AB127: Bill Text

LRB-1946/1

CMH&RAC:sbb&jld:md

2011 - 2012 LEGISLATURE

2011 Assembly BILL 127

May 10, 2011 - Introduced by Representative Ziegelbauer. Referred to Joint Committee on Finance.

AB127,2,2 An Act to repeal 111.70 (3) (a) 6., 111.70 (4) (jm) 5. b. and 111.77 (6) (e); to renumber 111.70 (4) (p); to renumber and amend 111.77 (6) (intro.), (a), (b), (c), (f), (g) and (h); to consolidate, renumber and amend 111.70 (4) (jm) 5. (intro.) and a. and 111.77 (6) (d) (intro.), 1. and 2.; to amend 111.70 (1) (a), 111.70 (2), 111.70 (4) (jm) 2. and 111.77 (3); and to create 111.70 (1) (ck), 111.70 (1) (q), 111.70 (4) (jm) 4w., 111.70 (4) (jm) 5b., 111.70 (4) (mc) 5., 6., 7. and 8., 111.70 (4) (p) 2., 111.77 (6) (am) and 111.77 (6) (cm) of the statutes; relating to: payment by employers of contributions under the Wisconsin Retirement System that are required of public safety employees, arbitration under the Municipal Employment Relations Act, allowing municipal employers choice in health care coverage plan providers and health savings accounts that cover public safety employees, and prohibited and permissive subjects of collective bargaining.

Analysis by the Legislative Reference Bureau

The Municipal Employment Relations Act (MERA) grants certain protective occupation participants under the Wisconsin Retirement System (public safety employees) the right to collectively bargain over wages, hours, and conditions of employment. There are three categories of collective bargaining subjects regarding collective bargaining units containing public safety employees. A mandatory subject of bargaining is one primarily related to wages, hours, and conditions of employment; the employer is required to bargain over this subject. A permissive subject of bargaining is one primarily related to the management and direction of the municipal employer; the employer is permitted, but is not required, to bargain over this subject. A prohibited subject of bargaining is one that would violate a law if the parties bargained over it; there may be no bargaining over a prohibited subject.

This bill creates a permissive subject of bargaining under MERA by providing that a municipal employer is not required to bargain over any decision whether or not to deduct union dues from the earnings of a public safety employee or over the impact of the decision on the wages, hours, or conditions of employment of the public safety employee.

The bill prohibits bargaining over all of the following, as well as the impact of each on the wages, hours, or conditions of employment of the public safety employee: 1) the decision to contract with any person who is not a municipal employee for the performance of services; 2) the decision to contract with any other municipal employer for the performance of services; 3) the decision to contract with any other municipal employer to consolidate services or units of government; or 4) the decision to permit individuals who perform services without payment of wages to perform services for the municipality that would otherwise be performed by municipal employees.

The bill prohibits bargaining over the selection of health care coverage plans by municipal employers for their public safety employees, including the option for the municipal employer to offer a health savings account that complies with federal law instead of, or in addition to, a health care coverage plan. The bill prohibits bargaining over the employer's share of premium costs for health care coverage under a plan or the employer's contribution to a health savings account, as long as the total employer share of premium costs is at least 75 percent of the total premium costs of a health care coverage plan or, if the plan includes a health savings account, at least 90 percent of the total premium cost. In addition, the bill prohibits bargaining over any requirement that the employer pay, on the behalf of a public safety employee, the first 5.8 percent of earnings that the employee is required to pay as contributions under the Wisconsin Retirement System.

Under MERA, if a dispute involving public safety employees that relates to the terms of a proposed collective bargaining agreement goes to arbitration, the arbitrator must give weight to different factors, depending on whether the dispute involves members of a police department employed by a first class city or employees of a fire department or a city or county law enforcement agency. This bill requires that an arbitrator of a dispute relating to the terms of a proposed collective bargaining agreement between a municipal employer and a public safety employee must give greater weight to the following factors than the arbitrator gives to other factors: 1) the local economic conditions and the municipality's budget; 2) the probability that the proposal will require service cuts; 3) the ability of the proposal to limit fringe benefit increases to the cost-of-living increases; and 4) the ability of the proposal to reflect cost-of-living adjustments in the increases and decreases in wages and fringe benefits that are not prohibited or permissive subjects of collective bargaining (total compensation). In addition, this bill prohibits an arbitrator from giving any weight either to the total compensation given to employees of similar organizations in communities with different economic conditions and costs of living or to any reserve funds held by the municipality.

