AB361: Bill Text

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1995 - 1996 LEGISLATURE

1995 Assembly BILL 361

May 10, 1995 - Introduced by Representatives Black, Baldus, Boyle, Bock, Baldwin and Plombon. Referred to Committee on Labor and Employment.

AB361,1,13 An Act to repeal 20.917 (3) (b), 40.80 (3), 111.86, 111.87, 111.88 and 111.91 (1) (b) to (e), (2) and (4); to renumber 20.917 (3) (a); to renumber and amend 40.05 (4) (ar) and 111.91 (1) (a); to amend 20.865 (1) (c), 20.865 (1) (i), 20.865 (1) (s), 20.917 (6), 40.02 (22) (e) and (25) (b) 8., 40.05 (1) (b), 40.05 (4) (ag) (intro.), 40.05 (4) (b), 40.05 (5) (intro.) and (b) 4. and (6) (a), 40.23 (1) (f) 4., 40.62 (2), 111.71 (4), 111.71 (5), 111.81 (1), 111.825 (5), 111.84 (1) (b), 111.84 (1) (d), 111.84 (2) (c), 111.84 (2) (e), 111.89 (1) and (2) (intro.), 111.92 (1) and (4), 111.93 (3), 111.94 (2), 230.88 (2) (b) and 904.085 (2) (a); to repeal and recreate 111.71 (5); and to create 20.512 (1) (c), 20.921 (1) (g), 40.05 (4) (ar) 1., 111.71 (4), 111.84 (1) (g), 111.84 (2) (g), 111.885 and 111.89 (3) and (4) of the statutes; relating to: subjects of collective bargaining and authorization of arbitration and a limited right to strike under the state employment labor relations act, granting rule-making authority, making appropriations and providing penalties.

Analysis by the Legislative Reference Bureau

This bill makes changes in the subjects of collective bargaining and creates a dispute settlement procedure for classified state employes, program, project and teaching assistants of the University of Wisconsin System and assistant district attorneys.

Subjects of collective bargaining

Under the state employment labor relations act, the state and recognized or certified employe organizations are required to bargain collectively in good faith with respect to certain subjects. Currently, the subjects are wage rates, assignment and reassignment of classifications to pay ranges, determination of an incumbent's pay status resulting from position reallocation or reclassification, pay adjustments upon temporary assignment of a classified employe to duties of a higher classification or downward reallocations of a classified employe's position, fringe benefits, hours and terms and conditions of employment, except that employe occupancy of lodging provided by the state is not a mandatory subject of bargaining and demands relating to retirement and group insurance must be submitted to the employer at least one year prior to the beginning of negotiations (the consequences of failure to comply with this requirement are not set forth). The employer is prohibited from bargaining with respect to the mission and goals of state agencies; policies, practices and procedures of the civil service merit system relating to original appointments and promotions or the job evaluation system; the standard for discharge or discipline; job abandonments; grants made by the department of transportation for repayment of educational loans to minority civil engineers; family and medical leave rights that are less generous than those accorded to nonstate employes under state law; certain employe retirement contributions; interstate retirement credit reciprocity; a prohibition on the purchase of creditable service for retirement benefit purposes in order to establish entitlement to, or to affect the amount of, certain other governmental benefits; and requirements to take lie detector tests that provide fewer rights and remedies to employes than would be available in the absence of a collective bargaining agreement. The employer is directed to endeavor to obtain agreements that do not include provision for payments based upon the period of time an employe has been employed by the state ("length-of-service payments"). In addition, the amount of employe retirement and health insurance contributions (unless otherwise provided in a collective bargaining agreement), the terms of deferred compensation plans, temporary lodging allowances and provisions granting protections to certain employes who make disclosures of improper activity ("whistleblowers") are governed by statute rather than by collective bargaining agreement.

This bill provides, instead, that the state and recognized or certified employe organizations are required to bargain collectively in good faith with respect to wages, hours and conditions of employment. The bill deletes the direction to the employer concerning longevity payments. The bill also deletes the prohibited subjects and the exceptions covering retirement and health insurance contributions, deferred compensation, temporary lodging allowances and employe disclosures. Under the bill, bargaining is not required with respect to the prohibited subjects unless they are construed to fall within the purview of "wages, hours and conditions of employment".

Current law provides that a statutory provision governing retirement for state employes applies to state employes who are covered by a collective bargaining agreement unless otherwise specifically provided in the applicable collective bargaining agreement. The bill provides that provisions governing retirement for state employes that are contained in a collective bargaining agreement between the state and a labor organization representing those state employes supersede any statutory provisions that pertain to retirement, regardless of whether the matters set forth in the statutes are contained in the agreement.

