COURT OF APPEALS DECISION
DATED AND RELEASED JULY 3, 1990
STATE OF WISCONSIN
IN COURT OF APPEALS
WAUSAU SCHOOL DISTRICT MAINTENANCE AND CUSTODIAL UNION,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
Decision No. 25972
APPEAL from a judgment of the circuit Court for Marathon county: VINCENT K.
Before Cane, P.J., LaRocque and Myse, JJ.
CANE, P.J. The Wisconsin Employment Relations Commission (WERC) appeals a
reversing its decision and ordering mandatory arbitration of a dispute between the Wausau
District Maintenance and Custodial Union and the Wausau School District. The dispute
around the wages, hours and conditions of employment for a position newly accreted to the
bargaining unit. WERC contends that the circuit court did not grant sufficient deference to
decision that mandatory arbitration under sec. 111.70(4)(cm)6, Stats., is only available for
collective bargaining agreements," and does not cover positions added to a bargaining unit
an existing contract. We agree with the circuit court that WERC's inconsistency on this
eliminates the deference we might otherwise accord its interpretation of the statute. We also
that although the phrase "new collective bargaining agreement" is ambiguous, the policies
underlying the Municipal Employment Relations Act (MERA), sec. 111.70, Stats., support
mandatory arbitration in situations when the wages, hours and conditions of employment of
accreted positions that have not been covered by a collective bargaining agreement are being
The facts are undisputed. A printer's position, containing only one employee, was
added to the
union in 1988. The union and the district had an existing collective bargaining agreement.
commission precedent, when unrepresented positions are added to an existing bargaining
bargaining agreement does not cover these positions. After unsuccessfully negotiating the
printer's wages, hours and conditions of employment, the union filed a petition for interest
WERC found that the union was not seeking a "new collective bargaining agreement"
the petition. The union appealed to the circuit court, which reversed and ordered mandatory
arbitration. WERC appeals the circuit court's decision, and we affirm.
The first issue is the degree of deference to which WERC's initial decision is entitled.
cases, this court grants "great weight" to an agency's interpretation of a statute it is charged
administering. Drivers Local No. 695 v. LIRC, 154 Wis.2d 75, 82-83, 452
N.W.2d 368, 371
(1990). However, this deferential standard of review is only applicable if "the
practice is long continued, substantially uniform and without challenge by governmental
authorities and courts." Id. at 83, 452 N.W.2d at 372 (quoting City of
Beloit Educ. Ass'n v. WERC, 73 Wis-2d 43, 67-68, 242 N.W.2d
231, 242-43 (1976)).
Otherwise, our standard of review is de novo. Id. at 84, 452 N.W.2d at 372.
In this instance, our standard of review is de novo. WERC's interpretation of the
statute has not.
been "substantially uniform." (1) WERC
initially addressed the breadth of sec. 111.70(4)(cm)b,
Stats., in Dane County, Dec. No. 17400 at 11 (WERC 1979), aff'd,
Dane County Special Educ.
Ass'n v. WERC, No. 80-CV-0097 (Dane County Cir. Ct. June 9, 1980):
Absent some other indication of legislative intent, the wording of
this provision would appear,
on its face, to limit the application of the mediation arbitration procedure to situations where
parties are negotiating a collective bargaining agreement which either constitutes the first
collective bargaining agreement between the parties or a new agreement to replace an
expired agreement.... [Nlowhere in the procedures outlined in Sec. 111.70(4)(cm)6, Stats., is
there any indication that the legislature anticipated its application to deadlocks other than
which might occur in collective bargaining for a new agreement in this sense. ... [W]e
that the mediation-arbitration provisions contained in Sec. 111.70(4)(cm)6, Stats., are only
applicable to deadlocks which occur in: ... (3) negotiations for an initial collective
agreement where no such agreement exists.
Dane County, however, did not deal with the issue of accreted positions.
In Greendale School Dist., Dec. No. 20184 (WERC 1982), WERC
addressed the issue of whether
an agreement concerning newly accreted positions is a "new collective bargaining
WERC, in a 2-1 decision with Commissioner Herman Torosian dissenting, found that it was
That determination was upheld by the circuit court. Milwaukee Dist. Council 48 v.
603-055 (Milwaukee County Cir. Ct. Oct. 17, 1983). The case was then appealed to this
The attorney general, on behalf of WERC, informed this court that he would not be filing a
and that WERC's initial decision did not represent "the view of the majority of the present
commission either as regards the proper statutory interpretation or the proper outcome." We
dismissed the case as moot for other reasons. (2)
Subsequently, in City of Eau Claire, Dec. No. 22795-C at 18 (WERC
1986) , the commission
stated: "We think it appropriate that the Examiner and parties be apprised that Commissioner
Torosian's dissent in Greendale Schools represents the view of at least a
majority of the present
commission." Disregarding Eau Claire, however, WERC has now reverted to
its initial position
in the current case. Wausau School Dist., Dec. No. 25972 (WERC 1989).
Since WERC decided
this case, it has ruled at least one other time in Wood County, Dec. No. 26178
WERC does not deny that as the composition of the commission changed, its opinion
on this issue
has also varied. However, WERC argues that because it never explicitly reversed
School, the law, as opposed to the commissioner's individual opinions, has remained
unchanged. We disagree. The letter to the court and the language in the Eau
alerted litigants to WERC's new opinion on the correct interpretation of the statute. It would
require an enormous stretch of logic to label WERC's contortions on this issue as
uniform," and we therefore decline to accord deference to its most recent interpretation.
Having determined that our review is de novo, we next examine the statute itself.
111.70(4)(cm)6, Stats., states in part:
Interest arbitration. If a dispute has not been settled after a
reasonable period of negotiation
... and the parties are deadlocked with respect to any dispute between them over wages,
conditions of employment to be included in a new collective bargaining agreement, either
or the parties jointly, may petition the commission, in writing, to initiate compulsory, final
binding arbitration, as provided in this paragraph.
