Outline
of Recent WERC Developments – October 21, 2004
WERC UPDATE
Presented
to
By
Judy Neumann, WERC Chairperson and Peter G. Davis,
WERC
General Counsel**
October
21, 2004-Madison
______________
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 –confirmed for a term expiring March 2005.
B. Activities
WERC
Public Sector Labor Law Conference
April 29, 2005-UW
WERC
Public Forums
October 26-Eau Claire
October 28-Milwaukee
Ad
Hoc Arbitrator Training
September 2004
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
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)
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.
UW Hospitals and Clinics Authority, Dec. No. 30202-C (WERC, 4/04)
The Commission affirmed
the hearing examiner’s conclusion that the Hospital interfered with the
employees’ right to engage in lawful concerted activity by ending Union access
to Hospital e-mail system.
Commission balances the
nature and weight of employee and employer interests and concludes that
employee interests predominate.
Legitimate Hospital interests in avoiding interference with productivity
and protecting integrity and functioning of e-mail system found to be of little
weight because Hospital terminated access only after Union e-mail to employees
accusing Hospital of using "union busting" tactics during bargaining,
Hospital did not take action to block all outside access, and Hospital
generally allowed personal use of its e-mail system by employees.
Commission notes that
use of e-mail is potentially less disruptive to the workplace than telephone
access.
Commission affirmed the
hearing examiner’s conclusion that the County had refused to bargain in good
faith by unilaterally implementing several changes in the health insurance plan
during the pendency of an interest arbitration petition, even though the
parties’ final offers as presented to the interest arbitrator were identical
regarding health insurance and substantially consistent with the changes the
County had unilaterally implemented, citing its decision in Green County (Dec. No. 20308-B, 11/84). As to remedy, the Commission largely affirmed
the examiner’s order regarding make-whole relief (out of pocket losses
attributable to the changes up to the date of the interest arbitration award).
However, the Commission reversed the examiner’s order to restore the status
quo, since that could be disruptive under the specific circumstances of this
case and since the interest arbitration award would inevitably reinstate the
same health insurance changes.
Commission overturned
its previous holdings in
City of
A Complainant was
constructively an "employee" for purposes of raising breach of
contract claims against the employer, despite having been terminated two years
earlier, because she could argue that the employer’s breach of the agreement,
by which she had been terminated, would invalidate her termination. Discussion
about "continuing violation" doctrine included.
Commission affirmed the
hearing examiner’s conclusion that the Village had extended a firefighter’s
probation and subsequently terminated him because of his involvement in
grievance activity surrounding safety and staffing concerns. The Village’s
Director of Public Safety had responded to the firefighter’s attempt to file a
grievance with the remark, "You’d better think about your position here
before you file this." Commission
concluded that the remark was a threat prohibited by Sec. 111.70 (3)(a) 1, and also constituted evidence along with other
factors that the Village’s decision to extend the firefighter’s probation some
nine days later was unlawful retaliation.
A couple months later, after discovering certain documents that the
firefighter had drafted on his work computer, and after learning of a pending
prohibited practice charge against the Village, the Director terminated the
firefighter’s employment. Commission
held that the termination was unlawful retaliation.
As to remedy,
Commission refused to consider “after acquired evidence" citing its
simultaneously-issued
Commission held that
the County had terminated a probationary employee on the last day of her
probation out of hostility to her exercise of protected concerted activity in
vehemently challenging, on behalf of another co-worker, the employer’s and the
union’s view of the salary requirements of the new collective bargaining
agreement. Hostility toward the employee’s demeanor or manner during protected
activity was tantamount to hostility to the activity itself, as long as the
activity was not violent or otherwise beyond lawful boundaries. Commission clarified that cases centering
upon retaliation against protected concerted activity should be analyzed under
the four-element framework of a Sec. (3)(a) 3
analysis, rather than the traditional Sec. (3)(a) 1 interference analysis.
Addressing certain
remedy issues for the first time, the Commission rejected the County’s attempt
to limit its back pay by presenting after-acquired evidence of the employee’s
poor job performance, on the ground that such an exercise would be too
speculative and that the Commission’s traditional remedies were already limited
in comparison with those available in other forums. Commission also rejected front pay, on the
ground that the record evinced insufficient evidence of pronounced hostility
between the parties so as to make reinstatement infeasible, and attorney’s
fees, citing the Commission’s traditional standard that only exceptional
circumstances would warrant such an exceptional remedy.
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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_october_2004.htm . Last modified on 22 OCT 2004. Comments, questions and suggestions