LRB-2149/1
RAC:kmg:rs
2003 - 2004 LEGISLATURE
May 13, 2003 - Introduced by Representatives Pocan, Boyle, Berceau, Black and
Plouff, cosponsored by Senator Risser. Referred to Committee on Labor.
AB337,1,7
1An Act to repeal 111.86, 111.87 and 111.88;
to amend 20.512 (1) (km), 20.865
2(1) (c), 20.865 (1) (i), 20.865 (1) (s), 111.71 (5), 111.84 (2) (e), 111.89 (1), 111.89
3(2) (intro.), 111.92 (1) (a), 111.92 (4), 111.94 (2) and 904.085 (2) (a); and
to create
420.512 (1) (c), 111.84 (1) (g), 111.84 (2) (g), 111.885 and 111.89 (3) and (4) of the
5statutes;
relating to: authorizing binding arbitration and a limited right to
6strike under the State Employment Labor Relations Act, requiring the exercise
7of rule-making authority, making appropriations, and providing penalties.
Analysis by the Legislative Reference Bureau
Under the State Employment Labor Relations Act (SELRA), the state and labor
unions representing state employees in collective bargaining units are not required
to resolve labor disputes through binding arbitration and state employees do not
have any right to strike. Instead, mediation and fact-finding are the only means of
dispute settlement provided under SELRA. This bill creates a dispute settlement
procedure under SELRA that is similar to the one that currently applies to labor
disputes involving local government employees under the Municipal Employment
Relations Act.
Under the bill, the state and any labor union representing the employees 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 state or the labor union, or the
parties jointly, may request the Employment Relations Commission to commence a
process of binding arbitration of those issues in dispute. Binding arbitration is
required unless both parties agree to a strike. If binding arbitration is used, the
arbitrator or arbitration panel must select the complete final offer of one of the
parties without change and incorporate that offer into the collective bargaining
agreement. If arbitration is not used, each tentative agreement between the parties
is submitted to the Joint Committee on Employment Relations and the legislature
for approval in a procedure similar to that used under existing law.
Under the dispute resolution procedure created by the bill, strikes are
permitted if both parties agree to permit strikes under their own dispute settlement
procedure and in one additional circumstance. If both parties withdraw the final
offers that they have presented to the arbitrator, the labor union may strike.
However, if any authorized strike affects the public health or safety, a court may
enjoin the strike and require instead that the dispute be submitted to binding
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. Finally, under the bill, the failure of either party to
implement an arbitration award is an unfair labor practice.
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:
AB337, s. 1
1Section
1. 20.512 (1) (c) of the statutes is created to read:
AB337,2,32
20.512
(1) (c)
Arbitration expenses. A sum sufficient to pay the employer's
3share of expenses of arbitration in labor disputes under s. 111.885 (6) (g).
AB337, s. 2
4Section
2. 20.512 (1) (km) of the statutes is amended to read:
AB337,3,25
20.512
(1) (km)
Collective bargaining grievance arbitrations. The amounts in
6the schedule for the payment of the state's share of costs related to collective
7bargaining grievance arbitrations under s.
111.86
111.885 (4). All moneys received
8from state agencies for the purpose of reimbursing the state's share of the costs
1related to grievance arbitrations under s.
111.86 111.885 shall be credited to this
2appropriation account.
AB337, s. 3
3Section
3. 20.865 (1) (c) of the statutes is amended to read:
AB337,3,144
20.865
(1) (c)
Compensation and related adjustments. A sum sufficient to
5supplement the appropriations to state agencies for the cost of compensation and
6related adjustments approved
by the legislature or awarded under s.
111.885 or 7111.92 for represented employees
and, approved by the joint committee on
8employment relations under s. 230.12
, and
approved by the legislature, when
9required, for nonrepresented employees in the classified service and comparable
10adjustments for nonrepresented employees in the unclassified service, except those
11nonrepresented employees specified in ss. 20.923 (4g), (5)
, and (6) (c) and (m) and
12230.08 (2) (d) and (f), as determined under s. 20.928, other than adjustments funded
13under par. (cj). Unclassified employees included under s. 20.923 (2) need not be paid
14comparable adjustments.
AB337, s. 4
15Section
4. 20.865 (1) (i) of the statutes is amended to read:
AB337,4,216
20.865
(1) (i)
Compensation and related adjustments; program revenues. From
17the appropriate program revenue and program revenue-service accounts, a sum
18sufficient to supplement the appropriations to state agencies for the cost of
19compensation and related adjustments approved
by the legislature or awarded 20under s.
