111.70(4)(d)3.a.a. Whenever, in a particular case, a question arises concerning representation or appropriate unit, calling for a vote, the commission shall certify the results in writing to the municipal employer and the labor organization involved and to any other interested parties.
111.70(4)(d)3.b.
b. Annually, the commission shall conduct an election to certify the representative of the collective bargaining unit that contains a general municipal employee. The election shall occur no later than December 1 for a collective bargaining unit containing school district employees and no later than May 1 for a collective bargaining unit containing general municipal employees who are not school district employees. The commission shall certify any representative that receives at least 51 percent of the votes of all of the general municipal employees in the collective bargaining unit. If no representative receives at least 51 percent of the votes of all of the general municipal employees in the collective bargaining unit, at the expiration of the collective bargaining agreement, the commission shall decertify the current representative and the general municipal employees shall be nonrepresented. Notwithstanding sub.
(2), if a representative is decertified under this subd.
3. b., the affected general municipal employees may not be included in a substantially similar collective bargaining unit for 12 months from the date of decertification. The commission shall assess and collect a certification fee for each election conducted under this subd.
3. b. Fees collected under this subd.
3. b. shall be credited to the appropriation account under s.
20.425 (1) (i).
111.70 Cross-reference
Cross-reference: See also chs.
ERC 70 and
71, Wis. adm. code.
111.70(4)(d)3.c.
c. Any ballot used in a representation proceeding under this subdivision shall include the names of all persons having an interest in representing or the results. The ballot should be so designed as to permit a vote against representation by any candidate named on the ballot. The findings of the commission, on which a certification is based, shall be conclusive unless reviewed as provided by s.
111.07 (8).
111.70(4)(d)4.
4. Whenever the result of an election conducted pursuant to subd.
3. is inconclusive, the commission, on request of any party to the proceeding, may conduct a runoff election. Any such request must be made within 30 days from the date of certification. In a runoff election the commission may drop from the ballot the name of the candidate or choice receiving the least number of votes.
111.70(4)(d)5.
5. Questions as to representation may be raised by petition of the municipal employer or any municipal employee or any representative thereof. Where it appears by the petition that a situation exists requiring prompt action so as to prevent or terminate an emergency, the commission shall act upon the petition forthwith. The fact that an election has been held shall not prevent the holding of another election among the same group of employees, if it appears to the commission that sufficient reason for another election exists.
111.70 Cross-reference
Cross-reference: See also ch.
ERC 11, Wis. adm. code.
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)4w.
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 economic conditions in the 1st class city than the arbitrator gives to the factors under subd.
5. The arbitrator shall give an accounting of the consideration of this factor in the arbitrator's decision.
111.70(4)(jm)5.
5. In determining the proper compensation to be received by members of the police department under subd.
4., in addition to the factor under subd.
4w., 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. 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.
111.70(4)(mb)
(mb)
Prohibited subjects of bargaining; general municipal employees. The municipal employer is prohibited from bargaining collectively with a collective bargaining unit containing a general municipal employee with respect to any of the following:
111.70(4)(mb)1.
1. Any factor or condition of employment except wages, which includes only total base wages and excludes any other compensation, which includes, but is not limited to, overtime, premium pay, merit pay, performance pay, supplemental compensation, pay schedules, and automatic pay progressions.
111.70(4)(mb)2.a.
a. If there is an increase in the consumer price index change, provides for total base wages for authorized positions in the proposed collective bargaining agreement that exceeds the total base wages for authorized positions 180 days before the expiration of the previous collective bargaining agreement by a greater percentage than the consumer price index change.
111.70(4)(mb)2.b.
b. If there is a decrease or no change in the consumer price index change, provides for any change in total base wages for authorized positions in the proposed collective bargaining agreement from the total base wages for authorized positions 180 days before the expiration of the previous collective bargaining agreement.
111.70(4)(mbb)
(mbb)
Consumer price index change. For purposes of determining compliance with par.
(mb), the commission shall provide, upon request, to a municipal employer or to any representative of a collective bargaining unit containing a general municipal employee, the consumer price index change during any 12-month period. The commission may get the information from the department of revenue.
111.70(4)(mc)
(mc)
Prohibited subjects of bargaining; public safety employees. The municipal employer is prohibited from bargaining collectively with a collective bargaining unit containing a public safety employee with respect to any of the following:
111.70(4)(mc)5.
5. If the collective bargaining unit contains a public safety employee who is initially employed on or after July 1, 2011, the requirement under ss.
40.05 (1) (b),
59.875, and
62.623 that the municipal employer may not pay, on behalf of that public safety employee any employee required contributions or the employee share of required contributions, and the impact of this requirement on the wages, hours, and conditions of employment of that public safety employee. If a public safety employee is initially employed by a municipal employer before July 1, 2011, this subdivision does not apply to that public safety employee if he or she is employed as a public safety employee by a successor municipal employer in the event of a combined department that is created on or after that date.
111.70(4)(mc)6.
6. Except for the employee premium contribution, all costs and payments associated with health care coverage plans and the design and selection of health care coverage plans by the municipal employer for public safety employees, and the impact of such costs and payments and the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee.
111.70(4)(p)
(p)
Permissive subjects of collective bargaining; public safety and transit employees. A municipal employer is not required to bargain with public safety employees or transit employees 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 public safety employees or of the transit employees in a collective bargaining unit.
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(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)(c)1.a.a. Any labor organization that represents public safety employees or transit employees which violates sub.
(4) (L) may not collect any dues under a collective bargaining agreement or under a fair-share agreement from any employee covered by either agreement 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 public safety employees or transit employees covered by the collective bargaining agreement 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)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(8)(a)
(a) This section, except sub.
(4) (cg) and
(cm), applies to law enforcement supervisors employed by a 1st class city. This section, except sub.
(4) (cm) and
(jm), applies to law enforcement supervisors employed by a county having a population of 750,000 or more. For purposes of such application, the terms “municipal employee" and “public safety employee" include 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 750,000 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;
2009 a. 15,
21,
28,
34,
60,
402;
2011 a. 10,
32;
2013 a. 14,
20;
2013 a. 166 ss.
30,
31,
77;
2015 a. 55;
2017 a. 207 s.
5;
2017 a. 364 s.
49;
2017 a. 365.
111.70 Note
NOTE: 2011 Wisconsin Act 10, made significant changes to this section, effective July 1, 2011.
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 Ass'n v. Joint School District No. 1,
66 Wis. 2d 469,
225 N.W.2d 658.
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 second 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 Ass'n,
70 Wis. 2d 292,
234 N.W.2d 289 (1975).
111.70 Annotation
The fine under sub. (7), 1973 stats., [now sub. (7m) (c) 2.] 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 Ass'n,
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 Ass'n 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 second contract. Jefferson Jt. School District No. 10 v. Jefferson Education Ass'n,
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 this section may limit the scope of the police chief's discretion under s. 62.13 (4) (a). Glendale Professional Policemen's Ass'n 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).
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 sub. (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 sub. (4) (d) 2. a. is discussed. Arrowhead United Teachers v. WERC,
116 Wis. 2d 580,
342 N.W.2d 709 (1984).
