STATE OF WISCONSIN
IN SUPREME COURT
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
AFSCME, Local Union No. 3148, AFL-CIO,
Decision No. 23489-C
REVIEW of a decision of the Court of Appeals. Affirmed.
LOUIS J. CECI, J. This case is before the court on petition for
review of a decision of the court of appeals, Sauk County v. WERC,
158 Wis.2d 35, 461 N.W.2d 788 (Ct. App. 1990). The majority of the
court of appeals (Sundby, J., dissenting) reversed the order
entered by the circuit court for Sauk county, Howard W. Latton,
Reserve Circuit Judge. The circuit court's order reversed a
Wisconsin Employment Relations Commission (WERC) decision which
found that Sauk County (the county) had violated sec.
111.70(3)(a)7, Stats., (1) by refusing to
fair-share fees and union dues to cover the period of time between
the expiration of one employment contract and the ratification of
a successor contract.
Three issues are presented on review. The first issue is whether
an "arbitration decision," as that phrase is used in sec.
111.70(3)(a)7, Stats., encompasses all items that are incorporated
into a resultant written collective bargaining agreement, even
those not in dispute before the arbitrator. We hold that it does.
The second issue is whether fair-share fees and union dues are
economic items that should be given retroactive effect. We hold
that they are.
The third issue is whether the county's refusal to retroactively
deduct fair-share fees and union dues in this case amounts to a
failure to implement an arbitration decision, in violation of sec.
111.70(3)(a)7, Stats. We hold that it does. We therefore affirm
the decision of the court of appeals.
The facts of this case are not in dispute. AFSCME, Local Union No.
3148, AFL-CIO (the union), is certified as the exclusive bargaining
representative of all employees at Sauk County Health Care Center.
The union and the county were parties to a labor contract covering
calendar years 1983-84. Prior to the expiration of the
1983-84 contract, negotiations began for an agreement to cover
1985. During negotiations, neither party proposed any changes to
the 1983-84 contract provision which required fair-share fees and
union dues to be deducted once each month from paychecks. The
county ceased deducting fair-share fees and union dues from
paychecks when the 1983-84 contract expired.
The parties entered into interest arbitration pursuant to sec.
111.70(4)(cm)6, Stats., after negotiations stalled. Each party
submitted its final offer to the arbitrator. The arbitrator issued
his decision in October, 1985. He chose the union's final offer,
which contained the following clause: "IX. All provisions of the
Labor Agreement of 1983-84 except as modified above." The union's
offer also indicated that its wage proposal was to be retroactive
to January 1, 1985. Neither party's offer contained any specific
language regarding the retroactivity of the fair-share fees and
union dues. The arbitrator's decision directed that "the Union's
final offer . . . be incorporated into an agreement containing the
other items to which the parties have agreed."
The resultant 1985 contract contained a fair-share provision which
was identical to the fair-share provision in the 1983-84 contract.
The provision required that fair-share fees and union dues be
deducted "once each month." The 1985 contract's duration clause
stated that the contract "shall be effective as of the first day of
January, 1985, and shall remain in full force and effect throughout
the 31st day of December, 1985 . . . ." The 1985 contract also
contained a grievance arbitration procedure whereby the parties
agreed to submit to arbitration "any dispute concerning the
interpretation or application of a provision of this contract . .
After the county refused to retroactively deduct fair-share fees
and union dues for the period of time between the expiration of the
1983-84 contract and the ratification of the 1985 contract, the
union filed a prohibited practice complaint with the WERC. The
complaint alleged violations of secs. 111.70(3)(a)1-4 and 7, Stats.
The WERC hearing examiner determined that the county had violated
sec. 111.70(3)(a)7, Stats., by refusing to retroactively deduct
fair-share fees and union dues.
The hearing examiner decided that even though fair-share fees and
union dues were not in dispute before the arbitrator, the
arbitration decision nonetheless included those items. The
examiner also determined that a fair-share/voluntary dues provision
is most likely to be considered an economic item capable of being
applied retroactively and should have been retroactively applied
here. After noting that the issues posed by this case had not been
"addressed before this by the Commission," the examiner decided
that a sec. 111.70(3)(a)7 violation could be found where "the
alleged violation arises in the context of implementing the new
agreement pursuant to the award, as opposed to after the
implementation of the award, and the issue goes to whether a
provision of the agreement is to be given retroactive effect under
the award . . . ." The examiner concluded that the county's
refusal to retroactively deduct the fair-share fees and union dues
amounted to a failure to implement the arbitration decision and
therefore was a violation of sec. 111.70(3)(a)7, Stats.
The WERC issued an order confirming the examiner's decision, and
the county then instituted proceedings in Sauk county circuit court
for review of that order. The circuit court determined that the
county had not violated sec. 111.70(3)(a)7 and reversed the
commission's order. The court of appeals reversed the circuit
court and found that the county had violated sec. 111.70(3)(a)7.
