Municipal employers, jointly or individually, may employ a qualified person to discharge the duties of labor negotiator and to represent such municipal employers, jointly or individually, in conferences and negotiations under this section. In cities of the 1st, 2nd or 3rd class any member of the city council, including the mayor, who resigns therefrom may, during the term for which the member is elected, be eligible to the position of labor negotiator under this subsection, which position during said term has been created by or the selection to which is vested in such city council, and s. 66.0501 (2)
shall be deemed inapplicable thereto.
(7m) Injunctive relief; penalties; civil liability. 111.70(7m)(a)(a) Injunction; prohibited strike.
At any time after the commencement of a strike which is prohibited under sub. (4) (L)
, the municipal employer or any citizen directly affected by such strike may petition the circuit court for an injunction to immediately terminate the strike. If the court determines that the strike is prohibited under sub. (4) (L)
, it shall issue an order immediately enjoining the strike, and in addition shall impose the penalties provided in par. (c)
Any labor organization that represents public safety employees or transit employees which violates sub. (4) (L)
may not collect any dues under a collective bargaining agreement or under a fair-share agreement from any employee covered by either agreement for a period of one year. At the end of the period of suspension, any such agreement shall be reinstated unless the labor organization is no longer authorized to represent the public safety employees or transit employees covered by the collective bargaining agreement or fair-share agreement or the agreement is no longer in effect.
Any labor organization which violates sub. (4) (L)
after an injunction has been issued shall be required to forfeit $2 per member per day, but not more than $10,000 per day. Each day of continued violation constitutes a separate offense.
Any individual who violates sub. (4) (L)
after an injunction against a strike has been issued shall be fined $10. Each day of continued violation constitutes a separate offense. After the injunction has been issued, any municipal employee who is absent from work because of purported illness is presumed to be on strike unless the illness is verified by a written report from a physician to the municipal employer. The court shall order that any fine imposed under this subdivision be paid by means of a salary deduction at a rate to be determined by the court.
4. `Contempt of court.'
The penalties provided in this paragraph do not preclude the imposition by the court of any penalty for contempt provided by law.
No municipal employee may be paid wages or salaries by the municipal employer for the period during which he or she engages in any strike.
This section, except sub. (4) (cg)
, applies to law enforcement supervisors employed by a 1st class city. This section, except sub. (4) (cm)
, applies to law enforcement supervisors employed by a county having a population of 500,000 or more. For purposes of such application, the terms "municipal employee" and "public safety employee" include such a supervisor.
This subchapter does not preclude law enforcement supervisors employed by municipal employers other than 1st class cities and counties having a population of 500,000 or more or fire fighting supervisors from organizing in separate units of supervisors for the purpose of negotiating with their municipal employers.
See also ch. ERC 11
, Wis. adm. code.
The commission shall by rule establish procedures for certification of such units of supervisors and the levels of supervisors to be included in the units. Supervisors may not be members of the same bargaining unit of which their subordinates are members. The commission may require that the representative of any supervisory unit shall be an organization that is a separate local entity from the representative of the nonsupervisory municipal employees, but such requirement does not prevent affiliation by a supervisory representative with the same parent state or national organization as the nonsupervisory municipal employee representative.
(9) Powers of chief of police.
Nothing in s. 62.50
grants the chief of police in cities of the 1st class any authority which diminishes or in any other manner affects the rights of municipal employees who are members of a police department employed by a city of the 1st class under this section or under any collective bargaining agreement which is entered into between a city of the 1st class and a labor organization representing the members of its police department.
History: 1971 c. 124
; 1973 c. 64
; 1977 c. 178
; 1979 c. 32
s. 92 (15)
; 1981 c. 20
; 1983 a. 189
; 1985 a. 29
; 1985 a. 182
; 1985 a. 318
; 1987 a. 153
; 1991 a. 136
; 1993 a. 16
; 1995 a. 27
; 1997 a. 27
; 1999 a. 9
; 1999 a. 150
; 2001 a. 16
; 2005 a. 253
; 2007 a. 20
; 2009 a. 15
; 2011 a. 10
; s. 35.17 correction in sub. (4) (cg) 7r. (intro.).
