111.64 History
History: 1993 a. 492.
MUNICIPAL EMPLOYMENT RELATIONS
Subch. IV of ch. 111 Cross-reference
Cross-reference: See also chs.
ERC 10,
11,
12,
13,
14,
15,
16,
17,
18, and
19, Wis. adm. code.
111.70
111.70
Municipal employment. 111.70(1)
(1)
Definitions. As used in this subchapter:
111.70(1)(a)
(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, 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[,] and for a school district with respect to any matter under
sub. (4) (o), and for a school district with respect to any matter under
sub. (4) (n), except as provided in
subs. (3m),
(3p), and
(4) (m) and
(mc) 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 employees 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 employees 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 employees by the constitutions of this state and of the United States and by this subchapter.
111.70 Note
NOTE: Par. (a) is shown as affected by
2009 Wisconsin Acts 15,
28,
34, and
60 and as merged by the legislative reference bureau under s. 13.92 (2) (i). A necessary comma is shown in brackets. Corrective legislation is pending.
111.70(1)(b)
(b) "Collective bargaining unit" means a unit consisting of municipal employees who are school district employees or of municipal employees who are not school district employees that is determined by the commission to be appropriate for the purpose of collective bargaining.
111.70(1)(c)
(c) "Commission" means the employment relations commission.
111.70(1)(d)
(d) "Craft employee" means a skilled journeyman craftsman, including the skilled journeyman craftsman's apprentices and helpers, but shall not include employees not in direct line of progression in the craft.
111.70(1)(e)
(e) "Election" means a proceeding conducted by the commission in which the employees in a collective bargaining unit cast a secret ballot for collective bargaining representatives, or for any other purpose specified in this subchapter.
111.70(1)(f)
(f) "Fair-share agreement" means an agreement between a municipal employer and a labor organization under which all or any of the employees in the collective bargaining unit are required to pay their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required of all members. Such an agreement shall contain a provision requiring the employer to deduct the amount of dues as certified by the labor organization from the earnings of the employees affected by said agreement and to pay the amount so deducted to the labor organization.
111.70(1)(g)
(g) "Labor dispute" means any controversy concerning wages, hours and conditions of employment, or concerning the representation of persons in negotiating, maintaining, changing or seeking to arrange wages, hours and conditions of employment.
111.70(1)(h)
(h) "Labor organization" means any employee organization in which employees participate and which exists for the purpose, in whole or in part, of engaging in collective bargaining with municipal employers concerning grievances, labor disputes, wages, hours or conditions of employment.
111.70(1)(i)
(i) "Municipal employee" means any individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial or executive employee.
111.70(1)(j)
(j) "Municipal employer" means any city, county, village, town, metropolitan sewerage district, school district, long-term care district, transit authority under
s. 59.58 (7) or
66.1039, or any other political subdivision of the state, or instrumentality of one or more political subdivisions of the state, that engages the services of an employee and includes any person acting on behalf of a municipal employer within the scope of the person's authority, express or implied, but specifically does not include a local cultural arts district created under
subch. V of ch. 229.
111.70(1)(k)
(k) "Person" means one or more individuals, labor organizations, associations, corporations or legal representatives.
111.70(1)(L)1.a.
a. Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work;
111.70(1)(L)1.b.
b. Involving the consistent exercise of discretion and judgment in its performance;
111.70(1)(L)1.c.
c. Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;
111.70(1)(L)1.d.
d. Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher education or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical process; or
111.70(1)(L)2.a.
a. Has completed the courses of specialized intellectual instruction and study described in
subd. 1. d.;
111.70(1)(L)2.b.
b. Is performing related work under the supervision of a professional person to qualify to become a professional employee as defined in
subd. 1.
111.70(1)(m)
(m) "Prohibited practice" means any practice prohibited under this subchapter.
111.70(1)(n)
(n) "Referendum" means a proceeding conducted by the commission in which employees in a collective bargaining unit may cast a secret ballot on the question of authorizing a labor organization and the employer to continue a fair-share agreement. Unless a majority of the eligible employees vote in favor of the fair-share agreement, it shall be deemed terminated and that portion of the collective bargaining agreement deemed null and void.
111.70(1)(ne)
(ne) "School district employee" means a municipal employee who is employed to perform services for a school district.