Current law provides that the state may make a change in any law governing retirement for state employes and may take any action that the law permits the state to take under such a law without committing an unfair labor practice, unless an applicable collective bargaining agreement specifically prohibits the change or action. Any change in the law or any action by the state does not relieve the state of its current duty to bargain collectively with the representatives of represented employes concerning changes in provisions governing their retirement. The bill provides that it is an unfair labor practice for the state to make any change in provisions governing retirement for state employes who are represented by a recognized or certified representative unless the state first bargains collectively in good faith with the representative concerning the proposed change.

Dispute settlement procedure

The bill also creates a dispute settlement procedure for labor disputes involving employes covered by the bill. Under the procedure, the employer and any labor union representing the employes are permitted to agree upon their own dispute settlement procedures, including binding interest arbitration or authorization for a strike. If mediation fails and the parties do not agree on their own settlement procedure, the employer or the union, or the parties jointly, may request the employment relations commission to commence a process of arbitration of those issues in dispute that are mandatory subjects of bargaining (or that have been treated as such by the parties). Arbitration is required unless both parties agree to a strike. If arbitration is used, the arbitrator or panel must select the complete final offer of one of the parties without change. If arbitration is not used, each tentative agreement between the parties is submitted to the joint committee on employment relations (JCOER) and the legislature for approval in a procedure similar to that used under existing law. Currently, mediation and fact-finding (nonbinding arbitration) are the only means of dispute settlement provided in state employe labor disputes. No compulsory means of dispute settlement is currently authorized.

Under the procedure created by the bill, unless otherwise agreed by the parties, strikes are prohibited. If a strike affects the public health or safety, a court may enjoin the strike and require instead that the dispute that is the subject of the strike be submitted to arbitration. All prohibited strikes constitute an unfair labor practice and may be enjoined by a court. Any labor union engaging in a prohibited strike is to be penalized by a one-year suspension of any dues checkoff and maintenance of membership or fair-share agreement between the union and the employer. In addition, the union and its members are subject to monetary penalties for striking after an injunction is issued and special penalties for striking in violation of an arbitration award. Any party refusing to implement an award is civilly liable to the other party for costs incurred to enforce the award. Under the bill, the failure of either party to implement an award is an unfair labor practice. Although strikes by state employes are not authorized currently, the special penalties for strikes do not currently apply to state employes.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB361, s. 1 Section 1. 20.512 (1) (c) of the statutes is created to read:

AB361,4,4 20.512 (1) (c) Arbitration expenses. A sum sufficient to pay the employer's share of expenses of arbitration in labor disputes involving state classified employes under s. 111.885 (6) (g).

AB361, s. 2 Section 2. 20.865 (1) (c) of the statutes is amended to read:

AB361,4,16 20.865 (1) (c) Compensation and related adjustments. A sum sufficient to supplement the appropriations to state agencies for the cost of compensation and related adjustments approved by the legislature or awarded under s. ss. 111.885 and 111.92 for represented employes and, approved by the joint committee on employment relations under s. 230.12 and approved by the legislature, when required, for nonrepresented employes in the classified service and comparable adjustments for nonrepresented employes in the unclassified service, except those nonrepresented employes specified in ss. 20.923 (5) and (6) (c) and (m) and 230.08 (2) (d) and (f), as determined under s. 20.928, other than adjustments funded under par. (cj). Unclassified employes included under s. 20.923 (2) need not be paid comparable adjustments.

AB361, s. 3 Section 3. 20.865 (1) (i) of the statutes is amended to read:

AB361,5,8 20.865 (1) (i) Compensation and related adjustments; program revenues. From the appropriate program revenue and program revenue-service accounts, a sum sufficient to supplement the appropriations to state agencies for the cost of compensation and related adjustments approved by the legislature or awarded under s. ss. 111.885 and 111.92 for represented employes and, approved by the joint committee on employment relations under s. 230.12 and approved by the legislature, when required for nonrepresented employes in the classified service and comparable adjustments for nonrepresented employes in the unclassified service, except those nonrepresented employes specified in ss. 20.923 (5) and (6) (c) and (m) and 230.08 (2) (d) and (f), as determined under s. 20.928, other than adjustments funded under par. (cj). Unclassified employes included under s. 20.923 (2) need not be paid comparable adjustments.

