Outline
of Recent WERC Developments – July 15, 2005
Presented to
Weld, Riley, Prenn and
By Judy Neumann, WERC Chair and Peter G. Davis,
WERC General Counsel**
I. Agency
Update
A. Commission
Composition
Chairperson
Judy Neumann –confirmed for a term expiring March 2007.
Commissioner
Paul Gordon –confirmed for a term expiring March 2009.
Commissioner
Sue Bauman – term expired March 2005.
B. Activities
Hiring
Process Completed
Budget
Process Unfolding
C. Status of
Comprehensive Administrative Rule Revisions
Close
to finish line.
D. Web Site
** The speakers’
remarks do not necessarily reflect the views of the WERC.
.
II. Case Law Update
MARKESAN SCHOOL DISTRICT, DEC. NO. 31379
(WERC, 6/05)
Commission determines
that the following are “fringe benefits” in effect on the 90th day
prior to contract expiration which must be maintained as part of an implemented
QEO:
1.
Unilaterally
adopted Board policy providing post service medical benefit after retirement;
2.
Practice as
how non-compensated leave requests were granted under a unilaterally adopted
Board policy; and
3.
Practice as
to how urgent personal leave requests were granted under contract provision.
District ordered to
make employees whole.
Commission concludes
that:
-All are “fringe
benefits” within the “ordinary and accepted meaning” of that phrase.
-Statute doesn’t limit
fringe benefits to those in collective bargaining agreements.
-QEO fringe benefit
need not have an identifiable “QEO calculation cost”
-QEO statutory
obligations are separate from contract obligations.
-QEO law does not allow
employer to take away benefits which union cannot try to reacquire through
interest arbitration.
-How discretion had
been exercised under (2) and (3) above was clear and consistent. Could be difficult to identify contour of the “fringe benefit.
-Fact that District had
given Union notice that it would be changing practice as to (2) and (3) above
when contract expires not relevant for QEO purposes.
CITY OF
City violated duty to
bargain obligation to maintain status quo during pendency of interest
arbitration proceeding by implementing tentatively agreed upon insurance
benefit changes over the
Commission holds:
(1)
Two day duration
of change (i.e award was issued two days thereafter) was not de minimus.
(2)
City did
not establish that
(3)
City did
not establish necessity for change nor did
(4)
Attorneys fees not warranted to deter future violations
but Commission likely to look favorably on future fee requests because law is
well established.
CITY
OF
Commission rejects
City anti-fragmentation argument and finds departmental unit to be an appropriate unit.
EDGERTON
FIRE PROTECTION DISTRICT, DEC. NO. 30686-B (WERC, 2/05) appeal pending
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.
CITY OF
Agreement to extend contract following its expiration does not bar election petition.
Circumstances surrounding layoff of active union president “arouse suspicion” but do not establish that employer acted out of illegal animus.
STATE OF
Employee seeks job from employer. Employer makes job offer
to employee. Employee contacts union to see if job offered is correctly
classified.
KAUKAUNA AREA SCHOOL DISTRICT, DEC. NO.
31208 (WERC, 1/05)
Tentative agreement on a successor contract ratified by only one party does not bar election petition filed after old contract expired.
QEO DECISION (AKA PRAIRE DU CHIEN, MAPLE-DALE AND BIG FOOT, DEC. NO. 31501 (WERC, 12/04)
As part of a QEO, employees should always be placed on the salary step that corresponds to their years of service even if QEO monies are not sufficient to pay them the salary amount provided at that step.
As part of a QEO, employees who have not received a full step of pay in prior QEO years are to be caught up so that their pay matches their step placement before any money can be used to increase the overall salary schedule.
Act 11 reduced WRS fringe benefit costs on a monthly basis beginning in February 2000.
Election petitions filed after the 60 day period prior to the reopening date in the contract are untimely even where the parties had not in fact begun to bargain when the petition was filed.
Because contractual provisions can be interpreted and applied in a manner that does not intrude upon the Sheriff’s constitutional prerogatives, the provisions are not prohibited subjects of bargaining.
Rock County, Dec. No. 30805-A (WERC, 9/04)
Proposal
that provides insurance and leave benefits to spouses but not to same-sex
domestic partners is not a prohibited subject of bargaining. WERC rejects contentions that union would
breach its duty of fair representation by agreeing to such a provision or that
employer or State of
Permanent substitute
teachers who are regular full-time employees are clarified into existing
professional employee bargaining unit.
State of
During employer’s
investigation, union president engaged in lawful concerted activity when he
contacted employee about her allegations that a co-worker had sexually harassed
her and employer could not lawfully prohibit that conduct.
If union president
attempted to coerce employee into recanting allegations, his concerted activity
loses protection of the law and employer may discipline union president for
that conduct.
Employer may warn union
president not to attempt to coerce employee.
Employer may also interrogate union president about
contacts/conversations with employees, but only if employer has a substantial
and reliable basis for believing that coercion or other misconduct occurred.
Seiu Local 150, Dec. No. 30871-B (WERC, 7/04)
Parties before the WERC
are entitled to a fair hearing as a matter of due process of law and one of the
rudiments of fair play in a legal proceeding is the right of a party to a
hearing in which his or her substantial rights are unaffected by conflicts of
interest or other professional misconduct by counsel.
When determining
whether a conflict of interest is present, WERC will look for guidance to
Wisconsin Supreme Court rules.
No due process
violation where Respondent Union’s counsel previously had informed Complainant
(a bargaining unit member) that the firm would not represent her in her Workers
Compensation case because there was insufficient money at stake.
D.C. Everest Area School District, DEC. NO. 29946-M (WERC, 6/04)
appeal pending
After concluding that a
principal’s animus contributed to the Superintendent’s otherwise lawfully
motivated decision to lay off a teacher, the Commission awarded the teacher
only back pay as a remedy, refusing to order reinstatement or front pay. Calling the circumstances “unusual,” the
Commission viewed the teacher’s highly disruptive behavior toward
administrators and other teachers prior to his layoff to have made
reinstatement inappropriate. As to front
pay, while allowing for the possibility under other circumstances, the
Commission concluded that front pay would not be appropriate where the
teacher’s own misconduct had made reinstatement infeasible.
Administrative
assistant to department head who has day-to-day responsibility for administering
two labor agreements and who is member of bargaining team is confidential
employee. Assistant types confidential labor relations
documents and is present at and participates in management meetings.
Where unanticipated
remedial issues arise at the conclusion of arbitration proceedings, employer is
obligated to complete arbitration process but retains right to de novo review
of arbitrator’s resolution of such remedial matters to the extent issues of
substantive arbitrability are created.
III. PENDING ISSUES
Joint Employer
status-CITY OF MILWAUKEE
Given the language of
Sec. 111.70(4)(d) 1, Stats., does employer commit a
prohibited practice when it does not meet with an individual employee who
wishes to present a grievance directly
to employer through a representative other than the employee’s union
representative. MILWAUKEE SCHOOLS, CASE 413
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