111.70(1)(nm)
(nm) "Strike" includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer. Such conduct by municipal employees which is not authorized or condoned by a labor organization constitutes a "strike", but does not subject such labor organization to the penalties under this subchapter. This paragraph does not apply to collective bargaining units composed of municipal employees who are engaged in law enforcement or fire fighting functions.
111.70(1)(o)1.
1. As to other than municipal and county fire fighters, any individual who has authority, in the interest of the municipal employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
111.70(1)(o)2.
2. As to fire fighters employed by municipalities with more than one fire station, the term "supervisor" shall include all officers above the rank of the highest ranking officer at each single station. In municipalities where there is but one fire station, the term "supervisor" shall include only the chief and the officer in rank immediately below the chief. No other fire fighter shall be included under the term "supervisor" for the purposes of this subchapter.
111.70(2)
(2) Rights of municipal employees. Municipal employees shall 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, and such employees shall have the right to refrain from any and all such activities except that employees may be required to pay dues in the manner provided in a fair-share agreement. Such fair-share agreement shall be 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 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 employees, it shall be deemed terminated. 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 employee of the municipal employer in the bargaining unit involved, and such agreement shall be made subject to this duty of the commission. Any of the parties to such agreement or any municipal employee covered thereby may come before the commission, as provided in
s. 111.07, and ask the performance of this duty.
111.70 Cross-reference
Cross-reference: See also ch.
ERC 15, Wis. adm. code.
111.70(3)
(3) Prohibited practices and their prevention. 111.70(3)(a)(a) It is a prohibited practice for a municipal employer individually or in concert with others:
111.70(3)(a)1.
1. To interfere with, restrain or coerce municipal employees in the exercise of their rights guaranteed in
sub. (2).
111.70(3)(a)2.
2. To initiate, create, dominate or interfere with the formation or administration of any labor organization or contribute financial support to it, but the municipal employer is not prohibited from reimbursing its employees at their prevailing wage rate for the time spent conferring with the employees, officers or agents.
111.70(3)(a)3.
3. To encourage or discourage a membership in any labor organization by discrimination in regard to hiring, tenure, or other terms or conditions of employment; but the prohibition shall not apply to a fair-share agreement.
111.70(3)(a)4.
4. To refuse to bargain collectively with a representative of a majority of its employees in an appropriate collective bargaining unit. Such refusal shall include action by the employer to issue or seek to obtain contracts, including those provided for by statute, with individuals in the collective bargaining unit while collective bargaining, mediation or fact-finding concerning the terms and conditions of a new collective bargaining agreement is in progress, unless such individual contracts contain express language providing that the contract is subject to amendment by a subsequent collective bargaining agreement. Where the employer has a good faith doubt as to whether a labor organization claiming the support of a majority of its employees in an appropriate bargaining unit does in fact have that support, it may file with the commission a petition requesting an election to that claim. An employer shall not be deemed to have refused to bargain until an election has been held and the results thereof certified to the employer by the commission. The violation shall include, though not be limited thereby, to the refusal to execute a collective bargaining agreement previously agreed upon. The term of any collective bargaining agreement covering municipal employees who are not school district employees shall not exceed 3 years, and the term of any collective bargaining agreement covering school district employees shall not exceed 4 years.
111.70(3)(a)5.
5. To violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employees, including an agreement to arbitrate questions arising as to the meaning or application of the terms of a collective bargaining agreement or to accept the terms of such arbitration award, where previously the parties have agreed to accept such award as final and binding upon them.
111.70(3)(a)6.
6. To deduct labor organization dues from an employee's or supervisor's earnings, unless the municipal employer has been presented with an individual order therefor, signed by the municipal employee personally, and terminable by at least the end of any year of its life or earlier by the municipal employee giving at least 30 days' written notice of such termination to the municipal employer and to the representative organization, except where there is a fair-share agreement in effect.
111.70(3)(a)7.
7. To refuse or otherwise fail to implement an arbitration decision lawfully made under
sub. (4) (cm).
111.70(3)(a)8.
8. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any grievance arbitration agreement in the expired collective bargaining agreement.
111.70(3)(a)9.
9. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any fair-share agreement in the expired collective bargaining agreement.