AB361, s. 4 Section 4. 20.865 (1) (s) of the statutes is amended to read:

AB361,5,20 20.865 (1) (s) Compensation and related adjustments; segregated revenues. From the appropriate segregated funds, a sum sufficient to supplement the appropriations to state agencies for the cost of compensation and related adjustments approved by the legislature or awarded under s. ss. 111.885 and 111.92 for represented employes and, approved by the joint committee on employment relations under s. 230.12 and approved by the legislature, when required for nonrepresented employes in the classified service and comparable adjustments for nonrepresented employes in the unclassified service, except those nonrepresented employes specified in ss. 20.923 (5) and (6) (c) and (m) and 230.08 (2) (d) and (f), as determined under s. 20.928. Unclassified employes under s. 20.923 (2) need not be paid comparable adjustments.

AB361, s. 5 Section 5. 20.917 (3) (a) of the statutes is renumbered 20.917 (3).

AB361, s. 6 Section 6. 20.917 (3) (b) of the statutes is repealed.

AB361, s. 7 Section 7. 20.917 (6) of the statutes is amended to read:

AB361,6,2 20.917 (6) The secretary of employment relations may, in writing, delegate to an appointing authority the authority to approve reimbursement for moving expenses under sub. (1) (c), a temporary lodging allowance under sub. (3) (a) 2. (b) or expenses under sub. (5) (b).

AB361, s. 8 Section 8. 20.921 (1) (g) of the statutes is created to read:

AB361,6,6 20.921 (1) (g) This subsection does not apply to deductions payable to a labor organization during suspension of a dues checkoff agreement under s. 111.89 (4) (a) 1.

AB361, s. 9 Section 9. 40.02 (22) (e) and (25) (b) 8. of the statutes are amended to read:

AB361,6,14 40.02 (22) (e) Except for OASDHI purposes, at the employer's discretion, means compensation deemed to have been paid for services deemed to have been rendered during periods of leaves of absence without pay, at the employe's rate of pay prior to the leave, provided contributions and premiums on the deemed earnings are paid as required under s. 40.05. Any action taken under this paragraph that applies to state employes whose compensation is determined under s. 230.12 shall be taken pursuant to a collective bargaining agreement under subch. V of ch. 111 or s. 230.12.

AB361,6,16 (25) (b) 8. Any other employe of the state for whom coverage is authorized under a collective bargaining agreement under subch. V of ch. 111 or under s. 230.12;

AB361, s. 10 Section 10. 40.05 (1) (b) of the statutes is amended to read:

AB361,7,10 40.05 (1) (b) In lieu of employe payment, the employer may pay all or part of the contributions required by par. (a), but all the payments shall be available for benefit purposes to the same extent as required contributions deducted from earnings of the participating employes. Action to assume employe contributions as provided under this paragraph shall be taken at the time and in the form determined by the governing body of the participating employer. The state shall pay under this paragraph for employes covered by a collective bargaining agreement under subch. V of ch. 111 and for employes whose fringe benefits are compensation is determined under s. 230.12 an amount equal to 4% of the earnings paid by the state unless otherwise provided in a collective bargaining agreement under subch. V of ch. 111 or unless otherwise determined under s. 230.12. The state shall pay under this paragraph for employes who are not covered by a collective bargaining agreement under subch. V of ch. 111 and for employes whose fringe benefits are compensation is not determined under s. 230.12 an amount equal to 4% of the earnings paid by the state unless a different amount is recommended by the secretary of employment relations and approved by the joint committee on employment relations in the manner provided for approval of changes in the compensation plan under s. 230.12 (3).

AB361, s. 11 Section 11. 40.05 (4) (ag) (intro.) of the statutes is amended to read:

AB361,7,17 40.05 (4) (ag) (intro.) Except as otherwise provided in accordance with a collective bargaining agreement under subch. V of ch. 111 or s. 230.12, the employer shall pay for its currently employed insured employes covered by a collective bargaining agreement under subch. V of ch. 111 or of the state whose health insurance premium contribution rates are compensation is determined under s. 230.12:

AB361, s. 12 Section 12. 40.05 (4) (ar) of the statutes is renumbered 40.05 (4) (ar) (intro.) and amended to read:

AB361,7,22 40.05 (4) (ar) (intro.) The employer shall pay under par. (a) for employes who are not covered by a collective bargaining agreement under subch. V of ch. 111 and for Notwithstanding par. (ag):

AB361,8,3 2. For employes whose health insurance premium contribution rates are compensation is not determined under s. 230.12 an, the employer shall pay the amount equal to the amount specified in par. (ag) unless a different amount is recommended by the secretary of employment relations and approved by the joint committee on employment relations in the manner provided for approval of changes in the compensation plan under s. 230.12 (3).

