SB405: Bill Text

LRB-4498/1

RAC:jlg:lp

1997 - 1998 LEGISLATURE

1997 Senate BILL 405

January 15, 1998 - Introduced by Committee on Education. Referred to Committee on Education.

SB405,1,8 An Act to repeal 111.70 (1) (dm) and 111.70 (1) (nc); to amend 20.425 (1) (i), 111.70 (1) (a), 111.70 (3) (a) 7., 111.70 (3) (b) 6., 111.70 (4) (d) 2. a., 111.70 (4) (L), 111.70 (7m) (c) 3., 111.70 (7m) (e), 111.71 (2), 111.71 (4), 111.71 (5), 118.245 (3), 120.18 (1) (gm) and 904.085 (2) (a); to repeal and recreate 111.70 (4) (cm); and to create 15.587, 20.923 (6) (bc), 111.70 (1) (cm), 111.70 (1) (hm), 111.71 (3), 111.71 (5m) and 111.71 (5r) of the statutes; relating to: dispute resolution procedures under the municipal employment relations act, requiring the exercise of rule-making authority and making an appropriation.

Analysis by the Legislative Reference Bureau

Under current law, in local government employment other than law enforcement and fire fighting employment, if a dispute relating to the terms of a proposed collective bargaining agreement has not been settled after a reasonable period of negotiation and after mediation by the Wisconsin employment relations commission (WERC), either party, or the parties jointly, may petition WERC to initiate compulsory, final and binding arbitration with respect to any dispute relating to wages, hours and conditions of employment. If WERC determines, after investigation, that an impasse exists and that arbitration is required, WERC must submit to the parties a list of 7 arbitrators, from which the parties alternately strike names until one arbitrator is left. As an alternative to a single arbitrator, WERC may provide for an arbitration panel that consists of one person selected by each party and one person selected by WERC. As a further alternative, WERC may also provide a process that allows for a random selection of a single arbitrator from a list of 7 names submitted by WERC. Under current law, an arbitrator or arbitration panel must adopt the final offer of one of the parties on all disputed issues, which is then incorporated into the collective bargaining agreement.

Under current law, however, this process does not apply to a dispute over economic issues involving a collective bargaining unit consisting of school district professional employes if WERC determines, subsequent to an investigation, that the employer has submitted a qualified economic offer (QEO). Under current law, a QEO consists of a proposal to maintain the percentage contribution by the employer to the employes' existing fringe benefit costs and the employes' existing fringe benefits and to generally provide, with certain exceptions, for an annual average salary increase having a cost to the employer at least equal to 2.1% of the existing total compensation and fringe benefit costs for the employes in the collective bargaining unit.

Current law also provides that in reaching a decision, the arbitrator or arbitration panel must give weight to many factors, including the lawful authority of the municipal employer, the stipulations of the parties, the interest and welfare of the public and the financial ability of the unit of government to meet the costs of the proposed agreement, comparison of wages, hours and conditions of employment with those of other public and private sector employes, the cost of living, the overall compensation and benefits that the employes currently receive and other similar factors. But, under current law, the arbitrator is required to give greater weight to economic conditions in the jurisdiction of the employer and the greatest weight to any state law or directive that places expenditure or revenue limitations on an employer.

This bill creates a new dispute resolution process in local government employment other than law enforcement and fire fighting employment, as well as abolishes the QEO. Under the bill, the parties are required to meet for the purpose of submitting initial collective bargaining proposals. No later than 30 days after this meeting, the parties must jointly determine whether to use a method of dispute resolution called "consensus bargaining" to resolve their dispute. The bill defines "consensus bargaining" as a collaborative problem-solving system of collective bargaining that emphasizes the mutual interests of the parties involved in a labor dispute. If the parties are unable to agree to use consensus bargaining to resolve the dispute, they parties must continue to negotiate until such time that WERC determines that the parties have reached an impasse. No later than 30 days after such a determination, the parties must choose among the following procedures to resolve their dispute:

1. Voluntary impasse resolution procedures. Under this procedure, the parties may agree to any kind of dispute resolution procedure.