111.70(3)(b)
(b) It is a prohibited practice for a municipal employee, individually or in concert with others:
111.70(3)(b)1.
1. To coerce or intimidate a municipal employee in the enjoyment of the employee's legal rights, including those guaranteed in
sub. (2).
111.70(3)(b)2.
2. To coerce, intimidate or induce any officer or agent of a municipal employer to interfere with any of its employees in the enjoyment of their legal rights, including those guaranteed in
sub. (2), or to engage in any practice with regard to its employees which would constitute a prohibited practice if undertaken by the officer or agent on the officer's or agent's own initiative.
111.70(3)(b)3.
3. To refuse to bargain collectively with the duly authorized officer or agent of a municipal employer, provided it is the recognized or certified exclusive collective bargaining representative of employees in an appropriate collective bargaining unit. Such refusal to bargain shall include, but not be limited to, the refusal to execute a collective bargaining agreement previously agreed upon.
111.70(3)(b)4.
4. To violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employees, including an agreement to arbitrate questions arising as to the meaning or application of the terms of a collective bargaining agreement or to accept the terms of such arbitration award, where previously the parties have agreed to accept such awards as final and binding upon them.
111.70(3)(b)5.
5. To coerce or intimidate an independent contractor, supervisor, confidential, managerial or executive employee, officer or agent of the municipal employer, to induce the person to become a member of the labor organization of which employees are members.
111.70(3)(b)6.
6. To refuse or otherwise fail to implement an arbitration decision lawfully made under
sub. (4) (cm).
111.70(3)(b)7.
7. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any grievance arbitration agreement in the expired collective bargaining agreement.
111.70(3)(c)
(c) It is a prohibited practice for any person to do or cause to be done on behalf of or in the interest of municipal employers or municipal employees, or in connection with or to influence the outcome of any controversy as to employment relations, any act prohibited by
par. (a) or
(b).
111.70 Cross-reference
Cross-reference: See also ch.
ERC 12, Wis. adm. code.
111.70(3m)
(3m) Milwaukee county enrollment services unit. A collective bargaining agreement that covers municipal employees performing services for the Milwaukee County enrollment services unit under
s. 49.825 shall contain a provision that permits the terms of the agreement to be modified with respect to hours and conditions of employment by a memorandum of understanding under
s. 49.825 (3) (b) 4.
111.70(3p)
(3p) Child care provider services unit. A collective bargaining agreement that covers municipal employees performing services for the child care provider services unit under
s. 49.826 shall contain a provision that permits the terms of the agreement to be modified with respect to hours and conditions of employment by a memorandum of understanding under
s. 49.826 (3) (b) 4.
111.70(4)
(4) Powers of the commission. The commission shall be governed by the following provisions relating to bargaining in municipal employment in addition to other powers and duties provided in this subchapter:
111.70(4)(a)
(a) Prevention of prohibited practices. Section 111.07 shall govern procedure in all cases involving prohibited practices under this subchapter except that wherever the term "unfair labor practices" appears in
s. 111.07 the term "prohibited practices" shall be substituted.
111.70(4)(b)
(b) Failure to bargain. Whenever a dispute arises between a municipal employer and a union of its employees concerning the duty to bargain on any subject, the dispute shall be resolved by the commission on petition for a declaratory ruling. The decision of the commission shall be issued within 15 days of submission and shall have the effect of an order issued under
s. 111.07. The filing of a petition under this paragraph shall not prevent the inclusion of the same allegations in a complaint involving prohibited practices in which it is alleged that the failure to bargain on the subjects of the declaratory ruling is part of a series of acts or pattern of conduct prohibited by this subchapter.
111.70 Cross-reference
Cross-reference: See also chs.
ERC 18 and
19, Wis. adm. code.
111.70(4)(c)
(c) Methods for peaceful settlement of disputes; law enforcement and fire fighting personnel. 111.70(4)(c)1.1. `Mediation.' The commission may function as a mediator in labor disputes. Such mediation may be carried on by a person designated to act by the commission 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 but no mediator shall have the power of compulsion.
111.70 Cross-reference
Cross-reference: See also ch.
ERC 13, Wis. adm. code.
111.70(4)(c)2.a.a. 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.
