111.70(4)(jm)
(jm) Binding arbitration, first class cities. This paragraph shall apply only to members of a police department employed by cities of the 1st class. If the representative of members of the police department, as determined under
par. (d), and representatives of the city reach an impasse on the terms of the agreement, the dispute shall be resolved in the following manner:
111.70(4)(jm)1.
1. Either the representative of the members of the police department or the representative of the city may petition the commission for appointment of an arbitrator to determine the terms of the agreement relating to the wages, hours and working conditions of the members of the police department and other matters subject to arbitration under
subd. 4.
111.70(4)(jm)2.
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 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.
111.70(4)(jm)3.
3. Within 14 days of the arbitrator's appointment, the arbitrator shall conduct a hearing to determine the terms of the agreement relating to wages, hours and working conditions and other matters subject to arbitration under
subd. 4. The arbitrator may subpoena witnesses at the request of either party or on the arbitrator's own motion. All testimony shall be given under oath. The arbitrator shall take judicial notice of all economic and social data presented by the parties which is relevant to the wages, hours and working conditions of the police department members or other matters subject to arbitration under
subd. 4. The other party shall have an opportunity to examine and respond to such data. The rules of evidence applicable to a contested case, as defined in
s. 227.01 (3), shall apply to the hearing before the arbitrator.
111.70(4)(jm)4.
4. In determining those terms of the agreement on which there is no mutual agreement and on which the parties have negotiated to impasse, as determined by the commission, the arbitrator, without restriction because of enumeration, shall have the power to:
111.70(4)(jm)4.a.
a. Set all items of compensation, including base wages, longevity pay, health, accident and disability insurance programs, pension programs, including amount of pension, relative contributions, and all eligibility conditions, the terms and conditions of overtime compensation and compensatory time, vacation pay, and vacation eligibility, sickness pay amounts, and sickness pay eligibility, life insurance, uniform allowances and any other similar item of compensation.
111.70(4)(jm)4.b.
b. Determine regular hours of work, what activities shall constitute overtime work and all standards and criteria for the assignment and scheduling of work.
111.70(4)(jm)4.c.
c. Determine a seniority system, and how seniority shall affect wages, hours and working conditions.
111.70(4)(jm)4.e.
e. Determine criteria for merit increases in compensation and the procedures for applying such criteria.
111.70(4)(jm)4.f.
f. Determine all work rules affecting the members of the police department, except those work rules created by law.
111.70(4)(jm)4.g.
g. Establish any educational program for the members of the police department deemed appropriate, together with a mechanism for financing the program.
111.70(4)(jm)4.h.
h. Establish a system for resolving all disputes under the agreement, including final and binding 3rd-party arbitration.
111.70(4)(jm)4.i.
i. Determine the duration of the agreement and the members of the department to which it shall apply.
111.70(4)(jm)4.j.
j. Establish a system for administration of the collective bargaining agreement between the parties by an employee of the police department who is not directly accountable to the chief of police or the board of fire and police commissioners in matters relating to that administration.
111.70(4)(jm)4.k.
k. Establish a system for conducting interrogations of members of the police department that is limited to the hours between 7 a.m. and 5 p.m. on working days, as defined in
s. 227.01 (14), if the interrogations could lead to disciplinary action, demotion, or dismissal, but one that does not apply if the interrogation is part of a criminal investigation.
111.70(4)(jm)5.
5. In determining the proper compensation to be received by members of the department under
subd. 4., the arbitrator shall utilize:
111.70(4)(jm)5.a.
a. 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
111.70(4)(jm)5.b.
b. Increases in the cost of living as measured by the average annual increases in the U.S. bureau of labor statistics "Consumer Price Index" since the last adjustment in compensation for those members.
111.70(4)(jm)6.
6. In determining all noncompensatory working conditions and relationships under
subd. 4., including methods for resolving disputes under the labor agreement, the arbitrator shall consider the patterns of employee-employer relationships generally prevailing between technical and professional employees and their employers in both the private and public sectors of the economy where those relationships have been established by a labor agreement between the representative of those employees and their employer.
111.70(4)(jm)7.
7. All subjects described in
subd. 4. shall be negotiable between the representative of the members of the police department and the city.
111.70(4)(jm)8.
8. Within 30 days after the close of the hearing, the arbitrator shall issue a written decision determining the terms of the agreement between the parties which were not the subject of mutual agreement and on which the parties negotiated in good faith to impasse, as determined by the commission, and which were the subject of the hearing under this paragraph. The arbitrator shall state reasons for each determination. Each proposition or fact accepted by the arbitrator must be established by a preponderance of the evidence.
111.70(4)(jm)9.