2. Fact-finding. Under this procedure, WERC appoints a fact finder or a fact-finding panel to make findings and recommendations to serve on the parties. In making findings and recommendations, the fact finder or fact-finding panel must take into consideration the principles vital to the public interest in efficient and economical governmental administration. Under this procedure, the parties have 30 days from receipt of the findings and recommendations to notify each other as to the party's acceptance or rejection of any of the recommendations. If the parties are unable to agree on the recommendations, the parties continue to negotiate.

3. Strikes and lockouts. Under this procedure, the parties may jointly agree to settle the dispute by engaging in strikes and lockouts. If the parties elect this procedure, the labor organization must give WERC and the employer 10 days' notice prior to engaging in a strike.

4. Interest arbitration. This procedure is essentially the same as in current law, except that WERC does not appoint an investigator to determine if the parties have reached a bargaining impasse. Instead, the parties submit their final offers, which must be generally limited to no more than 5 issues that are mandatory subjects of bargaining, and the arbitrator or arbitration panel adopts one of the party's final offers.

5. Dispute resolution judicial process. Under this procedure, the parties submit their final offers to the WERC. Through a selection process in which the parties have the authority to request a substitution, WERC appoints a dispute resolution judge to preside over a dispute resolution tripartite panel. The other members of the panel consist of an advocate appointed by one party and an advocate appointed by the other party. The tripartite panel initially acts as a fact-finding panel and is required, after hearings, to serve findings of fact and recommendations on the parties. In making findings and recommendations, the panel must take into consideration the principles vital to the public interest in efficient and economical governmental administration. If the parties have not resolved the dispute within 30 days after service of the panel's findings and recommendations, the dispute resolution judge reconvenes the panel and, by a majority vote of the panel, adopts the final offer of one of the parties.

Under the bill, if the parties cannot agree to a dispute resolution procedure, they are required to use the dispute resolution judicial process. As mentioned, this process is presided over by a dispute resolution judge. The dispute resolution judge is one of 12 dispute resolution judges that, under the bill, the governor is required to nominate, and with the advice and consent of the senate appoint, for 4-year terms. The dispute resolution judges are state officers, appointed in the unclassified service of the state and have their compensation established by WERC. The bill also creates a council on municipal collective bargaining which is charged with preparing a list of names from which the governor is to nominate dispute resolution judges. This council is also required to advise WERC on the operation of the municipal employment relations act and to continuously review the operation of the collective bargaining law as it affects municipal employment other than law enforcement and fire fighting employment. The chairperson of the WERC is to chair the council and is to appoint 5 representatives of municipal employers and 5 representatives of municipal employes bargaining under the municipal employment relations act. These members are to serve 6-year terms.

Finally, under the bill, new arbitration factors are created. An arbitrator, arbitration panel or dispute resolution tripartite panel must give weight to comparison of wages, hours and conditions of employment of the municipal employes involved in the arbitration proceedings with the wages, hours and conditions of employment of other municipal employes of the municipal employer and other employes in public and private employment who perform similar services in the same community and comparable communities; and such other factors that are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through collective bargaining in the public service or in private employment. However, an arbitrator, arbitration panel or dispute resolution tripartite panel must give greater weight to economic conditions in the jurisdiction of the municipal employer. Finally, an arbitrator, arbitration panel or dispute resolution tripartite panel must give greatest weight to any state law or directive lawfully issued by a state legislative or administrative officer, body or agency which places limitations on expenditures that may be made or revenues that may be collected by a municipal employer.

For further information see the state and local 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:

SB405, s. 1 Section 1. 15.587 of the statutes is created to read:

SB405,4,12 15.587 Same; councils. (1) Council on municipal collective bargaining. There is created in the employment relations commission a council on municipal collective bargaining. The council shall consist of the chairperson of the commission, who shall serve as the nonvoting chairperson of the council, and 5 representatives of municipal employers and 5 representatives of municipal employes bargaining under subch. IV of ch. 111 appointed by the chairperson of the commission to serve for 6-year terms. In making appointments to the council, the chairperson shall give due consideration to the necessity of achieving balanced representation of municipal employer interests, and to the diversity of municipal employe interests among municipal employes who are included in collective bargaining units subject to the procedures under s. 111.70 (4) (cm).