111.70(4)(c)2.b.
b. A collective bargaining agreement may, notwithstanding
s. 62.13 (5), contain dispute resolution procedures, including arbitration, that address the suspension, reduction in rank, suspension and reduction in rank, or removal of such personnel. If the procedures include arbitration, the arbitration hearing shall be public and the decision of the arbitrator shall be issued within 180 days of the conclusion of the hearing.
111.70 Cross-reference
Cross-reference: See also ch.
ERC 16, Wis. adm. code.
111.70(4)(c)3.
3. `Fact-finding.' If a dispute has not been settled after a reasonable period of negotiation and after the settlement procedures, if any, established by the parties have been exhausted, and the parties are deadlocked with respect to any dispute between them arising in the collective bargaining process, either party, or the parties jointly, may petition the commission, in writing, to initiate fact-finding, as provided hereafter, and to make recommendations to resolve the deadlock.
111.70(4)(c)3.a.
a. Upon receipt of a petition to initiate fact-finding, the commission shall make an investigation with or without a formal hearing, to determine whether a deadlock in fact exists. After its investigation the commission shall certify the results thereof. If the commission decides that fact-finding should be initiated, it shall appoint a qualified, disinterested person or 3-member panel, when jointly requested by the parties, to function as a fact finder.
111.70(4)(c)3.b.
b. The fact finder may establish dates and place of hearings which shall be where feasible, and shall conduct the hearings pursuant to rules established by the commission. Upon request, the commission shall issue subpoenas for hearings conducted by the fact finder. The fact finder may administer oaths. Upon completion of the hearing, the fact finder shall make written findings of fact and recommendations for solution of the dispute and shall cause the same to be served on the parties and the commission. Cost of fact-finding proceedings shall be divided equally between the parties. At the time the fact finder submits a statement of his or her costs to the parties, the fact finder shall submit a copy thereof to the commission at its Madison office.
111.70(4)(c)3.c.
c. Nothing herein shall be construed as prohibiting any fact finder from endeavoring to mediate the dispute, in which the fact finder is involved, at any time prior to the issuance of the fact finder's recommendations.
111.70(4)(c)3.d.
d. Within 30 days of the receipt of the fact finder's recommendations, or within the time period mutually agreed upon by the parties, each party shall advise the other, in writing as to its acceptance or rejection, in whole or in part, of the fact finder's recommendations and, at the same time, transmit a copy of such notice to the commission at its Madison office.
111.70 Cross-reference
Cross-reference: See also chs.
ERC 14 and
40, Wis. adm. code.
111.70(4)(c)4.
4. `Applicability.' This paragraph applies only to municipal employees who are engaged in law enforcement or fire fighting functions.
111.70(4)(cm)
(cm)
Methods for peaceful settlement of disputes; other personnel. 111.70(4)(cm)1.1. `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.
111.70(4)(cm)2.
2. `Presentation of initial proposals; open meetings.' 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 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 subdivision is not cause to invalidate a collective bargaining agreement under this subchapter.
111.70(4)(cm)3.
3. `Mediation.' The commission or its designee shall function as mediator in labor disputes involving municipal 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.
111.70 Cross-reference
Cross-reference: See also ch.
ERC 13, Wis. adm. code.
111.70(4)(cm)4.
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.
111.70 Cross-reference
Cross-reference: See also ch.
ERC 16, Wis. adm. code.
111.70(4)(cm)5.
5. `Voluntary impasse resolution procedures.' In addition to the other impasse resolution procedures provided in this paragraph, a municipal 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 municipal employees or binding interest arbitration, which 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
subds. 7. and
7g. for a collective bargaining unit consisting of municipal employees who are not school district employees and under
subd. 7r. for a collective bargaining unit consisting of municipal employees.
111.70(4)(cm)6.a.a. If in any collective bargaining unit a dispute relating to one or more issues has not been settled after a reasonable period of negotiation and after mediation by the commission under
subd. 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 wages, hours and conditions of employment 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 paragraph. At the time 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 the petition is filed.
111.70(4)(cm)6.am.
am. 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 paragraph 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 subdivision. 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, 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.
111.70(4)(cm)6.b.
b. 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 citizens of the jurisdiction served by the municipal employer, filed within 10 days after the date on which the arbitrator is appointed, the arbitrator shall hold a public hearing in the jurisdiction 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.