9. Subject to
subds. 11. and
12., within 14 days of the arbitrator's decision, the parties shall reduce to writing the total agreement composed of those items mutually agreed to between the parties and the determinations of the arbitrator. The document shall be signed by the arbitrator and the parties, unless either party seeks judicial review of the determination pursuant to
subd. 11.
111.70(4)(jm)10.
10. All costs of the arbitration hearing, including the arbitrator's fee, shall be borne equally by the parties.
111.70(4)(jm)11.
11. Within 60 days of the arbitrator's decision, either party may petition the circuit court for Milwaukee County to set aside or enforce the arbitrator's decision. If the decision was within the subject matter jurisdiction of the arbitrator as set forth in
subd. 4., the court must enforce the decision, unless the court finds by a clear preponderance of the evidence that the decision was procured by fraud, bribery or collusion. The court may not review the sufficiency of the evidence supporting the arbitrator's determination of the terms of the agreement.
111.70(4)(jm)12.
12. Within 30 days of a final court judgment, the parties shall reduce the agreement to writing and with the arbitrator execute the agreement pursuant to
subd. 9.
111.70(4)(jm)13.
13. Subsequent to the filing of a petition before the commission pursuant to
subd. 1. and prior to the execution of an agreement pursuant to
subd. 9., neither party may unilaterally alter any term of the wages, hours and working conditions of the members of the police department or any other matter subject to arbitration under
subd. 4.
111.70 Cross-reference
Cross Reference: See also ch.
ERC 31, Wis. adm. code.
111.70(4)(L)
(L)
Strikes prohibited. Except as authorized under
par. (cm) 5. and
6. c., nothing contained in this subchapter constitutes a grant of the right to strike by any municipal employee or labor organization, and such strikes are hereby expressly prohibited.
Paragraph (cm) does not authorize any strike after an injunction has been issued against such strike under
sub. (7m).
111.70(4)(m)
(m)
Prohibited subjects of bargaining; school district municipal employers. In a school district, the municipal employer is prohibited from bargaining collectively with respect to:
111.70(4)(m)1.
1. Reassignment of municipal employees who perform services for a board of school directors under
ch. 119, with or without regard to seniority, as a result of a decision of the board of school directors to contract with an individual or group to operate a school as a charter school, as defined in
s. 115.001 (1), or to convert a school to a charter school, or the impact of any such reassignment on the wages, hours or conditions of employment of the municipal employees who perform those services.
111.70(4)(m)2.
2. Reassignment of municipal employees who perform services for a board of school directors, with or without regard to seniority, as a result of the decision of the board to close or reopen a school under
s. 119.18 (23), or the impact of any such reassignment on the wages, hours or conditions of employment of the municipal employees who perform those services.
111.70(4)(m)4.
4. Any decision of a board of school directors to contract with a school or agency to provide educational programs under
s. 119.235, or the impact of any such decision on the wages, hours or conditions of employment of the municipal employees who perform services for the board.
111.70(4)(m)6.
6. Solicitation of sealed bids for the provision of group health care benefits for school district professional employees as provided in
s. 120.12 (24).
111.70(4)(mc)
(mc)
Prohibited subjects of bargaining. The municipal employer is prohibited from bargaining collectively with respect to:
111.70(5)
(5) Procedures. Municipal employers, jointly or individually, may employ a qualified person to discharge the duties of labor negotiator and to represent such municipal employers, jointly or individually, in conferences and negotiations under this section. In cities of the 1st, 2nd or 3rd class any member of the city council, including the mayor, who resigns therefrom may, during the term for which the member is elected, be eligible to the position of labor negotiator under this subsection, which position during said term has been created by or the selection to which is vested in such city council, and
s. 66.0501 (2) shall be deemed inapplicable thereto.
111.70(6)
(6) Declaration of policy. The public policy of the state as to labor disputes arising in municipal employment is to encourage voluntary settlement through the procedures of collective bargaining. Accordingly, it is in the public interest that municipal employees so desiring be given an opportunity to bargain collectively with the municipal employer through a labor organization or other representative of the employees' own choice. If such procedures fail, the parties should have available to them a fair, speedy, effective and, above all, peaceful procedure for settlement as provided in this subchapter.
111.70(7)(a)(a) Whoever violates
sub. (4) (L) after an injunction against such a strike has been issued shall be fined $10. After the injunction has been issued, any employee who is absent from work because of purported illness shall be presumed to be on strike unless the illness is verified by a written report from a physician to the employer. Each day of continued violation constitutes a separate offense. The court shall order that any fine imposed under this subsection be paid by means of a salary deduction at a rate to be determined by the court.