SB405, s. 2 Section 2. 20.425 (1) (i) of the statutes is amended to read:

SB405,5,5 20.425 (1) (i) Fees. The amounts in the schedule for the performance of impasse determination, fact-finding, mediation and, arbitration and dispute resolution judicial functions and for the provision of copies of transcripts. All moneys received under ss. 111.09 (1) and (2), 111.71 (1) and (2) and 111.94 (1) and (2), except as otherwise provided in those sections, shall be credited to this appropriation account.

SB405, s. 3 Section 3. 20.923 (6) (bc) of the statutes is created to read:

SB405,5,7 20.923 (6) (bc) Employment relations commission: dispute resolution judges.

SB405, s. 4 Section 4. 111.70 (1) (a) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB405,6,13 111.70 (1) (a) "Collective bargaining" means the performance of the mutual obligation of a municipal employer, through its officers and agents, and the representative of its municipal employes in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement, with respect to wages, hours and conditions of employment, and with respect to a requirement of the municipal employer for a municipal employe to perform law enforcement and fire fighting services under s. 61.66, except as provided in sub. (4) (m) and s. 40.81 (3) and except that a municipal employer shall not meet and confer with respect to any proposal to diminish or abridge the rights guaranteed to municipal employes under ch. 164. 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. The municipal employer shall not be required to bargain on subjects reserved to management and direction of the governmental unit except insofar as the manner of exercise of such functions affects the wages, hours and conditions of employment of the municipal employes in a collective bargaining unit, but the municipal employer shall be required to discuss any proposal primarily related to the operating efficiency and effectiveness of the governmental unit. Any such proposal that the municipal employer is required to discuss shall not be considered a mandatory subject of collective bargaining for the purposes of sub. (4) (cm), unless the proposal affects the wages, hours and conditions of employment of the municipal employes in a collective bargaining unit. In creating this subchapter the legislature recognizes that the municipal employer must exercise its powers and responsibilities to act for the government and good order of the jurisdiction which it serves, its commercial benefit and the health, safety and welfare of the public to assure orderly operations and functions within its jurisdiction, subject to those rights secured to municipal employes by the constitutions of this state and of the United States and by this subchapter.

SB405, s. 5 Section 5. 111.70 (1) (cm) of the statutes is created to read:

SB405,6,17 111.70 (1) (cm) "Consensus bargaining" means a collaborative problem-solving system of collective bargaining that emphasizes the mutual interests of the parties involved in a labor dispute.

SB405, s. 6 Section 6. 111.70 (1) (dm) of the statutes is repealed.

SB405, s. 7 Section 7. 111.70 (1) (hm) of the statutes is created to read:

SB405,6,25 111.70 (1) (hm) "Lockout" means the barring of any employe from his or her employment by a municipal employer as a part of a labor dispute, which is not directly subsequent to a strike or other job action of a labor organization or group of employes of the municipal employer, or which continues or occurs after the termination of a strike or other job action of a labor organization or group of employes of the municipal employer.

SB405, s. 8 Section 8. 111.70 (1) (nc) of the statutes is repealed.

SB405, s. 9 Section 9. 111.70 (3) (a) 7. of the statutes is amended to read:

SB405,7,4 111.70 (3) (a) 7. To refuse or otherwise fail to implement an arbitration decision or dispute resolution judicial decision lawfully made under sub. (4) (cm).

SB405, s. 10 Section 10. 111.70 (3) (b) 6. of the statutes is amended to read:

SB405,7,7 111.70 (3) (b) 6. To refuse or otherwise fail to implement an arbitration decision or dispute resolution judicial decision lawfully made under sub. (4) (cm).

SB405, s. 11 Section 11. 111.70 (4) (cm) of the statutes is repealed and recreated to read:

SB405,7,18 111.70 (4) (cm) Methods for peaceful settlement of disputes; other personnel. 1. `Notice of commencement of contract negotiations.' For the purpose of advising the commission of the commencement of contract negotiations, whenever either party requests the other to reopen negotiations under a binding collective bargaining agreement, or the parties otherwise commence negotiations if no such agreement exists, the party requesting negotiations shall immediately notify the commission in writing. Upon failure of the requesting party to provide such notice, the other party may so notify the commission. The notice shall specify the expiration date of the existing collective bargaining agreement, if any, and shall set forth any additional information the commission may require on a form provided by the commission.