NOTE: 2011 Wisconsin Act 10
, made significant changes to this section, effective July 1, 2011.
A collective bargaining provision that releases only teacher members of a majority union from in-service days to attend, with pay, a state convention of the union is discriminatory, but the school board can deny compensation to minority union members who attend a regional convention of their union, if the board does so in good faith. Ashland Board of Education v. WERC, 52 Wis. 2d 625
, 191 N.W.2d 242
A school district may discharge teachers who engage in a strike. There is a meaningful distinction between governmental employees and nongovernmental employees. The strike ban imposed on public employees is based upon a valid classification and the legislation creating it is not an unconstitutional denial of equal protection. Hortonville Education Association v. Joint School District No. 1, 66 Wis. 2d 469
, 225 N.W.2d 658
. Reversed on other grounds. 426 U.S. 482
, 49L. Ed 2d 1 (1976).
A letter sent to city employees by the mayor and council members during a representation election campaign that coercively and erroneously warned employees that all fringe benefits would cease if union representation were accepted was a prohibited labor practice under sub. (3) (a) 1.; "benign generalities" contained elsewhere in the letter were insufficient to overcome its specific threats. A 2nd letter, which predicted a relative loss in benefits and freedom of action, cited the cost of union dues, and emphasized wage rates and fringe benefits, also constituted a prohibited labor practice. An employer may not camouflage threats under the guise of predictions, and the statements in context were intended as threats and accepted as such by the employees. WERC v. City of Evansville, 69 Wis. 2d 140
, 230 N.W.2d 688
Although employees seeking to enforce the terms of a collective bargaining agreement are bound by the remedial provisions therein, the plaintiffs were not required to exhaust contractual remedies prior to filing their action in court. Browne v. Milwaukee Board of School Directors, 69 Wis. 2d 169
, 230 N.W.2d 704
The board of education of a city school district was a proper party and had the capacity to maintain an action to enjoin a strike by district teachers. Wisconsin Rapids Joint School District No. 1 v. Wisconsin Rapids Education Association, 70 Wis. 2d 292
, 234 N.W.2d 289
The fine under sub. (7) applicable to employees violating an injunction against a strike by municipal employees, to be paid by salary deduction, is inapplicable to a labor association composed of such employees. Kenosha Unified School District No. 1 v. Kenosha Education Association, 70 Wis. 2d 325
, 234 N.W.2d 311
Managerial employees are those who participate in the formulation, determination, and implementation of management policy or possess effective authority to commit the employer's resources. City of Milwaukee v. WERC, 71 Wis. 2d 709
, 239 N.W.2d 63
A WERC order under sub. (4) (d) 2. a. determining the voting unit and directing that an election be held was not reviewable under ch. 227. City of West Allis v. WERC, 72 Wis. 2d 268
, 240 N.W.2d 416
Mandatory subjects of collective bargaining under sub. (1) (d) [now sub. (1) (a)] between teachers' associations and school boards are: 1) those primarily related to wages, hours, and conditions of employment; and 2) the impact of the establishment of educational policies affecting wages, hours, and conditions of employment. Beloit Education Association v. WERC, 73 Wis. 2d 43
, 242 N.W.2d 231
A grievance was arbitrable under the "discharge and nonrenewal" clause of a bargaining agreement when the contract offered by the board was signed by the teacher after deleting the title "probationary contract" and the board did not accept this counteroffer or offer the teacher a 2nd contract. Jefferson Jt. School District No. 10 v. Jefferson Education Association, 78 Wis. 2d 94
