Outline
of Recent WERC Developments through
March 7, 2008
Presented to WERC
Professional Staff meeting
WERC Office,
By Peter G. Davis,
WERC General Counsel**
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.
STATE OF
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.
Employer
must process a grievance through the contractual grievance procedure even where
it believes that the grievance is not procedurally and/or substantively
arbitrable. Employer must present procedural arbitrability defenses to the
arbitrator and the arbitrator’s ruling is binding. Employer has option of
presenting substantive arbitrability defenses to the arbitrator (and then is
entitled to de novo review of the arbitrator’s ruling) or can refuse to
arbitrate on substantive arbitrability grounds and obtain a ruling from
CITY OF
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.
If the employee
fits within the scope of an appropriate bargaining unit as described in the
contract or the WERC election decision, the employee is included in the unit
without regard to a “community of interest” analysis.
PRAIRIE DU
STATE OF
Disagreement
over scope of right to engage in protected concerted activity on work time does
not constitute a statutory interference violation by the employer.
CITY OF
Commission
lacks jurisdiction to modify a final order on any basis on 21st day
after issuance.
MIDDLETON FIRE 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.
CITY OF
Dispatchers’
somewhat distinctive community of interest is not sufficient to warrant
separating them from existing unit given statutory anti-fragmentation impact.
STATE OF
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.
CITY OF
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.
At
request of interest arbitrator,
Employer
did not violate Secs. 111.70 (3) (a) 1 or 4, Stats. by comments made to
employees and union in an effort to pressure union into changing bargaining
position. As long as direct communications to employees discuss an offer
already made to union, are not deceptive, misleading or threatening, do not
directly disparage the union and do not offer a better deal to employees, said
communications remain within the employer’s “free speech” rights and tactical
choices.
At
bargaining table, employer is entitled to predict the negative consequences of
a settlement/interest arbitration award sought by the union so long as the
prediction is based on demonstrable realities and not unlawful animus.
By
unilaterally altering the number of hours that constitute the “normal” or
“general” work year (and thus employee wages and fringe benefits) on a
permanent rather than temporary basis and by altering the number of hours for
all employees without regard to seniority, the Employer breached its obligation
to maintain the status quo during a contract hiatus and thus violated Secs.
111.70 (3) (a) 4 and 1, Stats.
Circuit
Court remands the matter to
Cover
letter accompanying WERC examiner decisions now advises litigants of WERC’s
view that a litigant cannot file a petition for judicial review unless the
litigant has exhausted WERC remedies by filing a petition for review with WERC
and obtaining a Commission decision.
Employer’s
renunciation of unwritten practice of paying teachers for extra work is effective
with the execution of the successor agreement that does not have contract
language continuing the practice. But Employer has obligation to continue the
practice as part of the status quo during a contract hiatus.
WERC
precedent (
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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_march_2008.htm . Last modified on 18 MAR 2008. Comments, questions and suggestions