AB337: Bill Text

LRB-2149/1

RAC:kmg:rs

2003 - 2004 LEGISLATURE

2003 Assembly BILL 337

May 13, 2003 - Introduced by Representatives Pocan, Boyle, Berceau, Black and Plouff, cosponsored by Senator Risser. Referred to Committee on Labor.

AB337,1,7 An Act to repeal 111.86, 111.87 and 111.88; to amend 20.512 (1) (km), 20.865 (1) (c), 20.865 (1) (i), 20.865 (1) (s), 111.71 (5), 111.84 (2) (e), 111.89 (1), 111.89 (2) (intro.), 111.92 (1) (a), 111.92 (4), 111.94 (2) and 904.085 (2) (a); and to create 20.512 (1) (c), 111.84 (1) (g), 111.84 (2) (g), 111.885 and 111.89 (3) and (4) of the statutes; relating to: authorizing binding arbitration and a limited right to strike under the State Employment Labor Relations Act, requiring the exercise of 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 Section 1. 20.512 (1) (c) of the statutes is created to read:

AB337,2,3 20.512 (1) (c) Arbitration expenses. A sum sufficient to pay the employer's share of expenses of arbitration in labor disputes under s. 111.885 (6) (g).

AB337, s. 2 Section 2. 20.512 (1) (km) of the statutes is amended to read:

AB337,3,2 20.512 (1) (km) Collective bargaining grievance arbitrations. The amounts in the schedule for the payment of the state's share of costs related to collective bargaining grievance arbitrations under s. 111.86 111.885 (4). All moneys received from state agencies for the purpose of reimbursing the state's share of the costs related to grievance arbitrations under s. 111.86 111.885 shall be credited to this appropriation account.

AB337, s. 3 Section 3. 20.865 (1) (c) of the statutes is amended to read:

AB337,3,14 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. 111.885 or 111.92 for represented employees and, approved by the joint committee on employment relations under s. 230.12, and approved by the legislature, when required, for nonrepresented employees in the classified service and comparable adjustments for nonrepresented employees in the unclassified service, except those nonrepresented employees specified in ss. 20.923 (4g), (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 employees included under s. 20.923 (2) need not be paid comparable adjustments.

AB337, s. 4 Section 4. 20.865 (1) (i) of the statutes is amended to read:

AB337,4,2 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. 111.885 or 111.92 for represented employees and, approved by the joint committee on employment relations under s. 230.12, and approved by the legislature, when required for nonrepresented employees in the classified service and comparable adjustments for nonrepresented employees in the unclassified service, except those nonrepresented employees specified in ss. 20.923 (4g), (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 employees included under s. 20.923 (2) need not be paid comparable adjustments.

AB337, s. 5 Section 5. 20.865 (1) (s) of the statutes is amended to read:

AB337,4,14 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. 111.885 or 111.92 for represented employees and, approved by the joint committee on employment relations under s. 230.12, and approved by the legislature, when required for nonrepresented employees in the classified service and comparable adjustments for nonrepresented employees in the unclassified service, except those nonrepresented employees specified in ss. 20.923 (4g), (5), and (6) (c) and (m) and 230.08 (2) (d) and (f), as determined under s. 20.928. Unclassified employees under s. 20.923 (2) need not be paid comparable adjustments.

AB337, s. 6 Section 6. 111.71 (5) of the statutes is amended to read:

AB337,4,25 111.71 (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.

AB337, s. 7 Section 7. 111.84 (1) (g) of the statutes is created to read:

AB337,5,3 111.84 (1) (g) To fail to implement an arbitration award lawfully made under s. 111.885.

AB337, s. 8 Section 8. 111.84 (2) (e) of the statutes is amended to read:

AB337,5,7 111.84 (2) (e) To Except as authorized in s. 111.885, to engage in, induce or encourage any employees to engage in a strike, or a concerted refusal to work or perform their usual duties as employees.

