Outline
of Recent WERC Developments
January 2009
Presentation to
January 29, 2009
WERC UPDATE
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
Stuart
Levitan- Part-time until 1/1/2010.
** The speaker’s remarks do not
necessarily reflect the views of the
II. Recent
While
bargaining a successor agreement, the County engaged in bad faith bargaining by
failing to tell
School
District violated Sec. 111.70(3)(a) 3, Stats when school principal reduced
employee hours and disciplined employee at least in part out of hostility
toward employee taking (or believed to be taking) work place issues to Union
(and Superintendent of Schools) rather than to principal.
STATE OF
Employer
did not refuse to accept grievance arbitration award because the award in
question did not conclusively determine issues (factual or language) that were
present in a subsequent grievance. Party arguing there has been a refusal to
accept an award (typically the union) has a relatively heavy burden of
persuasion in such cases. Even where grievance arbitration award did
conclusively determine the issues present in the subsequent grievance, if
circumstances that affected the prior outcome to have changed, then there is no
obligation to follow the prior award.
County
violated Sec. 111.70(3)(a)3, Stats. when Sheriff and other managers transferred
two employees at least in part out of hostility toward the employees’ lawful
concerted activity.
Commission
rejects argument that the transfer of employees is a constitutional power of
the Sheriff and thus that Commission lacks authority to remedy the illegal
transfers.
TOWN OF
Employer
election petition is dismissed as untimely because filed prior to the 60 day
window period applicable to bargaining a successor agreement but can be
re-filed in July 2009.
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.
Circuit
court remands matter for further proceedings including evidentiary hearing on
mandatory/permissive issue where
Cover
letter accompanying
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
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