111.70(7)(b)
(b) This subsection applies only to municipal employees who are engaged in law enforcement or fire fighting functions.
111.70(7m)
(7m) Injunctive relief; penalties; civil liability. 111.70(7m)(a)(a) Injunction; prohibited strike. At any time after the commencement of a strike which is prohibited under
sub. (4) (L), the municipal employer or any citizen directly affected by such strike may petition the circuit court for an injunction to immediately terminate the strike. If the court determines that the strike is prohibited under
sub. (4) (L), it shall issue an order immediately enjoining the strike, and in addition shall impose the penalties provided in
par. (c).
111.70(7m)(b)
(b) Injunction; threat to public health or safety. At any time after a labor organization gives advance notice of a strike under
sub. (4) (cm) which is expressly authorized under
sub. (4) (cm), the municipal employer or any citizen directly affected by such strike may petition the circuit court to enjoin the strike. If the court finds that the strike poses an imminent threat to the public health or safety, the court shall, within 48 hours after the receipt of the petition but after notice to the parties and after holding a hearing, issue an order immediately enjoining the strike, and in addition shall order the parties to submit a new final offer on all disputed issues to the commission for final and binding arbitration as provided in
sub. (4) (cm). The commission, upon receipt of the final offers of the parties, shall transmit them to the arbitrator or a successor designated by the commission. The arbitrator shall omit preliminary steps and shall commence immediately to arbitrate the dispute.
111.70(7m)(c)1.a.a. Any labor organization which violates
sub. (4) (L) shall be penalized by the suspension of any dues check-off agreement and fair-share agreement between the municipal employer and such labor organization for a period of one year. At the end of the period of suspension, any such agreement shall be reinstated unless the labor organization is no longer authorized to represent the municipal employees covered by such dues check-off or fair-share agreement or the agreement is no longer in effect.
111.70(7m)(c)1.b.
b. Any labor organization which violates
sub. (4) (L) after an injunction has been issued shall be required to forfeit $2 per member per day, but not more than $10,000 per day. Each day of continued violation constitutes a separate offense.
111.70(7m)(c)2.
2. `Individuals.' Any individual who violates
sub. (4) (L) after an injunction against a strike has been issued shall be fined $10. Each day of continued violation constitutes a separate offense. After the injunction has been issued, any municipal employee who is absent from work because of purported illness is presumed to be on strike unless the illness is verified by a written report from a physician to the municipal employer. The court shall order that any fine imposed under this subdivision be paid by means of a salary deduction at a rate to be determined by the court.
111.70(7m)(c)3.
3. `Strike in violation of award.' Any person who authorizes or otherwise participates in a strike after the issuance of any final and binding arbitration award or decision under
sub. (4) (cm) and prior to the end of the term of the agreement which the award or decision amends or creates shall forfeit not less than $15. Each day of continued violation constitutes a separate offense.
111.70(7m)(c)4.
4. `Contempt of court.' The penalties provided in this paragraph do not preclude the imposition by the court of any penalty for contempt provided by law.
111.70(7m)(d)
(d)
Compensation forfeited. No municipal employee may be paid wages or salaries by the municipal employer for the period during which he or she engages in any strike.
111.70(7m)(e)
(e)
Civil liability. Any party refusing to include an arbitration award or decision under
sub. (4) (cm) in a written collective bargaining agreement or failing to implement the award or decision, unless good cause is shown, shall be liable for attorney fees, interest on delayed monetary benefits, and other costs incurred in any action by the nonoffending party to enforce the award or decision.
111.70(7m)(f)
(f) Application. This subsection does not apply to strikes involving municipal employees who are engaged in law enforcement or fire fighting functions.
111.70(8)(a)(a) This section, except
subs. (1) (nm),
(4) (cm) and
(7m), applies to law enforcement supervisors employed by a 1st class city. This section, except
subs. (1) (nm),
(4) (cm) and
(jm) and
(7m), applies to law enforcement supervisors employed by a county having a population of 500,000 or more. For purposes of such application, the term "municipal employee" includes such a supervisor.
111.70(8)(b)
(b) This subchapter does not preclude law enforcement supervisors employed by municipal employers other than 1st class cities and counties having a population of 500,000 or more or fire fighting supervisors from organizing in separate units of supervisors for the purpose of negotiating with their municipal employers.
111.70 Cross-reference
Cross Reference: See also ch.
ERC 11, Wis. adm. code.