MERA does not currently limit collective bargaining agreements to any specific maximum expenditures or increases in expenditures. Under this bill, no final offer or position involving public safety employees that is submitted to the Wisconsin Employment Relations Commission for interest arbitration may proceed to arbitration if the offer or position requires the annual expenditure for total compensation per employee to be more than the amount spent in the previous year increased by more than 1 percent over the average annual percentage change of the consumer price index for the previous three years.

Because this bill relates to public employee retirement or pensions, it may be referred to the Joint Survey Committee on Retirement Systems for a report to be printed as an appendix to the bill.

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:

AB127, s. 1 Section 1. 111.70 (1) (a) of the statutes, as affected by 2011 Wisconsin Act 10, is amended to read:

AB127,4,8 111.70 (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 employees 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 for public safety employees and with respect to wages for general municipal employees, and with respect to a requirement of the municipal employer for a municipal employee to perform law enforcement and fire fighting services under s. 61.66, except as provided in sub. (4) (mb) and, (mc), and (p) 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 any public safety employees under ch. 164. Collective bargaining includes the reduction of any agreement reached to a written and signed document.

AB127, s. 2 Section 2. 111.70 (1) (ck) of the statutes is created to read:

AB127,4,13 111.70 (1) (ck) "Consumer price index average adjustment" means the average annual percentage change in the consumer price index for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the federal department of labor, for the 3 years immediately preceding the current date.

AB127, s. 3 Section 3. 111.70 (1) (q) of the statutes is created to read:

AB127,4,16 111.70 (1) (q) "Total compensation" means wages and fringe benefits and excludes any item that is a permissive or prohibited subject of collective bargaining.

AB127, s. 4 Section 4. 111.70 (2) of the statutes, as affected by 2011 Wisconsin Act 10, is amended to read:

AB127,5,20 111.70 (2) Rights of municipal employees. Municipal employees have the right of self-organization, and the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. Municipal employees have the right to refrain from any and all such activities. A general municipal employee has the right to refrain from paying dues while remaining a member of a collective bargaining unit. A public safety employee, however, may be required to pay dues in the manner provided in a fair-share agreement; subject to sub. (4) (p) 2., a fair-share agreement covering a public safety employee must may contain a provision requiring the municipal employer to deduct the amount of dues as certified by the labor organization from the earnings of the public safety employee affected by the fair-share agreement and to pay the amount deducted to the labor organization. A fair-share agreement covering a public safety employee is subject to the right of the municipal employer or a labor organization to petition the commission to conduct a referendum. Such petition must be supported by proof that at least 30% of the public safety employees in the collective bargaining unit desire that the fair-share agreement be terminated. Upon so finding, the commission shall conduct a referendum. If the continuation of the agreement is not supported by at least the majority of the eligible public safety employees, it shall terminate. The commission shall declare any fair-share 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, creed, or sex to receive as a member any public safety employee of the municipal employer in the bargaining unit involved, and such agreement is subject to this duty of the commission. Any of the parties to such agreement or any public safety employee covered by the agreement may come before the commission, as provided in s. 111.07, and ask the performance of this duty.

AB127, s. 5 Section 5. 111.70 (3) (a) 6. of the statutes, as affected by 2011 Wisconsin Act 10, is repealed.

AB127, s. 6 Section 6. 111.70 (4) (jm) 2. of the statutes is amended to read:

AB127,6,12 111.70 (4) (jm) 2. The commission shall conduct a hearing on the petition, and upon a determination that the parties have reached an impasse on matters relating to wages, hours and conditions of employment or other matters subject to arbitration under subd. 4. on which there is no mutual agreement, the commission shall ensure that neither party's position requires an expenditure for wages and fringe benefits per employee in any year of the contract that exceeds the amount spent per employee in the previous year by more than 1 percent over the consumer price index average adjustment. If the commission determines that a party's position requires greater expenditure, the commission shall require that party to revise its position before submitting it again. Once both positions do not require greater expenditure, the commission shall appoint an arbitrator to determine those terms of the agreement on which there is no mutual agreement. The commission may appoint any person it deems qualified, except that the arbitrator may not be a resident of the city which is party to the dispute.

