111.70 AnnotationIf an employee agrees to waive any federal statutory right, that is an agreement between the employee and the employer and is not a collective bargaining agreement. As such, it is not a violation of a collective bargaining agreement for an employee to refuse to sign such a waiver in a settlement, and the Wisconsin Employment Relations Commission cannot order the employee to sign the agreement. Thomsen v. WERC, 2000 WI App 90, 234 Wis. 2d 494, 610 N.W.2d 155, 99-1730.

111.70 AnnotationThe existence of a qualified economic offer (QEO) under sub. (1) (nc) is fundamentally distinct from the QEO’s implementation and numerical calculations. A QEO is made when an employer submits an offer to maintain fringe benefits and minimum salary increases consistent with sub. (1) (nc). Once a QEO is made, any issues concerning the calculation of fringe benefit costs and salaries may still be addressed but will not render a QEO invalid. Racine Education Ass’n v. WERC, 2000 WI App 149, 238 Wis. 2d 33, 616 N.W.2d 504, 99-0765.

111.70 AnnotationIt was reasonable to conclude that an employee of a school district with access to computer files containing information regarding collective bargaining but who had never been directed to open or read those files and who was trusted not to read those files was not a confidential employee under sub. (1) (i). Mineral Point Unified School District v. WERC, 2002 WI App 48, 251 Wis. 2d 325, 641 N.W.2d 701, 01-1247.

111.70 AnnotationIt was reasonable for the Wisconsin Employment Relations Commission to conclude: 1) sub. (4) (d) 2. a. addresses all determinations of appropriate bargaining units and is not limited to the initial certification of a bargaining unit; and 2) if craft employees in an existing craft and non-craft bargaining unit file a severance petition and if the craft employees at issue have never voted among themselves for inclusion in the mixed unit, the craft employees are entitled to a separate vote on the issue. City of Marshfield v. WERC, 2002 WI App 68, 252 Wis. 2d 656, 643 N.W.2d 122, 01-0855.

111.70 AnnotationUnder the facts of the case, the Wisconsin Employment Relations Commission did not err in ruling that the school board could not bar teachers posting in certain areas of their classrooms signs that stated “Fair Contract NOW!” and “Do the Right Thing!” produced by the teacher’s union in support of its contact negotiations with the school, as such action constituted “lawful concerted activity” within the protection of sub. (2) and not political advocacy. Milwaukee Board of School Directors v. WERC, 2008 WI App 125, 313 Wis. 2d 525, 758 N.W.2d 814, 07-0840.

111.70 AnnotationThe ban under sub. (4) (mc) 6. on bargaining the “impact of the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee” applies to both “indirect” consequences and to the “direct” impact of the plans on employee’s finances, such as: 1) the deductible amount; 2) maximum-out-of-pocket expense; 3) co-pays; and 4) prescription costs. Milwaukee Police Ass’n v. City of Milwaukee, 2013 WI App 70, 348 Wis. 2d 168, 833 N.W.2d 179, 12-1928.

111.70 AnnotationThe change in state law by 2011 Wis. Act 10 had no effect on the existing collective bargaining agreement in this case or the arbitrator’s ability to order a remedy for a violation committed during the agreement’s term. The plain language of Act 10 delayed its effectiveness with respect to individual school employees and school districts until after the expiration of their existing collective bargaining agreements, and the state constitution prohibits state laws that substantially impair existing contracts. School District v. Kewaskum Education Ass’n, 2013 WI App 136, 351 Wis. 2d 527, 840 N.W.2d 719, 13-0220.

111.70 AnnotationSub. (4) (mc) 6. does not prohibit bargaining for public safety employees on the subject of the allocation of responsibility between employees and employers to pay deductibles required under a health care coverage plan. Wisconsin Professional Police Ass’n v. WERC, 2013 WI App 145, 352 Wis. 2d 218, 841 N.W.2d 839, 12-2701.

111.70 AnnotationThe initial applicability provisions of 2011 Wis. Acts 10 and 32 applicable to the treatments of this section by those acts contain no clear expression of the intention to retroactively upend the settled expectations of collective bargaining agreements (CBAs) that were negotiated and agreed upon months before those acts took effect, but which had not taken effect. To the contrary, the acts disclaim any such intention by exempting employees “covered by” already-existing CBAs until after those CBAs end or are modified. Local 321, International Ass’n of Fire Fighters v. City of Racine, 2013 WI App 149, 352 Wis. 2d 163, 841 N.W.2d 830, 13-0290.