111.70(8)(c)
(c) The commission shall by rule establish procedures for certification of such units of supervisors and the levels of supervisors to be included in the units. Supervisors may not be members of the same bargaining unit of which their subordinates are members. The commission may require that the representative of any supervisory unit shall be an organization that is a separate local entity from the representative of the nonsupervisory municipal employees, but such requirement does not prevent affiliation by a supervisory representative with the same parent state or national organization as the nonsupervisory municipal employee representative.
111.70(9)
(9) Powers of chief of police. Nothing in
s. 62.50 grants the chief of police in cities of the 1st class any authority which diminishes or in any other manner affects the rights of municipal employees who are members of a police department employed by a city of the 1st class under this section or under any collective bargaining agreement which is entered into between a city of the 1st class and a labor organization representing the members of its police department.
111.70 History
History: 1971 c. 124,
246,
247,
307,
336;
1973 c. 64,
65;
1977 c. 178,
186,
272,
442,
449;
1979 c. 32 s.
92 (15);
1981 c. 20,
112,
187;
1983 a. 189,
192;
1985 a. 29;
1985 a. 182 s.
57;
1985 a. 318;
1987 a. 153,
399;
1991 a. 136;
1993 a. 16,
429,
492;
1995 a. 27,
225,
289;
1997 a. 27,
237;
1999 a. 9,
65;
1999 a. 150 s.
672;
2001 a. 16;
2005 a. 253;
2007 a. 20.
111.70 Annotation
A collective bargaining provision that releases only teacher members of a majority union from in-service days to attend, with pay, a state convention of the union is discriminatory, but the school board can deny compensation to minority union members who attend a regional convention of their union, if the board does so in good faith. Ashland Board of Education v. WERC,
52 Wis. 2d 625,
191 N.W.2d 242 (1971).
111.70 Annotation
A school district may discharge teachers who engage in a strike. There is a meaningful distinction between governmental employees and nongovernmental employees. The strike ban imposed on public employees is based upon a valid classification and the legislation creating it is not an unconstitutional denial of equal protection. Hortonville Education Association v. Joint School District No. 1,
66 Wis. 2d 469,
225 N.W.2d 658. Reversed on other grounds.
426 U.S. 482, 49L. Ed 2d 1 (1976).
111.70 Annotation
A letter sent to city employees by the mayor and council members during a representation election campaign that coercively and erroneously warned employees that all fringe benefits would cease if union representation were accepted was a prohibited labor practice under sub. (3) (a) 1.; "benign generalities" contained elsewhere in the letter were insufficient to overcome its specific threats. A 2nd letter, which predicted a relative loss in benefits and freedom of action, cited the cost of union dues, and emphasized wage rates and fringe benefits, also constituted a prohibited labor practice. An employer may not camouflage threats under the guise of predictions, and the statements in context were intended as threats and accepted as such by the employees. WERC v. City of Evansville,
69 Wis. 2d 140,
230 N.W.2d 688 (1975).
111.70 Annotation
Although employees seeking to enforce the terms of a collective bargaining agreement are bound by the remedial provisions therein, the plaintiffs were not required to exhaust contractual remedies prior to filing their action in court. Browne v. Milwaukee Board of School Directors,
69 Wis. 2d 169,
230 N.W.2d 704 (1975).
111.70 Annotation
The board of education of a city school district was a proper party and had the capacity to maintain an action to enjoin a strike by district teachers. Wisconsin Rapids Joint School District No. 1 v. Wisconsin Rapids Education Association,
70 Wis. 2d 292,
234 N.W.2d 289 (1975).
111.70 Annotation
The fine under sub. (7) applicable to employees violating an injunction against a strike by municipal employees, to be paid by salary deduction, is inapplicable to a labor association composed of such employees. Kenosha Unified School District No. 1 v. Kenosha Education Association,
70 Wis. 2d 325,
234 N.W.2d 311 (1975).
111.70 Annotation
Managerial employees are those who participate in the formulation, determination, and implementation of management policy or possess effective authority to commit the employer's resources. City of Milwaukee v. WERC,
71 Wis. 2d 709,
239 N.W.2d 63 (1976).
111.70 Annotation
A WERC order under sub. (4) (d) 2. a. determining the voting unit and directing that an election be held was not reviewable under ch. 227. City of West Allis v. WERC,
72 Wis. 2d 268,
240 N.W.2d 416 (1976).
111.70 Annotation
Mandatory subjects of collective bargaining under sub. (1) (d) [now sub. (1) (a)] between teachers' associations and school boards are: 1) those primarily related to wages, hours, and conditions of employment; and 2) the impact of the establishment of educational policies affecting wages, hours, and conditions of employment. Beloit Education Association v. WERC,