111.885 or 111.92 for represented employees
and, approved by the joint
21committee on employment relations under s. 230.12
, and
approved by the
22legislature, when required for nonrepresented employees in the classified service
23and comparable adjustments for nonrepresented employees in the unclassified
24service, except those nonrepresented employees specified in ss. 20.923 (4g), (5)
, and
25(6) (c) and (m) and 230.08 (2) (d) and (f), as determined under s. 20.928, other than
1adjustments funded under par. (cj). Unclassified employees included under s. 20.923
2(2) need not be paid comparable adjustments.
AB337, s. 5
3Section
5. 20.865 (1) (s) of the statutes is amended to read:
AB337,4,144
20.865
(1) (s)
Compensation and related adjustments; segregated revenues. 5From the appropriate segregated funds, a sum sufficient to supplement the
6appropriations to state agencies for the cost of compensation and related
7adjustments approved
by the legislature or awarded under s.
111.885 or 111.92 for
8represented employees
and, approved by the joint committee on employment
9relations under s. 230.12
, and
approved by the legislature, when required for
10nonrepresented employees in the classified service and comparable adjustments for
11nonrepresented employees in the unclassified service, except those nonrepresented
12employees specified in ss. 20.923 (4g), (5)
, and (6) (c) and (m) and 230.08 (2) (d) and
13(f), as determined under s. 20.928. Unclassified employees under s. 20.923 (2) need
14not be paid comparable adjustments.
AB337, s. 6
15Section
6. 111.71 (5) of the statutes is amended to read:
AB337,4,2516
111.71
(5) The commission shall, on a regular basis, provide training programs
17to prepare individuals for service as arbitrators or arbitration panel members under
18s. ss. 111.70 (4) (cm)
and 111.885. The commission shall engage in appropriate
19promotional and recruitment efforts to encourage participation in the training
20programs by individuals throughout the state, including at least 10 residents of each
21congressional district. The commission may also provide training programs to
22individuals and organizations on other aspects of collective bargaining, including on
23areas of management and labor cooperation directly or indirectly affecting collective
24bargaining. The commission may charge a reasonable fee for participation in the
25programs.
AB337, s. 7
1Section
7. 111.84 (1) (g) of the statutes is created to read:
AB337,5,32
111.84
(1) (g) To fail to implement an arbitration award lawfully made under
3s. 111.885.
AB337, s. 8
4Section
8. 111.84 (2) (e) of the statutes is amended to read:
AB337,5,75
111.84
(2) (e)
To Except as authorized in s. 111.885, to engage in, induce or
6encourage any employees to engage in a strike, or a concerted refusal to work or
7perform their usual duties as employees.
AB337, s. 9
8Section
9. 111.84 (2) (g) of the statutes is created to read:
AB337,5,109
111.84
(2) (g) To fail to implement an arbitration award lawfully made under
10s. 111.885.
AB337, s. 10
11Section
10. 111.86 of the statutes is repealed.
AB337, s. 11
12Section
11. 111.87 of the statutes is repealed.
AB337, s. 12
13Section
12. 111.88 of the statutes is repealed.
AB337, s. 13
14Section
13. 111.885 of the statutes is created to read:
AB337,5,24
15111.885 Methods for peaceful settlement of disputes. (1) Notice of
16commencement of contract negotiations. For the purpose of advising the
17commission of the commencement of contract negotiations, whenever either party
18requests the other to reopen negotiations under a binding collective bargaining
19agreement, or the parties otherwise commence negotiations if no such agreement
20exists, the party requesting negotiations shall immediately notify the commission in
21writing. Upon failure of the requesting party to provide such notice, the other party
22may so notify the commission. The notice shall specify the expiration date of the
23existing collective bargaining agreement, if any, and shall set forth any additional
24information that the commission may require on a form provided by the commission.
AB337,6,7
1(2) Presentation of initial proposals; open meetings. The meetings between
2parties to a collective bargaining agreement or proposed collective bargaining
3agreement under this subchapter that are held for the purpose of presenting initial
4bargaining proposals, along with supporting rationale, shall be open to the public.
5Each party shall submit its initial bargaining proposals to the other party in writing.
