153 WIS.2D 238 (CT.APP. 1989) PAGE 238
CITY OF BROOKFIELD, Plaintiff-Appellant
WISCONSIN EMPLOYMENT RELATIONS COMMISSION, and Brookfield
No. 89-0345. Submitted on briefs September 17, 1989. Decided November 8, 1989.
153 WIS.2D 238 (CT.APP. 1989) PAGE 239
APPEAL from a judgment of the circuit court for Waukesha county: WILLIS J.
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Roger E.
Lindner & Marsack, S.C. of Milwaukee.
On behalf of the defendant-respondent, Wisconsin Employment Relations Commission,
was submitted on the brief of Donald J. Hanaway, attorney general and David C. Rice,
On behalf of the defendant-respondent, Brookfield Firefighters Association, the cause
submitted on the brief of John K. Brendel of Brookfield.
On behalf of the Professional Firefighters of Wisconsin, an amicus curiae brief was
Richard V. Graylow of Lawton & Cates, S.C. of Madison.
Before Brown, P.J., Scott and Nettesheim, JJ.
NETTESHEIM, J. The city of Brookfield appeals from a circuit court judgment
Wisconsin Employment Relations Commission (WERC) declaratory ruling that the Brookfield
Professional Firefighters Association's (union) collective bargaining proposal regarding
post-retirement group health insurance is a subject of mandatory bargaining. The proposal
to obligate the city to provide, beyond the term of the proposed collective bargaining
group health insurance benefits to employees retiring during the term of the agreement. The
contends that the proposal violates sec. 111.70(3)(a)4, Stats., which limits the term of any
collective bargaining agreement to three years. We conclude that the statute does not
CITY OF BROOKFIELD, 153 WIS.2D 238 (CT.APP. 1989) PAGE 239
ing on the union's proposal. Therefore, we affirm the circuit court's judgment.
The facts in this case are not in dispute. The city is a municipal employer which
operates a fire
department. During collective bargaining for a successor agreement to the 1985-86
the union proposed that the city, subject to certain limitations, provide group health insurance
fire fighters retiring during the term of the proposed agreement. (1) The city refused to bargain
with the union on this proposal, contending that it violated sec. 111.70(3)(a)4, Stats., which
provides, in part: "The term of any collective bargaining agreement shall not exceed 3
On June 1, 1987, the city petitioned the commission pursuant to sec. 111.70(4)(b),
Stats., for a
declaratory ruling as to whether the proposal was a mandatory subject of bargaining. The
commission concluded that the proposal did not violate the three-year limitation of sec.
111.70(3)(a)4 and ruled that the proposal was a mandatory subject of bargaining. The city
appealed the commission's decision to the circuit court. The court
CITY OF BROOKFIELD, 153 WIS.2D 238 (CT.APP. 1989) PAGE 241
affirmed the commission's decision. The city appeals to us. The Professional
Wisconsin has participated in this appeal as amicus curiae.
The parties initially differ on the appropriate standard of review, citing different
Supreme Court authority for their respective positions. The city argues that the issue is one
permitting de novo review without deference to the commission because the interpretation of
111.70(3)(a)4, Stats., by the commission is not one "long continued, substantially uniform
without challenge by government authorities and courts." Wisconsin Dep't of
Relations v. WERC, 122 Wis.2d 132, 138, 361 N.W.2d 660, 663 (1985). The city
that the statute is clear and unambiguous and, thus, deference to the commission is not
appropriate. See American Motors Corp. v. DILHR, 101 Wis.2d 337, 356,
305 N.W.2d 62, 71
The union, commission and amicus contend that "[w]hen the legislature charges an
agency to apply and enforce a particular statute as it has with the commission and ch. 111,
the agency's construction and interpretation of the statute are entitled to great weight and any
rational basis will sustain its practical interpretations." School Dist. of Drummond v.
Wis.2d 126, 132-33, 358 N.W.2d 285, 288 (1984).
Assuming without deciding that the standard of review argued by the city is
nonetheless conclude that sec. 111.70(3)(a)4, Stats., does not preclude mandatory bargaining
the union's proposal.