SB405,7,25 2. `Presentation of initial proposals; open meetings.' The parties shall meet for the purpose of submitting initial collective bargaining proposals. The meetings between parties to a collective bargaining agreement or proposed collective bargaining agreement under this subchapter which are held for the purpose of presenting initial collective bargaining proposals, along with supporting rationale, shall be open to the public. Each party shall submit its initial collective bargaining proposals to the other party in writing.

SB405,8,5 3. `Grievance arbitration.' Parties to a dispute pertaining to the meaning or application of the terms of a written collective bargaining agreement may agree in writing to have the commission or any other appropriate agency serve as arbitrator or may designate any other competent, impartial and disinterested person to so serve.

SB405,8,10 4. `Mediation.' The commission or its designee shall function as mediator in labor disputes involving municipal employes upon request of one or both of the parties, or upon initiation of the commission. The function of the mediator shall be to encourage voluntary settlement by the parties. No mediator has the power of compulsion.

SB405,8,24 5. `Determination of dispute resolution procedures.' a. No later than 30 days after the initial meeting conducted under subd. 2., the parties shall jointly determine whether to use consensus bargaining under subd. 6. to settle any dispute over wages, hours and conditions of employment that are to be included in a new collective bargaining agreement. If the parties are unable to agree to use consensus bargaining under subd. 6. to settle the dispute, the parties shall continue to negotiate until such time that the commission determines that an impasse exists between the parties. The commission may only determine that an impasse exists upon the written request of one or both of the parties. No later than 30 days after the commission determines that an impasse exists, the parties shall jointly decide which dispute resolution procedure to use to settle the dispute. The parties may select only from the voluntary impasse resolution procedures under subd. 7., fact-finding under subd. 8., strikes and lockouts under subd. 9., interest arbitration under subd. 10. and the dispute resolution judicial process under subd. 11.

SB405,9,5 b. After selecting a dispute resolution procedure under subd. 5. a., the parties shall jointly notify the commission in writing of the procedure they have selected. If the parties are unable to agree on which procedure to use to settle the dispute before the 30th day after the commission has determined that an impasse exists, the parties shall use the dispute resolution judicial process under subd. 11.

SB405,9,18 6. `Consensus bargaining.' a. If the parties select consensus bargaining as the dispute resolution procedure to settle a dispute over wages, hours and conditions of employment that are to be included in a new collective bargaining agreement, the commission shall offer to provide training in consensus bargaining methods. If after a reasonable period of time the parties are unable to reach agreement regarding the dispute using consensus bargaining, either party, or the parties jointly, may petition the commission in writing to determine whether an impasse exists. If the commission determines that an impasse exists, the parties shall jointly select a different dispute resolution procedure specified in subd. 5. a. no later than 30 days after the commission has determined that an impasse exists. If the parties are unable to to reach agreement as to which dispute resolution procedure they shall use to settle the dispute, the parties shall use the dispute resolution judicial process under subd. 11.

SB405,9,23 b. If the parties, using consensus bargaining, settle their dispute over wages, hours and conditions of employment that are to be included in a new collective bargaining agreement, the commission shall reimburse the parties, from the appropriation account under s. 20.425 (1) (i), for the cost of all training fees and expenses incurred by the parties in using consensus bargaining.

SB405,9,25 7. `Voluntary impasse resolution procedures.' In addition to the other dispute resolution procedures provided in this paragraph, the parties may, as a permissive subject of bargaining, agree in writing to a different dispute resolution procedure for resolving an impasse over terms of any collective bargaining agreement under this subchapter. The parties shall file a copy of any such agreement with the commission. If the parties agree to any form of binding interest arbitration, the arbitrator shall give weight to the factors enumerated under subds. 12., 12g. and 12r.

SB405,10,10 8. `Fact-finding.' a. If the parties select fact-finding as the dispute resolution procedure to settle a dispute over wages, hours and conditions of employment that are to be included in a new collective bargaining agreement, the parties shall jointly petition the commission in writing to initiate fact-finding and to make recommendations to resolve the dispute.