6Failure to comply with this subsection is not cause to invalidate a collective
7bargaining agreement under this subchapter.
AB337,6,11
8(3) Mediation. The commission or its designee shall function as mediator in
9labor disputes involving employees upon request of one or both of the parties, or upon
10initiation of the commission. The function of the mediator shall be to encourage
11voluntary settlement by the parties. No mediator has the power of compulsion.
AB337,6,16
12(4) Grievance arbitration. Parties to a dispute pertaining to the meaning or
13application of the terms of a written collective bargaining agreement may agree in
14writing to have the commission or any other appropriate agency serve as arbitrator
15or may designate any other competent, impartial, and disinterested person to so
16serve.
AB337,6,25
17(5) Voluntary impasse resolution procedures. In addition to the other
18impasse resolution procedures provided in this section, the employer and labor
19organization may at any time, as a permissive subject of bargaining, agree in writing
20to a dispute settlement procedure, including authorization for a strike by employees
21or binding interest arbitration, that is acceptable to the parties for resolving an
22impasse over terms of any collective bargaining agreement under this subchapter.
23A copy of such agreement shall be filed by the parties with the commission. If the
24parties agree to any form of binding interest arbitration, the arbitrator shall give
25weight to the factors enumerated under sub. (7).
AB337,7,15
1(6) Interest arbitration. (a) If a dispute has not been settled after a
2reasonable period of negotiation and after mediation by the commission under sub.
3(3) and other settlement procedures, if any, established by the parties have been
4exhausted, and the parties are deadlocked with respect to any dispute between them
5over mandatory subjects of bargaining under s. 111.91 to be included in a new
6collective bargaining agreement, either party, or the parties jointly, may petition the
7commission, in writing, to initiate compulsory, final, and binding arbitration, as
8provided in this subsection. At the time that the petition is filed, the petitioning
9party shall submit in writing to the other party and the commission its preliminary
10final offer containing its latest proposals on all issues in dispute. Within 14 calendar
11days after the date of that submission, the other party shall submit in writing its
12preliminary final offer on all disputed issues to the petitioning party and the
13commission. If a petition is filed jointly, both parties shall exchange their
14preliminary final offers in writing and submit copies to the commission at the time
15that the petition is filed.
AB337,9,616
(b) Upon receipt of a petition to initiate arbitration, the commission shall make
17an investigation, with or without a formal hearing, to determine whether arbitration
18should be commenced. If in determining whether an impasse exists the commission
19finds that the procedures set forth in this subsection have not been complied with and
20such compliance would tend to result in a settlement, it may order such compliance
21before ordering arbitration. The validity of any arbitration award or collective
22bargaining agreement shall not be affected by failure to comply with such
23procedures. Prior to the close of the investigation, each party shall submit in writing
24to the commission its single final offer containing its final proposals on all issues in
25dispute that are subject to interest arbitration under this subsection. If a party fails
1to submit a single, ultimate final offer, the commission shall close the investigation
2based on the last written position of the party. Such final offers may include only
3mandatory subjects of bargaining under s. 111.91, except that a permissive subject
4of bargaining may be included by a party if the other party does not object and shall
5then be treated as a mandatory subject. No later than such time, the parties shall
6also submit to the commission a stipulation, in writing, with respect to all matters
7which are agreed upon for inclusion in the new or amended collective bargaining
8agreement. The commission, after receiving a report from its investigator and
9determining that arbitration should be commenced, shall issue an order requiring
10arbitration and immediately submit to the parties a list of 7 arbitrators. Upon
11receipt of such list, the parties shall alternately strike names until a single name is
12left, who shall be appointed as arbitrator. The petitioning party shall notify the
13commission in writing of the identity of the arbitrator selected. Upon receipt of such
14notice, the commission shall formally appoint the arbitrator and submit to him or her
15the final offers of the parties. The final offers shall be considered public documents
16and shall be available from the commission. In lieu of a single arbitrator and upon
17request of both parties, the commission shall appoint a tripartite arbitration panel
18consisting of one member selected by each of the parties and a neutral person
19designated by the commission who shall serve as a chairperson. An arbitration panel
20has the same powers and duties as provided in this section for any other appointed
21arbitrator, and all arbitration decisions by such panel shall be determined by
22majority vote. In lieu of selection of the arbitrator by the parties and upon request
23of both parties, the commission shall establish a procedure for randomly selecting
24names of arbitrators. Under the procedure, the commission shall submit a list of 7
25arbitrators to the parties. Each party shall strike one name from the list. From the
1remaining 5 names, the commission shall randomly appoint an arbitrator. Unless
2both parties to an arbitration proceeding otherwise agree in writing, every
3individual whose name is submitted by the commission for appointment as an
4arbitrator shall be a resident of this state at the time of submission and every
5individual who is designated as an arbitration panel chairperson shall be a resident
6of this state at the time of designation.