AB127, s. 7 Section 7. 111.70 (4) (jm) 4w. of the statutes is created to read:

AB127,6,16 111.70 (4) (jm) 4w. In determining the proper compensation to be received by members of the police department under subd. 4., the arbitrator shall give greater weight to the following factors than to factors under subd. 5.:

AB127,6,19 a. The local economic conditions and the budget of the 1st class city, which may include a comparison between the proposed total compensation of the municipal employees and similar factors in the private sector in the 1st class city.

AB127,6,20 b. The probability that the proposal would require service cuts.

AB127,6,23 c. The ability of the proposal to limit any increase in fringe benefits since the previous adjustment to any increase in the cost of living since the previous adjustment.

AB127,7,3 d. The ability of the proposal to reflect any increase or decrease in the cost of living since the previous adjustment in the increase or decrease of the total compensation since the previous adjustment.

AB127, s. 8 Section 8. 111.70 (4) (jm) 5. (intro.) and a. of the statutes are consolidated, renumbered 111.70 (4) (jm) 5. and amended to read:

AB127,7,12 111.70 (4) (jm) 5. In determining the proper compensation to be received by members of the police department under subd. 4., in addition to the factors under subd. 4w., the arbitrator shall utilize: a. The the most recently published U.S. bureau of labor statistics "Standards of Living Budgets for Urban Families, Moderate and Higher Level", as a guideline to determine the compensation necessary for members to enjoy a standard of living commensurate with their needs, abilities, and responsibilities; and .

AB127, s. 9 Section 9. 111.70 (4) (jm) 5. b. of the statutes is repealed.

AB127, s. 10 Section 10. 111.70 (4) (jm) 5b. of the statutes is created to read:

AB127,7,17 111.70 (4) (jm) 5b. In determining the proper compensation to be received by members of the police department under subd. 4., the arbitrator may not consider the following factors:

AB127,7,19 a. The total compensation given to employees in municipalities other than the 1st class city that is subject to the arbitration decision.

AB127,7,20 b. Any reserve fund held by the 1st class city.

AB127, s. 11 Section 11. 111.70 (4) (mc) 5., 6., 7. and 8. of the statutes are created to read:

AB127,8,2 111.70 (4) (mc) 5. Any requirement that the employer pay, on behalf of a public safety employee, the first 5.8 percent of earnings that are required to be paid as employee-required contributions under s. 40.05 (1) (a) 3. or 4., and the impact of this requirement on the wages, hours, or conditions of employment of the public safety employee.

AB127,8,8 6. a. The selection of a health care coverage plan, or the decision to offer a health savings account under 26 USC 223 instead of, or in addition to, a health care coverage plan, by the municipal employer for public safety employees as long as the municipal employer, if offering only a health care coverage plan, offers to enroll the public safety employees in a health care coverage plan that complies with the requirements under s. 40.51 (8) for health care coverage plans offered by the state.

AB127,8,18 b. If the municipal employer offers only a health care coverage plan, the determination by the municipal employer of the municipal employer's share of the premium costs for health care coverage under the plan if the municipal employer contributes at least 75 percent of the total cost of the coverage. If the municipal employer offers a health savings account under 26 USC 223 instead of, or in addition to, a health care coverage plan, the determination by the municipal employer of the municipal employer's share of premium costs for health care coverage under the plan and the amount contributed by the municipal employer to the health savings account if the municipal employer contributes at least 90 percent of the total cost of the coverage.

AB127,8,23 c. The impact of the health care coverage plan or health savings account under 26 USC 223 and the impact of the determination of the municipal employer's and the public safety employee's shares of premium costs or health savings account contributions on the wages, hours, or conditions of employment of the public safety employee.

AB127,9,3 7. The municipal employer's decision to permit individuals who perform services without payment of wages to perform services for the municipality that would otherwise be performed by public safety employees, or the impact of any such decision on the wages, hours, or conditions of employment of the public safety employees.

AB127,9,9 8. The municipal employer's decision to contract with any person who is not a public safety employee for the performance of municipal services, to contract with any other municipal employer for the performance of municipal services, or to contract with any other municipal employer to consolidate municipal services or units of government, or the impact of any such decision on the wages, hours, or conditions of employment of the public safety employees.

