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
The ban under sub. (4) (mc) 6. on bargaining the “impact of the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee" applies to both “indirect" consequences and to the “direct" impact of the plans on employee's finances, such as 1) the deductible amount; 2) maximum-out-of-pocket expense; 3) co-pays, and; 4) prescription costs. Milwaukee Police Association v. City of Milwaukee, 2013 WI App 70
, 348 Wis. 2d 168
, 833 N.W.2d 179
County jailers in this case were “public safety employees" under sub. (1) (mm) because they were “protective occupation participants" under s. 40.02 (48) (a) and fit the definition of “deputy sheriffs" in s. 40.02 (48) (b) 3. Local 441A, WPPA v. WERC, 2013 WI App 104
, 349 Wis. 2d 719
, 837 N.W.2d 168
The change in state law by 2011 Act 10
had no effect on the existing collective bargaining agreement in this case or the arbitrator's ability to order a remedy for a violation committed during the agreement's term. The plain language of Act 10 delayed its effectiveness with respect to individual school employees and school districts until after the expiration of their existing collective bargaining agreements, and the state constitution prohibits state laws that substantially impair existing contracts. School District of Kewaskum v. Kewaskum Education Association, 2013 WI App 136
, 351 Wis. 2d 527
, 840 N.W.2d 719
Sub. (4) (mc) 6. does not prohibit bargaining for public safety employees on the subject of the allocation of responsibility between employees and employers to pay deductibles required under a health care coverage plan. Wisconsin Professional Police Association v. Wisconsin Employment Relations Commission, 2013 WI App 145
, 352 Wis. 2d 218
, 841 N.W.2d 839
The initial applicability provisions of 2011 Wis. Acts 10
applicable to the treatments of this section by those acts contain no clear expression of the intention to retroactively upend the settled expectations of collective bargaining agreements (CBAs) that were negotiated and agreed upon months before those acts took effect, but which had not taken effect. To the contrary, the acts disclaim any such intention by exempting employees “covered by" already-existing CBAs until after those CBAs end or are modified. Local 321, International Association of Fire Fighters v. City of Racine, 2013 WI App 149
, 352 Wis. 2d 163
, 841 N.W.2d 830
Subs. (1) (f), (3g), (4) (d) 3., (4) (mb), and the third sentence of sub. (2) do not violate the plaintiffs' associational rights. No matter the limitations or burdens a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed on the decision to participate. If a general employee participates in collective bargaining under Act 10's statutory framework, that general employee has not relinquished a constitutional right. They have only acquired a benefit to which they were never constitutionally entitled. Madison Teachers, Inc. v. Walker, 2014 WI 99
, 358 Wis. 2d 1
, 851 N.W.2d 337
111.70 Annotation2011 Act 10
's various restrictions, in their cumulative effect, do not violate union members' associational rights. The 1st amendment does not require the state to maintain policies that allow certain associations to thrive. For the most part, the Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. Laborers Local 236, AFL-CIO v. Walker, 749 F. 3d 628
111.70 Annotation2011 Act 10
's treatment of union employees and individual employees did not infringe fundamental 1st amendment rights and did not violate equal protection. Wisconsin is not treating employees differently based on the employees' exercise of their associational rights. Act 10 does not mandate any form of unfavorable treatment for union members. These employees still possess every right, and are given every opportunity, that the state grants to their colleagues who elect not to join a union, but Wisconsin has refused to participate in an activity that the represented employees want the state to engage in. Laborers Local 236, AFL-CIO v. Walker, 749 F. 3d 628
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.
Final offer mediation-arbitration and the limited right to strike: Wisconsin's new municipal employment bargaining law. 1979 WLR 167.
Union security in the public sector: Defining political expenditures related to collective bargaining. 1980 WLR 134.
Fact-finding in public employment disputes. Marshall, 43 WBB, No. 6.
General provisions. 111.71(1)
The commission may adopt reasonable rules relative to the exercise of its powers and authority and proper rules to govern its proceedings and to regulate the conduct of all elections and hearings. The commission shall, upon request, provide a transcript of a proceeding to any party to the proceeding for a fee, established by rule, by the commission at a uniform rate per page. All transcript fees shall be credited to the appropriation account under s. 20.425 (1) (i)
The commission shall assess and collect a filing fee for filing a complaint alleging that a prohibited practice has been committed under s. 111.70 (3)
. The commission shall assess and collect a filing fee for filing a request that the commission act as an arbitrator to resolve a dispute involving the interpretation or application of a collective bargaining agreement under s. 111.70 (4) (c) 2.
, (cg) 4.
, or (cm) 4.
The commission shall assess and collect a filing fee for filing a request that the commission initiate fact-finding under s. 111.70 (4) (c) 3.
