Outline
of Recent WERC Developments
March
16, 2006
Presented to
the State Bar Labor and Employment Section
March
16, 2006 (
By 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
Future
Retirements
Future
of LMC
Timeliness
Second Annual WERC Conference
April 28, 2006.
C. Status of
Comprehensive Administrative Rule Revisions
Close
to finish line.
D. Web Site
** The
speaker’s remarks do not necessarily reflect the views of the WERC.
.
II.
Case Law Update
“What we have here is a
failure to communicate.”
No bad faith by College
but by direct dealing/individual bargaining with employee regarding extension
of probationary period, College violates its duty to bargain with the
employee’s collective bargaining representative.
Commission rejects
College claim that Union violated its duty to bargain in good faith because
Commission concludes that
Because they are not
seeking to represent employees for the purposes of collective bargaining,
employees seeking to decertify incumbent union must do so in context of the
existing bargaining unit.
Because it is seeking
to represent employees for purposes of collective bargaining, rival union can
obtain ruling that a bargaining unit other than the existing unit is
appropriate for an election.
Union withdrawal of
election petition is with prejudice to refiling for one year where withdrawal
occurs after hearing has been held and resources expended on preparation of
post-hearing briefs.
Commission concludes
that parties did not intend that union failure to meet contractual reopener
deadline would produce loss of union right to bargain a successor agreement.
Contract did not
specify a consequence for failing to meet deadline and at time deadline arose,
incumbent union’s ongoing status as bargaining representative was unclear as
ballots had not yet been counted in election in which rival union was seeking
to replace incumbent.
STATE OF
Pro se litigant files
unfair labor practice complaint with WERC against State and union alleging
violations related to alleged unfair application of sick leave and attendance
policies. Pro se litigant subsequently files essentially same factual claims in
federal court against State and union alleging discrimination based on
disability, race and gender. Litigant’s action is dismissed by federal court
for lack of prosecution.
Commission concludes
that doctrine of claim preclusion (using federal preclusion law because it is
the preclusive effect of a federal judgment that is at issue) warrants
dismissal of any timely claims because: (1) there is an identity of parties;
(2) dismissal for failure to prosecute is a “final judgment” for purposes of
preclusion; and (3) there is an identity of causes of action because the
federal court would have had supplemental jurisdiction over SELRA claims, if
brought, because state courts and WERC share original jurisdiction over SELRA
claims.
Employer refuses to
arbitrate grievance alleging request for arbitration was untimely. When
deciding whether employer committed prohibited practice by refusing to arbitrate,
examiner resolves the timeliness issue on its merits and, finding the request
timely, orders the employer to proceed to arbitration.
Commission affirms the
order that the employer proceed to arbitration but
sets aside the examiner’s decision on the timeliness issue because law is clear
that procedural defenses are for the arbitrator to decide. Commission warns
that given the clarity of the law in this regard, future refusals to proceed to
arbitration based on a procedural defense will likely yield an award of
attorney’s fees and costs against employer pursuant to Sec. 227.483 (b), Stats.
CITY OF
Commission concludes a
unit of regular full-time and regular part-time paramedics is an appropriate
bargaining unit and Commission majority (Commissioner Gordon dissenting)
concludes that unit is not rendered inappropriate by broad scope of existing
recognition clause between City and another union where said other union had
previously sought inclusion of the paramedics predecessors and taken no action
when the City refused to include the positions.
Employee is a
supervisor because he directs the work of 13-23 employees, plays a significant role
in the hiring process, doesn’t perform the same work as the employees he
supervises, and is compensated in part for his responsibility over the
employees.
STATE OF
WERC holds complaint
alleging discrimination and interference in abeyance pending outcome of ongoing
grievance arbitration which WERC concludes may resolve the dispute in a manner
consistent with WERC law. After receipt of arbitrator’s award, either party can
ask WERC to resume complaint proceeding if complaint matters are not resolved
by the award or are resolved in a manner inconsistent with WERC law.
BROWN COUNTY, DEC. NO.
31367-C (WERC, 11/05)
When determining
admissibility, Commission concludes that privacy and confidentiality interests
of representatives/attorneys as to their collective bargaining notes taken
during bargaining session are to be balanced against the relevance/materiality
(including witness credibility) of said notes to the issues in the proceeding.
CITY OF
WERC concludes that employer did not have an
obligation to bargain during term of contract over parking availability because
that issue is already addresses by the contract.
1975 agreement to limit
unit to employees working 19 hours or more prevents union from including
employees working fewer than 19 hours in the unit by way of unit clarification.
-Even
though the part-time employees/positions in question did not exist in 1975,
there were regular part-time employees in 1975 working fewer than 19 hours and
thus exception #1 to the “deal is a deal” rule (i.e. the positions did not
exist at the time the deal was made) is inapplicable.
-Even
though the part-time employees/positions in question are performing work
previously
performed by full-time unit employees who retired or quit, exception #3 to the
“deal is a deal” rule (i.e. material change in circumstances) is inapplicable
because an hours based exception has the inherent potential for erosion of
bargaining unit work and no evidence of bad faith by employer.
-Given
WERC’s past tolerance of units with such hours
limitations, WERC will not now conclude that such existing units are
inappropriate in this context. However, WERC indicates that in future it will
not look kindly on such proposed units given the presumptive community of
interest among all regular part-time employees and the statutory
anti-fragmentation policy.
-
MENOMONIE
SCHOOL DISTRICT, DEC. NO. 14738-D (WERC, 9/05)
Incumbent in newly
created position that directs the work of, evaluates,
and authorized overtime for one employee is not a supervisor where she spends
most of her time performing work similar to that of the subordinate and her
authority to effectively recommend discipline/hire is as part of consensus
decision-making model.
No breach of the duty
of fair representation because
No breach of the duty
of fair representation because no evidence that
Union’s failure to
provide contractual notice of reopening did not automatically renew contract
where term of the agreement was in dispute at time of reopening date.
Unless tentative
agreement has been ratified by both sides, no contract bar as to election
petition.
CITY OF
Amount of time spent
filling in for supervisors plays key role in
determination that disputed employees are supervisors.
WERC discards the
“modified
MIDDLETON FIRE PROTECTION DIST. DEC. NO. 31247-A
(WERC, 6/05)
Parties to election
must honor their agreement as to who is eligible to vote.
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
CESA #3, DEC. NO. 31292
(WERC, 3/05), REV’D CIRCT GRANT CASE 05-CV-217 11/05, APPEAL PENDING
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
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 assigning work. Circuit Court reverses Commission as to supervisory
issue concluding that incumbent has the effective authority to hire and and
that Commission undervalued the authority of the incumbent to effectively
recommend the performance evaluations the one employee.
EDGERTON FIRE PROTECTION
DISTRICT, DEC. NO. 30686-B (WERC, 2/05) Aff’d
circt rock 05-cv-348
2/06 Appeal Decision 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.
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.
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.
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
Extent of employee (teachers) right to wear union buttons/place union
signs in workplace. MILWAUKEE SCHOOLS, CASE 433
Role of a renounced past practice when determining
the status quo during a contract hiatus. SUN PRAIRIE SCHOOLS, CASE 105
QEO implications if part of a fringe benefit (early
retirement) is/maybe illegal.
Implications of post-hearing receipt of another
interest arbitrator’s award. CITY 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_august_2003.htm . Last modified on 16 MAR 2006. Comments, questions and suggestions