STATE OF WISCONSIN
WAUSAU SCHOOL DISTRICT MAINTENANCE AND CUSTODIAL UNION,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
File No. 89-CV-358
Decision No. 25972
The petitioner, Wausau School District Maintenance and Custodial Union (Union)
seeks a review
of an order of the Wisconsin Employment Relations Commission (commission) that denied
arbitration pursuant to sec. 11.70(4)(cm)6 of the Wisconsin Statutes. The Commission held
interest arbitration was not applicable here because the inability to arrive at an agreement
wages, hours and conditions of employment of an accreted employee since it does not result
a "new collective bargaining agreement". The Union contends that such a restrictive
is contrary to the legislative purpose of the law. Because the Commission's interpretation is
narrow given the broad remedial purpose of the legislation, the Court reverses and remands
matter for interest arbitration.
The petitioner here represents a group of employees of the Wisconsin School District
they have a collective bargaining agreement. The terms of the current agreement run from
January 1, 1987, through December 31, 1989. In October of 1988 the parties voluntarily
the position of printer in the bargaining unit. When bargaining over an initial agreement on
wages, hours and working conditions became deadlocked, petitioner requested interest
pursuant to sec. 111.70(4)(cm)6, Wis. Stats. The Commission denied that request, which is
subject to this review.
At issue here is an interpretation of a statutory provision. When determining a
question of law,
the reviewing court is not bound by an interpretation given to it by the administrative agency.
CITY OF MILWAUKEE vs. WERC, 71 Wis.2d 709, 239 NW2d 63 (1976). The
interpretations, however, are entitled to great weight if the administrative practice is "long
continued, substantially uniform and without challenge by governmental authorities and
BELOIT EDUCATION ASSOCIATION vs. WERC, 73 Wis. 2d 43, 67-68, 242 NW2d 231
(1976). The weight given to such determinations of an administrative agency is based upon
administrative experience and expertise. Our Supreme Court, on the other hand, has found
an agency that has applied a statute a mere six times had a "poverty of administrative
WHITEFISH BAY vs. WERB, 34 Wis.2d 432, 444-445, 149 NW2d 662 (1967).
No Deference Warranted Here:
The Court, upon its review of the authorities cited, finds that the administrative
in this area are not entitled to judicial deference. Several factors require that conclusion.
it appears that the commission has interpreted this statute within the factual framework
here a mere three times and accordingly has a "poverty of administrative experience".
The second reason is even more important. The pronouncement of the commission
itself has not
been substantially uniform in this area. In GREENDALE SCHOOL DISTRICT, WERC
NO. 20184 (12/82) the commission held that interest arbitration was not applicable to a
in negotiations for employees accreted to a bargaining unit under an existing collective
agreement. That decision was affirmed in Circuit Court but was appealed to the Court of
Appeals. The Commission, however, short circuited that appeal when there was a change in
composition of the Commission who then informed the Court of Appeals as follows:
This letter will serve to inform you that the Wisconsin
Employment Relations Commission
will not file a brief in the above-entitled case. The Commission's decision being appealed
not represent the view of a majority of the present Commission, either as regards the proper
statutory interpretation or the proper outcome. Accordingly, the Commission does not seek
affirmance of the judgment of the Circuit Court."
In the more recent case of UNION NO. 487, et al vs. CITY OF EAU CLAIRE,
2279-B (3/86) the Commission not only alerted all concerned developments following the
of the GREENDALE SCHOOL DISTRICT decision, but specifically stated as follows:
We think it appropriate that the examiner and parties be apprised
Torosian's dissent in Green Dale Schools represents the view of at least a majority of the
Commission." (Dec. at p. 4)
Accordingly, although the GREENDALE decision has not been specifically overruled
it has publicly, repeatedly and in rather strong language repudiated its holding in that case.
case here presents another swing in the view of the commission, perhaps once again
by make up of that Commission. Finally, it is also clear that the holding now relied upon by
Commission has been challenged by governmental authorities, specifically the Commission
In essence, after 11 years the Commission has taken inconsistent positions on this
issue, and thus
all interested parties still do not have a definitive answer on the correct legal interpretation.
The statutory provision here at issue is sec. 111.70(4)(cm)6 Wis. Stats., which
provides in its
pertinent part as follows:
If a dispute has not been settled after a reasonable period of
negotiation and after mediation
by the Commission under subd. (3) and other settlement procedures, if any, established by
parties have been exhausted, and the parties are deadlocked with respect to any dispute
them over wages, hours and conditions of employment to be included in a new
bargaining agreement, either party or the parties jointly, may petition the Commission
to initiate compulsory, final and binding arbitration, as provided in this paragraph."
