The state's termination of an employee, in part because of the employee's participation in union activities, violated the state employment labor relations act (SELRA), subch. V, ch. 111. State v. WERC, 122 Wis. 2d 132
, 361 N.W.2d 660
Unfair labor practices and collective bargaining regarding pensions as to state employees discussed. 64 Atty. Gen. 18.
Wage deduction prohibition.
The employer may not deduct labor organization dues from a general employee's earnings.
History: 2011 a. 10
The creation of this section by 2011 Wis. Act 10
did not violate equal protection or free speech protections. Wisconsin Education Association Council v. Walker, 705 F.3d 640
Fair-share and maintenance of membership agreements. 111.85(1)(a)(a)
No fair-share or maintenance of membership agreement covering public safety employees may become effective unless authorized by a referendum. The commission shall order a referendum whenever it receives a petition supported by proof that at least 30 percent of the public safety employees in a collective bargaining unit desire that a fair-share or maintenance of membership agreement be entered into between the employer and a labor organization. A petition may specify that a referendum is requested on a maintenance of membership agreement only, in which case the ballot shall be limited to that question.
For a fair-share agreement to be authorized, at least two-thirds of the eligible public safety employees voting in a referendum shall vote in favor of the agreement. For a maintenance of membership agreement to be authorized, at least a majority of the eligible public safety employees voting in a referendum shall vote in favor of the agreement. In a referendum on a fair-share agreement, if less than two-thirds but more than one-half of the eligible public safety employees vote in favor of the agreement, a maintenance of membership agreement is authorized.
If a fair-share or maintenance of membership agreement is authorized in a referendum, the employer shall enter into such an agreement with the labor organization named on the ballot in the referendum. Each fair-share or maintenance of membership agreement shall contain a provision requiring the employer to deduct the amount of dues as certified by the labor organization from the earnings of the public safety employees affected by the agreement and to pay the amount so deducted to the labor organization. Unless the parties agree to an earlier date, the agreement shall take effect 60 days after certification by the commission that the referendum vote authorized the agreement. The employer shall be held harmless against any claims, demands, suits and other forms of liability made by public safety employees or local labor organizations which may arise for actions taken by the employer in compliance with this section. All such lawful claims, demands, suits and other forms of liability are the responsibility of the labor organization entering into the agreement.
Under each fair-share or maintenance of membership agreement, a public safety employee who has religious convictions against dues payments to a labor organization based on teachings or tenets of a church or religious body of which he or she is a member shall, on request to the labor organization, have his or her dues paid to a charity mutually agreed upon by the public safety employee and the labor organization. Any dispute concerning this paragraph may be submitted to the commission for adjudication.
Once authorized, a fair-share or maintenance of membership agreement covering public safety employees shall continue in effect, subject to the right of the employer or labor organization concerned to petition the commission to conduct a new referendum. Such petition must be supported by proof that at least 30 percent of the public safety employees in the collective bargaining unit desire that the fair-share or maintenance of membership agreement be discontinued. Upon so finding, the commission shall conduct a new referendum. If the continuance of the fair-share or maintenance of membership agreement is approved in the referendum by at least the percentage of eligible voting public safety employees required for its initial authorization, it shall be continued in effect, subject to the right of the employer or labor organization to later initiate a further vote following the procedure prescribed in this subsection. If the continuation of the agreement is not supported in any referendum, it is deemed terminated at the termination of the collective bargaining agreement, or one year from the date of the certification of the result of the referendum, whichever is earlier.
The commission shall declare any fair-share or maintenance of membership agreement suspended upon such conditions and for such time as the commission decides whenever it finds that the labor organization involved has refused on the basis of race, color, sexual orientation or creed to receive as a member any public safety employee in the collective bargaining unit involved, and the agreement shall be made subject to the findings and orders of the commission. Any of the parties to the agreement, or any public safety employee covered thereby, may come before the commission, as provided in s. 111.07
, and petition the commission to make such a finding.
A stipulation for a referendum executed by an employer and a labor organization may not be filed until after the representation election has been held and the results certified.
The commission may, under rules adopted for that purpose, appoint as its agent an official of a state agency whose public safety employees are entitled to vote in a referendum to conduct a referendum provided for herein.
Notwithstanding sub. (1)
, if on July 1, 2015, there is a fair-share or maintenance of membership agreement in effect in any of the collective bargaining units specified in s. 111.825 (1) (a)
, that fair-share or maintenance of membership agreement shall apply to the corresponding collective bargaining unit under s. 111.825 (1r) (a)
or (1t) (a)
, whichever is appropriate, without the necessity of filing a petition or conducting a referendum, subject to the right of the employees in each collective bargaining unit to file a petition requesting a referendum under sub. (2) (a)
See also ch. ERC 26
, Wis. adm. code.