AB337, s. 9 Section 9. 111.84 (2) (g) of the statutes is created to read:

AB337,5,10 111.84 (2) (g) To fail to implement an arbitration award lawfully made under s. 111.885.

AB337, s. 10 Section 10. 111.86 of the statutes is repealed.

AB337, s. 11 Section 11. 111.87 of the statutes is repealed.

AB337, s. 12 Section 12. 111.88 of the statutes is repealed.

AB337, s. 13 Section 13. 111.885 of the statutes is created to read:

AB337,5,24 111.885 Methods for peaceful settlement of disputes. (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 that the commission may require on a form provided by the commission.

AB337,6,7 (2) Presentation of initial proposals; open meetings. The meetings between parties to a collective bargaining agreement or proposed collective bargaining agreement under this subchapter that are held for the purpose of presenting initial bargaining proposals, along with supporting rationale, shall be open to the public. Each party shall submit its initial bargaining proposals to the other party in writing. Failure to comply with this subsection is not cause to invalidate a collective bargaining agreement under this subchapter.

AB337,6,11 (3) Mediation. The commission or its designee shall function as mediator in labor disputes involving employees 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.

AB337,6,16 (4) 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.

AB337,6,25 (5) Voluntary impasse resolution procedures. In addition to the other impasse resolution procedures provided in this section, the employer and labor organization may at any time, as a permissive subject of bargaining, agree in writing to a dispute settlement procedure, including authorization for a strike by employees or binding interest arbitration, that is acceptable to the parties for resolving an impasse over terms of any collective bargaining agreement under this subchapter. A copy of such agreement shall be filed by the parties with the commission. If the parties agree to any form of binding interest arbitration, the arbitrator shall give weight to the factors enumerated under sub. (7).

AB337,7,15 (6) Interest arbitration. (a) If a dispute has not been settled after a reasonable period of negotiation and after mediation by the commission under sub. (3) and other settlement procedures, if any, established by the parties have been exhausted, and the parties are deadlocked with respect to any dispute between them over mandatory subjects of bargaining under s. 111.91 to be included in a new collective bargaining agreement, either party, or the parties jointly, may petition the commission, in writing, to initiate compulsory, final, and binding arbitration, as provided in this subsection. At the time that the petition is filed, the petitioning party shall submit in writing to the other party and the commission its preliminary final offer containing its latest proposals on all issues in dispute. Within 14 calendar days after the date of that submission, the other party shall submit in writing its preliminary final offer on all disputed issues to the petitioning party and the commission. If a petition is filed jointly, both parties shall exchange their preliminary final offers in writing and submit copies to the commission at the time that the petition is filed.

AB337,9,6 (b) Upon receipt of a petition to initiate arbitration, the commission shall make an investigation, with or without a formal hearing, to determine whether arbitration should be commenced. If in determining whether an impasse exists the commission finds that the procedures set forth in this subsection have not been complied with and such compliance would tend to result in a settlement, it may order such compliance before ordering arbitration. The validity of any arbitration award or collective bargaining agreement shall not be affected by failure to comply with such procedures. Prior to the close of the investigation, each party shall submit in writing to the commission its single final offer containing its final proposals on all issues in dispute that are subject to interest arbitration under this subsection. If a party fails to submit a single, ultimate final offer, the commission shall close the investigation based on the last written position of the party. Such final offers may include only mandatory subjects of bargaining under s. 111.91, except that a permissive subject of bargaining may be included by a party if the other party does not object and shall then be treated as a mandatory subject. No later than such time, the parties shall also submit to the commission a stipulation, in writing, with respect to all matters which are agreed upon for inclusion in the new or amended collective bargaining agreement. The commission, after receiving a report from its investigator and determining that arbitration should be commenced, shall issue an order requiring arbitration and immediately submit to the parties a list of 7 arbitrators. Upon receipt of such list, the parties shall alternately strike names until a single name is left, who shall be appointed as arbitrator. The petitioning party shall notify the commission in writing of the identity of the arbitrator selected. Upon receipt of such notice, the commission shall formally appoint the arbitrator and submit to him or her the final offers of the parties. The final offers shall be considered public documents and shall be available from the commission. In lieu of a single arbitrator and upon request of both parties, the commission shall appoint a tripartite arbitration panel consisting of one member selected by each of the parties and a neutral person designated by the commission who shall serve as a chairperson. An arbitration panel has the same powers and duties as provided in this section for any other appointed arbitrator, and all arbitration decisions by such panel shall be determined by majority vote. In lieu of selection of the arbitrator by the parties and upon request of both parties, the commission shall establish a procedure for randomly selecting names of arbitrators. Under the procedure, the commission shall submit a list of 7 arbitrators to the parties. Each party shall strike one name from the list. From the remaining 5 names, the commission shall randomly appoint an arbitrator. Unless both parties to an arbitration proceeding otherwise agree in writing, every individual whose name is submitted by the commission for appointment as an arbitrator shall be a resident of this state at the time of submission and every individual who is designated as an arbitration panel chairperson shall be a resident of this state at the time of designation.