In interpreting this provision, it is also relevant to consider the legislative purpose as
set forth in
DECLARATION OF POLICY.
The public policy of the state as to labor
disputes arising in municipal employment is to
encourage voluntary settlement through the procedures of collective bargaining.
is the public interest that municipal employees so desiring be given an opportunity to
collectively with the municipal employer through a labor organization or other representative
the employees own choice. If such procedures fail, the parties should have available to them
fair, speedy, effective and, above all, peaceful procedure for settlement as provided in this
subchapter. (Sec. 11.70(6) Wis. Stats.
No one who recalls the Hortonville School strike which prompted the enactment of this
could deny that it had a remedial intent. Accordingly, the statutes in this regard must be
construed to effectuate the purposes set forth above.
The Commission here has taken the position that an initial agreement regarding an
employee is not a "new agreement". If so, where is the old agreement or, more precisely,
is the present agreement. It certainly is not the old collective bargaining agreement which
be presently in effect, but which does not cover the accreted employee. Nor can it be
old policy of the employer because of the unionization of that position and the requirement to
bargain in good faith. The parties must come to an agreement regarding wages, hours and
of employment and such agreement would appear to be a "new agreement" within the
contemplation of the statute as liberally construed.
The employee also becomes "subsumed" into the larger group and eventually that
bargaining agreement. To subsume is to "classify in a more comprehensive category or
general principle". American Heritage Dictionary, 2d Ed. The Commission apparently
that an employee's position can be subsumed into a current collective bargaining agreement
without provisions concerning that positions wages, hours and conditions of employment.
However, to so argue would result in the agreements failure of its essential purpose which
very well then justify a reopening of the entire agreement. The public's interest in the finality
the collective bargaining agreements would, therefore, be defeated by that interpretation.
Interest arbitration, moreover, is just one of several techniques contained in sec.
which is entitled "methods for peaceful settlement of disputes". One of the conditions for
methods is the notice of commencement of negotiations, which includes the situation here;
no agreement exists of the other methods set forth, only interest arbitration will guarantee a
peaceful result and settlement of the dispute. The Commission's interpretation would deprive
accreted employee and his union of this most important method for a peaceful settlement of
dispute and thereby encourage strikes or other actions deemed harmful of the public interest.
The legislation at issue provides for a prohibition against strikes by public employees,
111.70(4)(1) Wis. Stats. In return, alternatives to strike were set forth and interest
is one of them; if not the most important one.
Moreover, sec. 111.70(4)(d)2 sets forth a "anti-fragmentation policy" which purpose is
a large number of small bargaining units. Interpretation given by the Commission would
discourage unions and employers to agree to subsume a new position or group of positions
a existing collective bargaining agreement. The result would be that which the legislature
to avoid, numerous small bargaining units.
Given the statutory provision and the liberal interpretation which a remedial statute
position adopted by the commission is clearly inconsistent with the legislative purpose.
Accordingly, the determination of the Commission must be reversed.
On issues of law, such as presented here, the court determines the issue ab initio,
determination of the Commission great weight if it has a long, uniform and unchallenged
and is consistent with the legislative purpose. Here the Commission has a "poverty of
administrative experience" concerning this statute in this fact situation. It has publicly taken
inconsistent positions which has resulted in a confusion as to its true position, especially as
commission members change. For these reasons alone, the determination of the commission
not entitled to any deference.
Moreover, the strict and narrow determination used by the Commission is inconsistent
broad and remedial legislative policy present in this area. The Commission takes the position
an agreement where none previously existed is not a "new agreement" within the meaning of
statute. That is clearly a very strict and narrow interpretation as opposed to a broad and
one. The commission also asserts that a position can be subsumed into a prior collective
bargaining unit and agreement without subsumation of the essential purpose; an agreement on
wages, hours and conditions of employment. It would lead one to believe that one of the
important legislation creations for the peaceful settlement of disputes in the area of municipal
employment is unavailable when an employee, or a whole class of employees, are subsumed
a larger unit. All of these positions are strict and narrow ones.
The agreements advanced in support of the Commission's determination would appear
reasonable if one takes a narrow and strict interpretive approach. However, the provision
is remedial in nature requiring a liberal interpretation to effectuate the legislative purpose.
In that light, the Commission's determination is unreasonable. Accordingly, the
determination of the Commission is reversed and the matter remanded for further
consistent with this decision.
Dated at Wausau, Wisconsin, this 8th day of November, 1989.
BY THE COURT:
/s/ Vincent K. Howard
VINCENT K. HOWARD
Circuit Judge, Branch 4
Marathon County, Wisconsin
Jeffrey T. Jones
Melissa A. Cherney
John D. Niemisto