AB361, s. 13 Section 13. 40.05 (4) (ar) 1. of the statutes is created to read:

AB361,8,7 40.05 (4) (ar) 1. For employes whose compensation is determined under s. 230.12, the compensation plan may provide for a different amount to be paid by the employer than the amount specified in par. (ag).

AB361, s. 14 Section 14. 40.05 (4) (b) of the statutes is amended to read:

AB361,9,7 40.05 (4) (b) Except as provided under pars. (bc) and (bp), accumulated unused sick leave under ss. 13.121 (4), 36.30, 230.35 (2) and 757.02 (5) and subch. V of ch. 111 of any eligible employe shall, at the time of death, upon qualifying for an immediate annuity or for a lump sum payment under s. 40.25 (1) or upon termination of creditable service and qualifying as an eligible employe under s. 40.02 (25) (b) 6. or 10., be converted, at the employe's current basic pay rate, to credits for payment of health insurance premiums on behalf of the employe or the employe's surviving insured dependents. The full premium for any eligible employe who is insured at the time of retirement, or for the surviving insured dependents of an eligible employe who is deceased, shall be deducted from the credits until the credits are exhausted and paid from the account under s. 40.04 (10), and then deducted from annuity payments, if the annuity is sufficient. The department shall provide for the direct payment of premiums by the insured to the insurer if the premium to be withheld exceeds the annuity payment. Except as provided in par. (bd), upon conversion of an employe's unused sick leave to credits under this paragraph, the employe or, if the employe is deceased, the employe's surviving insured dependents may elect to delay initiation of deductions from those credits for up to 10 years after the date of the conversion if the employe or surviving insured dependents are covered by a comparable health insurance plan or policy during the period beginning on the date of the conversion and ending on the last day of the 2nd month after the date on which the employe or surviving insured dependents later elect to initiate deductions from those credits. A health insurance plan or policy is considered comparable if it provides hospital and medical benefits that are substantially equivalent to the standard health insurance plan established under s. 40.52 (1).

AB361, s. 15 Section 15. 40.05 (5) (intro.) and (b) 4. and (6) (a) of the statutes are amended to read:

AB361,9,14 40.05 (5) Income continuation insurance premiums. (intro.) For the income continuation insurance provided under subch. V the employe shall pay the amount remaining after the employer has contributed the following or, if different, the amount determined under a collective bargaining agreement under subch. V of ch. 111 or s. 230.12:

AB361,9,16 (b) 4. The accrual and crediting of sick leave shall be determined in accordance with ss. 13.121 (4), 36.30, 230.35 (2) and 757.02 (5) and subch. V of ch. 111.

AB361,9,24 (6) (a) Except as otherwise provided in accordance with a collective bargaining agreement under subch. V of ch. 111 or s. 230.12, each insured employe under the age of 70 and annuitant under the age of 65 shall pay for group life insurance coverage a sum, approved by the group insurance board, which shall not exceed 60 cents monthly for each $1,000 of group life insurance, based upon the last amount of insurance in force during the month for which earnings are paid. The equivalent premium may be fixed by the group insurance board if the annual compensation is paid in other than 12 monthly instalments.

AB361, s. 16 Section 16. 40.23 (1) (f) 4. of the statutes is amended to read:

AB361,10,2 40.23 (1) (f) 4. Any employer may, in a collective bargaining agreement under subch. IV of ch. 111, limit its right to require retirement.

AB361, s. 17 Section 17. 40.62 (2) of the statutes is amended to read:

AB361,10,6 40.62 (2) Sick leave accumulation shall be determined in accordance with ss. 13.121 (4), 36.30, 230.35 (2), 757.02 (5) and 978.12 (3), subch. V of ch. 111 and the rules of the department.

AB361, s. 18 Section 18. 40.80 (3) of the statutes is repealed.

AB361, s. 19 Section 19. 111.71 (4) of the statutes is created to read:

AB361,10,13 111.71 (4) The commission shall collect on a systematic basis information on the operation of the arbitration law under s. 111.885. 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).

AB361, s. 20 Section 20. 111.71 (4) of the statutes is amended to read:

AB361,10,19 111.71 (4) The commission shall collect on a systematic basis information on the operation of the arbitration law laws under s. ss. 111.70 (4) (cm) and 111.885. 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).

AB361, s. 21 Section 21. 111.71 (5) of the statutes is amended to read:

AB361,11,5 111.71 (5) The commission shall, on a regular basis, provide training programs to prepare individuals for service as arbitrators or arbitration panel members under s. ss. 111.70 (4) (cm) and 111.885. 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.