73 Wis. 2d 43,
242 N.W.2d 231 (1976).
111.70 Annotation
A grievance was arbitrable under the "discharge and nonrenewal" clause of a bargaining agreement when the contract offered by the board was signed by the teacher after deleting the title "probationary contract" and the board did not accept this counteroffer or offer the teacher a 2nd contract. Jefferson Jt. School District No. 10 v. Jefferson Education Association,
78 Wis. 2d 94,
253 N.W.2d 536 (1977).
111.70 Annotation
Collective bargaining is required regarding decisions primarily related to wages, hours, and conditions of employment, but not is not required for decisions primarily related to the formulation or management of public policy. Unified School District No. 1 of Racine County v. WERC,
81 Wis. 2d 89,
259 N.W.2d 724 (1977).
111.70 Annotation
A labor contract under s. 111.70 may limit the scope of the police chief's discretion under s. 62.13 (4) (a). Glendale Professional Policemen's Association v. Glendale,
83 Wis. 2d 90,
264 N.W.2d 594 (1978).
111.70 Annotation
In applying the doctrine of primary jurisdiction, the trial court did not abuse its discretion by transferring a case involving a prohibited practice under sub. (3) (a) 1. to the commission after all constitutional issues had been resolved. Browne v. Milwaukee Board of School Directors,
83 Wis. 2d 316,
265 N.W.2d 559 (1978).
111.70 Annotation
Under sub. (3) (a) 6., a municipal employer may deduct union dues from the paycheck of a minority union member. Milwaukee Federation of Teachers, Local No. 252 v. WERC,
83 Wis. 2d 588,
266 N.W.2d 314 (1978).
111.70 Annotation
The layoff of public employees due to budget cuts was not a mandatory subject of bargaining. City of Brookfield v. WERC,
87 Wis. 2d 819,
275 N.W.2d 723 (1979).
111.70 Annotation
The question of primary jurisdiction arises only when an agency and a court have jurisdiction over the subject of a matter of dispute. The decision for the court is whether it should exercise its discretion to retain the case. McEwen v. Pierce County,
90 Wis. 2d 256,
279 N.W.2d 469 (1979).
111.70 Annotation
Under sub. (3) (a) 6., the fair-share provision of a successor collective bargaining agreement was applied retroactively to a hiatus between agreements. Berns v. WERC,
94 Wis. 2d 214,
287 N.W.2d 829 (Ct. App. 1979); affirmed.
99 Wis. 2d 252,
299 N.W.2d 248 (1980).
111.70 Annotation
Arbitrators appointed pursuant to the grievance procedure contained in a collective bargaining agreement properly held a de novo factual hearing to determine whether just cause existed for the school board to terminate a teacher. Fortney v. School District of West Salem,
108 Wis. 2d 167,
321 N.W.2d 255 (1982).
111.70 Annotation
Mediation-arbitration under s. 111.70 (4) (cm) is a constitutional delegation of legislative authority. Milwaukee County v. District Council 48,
109 Wis. 2d 14,
325 N.W.2d 350 (Ct. App. 1982).
111.70 Annotation
A contract provision stating that a teacher speaking or writing as a citizen shall be free from administrative and school censorship and discipline was primarily related to employment conditions, and was a mandatory subject of bargaining. Blackhawk Teachers' Federation v. WERC,
109 Wis. 2d 415,
326 N.W.2d 247 (Ct. App. 1982).
111.70 Annotation
WERC did not abuse its discretion by finding no community of interest between professional teachers and student interns. Unit fragmentation under d. 111.70 (4) (d) 2. a. is discussed. Arrowhead United Teachers v. WERC,
116 Wis. 2d 580,
342 N.W.2d 709 (1984).
111.70 Annotation
A school board's anti-nepotism policy was a mandatory subject of bargaining. School District of Drummond v. WERC,
121 Wis. 2d 126,
358 N.W.2d 285 (1984).
111.70 Annotation
Because school supervisors are not subject to this section, a fair-share deduction from the paychecks of nonunion supervisors was not authorized. Perry v. Milwaukee Board of School Directors,
131 Wis. 2d 380,
388 N.W.2d 638 (Ct. App. 1986).
111.70 Annotation
A provision in a union's constitution requiring a local to forfeit its treasury upon a vote of disaffiliation was void as against public policy. Wells v. Waukesha Marine Bank,
135 Wis. 2d 519,
401 N.W.2d 18 (Ct. App. 1986).
111.70 Annotation
The defense of "good cause" under s. 111.70 (7m) (e) is available to an employer that fails to implement an arbitration award of retroactive wages within 31 days pursuant to s. 109.03 (1). Employees Local 1901 v. Brown County,
146 Wis. 2d 728,
432 N.W.2d 571 (1988).