, 253 N.W.2d 536
Collective bargaining is required regarding decisions primarily related to wages, hours, and conditions of employment, but not is not required for decisions primarily related to the formulation or management of public policy. Unified School District No. 1 of Racine County v. WERC, 81 Wis. 2d 89
, 259 N.W.2d 724
A labor contract under s. 111.70 may limit the scope of the police chief's discretion under s. 62.13 (4) (a). Glendale Professional Policemen's Association v. Glendale, 83 Wis. 2d 90
, 264 N.W.2d 594
In applying the doctrine of primary jurisdiction, the trial court did not abuse its discretion by transferring a case involving a prohibited practice under sub. (3) (a) 1. to the commission after all constitutional issues had been resolved. Browne v. Milwaukee Board of School Directors, 83 Wis. 2d 316
, 265 N.W.2d 559
Under sub. (3) (a) 6., a municipal employer may deduct union dues from the paycheck of a minority union member. Milwaukee Federation of Teachers, Local No. 252 v. WERC, 83 Wis. 2d 588
, 266 N.W.2d 314
The layoff of public employees due to budget cuts was not a mandatory subject of bargaining. City of Brookfield v. WERC, 87 Wis. 2d 819
, 275 N.W.2d 723
The question of primary jurisdiction arises only when an agency and a court have jurisdiction over the subject of a matter of dispute. The decision for the court is whether it should exercise its discretion to retain the case. McEwen v. Pierce County, 90 Wis. 2d 256
, 279 N.W.2d 469
Under sub. (3) (a) 6., the fair-share provision of a successor collective bargaining agreement was applied retroactively to a hiatus between agreements. Berns v. WERC, 94 Wis. 2d 214
, 287 N.W.2d 829
(Ct. App. 1979); affirmed. 99 Wis. 2d 252
, 299 N.W.2d 248
Arbitrators appointed pursuant to the grievance procedure contained in a collective bargaining agreement properly held a de novo factual hearing to determine whether just cause existed for the school board to terminate a teacher. Fortney v. School District of West Salem, 108 Wis. 2d 167
, 321 N.W.2d 255
Mediation-arbitration under s. 111.70 (4) (cm) is a constitutional delegation of legislative authority. Milwaukee County v. District Council 48, 109 Wis. 2d 14
, 325 N.W.2d 350
(Ct. App. 1982).
A contract provision stating that a teacher speaking or writing as a citizen shall be free from administrative and school censorship and discipline was primarily related to employment conditions, and was a mandatory subject of bargaining. Blackhawk Teachers' Federation v. WERC, 109 Wis. 2d 415
, 326 N.W.2d 247
(Ct. App. 1982).
WERC did not abuse its discretion by finding no community of interest between professional teachers and student interns. Unit fragmentation under d. 111.70 (4) (d) 2. a. is discussed. Arrowhead United Teachers v. WERC, 116 Wis. 2d 580
, 342 N.W.2d 709
A school board's anti-nepotism policy was a mandatory subject of bargaining. School District of Drummond v. WERC, 121 Wis. 2d 126
, 358 N.W.2d 285
Because school supervisors are not subject to this section, a fair-share deduction from the paychecks of nonunion supervisors was not authorized. Perry v. Milwaukee Board of School Directors, 131 Wis. 2d 380
, 388 N.W.2d 638
(Ct. App. 1986).
A provision in a union's constitution requiring a local to forfeit its treasury upon a vote of disaffiliation was void as against public policy. Wells v. Waukesha Marine Bank, 135 Wis. 2d 519
, 401 N.W.2d 18
(Ct. App. 1986).
The defense of "good cause" under s. 111.70 (7m) (e) is available to an employer that fails to implement an arbitration award of retroactive wages within 31 days pursuant to s. 109.03 (1). Employees Local 1901 v. Brown County, 146 Wis. 2d 728
, 432 N.W.2d 571
The 3-year limitation under sub. (3) (a) 4. on the term of agreements does not limit the scope of deferred compensation proposals. City of Brookfield v. WERC, 153 Wis. 2d 238
, 450 N.W.2d 495
(Ct. App. 1989).