111.70 AnnotationSubs. (1) (f), (3g), (4) (d) 3., and (4) (mb) and the third sentence of sub. (2) do not violate the plaintiffs’ associational rights. No matter the limitations or burdens a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed on the decision to participate. If a general employee participates in collective bargaining under 2011 Wis. Act 10’s statutory framework, that general employee has not relinquished a constitutional right. They have only acquired a benefit to which they were never constitutionally entitled. Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337, 12-2067.

111.70 AnnotationWhen the Wisconsin Employment Relations Commission (WERC) had received detailed and specific complaints of past coercion in other certification elections, a WERC employee lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighed the public interest in favor of openness of public records. The public interest in certification elections that are free from intimidation and coercion is evidenced by the requirement that those elections be conducted by secret ballot and free from prohibited practices. The public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in this case. Madison Teachers, Inc. v. Scott, 2018 WI 11, 379 Wis. 2d 439, 906 N.W.2d 436, 16-2214.

111.70 AnnotationThe Wisconsin Employment Relations Commission may require a labor organization that has an interest, under sub. (4) (d) 3. c., in being on a certification election ballot under sub. (4) (d) 3. b. to file a petition for election. Wisconsin Ass’n of State Prosecutors v. WERC, 2018 WI 17, 380 Wis. 2d 1, 907 N.W.2d 425, 15-2224.

111.70 AnnotationThe Wisconsin Employment Relations Commission may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, when the organization fails to timely file a petition for election because that failure is “logically equivalent” to an election in which a current representative labor organization does not receive at least 51 percent of the votes under sub. (4) (d) 3. b. Wisconsin Ass’n of State Prosecutors v. WERC, 2018 WI 17, 380 Wis. 2d 1, 907 N.W.2d 425, 15-2224.

111.70 AnnotationA municipal employer may agree to pay the employees’ portion of retirement contributions to the state fund. 59 Atty. Gen. 186.

111.70 AnnotationA county ordinance implementing a collective bargaining agreement providing for the payment to county employees, upon their leaving government employment, compensation for accumulated sick leave earned both before and after the effective date of the ordinance is valid. 59 Atty. Gen. 209.

111.70 AnnotationSchool boards have authority to contract with teachers to provide for an increment or sum in addition to the regular salary in return for the teacher choosing an early retirement option. 63 Atty. Gen. 16.

111.70 AnnotationThe attorney general declines to render an opinion on what is subject to collective bargaining in view of a preferred legislative intent that, under sub. (4) (b), such questions be resolved by WERC through the declaratory judgment procedure, subject to judicial review. 63 Atty. Gen. 590.

111.70 AnnotationThe Milwaukee school board is authorized by this section to contract for a retirement system supplementary to the one under former subch. II of ch. 42, 1979 stats. 67 Atty. Gen. 153.

111.70 AnnotationDiscussing the application of the open meetings law to the duties of WERC. 68 Atty. Gen. 171.

111.70 AnnotationA board of education may not prevent a nonunion teacher from speaking on a bargaining issue at an open meeting. City of Madison Joint School District No. 8 v. WERC, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976).

111.70 Annotation2011 Wis. Act 10 amendments did not violate equal protection or free speech protections. Wisconsin Education Ass’n Council v. Walker, 705 F.3d 640 (2013).

111.70 Annotation2011 Wis. Act 10’s various restrictions, in their cumulative effect, do not violate union members’ associational rights. The 1st amendment does not require the state to maintain policies that allow certain associations to thrive. For the most part, the Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. Laborers Local 236, AFL-CIO v. Walker, 749 F.3d 628 (2014).

111.70 Annotation2011 Wis. Act 10’s treatment of union employees and individual employees did not infringe fundamental 1st amendment rights and did not violate equal protection. Wisconsin is not treating employees differently based on the employees’ exercise of their associational rights. Act 10 does not mandate any form of unfavorable treatment for union members. These employees still possess every right, and are given every opportunity, that the state grants to their colleagues who elect not to join a union, but Wisconsin has refused to participate in an activity that the represented employees want the state to engage in. Laborers Local 236, AFL-CIO v. Walker, 749 F.3d 628 (2014).

111.70 AnnotationA teacher’s alleged de facto tenure is not a protected property interest. Discussing liberty interests. Stevens v. Joint School District No. 1, 429 F. Supp. 477 (1977).

111.70 AnnotationThe Wisconsin Employment Relations Commission and trial courts have concurrent jurisdiction over alleged violations of this section. Aleman v. Milwaukee County, 35 F. Supp. 2d 710 (1999).