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
Grievance arbitration. 111.86(1)
Parties to the dispute pertaining to the interpretation of a collective bargaining agreement may agree in writing to have the commission or any other appointing state agency serve as arbitrator or may designate any other competent, impartial and disinterested persons to so serve. Such arbitration proceedings shall be governed by ch. 788
The division shall charge a state department or agency the employer's share of the cost related to grievance arbitration under sub. (1)
for any arbitration that involves one or more employees of the state department or agency. Each state department or agency so charged shall pay the amount that the division charges from the appropriation account or accounts used to pay the salary of the grievant. Funds received under this subsection shall be credited to the appropriation account under s. 20.505 (1) (ks)
See also ch. ERC 23
, Wis. adm. code.
The commission may appoint any competent, impartial, disinterested person to act as mediator in any labor dispute either upon its own initiative or upon the request of one of the parties to the dispute. It is the function of such mediator to bring the parties together voluntarily under such favorable auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the commission shall have any power of compulsion in mediation proceedings.
History: 1971 c. 270
See also ch. ERC 24
, Wis. adm. code.
If a dispute has not been settled after a reasonable period of negotiation and after the settlement procedures, if any, established by the parties have been exhausted, the representative which has been certified by the commission after an election, or, in the case of a representative of employees specified in s. 111.81 (7) (a)
, has been duly recognized by the employer, as the exclusive representative of employees in an appropriate collective bargaining unit, and the employer, its officers and agents, after a reasonable period of negotiation, are deadlocked with respect to any dispute between them arising in the collective bargaining process, the parties jointly, may petition the commission, in writing, to initiate fact-finding under this section, and to make recommendations to resolve the deadlock.
Upon receipt of a petition to initiate fact-finding, the commission shall make an investigation with or without a formal hearing, to determine whether a deadlock in fact exists. After its investigation, the commission shall certify the results thereof. If the commission decides that fact-finding should be initiated, it shall appoint a qualified, disinterested person or 3-member panel, when jointly requested by the parties, to function as a fact finder.
The fact finder may establish dates and place of hearings and shall conduct the hearings under rules established by the commission. Upon request, the commission shall issue subpoenas for hearings conducted by the fact finder. The fact finder may administer oaths. Upon completion of the hearing, the fact finder shall make written findings of fact and recommendations for solution of the dispute and shall cause the same to be served on the parties and the commission. In making findings and recommendations, the fact finder shall take into consideration among other pertinent factors the principles vital to the public interest in efficient and economical governmental administration. Cost of fact-finding proceedings shall be divided equally between the parties. At the time the fact finder submits a statement of his or her costs to the parties, the fact finder shall submit a copy thereof to the commission at its Madison office.
Nothing herein shall be construed as prohibiting any fact finder from endeavoring to mediate the dispute at any time prior to the issuance of the fact finder's recommendations.
Within 30 days of the receipt of the fact finder's recommendations or within such time period mutually agreed upon by the parties, each party shall advise the other, in writing, as to the party's acceptance or rejection, in whole or in part, of the fact finder's recommendations and, at the same time, send a copy of such notification to the commission at its Madison office. Failure to comply with this subsection, by the state employer or employee representative, constitutes a violation of s. 111.84 (1) (d)
or (2) (c)
See also chs. ERC 25
, Wis. adm. code.
Strike prohibited. 111.89(1)
Upon establishing that a strike is in progress, the employer may either seek an injunction or file an unfair labor practice charge with the commission under s. 111.84 (2) (e)
or both. It is the responsibility of the division to decide whether to seek an injunction or file an unfair labor practice charge. The existence of an administrative remedy does not constitute grounds for denial of injunctive relief.
The occurrence of a strike and the participation therein by an employee do not affect the rights of the employer, in law or in equity, to deal with the strike, including:
The right to impose discipline, including discharge, or suspension without pay, of any employee participating therein;
The right to cancel the reinstatement eligibility of any employee engaging therein; and
The right of the employer to request the imposition of fines, either against the labor organization or the employee engaging therein, or to sue for damages because of such strike activity.
Nothing in this subchapter shall interfere with the right of the employer, in accordance with this subchapter to:
Carry out the statutory mandate and goals assigned to a state agency by the most appropriate and efficient methods and means and utilize personnel in the most appropriate and efficient manner possible.
Manage the employees of a state agency; hire, promote, transfer, assign or retain employees in positions within the agency; and in that regard establish reasonable work rules.
Suspend, demote, discharge or take other appropriate disciplinary action against the employee for just cause; or to lay off employees in the event of lack of work or funds or under conditions where continuation of such work would be inefficient and nonproductive.