The commission shall assess and collect a filing fee for filing a request that the commission act as a mediator under s. 111.70 (4) (c) 1.
, (cg) 3.
, or (cm) 3.
The commission shall assess and collect a filing fee for filing a request that the commission initiate compulsory, final and binding arbitration under s. 111.70 (4) (cg) 6.
or 111.77 (3)
. For the performance of commission actions under ss. 111.70 (4) (c) 1.
, (cg) 3.
, and 6.
, (cm) 3.
, and (jm)
and 111.77 (3)
, the commission shall require that the parties to the dispute equally share in the payment of the fee and, for the performance of commission actions involving a complaint alleging that a prohibited practice has been committed under s. 111.70 (3)
, the commission shall require that the party filing the complaint pay the entire fee. If any party has paid a filing fee requesting the commission to act as a mediator for a labor dispute and the parties do not enter into a voluntary settlement of the dispute, the commission may not subsequently assess or collect a filing fee to initiate fact-finding or arbitration to resolve the same labor dispute. If any request for the performance of commission actions concerns issues arising as a result of more than one unrelated event or occurrence, each such separate event or occurrence shall be treated as a separate request. The commission shall promulgate rules establishing a schedule of filing fees to be paid under this subsection. Fees required to be paid under this subsection shall be paid at the time of filing the complaint or the request for fact-finding, mediation or arbitration. A complaint or request for fact-finding, mediation or arbitration is not filed until the date such fee or fees are paid, except that the failure of the respondent party to pay the filing fee for having the commission initiate compulsory, final and binding arbitration under s. 111.70 (4) (cg) 6.
or 111.77 (3)
may not prohibit the commission from initiating such arbitration. The commission may initiate collection proceedings against the respondent party for the payment of the filing fee. Fees collected under this subsection shall be credited to the appropriation account under s. 20.425 (1) (i)
The commission shall collect on a systematic basis information on the operation of the arbitration law under s. 111.70 (4) (cg)
. The commission shall report on the operation of the law to the legislature on an annual basis. The report shall be submitted to the chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2)
The commission shall, on a regular basis, provide training programs to prepare individuals for service as arbitrators or arbitration panel members under s. 111.70 (4) (cg)
. The commission shall engage in appropriate promotional and recruitment efforts to encourage participation in the training programs by individuals throughout the state, including at least 10 residents of each congressional district. The commission may also provide training programs to individuals and organizations on other aspects of collective bargaining, including on areas of management and labor cooperation directly or indirectly affecting collective bargaining. The commission may charge a reasonable fee for participation in the programs.
This subchapter may be cited as “Municipal Employment Relations Act".
Settlement of disputes.
Municipal employers and public safety employees, as provided in sub. (8)
, have the duty to bargain collectively in good faith including the duty to refrain from strikes or lockouts and to comply with the following:
If a contract is in effect, the duty to bargain collectively means that a party to such contract shall not terminate or modify such contract unless the party desiring such termination or modification:
Serves written notice upon the other party to the contract of the proposed termination or modification 180 days prior to the expiration date thereof or, if the contract contains no expiration date, 60 days prior to the time it is proposed to make such termination or modification. This paragraph shall not apply to negotiations initiated or occurring in 1971.
Offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications.
Notifies the commission within 90 days after the notice provided for in par. (a)
of the existence of a dispute.
Continues in full force and effect without resorting to strike or lockout all terms and conditions of the existing contract for a period of 60 days after such notice is given or until the expiration date of the contract, whichever occurs later.
Participates in mediation sessions by the commission or its representatives if specifically requested to do so by the commission.
Participates in procedures, including binding arbitration, agreed to between the parties.
If there has never been a contract in effect, the union shall notify the commission within 30 days after the first demand upon the employer of the existence of a dispute provided no agreement is reached by that time, and in such case sub. (1) (b)
Where the parties have no procedures for disposition of a dispute and an impasse has been reached, either party may petition the commission to initiate compulsory, final and binding arbitration of the dispute. If in determining whether an impasse has been reached the commission finds that any of the procedures set forth in sub. (1)
have not been complied with and that compliance would tend to result in a settlement, it may require such compliance as a prerequisite to ordering arbitration. If after such procedures have been complied with or the commission has determined that compliance would not be productive of a settlement and the commission determines that an impasse has been reached, it shall issue an order requiring arbitration. The commission shall in connection with the order for arbitration submit a panel of 5 arbitrators from which the parties may alternately strike names until a single name is left, who shall be appointed by the commission as arbitrator, whose expenses shall be shared equally between the parties. Arbitration proceedings under this section shall not be interrupted or terminated by reason of any prohibited practice charge filed by either party at any time.
There shall be 2 alternative forms of arbitration:
(a) Form 1.
The arbitrator shall have the power to determine all issues in dispute involving wages, hours and conditions of employment.
