegal interference and
domination when Employer adds that relationship would improve if identity of
union representative changed and offers to help employees seek such a change.
SUN
PRAIRIE SCHOOLS, DEC. NO. 31190-B (WERC, 3/06), DEC. NO 31190-D (WERC,
8/06), APPEAL PENDING CIR CT DANE
Where
long standing (20 year) past practice conflicts with clear contract language,
employer can renounce practice (at least in presence of a zipper clause) and
union has burden of acquiring contract language supporting continuation of the
practice in the next contract. However, employer must maintain practice during
any contract hiatus until new contract is reached.
III.
PENDING COURT CASES
MILWAUKEE SCHOOLS-SEE ABOVE
SUN PRAIRIE SCHOOLS-SEE ABOVE
BROWN COUNTY-SEE ABOVE
KRISKA
V DOC, DEC. NO. 31796 (WERC, 9/06); APPEAL PENDING CIR CT MILW
Commission
lacks jurisdiction over termination of a promotional probationary period after
which the employee returned to permanent status in prior position
Certain
individuals are not managerial employees.
Without
regard to whether matter is mandatory or permissive subject of bargaining,
employer violates Sec. 111.70 (3)(a) 4, Stats. if it bargains with individual employees instead of union.
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 on their behalf due to judges’ statutory authority to select own
Assistant)
Certain
support staff individuals are not confidential employees.
CESA
#3, DEC. NO. 31292 (WERC, 3/05), REV’D CIRCT GRANT CASE 05-CV-217
11/05, AFFIRMED CT APP. DIST III 10/06 (UNPUBLISHED);PETITION FOR SUP CT REVIEW
FILED.
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 primarily related to job security. Commission rejects argument that
a prior decision of WERC and Wisconsin Supreme Court in Beloit Educ. Assoc. v.
WERC, 73 Wis. 2d 43 (1976) warrants a contrary conclusion. Commission notes
that the proposal does not dictate a specific type of assistance. Circuit Court
reverses concluding WERC is attempting to reverse Supreme Court’s decision in
BAYFIELD,
05 CV 43 2/06; APPEAL PENDING CT APP
Commission concludes that Confidential
Secretary/Office Supervisor is not a
Supervisor or a confidential employee.
As to supervisory issue, Commission
determines that only one employee
is allegedly supervised, incumbent has no
disciplinary authority (independent
or effective recommendation), incumbent’s
role
in hiring was significant but fell short of effective recommendation and
incumbent spends little time supervising work. Circuit Court reverses as to
supervisory issue concluding that incumbent has the effective authority to hire
and the Commission undervalued the authority of the incumbent to effectively
recommend the performance evaluations of the one employee.
EDGERTON FIRE
PROTECTION DISTRICT, DEC. NO. 30686-B (WERC,
2/05) Aff’d circt rock 05-cv-348 2/06
Appeal pending
CT APP
Commission
concludes employer terminated all three bargaining unit employees at least in
part out of unlawful animus. Commission further concludes that employer
decision to eliminate its full-time fire fighters while continuing to provide
the same level of service through volunteers is a mandatory subject of
bargaining. Circuit Court affirms based on deference/standard of review.
Commission concludes that neither the Recycling Technician nor the GIS Mapper is managerial employees. Commission determines that while both are skilled professionals making significant contributions to county programs, neither have the level of influence on policy needed to establish managerial status. Circuit Court reverses as to the Recycling Technician and determines that the incumbent has both sufficient policy role and sufficient budgetary/financial authority to establish managerial status.
IV. PENDING ISSUES
Rights/obligations of employer under
Sec. 111.70 (4)(d) 1, Stats. to
meet with employees and “representative of their own choosing.” MILWAUKEE SCHOOLS, Case 413
Joint Employer status. CITY
OF MILWAUKEE
QEO implications
if part of a fringe benefit (early retirement) is/maybe illegal.
Duty to bargain obligations of
employer as to wage, hour, condition of employment
impacts of change in a permissive subject of bargaining. DODGELAND
SCHOOLS, CASE 29
Scope of right of incumbent union
to drop pending grievances after it loses representation election but before
new union becomes the representative. STATE
OF
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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_november_2006.htm . Last modified on 16 MAR 2006. Comments, questions and suggestions