COUNTY OF KENOSHA
LOCAL 70 et al,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
The petition for review by the petitioner asks this Court for an order holding that the
Employment Relations Commission committed material errors of law, improperly applied
unlawfully granted a petition for rehearing, and made improper legal conclusions.
The basic issues to be resolved revolve primarily around the following questions Was
of Kenosha County to make and pay cost of living adjustments following the expiration of
1982-83 collective bargaining agreement a unilateral change in wages or benefits and
unlawful refusal to bargain? Did the "dynamic status quo" doctrine mandate a
continuation of the
COLA payments by Kenosha County after the expiration of the agreement and before a new
agreement was signed?
The Court will not summarize the facts, and to some extent they are undisputed. On
Court is not to redetermine the facts. The Commission properly granted a petition for
if it felt further information was needed and that different inferences could be made from the
it had already determined. The decision of the Commission should not be reversed unless
Court would find from the record and the evidence that a reasonable person, acting
could not have reached a decision from the evidence and its inferences. Hamilton v
Wis 2nd, 611; 288 NW 2nd, 587 (1980).
Respondents and intervener cite a private sector case which held COLA payments are
condition of employment and do not survive the expiration of a contract. Petitioners cite a
Michigan public sector case which said it is a condition of employment which does survive
expiration of an agreement. The Commission in our case assumes a COLA clause may
but a majority of the Commission specifically found that petitioners failed to prove that the
quo covered COLA during a contract hiatus.
The Commission deciding our case examined language of the agreement, past practice
contractual hiatuses, and the bargaining history. Kenosha County claimed that under an
contract, which expired December 31, 1981, it did not pay COLA during the contract hiatus.
apparent attempt by the County to present evidence of what happened after the 1976-78
expired was apparently denied. However, as pointed out by one of the commissioners, the
petitioners herein had the burden of proof and failed to show that COLA payments had ever
paid in any previous contractual hiatuses.
To avoid prolixity, this Court will try to concisely state its thoughts on the use of the
"Thereafter" in the 1982-83 agreement as said word relates to the quarterly COLA
The word did appear in the earlier agreement, and I am not convinced the word "Thereafter"
referred to any payments after the agreements ended. Two members of the Commission
that when the petitioners herein failed to object to the cut off of COLA after January 1, 1982
showed a past practice under which the petitioners and the County did not have any mutual
understanding that COLA would be paid after December 31, 1983 without a new contract.
event, the word "Thereafter" did not mean enough to the unions to cause them to object after
January 1, 1982. The unions' action or in this case non-action, speak clearly as to their
understanding of the contractual language.
Whatever the contract language and the bargaining history, the petitioners' failure to
January of 1982 exhibited the understanding of the parties that hiatus COLA adjustments
part of the contract or status quo. If no agreement on COLA and the "freezing"
reached until March of 1982, what happened to the January 1, 1982 adjustment? If anyone
argue that in 1982 complaining by the unions was not thought about, because the
using a "static"@!rather than a "dynamic" view of the status quo,, such an
argument, if anything,
would show the. County and union never expected COLA beyond expiration of the 1980-81
contract or of the 1982-83 contract which concerns us now. Regardless of this Court's
theories are not necessary as a basis for this Court to hold the Commission acted correctly in
case and its decision and order must be affirmed.
This Court has carefully reviewed the record in this case. It is not going to conduct a
review of the evidence. There was a rational basis for the Commission's decision. The
of proof, by a clear and satisfactory preponderance, was on the petitioners to show a
Wisconsin Statutes. There simply is no noteworthy evidence in the record showing a past
of the petitioners and Kenosha County requiring the continuation of COLA after expiration of
collective bargaining agreement. There is clear evidence to the contrary.
Whether the "dynamic" status quo doctrine should be applied to COLA
benefits in absence of
contract language so requiring will not be answered by this Court. The Commission assumes
should be, this assumption is accepted by this Court,.and the Commission must be affirmed
doctrine is applicable. If the doctrine were not applicable, this case would most probably not
before this Court for review as the contract language is at least ambiguous.
In summary, assuming the "dynamic" status quo doctrine is applicable the Commission
the agreement, bargaining history, and past practices, weighed the evidence and made its
The decision was legal and proper. Neither the bargaining history nor the agreement
payment of COLA during a hiatus. The Commission found there was no past practice of
payment, but of actual non-payment, and this requires affirmation of its order.
Dated this 31st day of July, 1989.
BY THE COURT
/s/ Paul F. Wokwicz
Paul F. Wockwicz
Circuit Judge, Br. 2