The statute is clear and unambiguous: the term of a collective bargaining agreement
exceed three years. Reasonable minds could not differ as to the thrust of this language. See
LaCrosse Footwear, Inc. v. LIRC,
CITY OF BROOKFIELD, 153 WIS.2D 238 (CT.APP. 1989) PAGE 242
147 Wis.2d 419, 423, 434 N.W.2d 392, 394 (Ct. App. 1988). Nor does application of
undisputed facts in this case to the statute render the statute ambiguous. See Sauer v.
Co., 152 Wis.2d 234, 448 N.W.2d 256 (Ct. App. 1989). The union's proposal for
insurance coverage beyond the term of the proposed agreement does not cloud the clear
of the statute.
Contracts commonly impose deferred obligations beyond the stated term of the
Although not addressing a challenge under sec. 111.70(3)(a)4, Stats., and not binding on us
precedent, WERC has previously accepted this contractual principle in its holding that
compensation in the form of deferred group health insurance is a subject of mandatory
Clearly, retirement benefits bargained as part of an overall
compensation package need not
be limited to the payment of a pension, but they may well include payments of health
premiums or, as here, the right to continue in a group health insurance program. Wages
bargained in exchange for the performance of work as an active employe (prior to
take the form of payments and fringe benefit privileges paid to the employe
with the active service or deferred so that payment to the employe occurs at a later date.
contemporaneous or deferred, the compensation involved is in exchange for the work
by the employe during the term of the contract prior to retirement. . ..
Thus, in our view, if the instant clause applies only to current
employes who retire during the
term of the agreement, it would be a mandatory subject even though the County's obligations
CITY OF BROOKFIELD, 153 WIS.2D 238 (CT.APP. 1989) PAGE 243
uals would begin only at the time of the individuals' retirement."
In re Green County, No. 21144, slip op. at 8-9 (WERC Nov. 1,
We find this reasoning persuasive and adopt it here. The union's proposal in this case
affect the duration of the proposed collective bargaining agreement. As in Green County, it
delays the city's deliverance of a portion of the firefighters' compensation to a time after the
contract term has expired. As WERC appropriately noted in its decision in this case, "The
statutory 3 year limit on contract length functions to assure the regular occurrence of the
bargaining process by which it is determined whether proposals such as this become or
of a contract. The 3 year limitation does not function as a limitation upon the scope of
compensation proposals." (Footnote omitted.) We agree with this statement. (2)
By the Court. Judgment affirmed.
1. The full proposal reads as follows:
Commencing 1/1/87, upon an employee's "normal" retirement
defined per Wis. Stat. Sec.
40.23) or upon an employee's termination due to disability (as defined in Sec. 40.65(4), Wis.
Stats.), the City shall, at City expense, provide the employee with a single or family plan, as
applicable, of group health insurance equal to the coverage or plan that the employee
in at the time of retirement or termination. Such City payments shall continue monthly
until any of the following events become applicable to the employee:
(a) The death of the employee;
(b) The employee and his/her spouse attain
(c) The employee and his/her spouse is
qualified for Medicare
(d) The employee and his/her spouse is a
participant in a substantially similar group health
insurance plan provided by a subsequent employer during the period of such participation.
2. The city also argues that the union's deferred
compensation proposal in this case can be
distinguished from other recognized deferred compensation such as vacation pay, paid sick
and pension benefits because the latter are fixed, ascertainable and funded as of the date of
retirement whereas the former is not. We do not see these distinctions as bearing upon the
of the union's proposal under sec. 111.70(3)(a)4, Stats. Nor did WERC in In re
No. 21144 (WERC Nov. 1, 1983).
We do not read the city's brief as contending that the union's proposal is not"primarily
wages, hours and conditions of employment. See West Bend Educ. Ass'n v.
WERC, 121 Wis.2d
1, 8-9, 357 N.W.2d 534, 538 (1984). Rather, the city argues that the proposal is not subject
mandatory bargaining because of sec. 111.70(3)(a)4, Stats., and because the city's obligation
not fixed and funded.