STATE OF WISCONSIN
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
Case No. 88-CV 27
Decision No. 23489-C
This case involves a 1985 collective bargaining contract for 1985 between the employer
(petitioner) and certain county employees. The contract is created by law rather than by
agreement signed by the parties. The parties did not agree, so the dispute went to an
who made a decision on October 15, 1985. The contract called for fair share deductions and
county made such deductions after the award, but not retroactively. Whether the contract
such retroactive deduction of fair share is the basic issue here.
The Union representing the county employees (hereinafter "Union") filed a complaint
the county had violated Section 111.70(3)(a)7, Wis. Stats. by failing to pay the retroactive
share payments. The WERC appointed an examiner who tried the cause on June 19, 1986.
decision was entered on October 7, 1987. The county appealed from an adverse decision by
examiner. The Commission, on December 22, 1987, affirmed the examiner's decision on
ground the County's petition was not timely filed.
The County then, on January 8, 1988, commenced this action to challenge the WERC
Judge Curtin made a decision on June 1, 1989 affirming the WERC decision that the appeal
Commission was not timely. An Order for affirmance was entered on June 28, 1989.
thereafter all parties requested the Court to decide the issues on the merits, so a new Order
August 8, 1989 vacated the Order of June 28, 1989.
We are left with the decision of June 1, 1989 on timeliness, and Judge Curtin's
statement that a
decision on the merits is indicated.
It, no doubt, is somewhat unique to proceed to a decision on the merits after the Court
effect, ruled it has no jurisdiction. However, I accept the foregoing situation and judgment
Judge Curtin's statement that a decision is required and proceed accordingly.
The facts set forth in petitioner's brief appear to be undisputed and I include here those
facts I feel
"AFSCME, Local Union No. 3148, AFL-CIO has represented
employees at the Sauk County
Health Care Center since about 1980. In the five years of such representation preceding the
of the complaint in this action, the County and the union negotiated four separate labor
covering the calendar years 1981, 1982, 1983-84, and 1985. (Case 111, No. 31531,
Jt. Ex. No. 1; Jt. Ex. No. 2 (Case 67, No. 34706, MP-1686, Jt. Ex. No. 1); and Jt.
1, respectively.) Some form of fairshare has been a part of every one of those contracts.
In 1981, the first contract included a modified fair-share clause,
but agreement was not
reached until the latter part of that year. When that contract was ratified, however, the
security provisions were not made retroactive to the start of the agreement. Deductions were
made prospectively only. (Ex. 2, Case 67, Tr. at pp. 31-33).
In 1982 and 1983-84, contracts each expired before agreement on
successor contracts could
be reached. (Tr. 33-35) During the hiatus periods between the contract expiration and the
arbitration awards which created new contracts, the County never deducted fair-share
contributions. (Tr. 34) Even after the new contracts were ratified in each of these years, the
County never made retroactive fair-share deductions covering the hiatus periods, it only
prospectively from the dates of ratification. In 1982, the union did not object to the
interpretation of the fair-share clause as being prospective only. In the 1983-84 contract, the
union initially objected but later withdrew that objection. (Tr.34)
The union and the County entered into a collective bargaining
agreement covering the period
of January 1, 1983 through December 31, 1984 on February 28, 1984. It included a full
fair-share provision. (Jt. Ex. 2, Record o f Case 67, Jt. Ex. 1). That contract, as had been
previous agreement, was the result of a mediation-arbitration award that was rendered in the
middle of the contract term. During that hiatus period, the County, as it did in this case, did
withhold either union dues or fair-share contributions. The County also did not withhold
fair-share contributions retroactively.
The union filed a similar complaint with the WERC when the
County ceased withholding dues
in 1983. The union contended, in part, that the County's failure to retroactively withhold
dues and fair-share contributions for the periods of the hiatus constituted a refusal to
the mediation-arbitration award. (Ex. 2, Case 67 Transcript at p. 67)
Ultimately, this complaint was dismissed by the WERC. It was
dismissed at the union's
request, based upon the union's representation that the interest arbitration award had
outstanding issues." (Ex. 7 and 8) It was so dismissed despite the fact that the County did not
withhold those union dues or fair-share contributions from the employees' checks
the union was aware of that fact prior to withdrawing its complaint. (Ex. 2, Case 67,
Exhibits 7 - 8; Transcript at pp. 27-28)
Negotiations for the 1985 agreement, the contract at issue in this
case, commenced prior to
contract expiration. The union filed another petition for mediation-arbitration in
of 1984. During the negotiations, neither the County nor the union proposed to change the
fair-share language in the collective bargaining agreement. (Ex. 2, Transcript of Case 67 at
pp. 10-12.) In January of 1985, when the 1983-84 contract expired, the County, as it had
before, ceased union dues check-offs and fair-share deductions. (Ex. 2, Case 67, Joint
In the mediation-arbitration proceedings, each party was required
to submit their final offer
on the disputed items still in negotiations. The County's final offer, the union's final offer,
the tentative agreements to that point were silent on the issue of whether fair-share and union
were to be deducted retroactively. The union's final offer specifically indicated that their
offer was to be retroactive to January 1, 1985, however.
On October 15, 1985 the mediator-arbitrator issued his award.
That award did not make any
changes in the fair-share language nor did it even address the question of whether fair-share
to be deducted prospectively or retroactively. (.Jt. Ex. No. 6) As it had in prior contract
the County made fair-share and union dues deductions prospectively, but not retroactively.
union again filed a complaint with the WERC alleging that the County's failure to make
retroactive fair-share deductions violated numerous provisions of Wis. Stats. Section
On October 7, 1987, Examiner David E. Shaw issued his
proposed.Findings of Fact,
Conclusions of Law and an Order. In that decision, he concluded that Sauk County had
Wis. Stat. Section 111.70(3)(a) 7, and derivatively Wis. Stat. Sec. 111.70(l@)(a) 1, but
other section of MERA, by refusing to retroactively withhold fair-share contributions and
dues. In reaching that conclusion, the examiner acknowledged that his holding represented a
ruling on an issue "that has not been addressed before this by the commission." (Examiner's
decision at p. 17) The examiner concluded that there was no past practice of withholding
payments and dues prospectively only, that a fair-share/voluntary dues deduction provision is
likely to be considered an economic item to be applied retroactively, and that a violation of
7 could be found even where the contract language alleged to be violated was never at issue
On October 28, 1987, 21 days after the date of the examiner's
decision, the WERC received
the County's petition for review of the examiner's decision. The WERC, sua sponte, issued
order confirming the examiner's decision by "operation of law.".
For the purposes of this decision, my attention will be directed to the award of the
the commission attempted no changes in
Essentially the Court considers we are faced with a "contract" case since the award of
arbitrator merely selected which party's offer would be preferred. The Union's offer in
became the collective bargaining agreement or contract. The examiner was faced with the
of interpretation of an admittedly ambiguous contract provision.
The examiner in effect found that at the time of the entry into the contract, it was the
both parties to provide for retroactive deduction of fair share fees for all previous months of
The briefs of the County and the Union dispute whether this Court should give "great
"due weight" to the Examiner's interpretation. The Commission brief argues that the
Commission's interpretation must be
sustained if it is reasonable.
The Court sees little, if any, emphasis in the Examiner's decision on ascertaining the
intent of the
parties as to the ambiguous part of the contract.
The foundation of all rules for construction of contracts is the
intention of the parties. 17 Am.
Jur. 2d, pg. 631, Sec. 244.
There are well recognized rules governing the construction of contracts. It is clear
attempted, in its offer, to spell out by contract the issue of retroactive payments. Regardless
the reason, for the Commission or the Court to find agreement thereon when, obviously, no
agreement existed, would he contrary to good law.
It is a fundamental principle that a Court may not make a new
contract for the parties, or
rewrite their contract under the guise of construction. 17 Am. Jur. 2d, pg. 627, Sec. 242.
Course of prior dealings may be considered by the Court to
enable the Court to determine the
intent of the parties. 17 Am. Jur. 2d, pg. 644, Sec. 251.
If it can be plainly seen from all the provisions of the instrument
taken together that the
obligation in question was within the contemplation of the parties when making their
the law will imply the obligation and enforce it. The policy of the law is to supply in
what is presumed to have been inadvertently omitted **. The Courts are ** cautious in
rights, obligations, promises or covenants, lest they make the contract speak where it was
to be silent **." 17 Am. Jur. 2d, p. 649-651, Sec. 255.
No implied provisions can be inserted to supply an obligation
concerning which the contract
is intentionally silent. Glass vs. Mancuso (MO) 444 S.W. 2d, 467.
A promise may be implied only where it may be rightfully
assumed that it would have been
made if attention had been drawn to it, and it is to be implied only to reach a result which
unequivocal acts of the parties indicate they intended to effect. Genet vs. Del. &
H. Canal, 136
N.Y. pg. 593
Terms are to be implied in a contract, not because they are
reasonable, but because they are
necessarily involved in the contractual relationship so that the parties must have intended
have only failed to express them because of sheer inadvertence**. 17 Am. Jur. 2d, pg. 651,
In construing a contract, a Court should ** place itself in the
situation occupied by the parties
when the agreement was made **. Any previous course of dealing ** may ordinarily be
considered. 17 Am. Jur. 2d, Pg. 681, Sec. 272.
A contract will normally be construed against:
(a) the party who drew it and left it
(b) the party for whose benefit it was
inserted. 17 Am. Jur. 2d, Section 275.
A criminal law principle is that no one should be required at peril of penalty to
speculate on the
meaning of penal Statutes. The same rational should apply here, that the County, at the peril
money sanctions, should not be responsible for conduct it should not reasonably understand
proscribed. 21 Am. Jur. 2d, page 128, Section 16.
The past practice evidence may not have met the Commission's test of acceptance by
parties. The evidence did clearly establish that there was no agreement or meeting of the
on retroactive fair share deductions. It is clear that neither side made any proposal on this
1985, and the only safe assumption is that both parties elected to leave it out of the contract.
The past course of conduct as to retroactive payments was well established, i.e., no
payments essentially had been paid in the past four years. The pattern was that the County
opposed them and the Union wanted them. There was the one time when the Union actually
the County not to deduct retroactively. This frame of mind prevailed when the 1985 offers
made and the contract signed. In other words, except on one occasion when the Union
retroactive payments, the parties never had a meeting of minds on the issue and made no
to resolve the issue in the 1985 offers.
The Court is convinced, based on its review of the facts and the Examiner's decision,
failed to attempt to and did not follow the cited and established rules for construction of
Wisconsin Stats. 111.70(3) (a) 6 forbids the employer to deduct fair share unless there is an
agreement by the parties to sanction this. This is not a case where there is a preponderance
evidence or even equal evidence to support the Examiner. There is no evidence of an
by the County. In fact, the evidence is completely to the contrary.
Especially considering the past course of action in regard to the deduction, the fact that
contract carried a time of one year, just as prior contracts carried a similar -term, offers no
support to the Examiner's conclusion. In fact, the expressed mention/implied exclusion rule
tacitly accepted by the brief of the Commission, mandates a result opposite to that reached by
Since the decision of the WERC must be reversed because of the erroneous
interpretation of the
contract, the Court feels it unnecessary to spend time on the issues of "prohibited practice"
"referral to an arbitrator".
Dated October 11, 1989.
BY THE COURT:
/s/ Howard Latton