Subjects of bargaining. 111.91(1)(a)(a)
Except as provided in pars. (b)
, with regard to a collective bargaining unit under s. 111.825 (1) (g)
, matters subject to collective bargaining to the point of impasse are wage rates, consistent with sub. (2)
, the assignment and reassignment of classifications to pay ranges, determination of an incumbent's pay status resulting from position reallocation or reclassification, and pay adjustments upon temporary assignment of classified public safety employees to duties of a higher classification or downward reallocations of a classified public safety employee's position; fringe benefits consistent with sub. (2)
; hours and conditions of employment.
The employer is not required to bargain with a collective bargaining unit under s. 111.825 (1) (g)
on management rights under s. 111.90
, except that procedures for the adjustment or settlement of grievances or disputes arising out of any type of disciplinary action referred to in s. 111.90 (3)
shall be a subject of bargaining.
The employer is prohibited from bargaining with a collective bargaining unit under s. 111.825 (1) (g)
on matters contained in sub. (2)
Except as provided in sub. (2)
and ss. 40.02 (22) (e)
and 40.23 (1) (f) 4.
, all laws governing the Wisconsin retirement system under ch. 40
and all actions of the employer that are authorized under any such law which apply to nonrepresented individuals employed by the state shall apply to similarly situated public safety employees, unless otherwise specifically provided in a collective bargaining agreement that applies to the public safety employees.
In the case of a collective bargaining unit under s. 111.825 (1) (g)
, demands relating to retirement and group insurance shall be submitted to the employer at least one year prior to commencement of negotiations.
The employer is prohibited from bargaining with a collective bargaining unit under s. 111.825 (1) (g)
with respect to all of the following:
The mission and goals of state agencies as set forth in the statutes.
Policies, practices and procedures of the civil service merit system relating to:
Original appointments and promotions specifically including recruitment, examinations, certification, policies with respect to probationary periods and appointments, but not including transfers between positions allocated to classifications that are assigned to the same pay range or an identical pay range in a different pay schedule, within the same collective bargaining unit or another collective bargaining unit represented by the same labor organization.
The job evaluation system specifically including position classification and reclassification, position qualification standards, establishment and abolition of classifications, and allocation and reallocation of positions to classifications; and the determination of an incumbent's status, other than pay status, resulting from position reallocations.
Family leave and medical leave rights below the minimum afforded under s. 103.10
. Nothing in this paragraph prohibits the employer from bargaining on rights to family leave or medical leave which are more generous to the employee than the rights provided under s. 103.10
If the collective bargaining unit contains a public safety employee initially employed on or after July 1, 2011, the requirement under s. 40.05 (1) (b)
that the employer may not pay, on behalf of that public safety employee, any employee required contributions or the employee share of required contributions and the impact of this requirement on the wages, hours, and conditions of employment of that public safety employee.
The right of an employee to take leave to participate in an emergency service operation of the Civil Air Patrol under s. 321.66 (2) (a)
The right of a public safety employee, who is an employee, as defined in s. 103.88 (1) (d)
, and who is a fire fighter, emergency medical services practitioner, emergency medical responder, or ambulance driver for a volunteer fire department or fire company, a public agency, as defined in s. 256.15 (1) (n)
, or a nonprofit corporation, as defined in s. 256.01 (12)
, to respond to an emergency as provided under s. 103.88 (2)
The rights of employees to have retirement benefits computed under s. 40.30
Honesty testing requirements that provide fewer rights and remedies to employees than are provided under s. 111.37
Employer access to the social networking Internet site of an employee that provides fewer rights and remedies to employees than are provided under s. 995.55
The requirements related to providing coverage for a dependent under s. 632.885
and to continuing coverage for a dependent student on a medical leave of absence under s. 632.895 (15)
The requirements related to coverage of and prior authorization for treatment of an emergency medical condition under s. 632.85
The requirements under s. 632.89
relating to coverage of treatment for nervous and mental disorders and alcoholism and other drug problems.
The requirements under s. 609.10
related to offering a point-of-service option plan.
The requirements related to internal grievance procedures under s. 632.83
and independent review of certain health benefit plan determinations under s. 632.835
The employer is prohibited from bargaining with a collective bargaining unit containing a general employee with respect to any of the following:
Any factor or condition of employment except wages, which includes only total base wages and excludes any other compensation, which includes, but is not limited to, overtime, premium pay, merit pay, performance pay, supplemental compensation, pay schedules, and automatic pay progressions.
Unless the electors in a statewide referendum approve a total base wages increase that exceeds the total base wages expenditure described in this paragraph, any proposal that does any of the following: