Outline
of Recent WERC Developments
November 2, 2006
Presented to
By Peter G. Davis,
WERC General Counsel
(The
speaker’s remarks do not necessarily reflect the views of the WERC.)
I.
Agency Update
Chairperson Judy Neumann –confirmed for a term expiring March 2007.
Commissioner Paul Gordon –confirmed for a term expiring March 2009.
Commissioner Sue Bauman – confirmed term expired March 2005.
Dennis McGilligan and Dave
Shaw retire.
Steve Morrison (
Sixteen
attorneys (9 in
Third Annual WERC Public Sector
Labor Law Conference scheduled
for May 3, 2007.
-Offices at
-Mailing address is
-Phone is (608) 266-1381
-Fax is (608) 266-6930
-Email is werc@werc.state.wi.us.
-Website is http://werc.wi.gov/
II.
New WERC Administrative Rules
-Comprehensive revision of all WERC administrative rules
relating to the Wisconsin Employment Peace Act, Municipal Employment Relations
Act, and State Employment Labor Relations Act.
-Applicable to all matters filed on or after August 30, 2006.
-Revisions bring rules into conformity with law and agency
practice and allow most matters to be filed with/sent to WERC electronically or
by fax.
-However, matters requiring a filing fee (complaints and
requests for grievance arbitration, mediation, fact finding and interest
arbitration) are not filed until the fee is received (electronic payment not
accepted) and the showing of interest
accompanying election or referendum petition must have “original” signatures
and this cannot be filed electronically or by fax.
-Rules remain largely procedural and do not contain many changes
of consequence for advocates.
-However, in complaint cases, affirmative defenses must be
raised in the answer or are waived and the time for filing an answer or a
motion to make a complaint more definite and certain has been lengthened and
standardized.
III.
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.
CITY OF
Commission
departs from normal practice of ordering interest (at statutory rate of 12%) on
back pay 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 subsequently 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
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.
STATE OF
Employer
did not modify the status quo and thus did not violate its duty to bargain with
BROWN COUNTY, DEC. NO. 11983-J
(WERC, 3/06) APPEAL PENDING
Judicial
Assistants who are selected and supervised by circuit court judges and can be
removed from their positions at the judge’s discretion (but not from employment
with the County) are employees of the County because Sec. 758.19(h), Stats. so
states and because County establishes compensation, assists in supervision and
hiring, controls discipline (except for removal from position) and has input
into hours of work.
Judiciary’s
“core zone of exclusive authority” and restrictions that authority establishes
on what portions of a contract apply to the Assistants do not prohibit
inclusion of the Assistants in a bargaining unit.
Potential
for occasional: (1) advance knowledge of how a labor case will be decided; and
(2) monitoring performance of other unit employees is not sufficient to make
the Assistants confidential employees.
“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.
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)
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.
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.
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.
PENDING ISSUES
Joint Employer status. CITY
OF MILWAUKEE
QEO implications if part of a
fringe benefit (early retirement) is/maybe illegal.
[services and personnel] [statutes, rules and ethics codes] [caseprocessing forms and guides] [case databases and digests] [news and publications] [links to other resources] [about this site]
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 10 NOV 2006. Comments, questions and suggestions