The interest arbitration provisions in sub. (4) (cm) 6. apply during the negotiation of wages, hours, and conditions of employment for positions newly accreted to a bargaining unit. Wausau School District Maintenance Union v. WERC, 157 Wis. 2d 315
, 459 N.W.2d 861
(Ct. App 1990).
A county's decision to sell a health care center was not a mandatory subject of bargaining. Local 2236, AFSCME, AFL-CIO v. WERC, 157 Wis. 2d 708
, 461 N.W.2d 286
(Ct. App. 1990).
Whether a subject is a mandatory, permissive, or prohibited subject of bargaining, including finding a particular contract provision constitutionally prohibited, is for the determination of WERC. Milwaukee Board of School Directors v. WERC, 163 Wis. 2d 739
, 472 N.W.2d 553
(Ct. App. 1991).
"Arbitration decision" in sub. (3) (a) 7. encompasses all items incorporated into a resultant collective bargaining agreement, including those not in dispute. The failure to implement an "arbitration decision" arises when an employer fails to incorporate specific terms of the award into the resultant agreement or to give retroactive effect to economic items in a retroactive contract. Sauk County v. WERC, 165 Wis. 2d 406
, 477 N.W.2d 267
Whether payments under an arbitration award are due from the entry of the award depends on the overall circumstances. Kenosha Fire Fighters v. City of Kenosha, 168 Wis. 2d 658
, 484 N.W.2d 152
A sheriff's assignment of a deputy to an undercover drug investigation falls within the constitutionally protected powers of the sheriff and could not be limited by a collective bargaining agreement. Manitowoc Co. v. Local 986B, 168 Wis. 2d 819
, 484 N.W.2d 534
(1992). See also Washington County v. Deputy Sheriff's Association, 192 Wis. 2d 728
, 531 N.W.2d 468
(Ct. App. 1995).
The constitutional requirements of a union's collection of agency fees under a fair-share agreement include: 1) an adequate explanation of the basis of the fee; 2) a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker; and 3) an escrow for the amounts reasonably in dispute. Browne v. WERC, 169 Wis. 2d 79
, 485 N.W.2d 376
To be chargeable to nonunion, public sector employees under a fair share agreement, union activities must: 1) be germane to collective bargaining activity; 2) be justified by the government's vital policy interest in labor peace and avoiding "free riders;" and 3) not significantly add to the burdening of free speech that is inherent in an agency or union shop. Browne v. WERC, 169 Wis. 2d 79
, 485 N.W.2d 376
No bright-line test exists for determining whether a register in probate, probate register, or probate commissioner is subject to s. 111.70 and eligible for union membership. Factors to be considered include budget and administrative duties assigned to that person. Manitowoc County v. Local 986A, 170 Wis. 2d 692
, 489 N.W.2d 722
(Ct. App. 1992). See also Iowa County v. Iowa County Courthouse, 166 Wis. 2d 614
, 480 N.W.2d 499
When a collective bargaining agreement could cover a dispute and there is no provision that specifically excludes the dispute, the agreement's grievance and arbitration provisions apply. Racine Education Association. v. Racine Unified School District, 176 Wis. 2d 273
, N.W.2d (Ct. App. 1993).
Making pension contributions for jailers equal in amount to those for its protective occupation participants (POPS) under s. 40.02 (48) does not require reclassification of the jailers as POPS, is allowed under s. 40.05 (2) (g) 1., and is a mandatory subject of bargaining under sub. (1) (a). County of LaCrosse v. WERC, 180 Wis. 2d 100
, 508 N.W.2d 9
A school board's unilateral change in rules governing the use of sick leave after the expiration of a collective bargaining agreement changed the status quo and was impermissible. A "zipper" clause in the expired agreement providing that the agreement superseded all previous agreements did not prevent the examination of past practice in determining the status quo. St. Croix Falls School District v. WERC, 186 Wis. 2d 671
, 522 N.W.2d 507
(Ct. App. 1994).