(b) Form 2.
The commission shall appoint an investigator to determine the nature of the impasse. The commission's investigator shall advise the commission in writing, transmitting copies of such advice to the parties of each issue which is known to be in dispute. Such advice shall also set forth the final offer of each party as it is known to the investigator at the time that the investigation is closed. Neither party may amend its final offer thereafter, except with the written agreement of the other party. The arbitrator shall select the final offer of one of the parties and shall issue an award incorporating that offer without modification.
The proceedings shall be pursuant to form 2 unless the parties shall agree prior to the hearing that form 1 shall control.
In reaching a decision, the arbitrator shall give greater weight to the economic conditions in the jurisdiction of the municipal employer than the arbitrator gives to the factors under par. (bm)
. The arbitrator shall give an accounting of the consideration of this factor in the arbitrator's decision.
In reaching a decision, in addition to the factors under par. (am)
, the arbitrator shall give weight to the following factors:
The interests and welfare of the public and the financial ability of the unit of government to meet these costs.
Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment of other employees performing similar services and with other employees generally:
The average consumer prices for goods and services, commonly known as the cost of living.
The overall compensation presently received by the employees, including direct wage compensation, vacation, holidays and excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.
Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between the parties, in the public service or in private employment.
Proceedings, except as specifically provided in this section, shall be governed by ch. 788
This section applies to public safety employees who are supervisors employed by a county having a population of 500,000 or more. For purposes of such application, the term “municipal employee" includes such a supervisor.
This section shall not apply to members of a police department employed by a 1st class city nor to any city, village or town having a population of less than 2,500.
See also ch. ERC 30
, Wis. adm. code.
Arbitration under sub. (4) (b), which requires the arbitrator to select the final offer of one of the parties and then issue an award incorporating that offer “without modification," does not preclude restatement or alteration of the offer to comprise a proper, final arbitration award finally disposing of the controversy. Manitowoc v. Manitowoc Police Dept. 70 Wis. 2d 1006
, 236 N.W.2d 231
Under the common law an arbitrator need not render an account of the reasons for his or her award, nor is a written decision required by ch. 298 [now ch. 788], although the arbitrator must weigh the criteria suggested by sub. (6). Manitowoc v. Manitowoc Police Dept. 70 Wis. 2d 1006
, 236 N.W.2d 231
Sub. (4) (b) permits amendment of a final offer after an arbitration petition is filed but before an investigation is closed, even if the amendment includes proposals that were not negotiated before the filing of the petition. City of Sheboygan v. WERC, 125 Wis. 2d 1
, 370 N.W.2d 800
(Ct. App. 1985).
The holding of Manitowoc
on what constitutes “without modification" is discussed. La Crosse Professional Police Association v. City of LaCrosse, 212 Wis. 2d 90
, 568 N.W.2d 20
(Ct. App. 1997), 96-2741
Right to strike and compulsory arbitration: panacea or placebo? Coughlin, Rader, 58 MLR 205.
STATE EMPLOYMENT LABOR RELATIONS
Subch. V of ch. 111 Cross-reference
See also chs. ERC 20
, and 28
, Wis. adm. code.
In this subchapter:
“Collective bargaining" means the performance of the mutual obligation of the state as an employer, by its officers and agents, and the representatives of its employees, to meet and confer at reasonable times, in good faith, with respect to the subjects of bargaining provided in s. 111.91 (1)
, with respect to public safety employees, and to the subjects of bargaining provided in s. 111.91 (3)
, with respect to general employees, with the intention of reaching an agreement, or to resolve questions arising under such an agreement. The duty to bargain, however, does not compel either party to agree to a proposal or require the making of a concession. Collective bargaining includes the reduction of any agreement reached to a written and signed document.
“Collective bargaining unit" means a unit established under s. 111.825
“Commission" means the employment relations commission.
“Consumer price index change" means the average annual percentage change in the consumer price index for all urban consumers, U.S. city average, as determined by the federal department of labor, for the 12 months immediately preceding the current date.
“Craft employee" means a skilled journeyman craftsman, including the skilled journeyman craftsman's apprentices and helpers, but shall not include employees not in direct line of progression in the craft.
“Division" means the division of personnel management in the department of administration.
“Election" means a proceeding conducted by the commission in which the employees in a collective bargaining unit cast a secret ballot for collective bargaining representatives, or for any other purpose specified in this subchapter.
Any state employee in the classified service of the state, as defined in s. 230.08
, except limited term employees, sessional employees, project employees, supervisors, management employees and individuals who are privy to confidential matters affecting the employer-employee relationship, as well as all employees of the commission.
Any employee who is employed by the University of Wisconsin System, except an employee who is assigned to the University of Wisconsin-Madison, and except faculty, and except academic staff under s. 36.15