AB337,9,167
(c) The arbitrator shall, within 10 days of his or her appointment, establish a
8date and place for the conduct of the arbitration hearing. Upon petition of at least
95 residents of the state, filed within 10 days after the date on which the arbitrator
10is appointed, the arbitrator shall hold a public hearing for the purpose of providing
11the opportunity to both parties to explain or present supporting arguments for their
12positions and to members of the public to offer their comments and suggestions. The
13final offers of the parties, as transmitted by the commission to the arbitrator, shall
14serve as the basis for continued negotiations, if any, between the parties with respect
15to the issues in dispute. At any time prior to the arbitration hearing, either party,
16with the consent of the other party, may modify its final offer in writing.
AB337,9,2417
(d) Prior to the arbitration hearing, either party may, within a time limit
18established by the arbitrator, withdraw its final offer and mutually agreed upon
19modifications thereof, if any, and shall immediately provide written notice of such
20withdrawal to the other party, the arbitrator, and the commission. If both parties
21withdraw their final offers and mutually agreed upon modifications, the labor
22organization, after giving 10 days' advance written notice to the employer and the
23commission, may strike. Unless both parties withdraw their final offers and
24mutually agreed upon modifications, the final offer of neither party shall be deemed
1withdrawn and the arbitrator shall proceed to resolve the dispute by final and
2binding arbitration as provided in this subsection.
AB337,10,103
(e) The arbitrator shall adopt without further modification the final offer of one
4of the parties on all disputed issues submitted under par. (b), except those items that
5the commission determines not to be mandatory subjects of bargaining and those
6items which have not been treated as mandatory subjects by the parties, and
7including any prior modifications of such offer mutually agreed upon by the parties
8under par. (c). The arbitrator's decision shall be final and binding on both parties and
9shall be incorporated into a written collective bargaining agreement. The arbitrator
10shall serve a copy of his or her decision on both parties and the commission.
AB337,10,1211
(f) Arbitration proceedings shall not be interrupted or terminated by reason of
12any unfair labor practice complaint filed by either party at any time.
AB337,10,1513
(g) The costs of arbitration shall be divided equally between the parties. The
14arbitrator shall submit a statement of his or her costs to both parties and to the
15commission.
AB337,10,2516
(h) Either party may petition the commission for a declaratory ruling as to
17whether any proposal made in negotiations is a mandatory, permissive, or prohibited
18subject of bargaining. The commission shall issue a decision on such a petition within
1915 days, which shall have the effect of an order issued under s. 111.07. The filing of
20a petition under this paragraph does not prevent the filing of an unfair labor practice
21complaint concerning the same activity. If a petition is filed under this paragraph,
22the proceedings under pars. (d) and (e) shall be delayed until the commission renders
23a decision in the matter, but not during any appeal of the commission order. The
24arbitrator's award shall be made in accordance with the commission's ruling, subject
25to automatic amendment by any subsequent court reversal thereof.
AB337,11,3
1(7) Factors considered. In making any decision under the arbitration
2procedures authorized by this section, the arbitrator or arbitration panel shall give
3weight to the following factors:
AB337,11,44
(a) The lawful authority of the municipal employer.
AB337,11,55
(b) Stipulations of the parties.
AB337,11,76
(c) The interests and welfare of the public and the financial ability of the
7employer to meet the costs of any proposed settlement.
AB337,11,108
(d) Comparison of wages, hours, and conditions of employment of the
9employees involved in the arbitration proceedings with the wages, hours, and
10conditions of employment of other employees performing similar services.
AB337,11,1311
(e) Comparison of the wages, hours, and conditions of employment of the
12employees involved in the arbitration proceedings with the wages, hours, and
13conditions of employment of other employees generally in public employment.
AB337,11,1614
(f) Comparison of the wages, hours, and conditions of employment of the
15employees involved in the arbitration proceedings with the wages, hours, and
16conditions of employment of other employees in private employment.