AB361, s. 22 Section 22. 111.71 (5) of the statutes, as affected by 1993 Wisconsin Acts 16 and .... (this act), is repealed and recreated to read:

AB361,11,11 111.71 (5) The commission may provide training programs to individuals and organizations on various aspects of collective bargaining and areas of management and labor cooperation directly or indirectly affecting collective bargaining. The commission may charge a reasonable fee for participation in the programs.

AB361, s. 23 Section 23. 111.81 (1) of the statutes is amended to read:

AB361,11,20 111.81 (1) "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 employes, to meet and confer at reasonable times, in good faith, with respect to the subjects of bargaining provided in s. 111.91 (1) 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.

AB361, s. 24 Section 24. 111.825 (5) of the statutes is amended to read:

AB361,12,5 111.825 (5) Although supervisors are not considered employes for purposes of this subchapter, the commission may consider a petition for a statewide collective bargaining unit of professional supervisors or a statewide unit of nonprofessional supervisors in the classified service, but the representative of supervisors may not be affiliated with any labor organization representing employes. For purposes of this subsection, affiliation does not include membership in a national, state, county or municipal federation of national or international labor organizations. The certified representative of supervisors may not bargain collectively with respect to any matter other than wages and fringe benefits as provided in s. 111.91 (1).

AB361, s. 25 Section 25. 111.84 (1) (b) of the statutes is amended to read:

AB361,12,23 111.84 (1) (b) Except as otherwise provided in this paragraph, to To initiate, create, dominate or interfere with the formation or administration of any labor or employe organization or contribute financial support to it. Except as provided in ss. 40.02 (22) (e) and 40.23 (1) (f) 4, no change in any law affecting the Wisconsin retirement system under ch. 40 and no action by the employer that is authorized by such a law constitutes a violation of this paragraph unless an applicable collective bargaining agreement specifically prohibits the change or action. No such change or action affects the continuing duty to bargain collectively regarding the Wisconsin retirement system under ch. 40 to the extent required by s. 111.91. It is not an unfair labor practice for the employer to reimburse state employes at their prevailing wage rate for the time spent during the employe's regularly scheduled hours conferring with the employer's officers or agents and for attendance at commission or court hearings necessary for the administration of this subchapter. Professional supervisory or craft personnel may maintain membership in professional or craft organizations; however, as members of such organizations they shall be prohibited from those activities related to collective bargaining in which the organizations may engage.

AB361, s. 26 Section 26. 111.84 (1) (d) of the statutes is amended to read:

AB361,13,10 111.84 (1) (d) To refuse to bargain collectively on matters set forth in s. 111.91 (1) with a representative of a majority of its employes in an appropriate collective bargaining unit. Where the employer has a good faith doubt as to whether a labor organization claiming the support of a majority of its employes in appropriate collective bargaining unit does in fact have that support, it may file with the commission a petition requesting an election as to that claim. It is not deemed to have refused to bargain until an election has been held and the results thereof certified to it by the commission. A violation of this paragraph includes, but is not limited to, the refusal to execute a collective bargaining agreement previously orally agreed upon.

AB361, s. 27 Section 27. 111.84 (1) (g) of the statutes is created to read:

AB361,13,13 111.84 (1) (g) To fail to implement an arbitration award lawfully made under s. 111.885.

AB361, s. 28 Section 28. 111.84 (2) (c) of the statutes is amended to read:

AB361,13,22 111.84 (2) (c) To refuse to bargain collectively on matters set forth in s. 111.91 (1) with the duly authorized officer or agent of the employer which is the recognized or certified exclusive collective bargaining representative of employes specified in s. 111.81 (7) (a) in an appropriate collective bargaining unit or with the certified exclusive collective bargaining representative of employes specified in s. 111.81 (7) (b) or (c) in an appropriate collective bargaining unit. Such refusal to bargain shall include, but not be limited to, the refusal to execute a collective bargaining agreement previously orally agreed upon.

AB361, s. 29 Section 29. 111.84 (2) (e) of the statutes is amended to read:

AB361,14,3 111.84 (2) (e) To Except as authorized in s. 111.885, to engage in, induce or encourage any employes to engage in a strike, or a concerted refusal to work or perform their usual duties as employes.

AB361, s. 30 Section 30. 111.84 (2) (g) of the statutes is created to read:

AB361,14,6 111.84 (2) (g) To fail to implement an arbitration award lawfully made under s. 111.885.

AB361, s. 31 Section 31. 111.86 of the statutes is repealed.