The central dispute in this case is over the definition of the term "new collective
agreement" as it is used in this section.
WERC, as set forth in the Greendale School decision, contends that the
phrase applies only to
situations where no collective bargaining agreement exists between the municipality and the
bargaining unit. Therefore, because there is already an agreement between the union and the
district, WERC held it cannot order interest arbitration under MERA.
A statute is ambiguous, and open to interpretation, if it is capable of being understood
reasonably well-informed individuals in more than one manner. State ex rel.
v. Showers, 135 Wis.2d 77, 87, 398 N.W.2d 154, 159 (1987). We agree with
WERC that "new
collective bargaining agreement" can, from the language of the statute, reasonably be
to exclude the situation at issue here. Where WERC went astray, in our opinion, is by
111.70(4) (cm) 6, Stats., its narrowest possible meaning in derogation of the public policy
of MERA. MERA's legislative purpose is set forth in the statute:
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
Accordingly, it is in the public interest that municipal employees so desiring be given an
opportunity to bargain collectively with the municipal employer through a labor organization
other representative of the employees, own choice. If such procedures fail, the parties
have available to them a fair, speedy, effective and, above all, peaceful procedure for
as provided in this subchapter.
Sec. 111.70(6), Stats. (3)
Arbitration is an important part of the dispute resolution mechanism:
Our adherence to the Trilogy (4) is in keeping with the strong legislative policy in
favoring arbitration in the municipal collective bargaining context as a means of settling
and preventing individual problems from growing into major labor disputes.
Joint School Dist. No. 10 v. Jefferson Educ. Ass'n, 78 Wis.2d 94, 112,
253 N.W.2d 536, 545
(1977). MERA was designed to avoid lengthy and bitter labor disputes such as the
School District strike, which prompted its passage. Interest arbitration, in this situation,
with this goal by allowing for the peaceful resolution of disputes between municipalities and
unions over newly accreted positions.
We also note MERA's anti-fragmentation policy that encourages a limited number of
units in each municipality. Policies that tend to make accretion a more difficult and less
option violate this policy by encouraging the formation of new bargaining units instead.
notes that it has other mechanisms to discourage fragmentation, most importantly denying
status as bargaining representatives. See sec. 111.70(4)(d)2a, Stats. This, however, leads us
to the initial problem. After being denied bargaining unit status, the employees can either
up their request to unionize, strike or accept accretion with no mechanism for resolving
Such a result is in conflict with the policies underlying MERA and must be rejected.
We agree with the position taken by Commissioner Torosian in his dissent in
Dec. No. 20184 at 7:
Unlike Dane County this is not a case where, during
the term of an agreement, a new matter
or issue arises over which the Union wants to bargain and if necessary proceed to
mediation-arbitration. Here we have a group of employees who prior to their accretion were
for purposes of collective bargaining agreement. Under such circumstances the Commission
long held, as noted by the majority, that accreted employes are not automatically covered by
terms of an existing collective bargaining agreement covering employes in the accreted-to
and that said accreted employees have the right, and the employer has the duty, to bargain
their wages, hours and conditions of employment. It follows then that the parties must in
faith make an attempt to reach an agreement over matters that are mandatorily bargainable.
resultant agreement, if negotiated, is in my opinion, a new initial agreement; a new initial
agreement because it covers employes who were not previously represented and who were
covered by an agreement. The fact that they have gained bargaining rights by way of an
to a larger unit of employes, does not in my opinion change the fact that said employes are
negotiating for a new agreement. As such they have a right to utilize the mediation
process to secure same. Thus, it is clear to the undersigned that such an agreement is a new
agreement within the contemplation of Sec. 111.70(4)(cm)6.
We hold that the interest arbitration provisions in sec. 111. 70 (4) (cm) 6, Stats., apply
situations where municipalities and unions are negotiating the wages, hours and conditions of
employment for positions newly accreted to the bargaining unit. Therefore, we affirm the
court's order of interest arbitration in this case.
By the Court. Judgment affirmed.
Recommended for publication in the official reports.
1. WERC's interpretation was also considered by the
circuit court not to be "long continued."
It cited Village of Whitefish Bay v. WERB, 34 Wis.2d 432, 444-45, 149
N.W.2d 662 , 669
(1967), which found that an agency had a "poverty of administrative experience" because it
applied a statute a mere six times. In this case, WERC had applied the statute to a
situation twice prior to its decision. WERC has, however, applied the interest
to other fact situations on numerous occasions, and we therefore do not consider
an alternative grounds for our refusal to grant deference. See also Drivers Local No.
Wis.2d at 83, 452 N.W.2d at 372 (no great weight given to agency decision if agency has no
experience applying statute to specific facts of first impression).
2. Milwaukee Dist. Council 48 v.
WERC, No. 83-2007, unpublished slip op. (Wis. Ct.
3. Numerous decisions discuss the commission's
public policy goal of preventing acrimonious
labor disputes. See, e.g., City of Medford v. Local 446, 42 Wis.2d 581, 593,
167 N.W.2d 414,
420 (1969); Whitefish Bay, 34 Wis.2d at 441, 149 N.W.2d at 667;
Schs. Jt. Sch. Dist. v. WERB, 32 Wis.2d 478, 485c, 151 N.W.2d 84, 85 (1966).
4. The Trilogy referred to is the Steelworkers
Trilogy of United States Supreme Court
decisions: United Steelworkers V. American Mfg. Co., 363 U.S. 564 (1960);
Steelworkers v. Warrior & Gulf Navig. Co., 363 U.S. 574 (1960); and
United Steelworkers v.
Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).