AB337,9,16 (c) The arbitrator shall, within 10 days of his or her appointment, establish a date and place for the conduct of the arbitration hearing. Upon petition of at least 5 residents of the state, filed within 10 days after the date on which the arbitrator is appointed, the arbitrator shall hold a public hearing for the purpose of providing the opportunity to both parties to explain or present supporting arguments for their positions and to members of the public to offer their comments and suggestions. The final offers of the parties, as transmitted by the commission to the arbitrator, shall serve as the basis for continued negotiations, if any, between the parties with respect to the issues in dispute. At any time prior to the arbitration hearing, either party, with the consent of the other party, may modify its final offer in writing.

AB337,9,24 (d) Prior to the arbitration hearing, either party may, within a time limit established by the arbitrator, withdraw its final offer and mutually agreed upon modifications thereof, if any, and shall immediately provide written notice of such withdrawal to the other party, the arbitrator, and the commission. If both parties withdraw their final offers and mutually agreed upon modifications, the labor organization, after giving 10 days' advance written notice to the employer and the commission, may strike. Unless both parties withdraw their final offers and mutually agreed upon modifications, the final offer of neither party shall be deemed withdrawn and the arbitrator shall proceed to resolve the dispute by final and binding arbitration as provided in this subsection.

AB337,10,10 (e) The arbitrator shall adopt without further modification the final offer of one of the parties on all disputed issues submitted under par. (b), except those items that the commission determines not to be mandatory subjects of bargaining and those items which have not been treated as mandatory subjects by the parties, and including any prior modifications of such offer mutually agreed upon by the parties under par. (c). The arbitrator's decision shall be final and binding on both parties and shall be incorporated into a written collective bargaining agreement. The arbitrator shall serve a copy of his or her decision on both parties and the commission.

AB337,10,12 (f) Arbitration proceedings shall not be interrupted or terminated by reason of any unfair labor practice complaint filed by either party at any time.

AB337,10,15 (g) The costs of arbitration shall be divided equally between the parties. The arbitrator shall submit a statement of his or her costs to both parties and to the commission.

AB337,10,25 (h) Either party may petition the commission for a declaratory ruling as to whether any proposal made in negotiations is a mandatory, permissive, or prohibited subject of bargaining. The commission shall issue a decision on such a petition within 15 days, which shall have the effect of an order issued under s. 111.07. The filing of a petition under this paragraph does not prevent the filing of an unfair labor practice complaint concerning the same activity. If a petition is filed under this paragraph, the proceedings under pars. (d) and (e) shall be delayed until the commission renders a decision in the matter, but not during any appeal of the commission order. The arbitrator's award shall be made in accordance with the commission's ruling, subject to automatic amendment by any subsequent court reversal thereof.

AB337,11,3 (7) Factors considered. In making any decision under the arbitration procedures authorized by this section, the arbitrator or arbitration panel shall give weight to the following factors:

AB337,11,4 (a) The lawful authority of the municipal employer.