The status quo to be maintained during negotiations is dynamic. When history shows changes in compensation upon employee attainment of specified experience levels, the employer is required to continue the practice during negotiations. Jefferson County v. WERC, 187 Wis. 2d 646
, 523 N.W.2d 172
(Ct. App. 1994).
A proposal to make the suspension of a police officer subject to arbitration, rather than review under s. 62.13, is not a mandatory subject of bargaining and is in irreconcilable conflict with s. 62.13. City of Janesville v. WERC, 193 Wis. 2d 492
, 535 N.W.2d 34
(Ct. App. 1995).
The sheriff's power to appoint, dismiss, or demote a deputy is not constitutionally protected and may be limited by a collective bargaining agreement not in conflict with the statutes. Heitkemper v. Wirsing, 194 Wis. 2d 182
, 533 N.W.2d 770
(1995). See also Brown County Sheriff Dept. v. Employees Association, 194 Wis. 2d 266
, 533 N.W.2d 766
The phrase "consisting of school district professional employees" in sub. (4) (cm) 5s. means consisting exclusively of school district professional employees. Madison Teachers, Inc. v. Madison Metropolitan School District, 197 Wis. 2d 731
, 541 N.W.2d 786
(Ct. App. 1995), 93-3323
Sub. (4) (d) deals with the rights of an employee or minority group of employees to participate in collective bargaining, and not with the rights of an employee to proceed directly against an employer for a breach of the collective bargaining agreement. Gray v. Marinette County, 200 Wis. 2d 426
, 546 N.W.2d 553
(Ct. App. 1996), 95-1906
A school board's implementation of year-round school programs was primarily related to educational policy, not hours and wages, and was not a mandatory subject of bargaining. Racine Education Association v. WERC, 214 Wis. 2d 353
, 571 N.W.2d 887
(Ct. App. 1997), 97-0306
The negotiation for wages, hours, and terms of employment for a position created during the term of a collective bargaining agreement, which will apply to the new position, is a new agreement for that position within sub. (4) (cm) 6., subject to arbitration. Local 60 v. WERC, 217 Wis. 2d 602
, 579 N.W.2d 59
(Ct. App. 1997), 97-1877
If an employee agrees to waive any federal statutory right, that is an agreement between the employee and the employer and is not a collective bargaining agreement. As such, it is not a violation of a collective bargaining agreement for an employee to refuse to sign such a waiver in a settlement, and WERC cannot order the employee to sign the agreement. Thomsen v. WERC, 2000 WI App 90
, 234 Wis. 2d 494
, 610 N.W.2d 155
The existence of a qualified economic offer (QEO) under sub. (1) (nc) is fundamentally distinct from the QEO's implementation and numerical calculations. A QEO is made when an employer submits an offer to maintain fringe benefits and minimum salary increases consistent with sub. (1) (nc). Once a QEO is made, any issues concerning the calculation of fringe benefit costs and salaries may still be addressed but will not render a QEO invalid. Racine Education Association v. WERC, 2000 WI App 149
, 238 Wis. 2d 33
, 616 N.W.2d 504
Subs. (1) (nc) 1. b. and c. and (4) (cm) 8p. are in conflict. The use of "at least" in sub. (1) (nc) 1. b. and c. sets a minimum threshold for salary increases while sub. (4) (cm) 8p. states that any modification in a salary schedule can only occur at a minimum cost to the employer. Sub. (4) (cm) 8p. prevails as the latest expression of legislative will. Racine Education Association v. WERC, 2000 WI App 149
, 238 Wis. 2d 33
, 616 N.W.2d 504
WERC's determinations that teacher preparation periods are not a mandatory subject of bargaining and that permissive subjects of bargaining are not to be included within "fringe benefits" under sub. (1) (nc) are adopted. As such, a change in preparation time did not result in the school district failing to meet the requirements for a qualified economic offer and subject the matter to arbitration under sub. (4m) (cm) 5s. Dodgeland Education Association v. WERC, 2002 WI 22