AB127, s. 12 Section 12. 111.70 (4) (p) of the statutes, as affected by 2011 Wisconsin Act 10, section 210, is renumbered 111.70 (4) (p) 1.

AB127, s. 13 Section 13. 111.70 (4) (p) 2. of the statutes is created to read:

AB127,9,17 111.70 (4) (p) 2. A municipal employer is not required to bargain collectively with a public safety employee a decision as to whether the employer will deduct labor organization dues from the earnings of a public safety employee or the impact of the decision on the wages, hours, or conditions of employment of its public safety employees.

AB127, s. 14 Section 14. 111.77 (3) of the statutes is amended to read:

AB127,9,25 111.77 (3) Where the parties have no procedures for disposition of a dispute and an impasse has been reached, either party may petition the commission to initiate compulsory, final and binding arbitration of the dispute. If in determining whether an impasse has been reached the commission finds that any of the procedures set forth in sub. (1) have not been complied with and that compliance would tend to result in a settlement, it may require such compliance as a prerequisite to ordering arbitration. If after such procedures have been complied with or the commission has determined that compliance would not be productive of a settlement and the commission determines that an impasse has been reached, it the commission shall ensure that neither party's position requires an expenditure for total compensation per employee in any year of the contract that exceeds the amount spent per employee in the previous year by more than 1 percent over the consumer price index average adjustment. If the commission determines that a party's position requires greater expenditure, the commission shall require that party to revise its position before submitting it again. Once both positions do not require greater expenditure, the commission shall issue an order requiring arbitration. The commission shall in connection with the order for arbitration submit a panel of 5 arbitrators from which the parties may alternately strike names until a single name is left, who shall be appointed by the commission as arbitrator, whose expenses shall be shared equally between the parties. Arbitration proceedings under this section shall not be interrupted or terminated by reason of any prohibited practice charge filed by either party at any time.

AB127, s. 15 Section 15. 111.77 (6) (intro.), (a), (b), (c), (f), (g) and (h) of the statutes are renumbered 111.77 (6) (bm) (intro.), 1., 2., 3., 6., 7. and 8., and 111.77 (6) (bm) (intro.), as renumbered, is amended to read:

AB127,10,20 111.77 (6) (bm) (intro.) In reaching a decision, in addition to the factors under par. (am), the arbitrator shall give weight to the following factors:

AB127, s. 16 Section 16. 111.77 (6) (am) of the statutes is created to read:

AB127,10,23 111.77 (6) (am) In reaching a decision, the arbitrator shall give greater weight to the following factors than to the factors under par. (bm):

AB127,11,3 1. The local economic conditions and the budget of the municipality, which may include a comparison between the proposed total compensation of the municipal employees and similar factors in the private sector in the municipality.

AB127,11,4 2. The probability that the proposal would require service cuts.

AB127,11,7 3. The ability of the proposal to limit any increase in fringe benefits since the previous adjustment to any increase in the cost of living since the previous adjustment.

AB127,11,10 4. The ability of the proposal to reflect any increase or decrease in the cost of living since the previous adjustment in the increase or decrease of total compensation since the previous adjustment.

AB127, s. 17 Section 17. 111.77 (6) (cm) of the statutes is created to read:

AB127,11,13 111.77 (6) (cm) In reaching a decision, the arbitrator may not give any weight to any of the following factors:

AB127,11,15 1. The total compensation given to employees in municipalities other than the municipality that is subject to the arbitration decision.

AB127,11,16 2. Any reserve fund held by a municipality.

AB127, s. 18 Section 18. 111.77 (6) (d) (intro.), 1. and 2. of the statutes are consolidated, renumbered 111.77 (6) (bm) 4. and amended to read:

AB127,11,24 111.77 (6) (bm) 4. Comparison of the wages, hours and conditions of employment total compensation of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment total compensation of other employees performing similar services and with other employees generally: 1. In in public employment in comparable communities. 2. In and with similar factors of private employment in comparable communities the same community.

AB127, s. 19 Section 19. 111.77 (6) (e) of the statutes is repealed.

AB127, s. 20 Section 20. Initial applicability.

AB127,12,5 (1) This act first applies to employees who are covered by a collective bargaining agreement under subchapter IV of chapter 111 of the statutes that contains provisions inconsistent with those sections on the day on which the agreement expires or is terminated, extended, modified, or renewed, whichever occurs first.

AB127,12,6 (End)