, 250 Wis. 2d 357
, 639 N.W.2d 733
It was reasonable to conclude that an employee of a school district with access to computer files containing information regarding collective bargaining but who had never been directed to open or read those files and who was trusted not to read those files was not a confidential employee under sub. (1) (i). Mineral Point Unified School District v. WERC, 2002 WI App 48
, 251 Wis. 2d 325
, 641 N.W.2d 701
It was reasonable for WERC to conclude: 1) sub. (4) (d) 2. a. addresses all determinations of appropriate bargaining units and is not limited to the initial certification of a bargaining unit; and 2) if craft employees in an existing craft and non-craft bargaining unit file a severance petition and if the craft employees at issue have never voted among themselves for inclusion in the mixed unit, the craft employees are entitled to a separate vote on the issue. City of Marshfield v. WERC, 2002 WI App 68
, 252 Wis. 2d 656
, 643 N.W.2d 122
Under the facts of the case, WERC did not err in ruling that the school board could not bar teachers posting in certain areas of their classrooms signs that stated "Fair Contract NOW!" and "Do the Right Thing!" produced by the teacher's union in support of its contact negotiations with the school, as such action constituted "lawful concerted activity" within the protection of sub. (2) and not political advocacy. Milwaukee Board of School Directors v. Wisconsin Employment Relations Commission, 2008 WI App 125
, 313 Wis. 2d 525
, 758 N.W.2d 814
A municipal employer may agree to pay the employees' portion of retirement contributions to the state fund. 59 Atty. Gen. 186.
A county ordinance implementing a collective bargaining agreement providing for the payment to county employees, upon their leaving government employment, compensation for accumulated sick leave earned both before and after the effective date of the ordinance is valid. 59 Atty. Gen. 209.
School boards have authority to contract with teachers to provide for an increment or sum in addition to the regular salary in return for the teacher choosing an early retirement option. 63 Atty. Gen. 16.
The attorney general declines to render an opinion on what is subject to collective bargaining in view of a preferred legislative intent that, under sub. (4) (b), such questions be resolved by WERC through the declaratory judgment procedure, subject to judicial review. 63 Atty. Gen. 590.
The Milwaukee school board is authorized by s. 111.70 to contract for a retirement system supplementary to the one under subch. II of ch. 42, 1979 stats. 67 Atty. Gen. 153.
The application of the open meetings law to the duties of WERC is discussed. 68 Atty. Gen. 171.
A board of education may not prevent a nonunion teacher from speaking on a bargaining issue at an open meeting. Madison School District, v. WERC, 429 U.S. 167
111.70 Annotation2011 Wis. Act 10
amendments did not violate equal protection or free speech protections. Wisconsin Education Association Council v. Walker, 705 F.3d 640
A teacher's alleged de facto tenure is not a protected property interest. Liberty interests are discussed. Stevens v. Jt. School Dist. No. 1, Rusk County 429 F. Supp. 477
WERC and trial courts have concurrent jurisdiction over alleged violations of this section. Aleman v. Milwaukee County, 35 F. Supp. 2d 710
The crisis of the 70's — who will manage municipal government? Mulcahy, 54 MLR 315.
Municipal personnel problems and solutions. Mulcahy, 56 MLR 529.
Right to strike and compulsory arbitration: panacea or placebo? Coughlin, Rader, 58 MLR 205.
Wisconsin's municipal labor law: A need for change. Mulcahy and Ruesch, 64 MLR 103 (1980).
Final offer interest arbitration in Wisconsin: Legislative history, participant attitudes, future trends. Clune and Hyde, 64 MLR 455 (1981).
Public sector collective bargaining. Anderson, 1973 WLR 986.
Impartial decisionmaker — authority of school board to dismiss striking teachers. 1977 WLR 521.