We granted the county's petition for review and affirm the court of
The issues presented by this case are questions of law. When
reviewing questions of law, we are not bound by an administrative
agency's conclusions. Local No. 695 v. LIRC, 154 Wis.2d 75, 82,
452 N.W.2d 368 (1990). This court has in the past generally applied
three levels of deference to conclusions of law and statutory
interpretations in agency decisions. The first and highest amount
of deference given to agency interpretations is the "great weight"
standard. Under this standard, it is "only when the interpretation
by the administrative agency is an irrational one that a reviewing
court does not defer to it." Beloit Education Ass'n v. WERC, 73
Wis.2d 43, 67, 242 N.W.2d 231 (1976) (footnote omitted). The "great
weight" standard is "the general rule in this state." Id. We have
described the proper use of the "great weight" standard as follows:
[I]f the administrative agency's experience, technical
competence, and specialized knowledge aid the agency in its
interpretation and application of the statute, the agency's
conclusions are entitled to deference by the court. Where a legal
question is intertwined with factual determinations or with value
or policy determinations or where the agency's interpretation and
application of the law is of long standing, a court should defer to
the agency which has primary responsibility for determination of
fact and policy.
West Bend Education Ass'n v. WERC, 121 Wis.2d 1, 12, 357 N.W.2d
(1984) (footnote omitted).
The second level of review is a mid-level standard, referred to as
either the "due weight" or "great bearing" standard. We use this
standard if the agency decision is "very nearly" one of first
impression. Beloit Education Ass'n, 73 Wis.2d at 67-68.
The lowest level standard of review we use in reviewing agency
decisions is the "de novo" standard, in which no weight at all is
given to the agency interpretation. Local No. 695, 154 Wis.2d at
In Local No. 695, we reversed a labor and industry review
commission determination that dues refunds to union stewards
constituted "wages" for purposes of unemployment compensation. In
deciding the case, the commission "neither relied on, nor referred
to, any precedents or any prior decision in its own proceedings."
Id. at 81. The case was clearly one of first impression for the
commission. It was also clear from the lack of precedent that the
commission had no special expertise or experience in determining
whether the refunds in question constituted wages. Id. at 84. A
de novo standard of review was therefore necessarily used. Id.
Against this background, we have determined that this case involves
two standards of review. The first issue, whether an arbitration
decision encompasses those items not in dispute, and the third
issue, whether the county's actions constitute a violation of sec.
111.70(3)(a)7, Stats., are questions of first impression before the
WERC. Although we normally accord an agency's interpretation of a
statute great weight, we cannot do so here because this is a case
of first impression, and there is no precedent for the WERC's
decision. Therefore, the standard of review on these two issues
must necessarily be de novo. Local No. 695, 154 Wis.2d at 84.
The second issue, whether fair-share fees and union dues are
economic items which should be given retroactive application, is
the type of issue with which the WERC has expertise. As we have
stated before, "[R]etroactivity is a way of life in labor
negotiations." Berns v. WERC, 99 Wis.2d 252, 266, 299 N.W.2d 248
(1980). The WERC has had significant experience in dealing with
the recurring problem of retroactivity and in interpreting
contracts in light of parties' past practices. The WERC's
retroactive application of fair-share fees and union dues is also
a policy decision. We reaffirm that it is proper and consistent
with long-standing public policy that those who receive the benefit
of union representation pay for their fair share of the costs of
that representation. The WERC's determination of which aspects of
the contract are economic items given retroactive application is
therefore accorded great weight. We will defer to the WERC's
conclusion if it is rational. Beloit Education Ass'n, 73 Wis.2d at
The first issue requires us to determine the scope of "arbitration
decision," as used in sec. 111.70(3)(a)7, Stats. The county
contends that the retroactivity of the fair-share fees and union
dues was not part of the arbitration decision because retroactivity
was not a disputed item before the arbitrator. The union responds
that an arbitration decision, as that term is used in sec.
111.70(3)(a)7, includes all items, whether disputed or stipulated,
that are incorporated into a resultant collective bargaining
agreement. The WERC found that although retroactivity of
fair-share fees and union dues were not disputed issues before the
arbitrator, they were included in the resultant arbitration
decision. We review this issue de novo and grant the WERC's
decision no deference. However, we agree with the union and the
WERC decision. To hold otherwise would be to disregard the
language, legislative history, and purpose of the statute.
There may be some language found in sec. 111.70(4)(cm)6.d, Stats.,
that appears to support the county's position. That statute states
in relevant part that "[t]he arbitrator shall adopt . . . the final
offer of one of the parties on all disputed issues . . ., which
decision shall be . . . incorporated into a written collective
bargaining agreement." However, the previous sentence of that same
section requires the arbitrator to consider each party's "complete
offer on all matters to be covered by the proposed agreement"
(emphasis added). This emphasized language supports the union's
The legislative council notes which accompanied ch. 178, Wis. Laws
of 1978, in which sec. 111.70(3)(a)7, Stats., had its origin,
In making his or her arbitration decision, the
`mediator-arbitrator,' acting as arbitrator, shall adopt the
`entire package' final offer of one of the parties, including any
previously agreed to modifications thereof. Such decision shall be
final and binding on both parties and shall be incorporated into a
written collective bargaining agreement.
Wis. Stat. Ann. sec. 111.70, Legislative Council Notes, sec. III(g)
(West 1988). The "entire package final offer" of a party is not
just that party's position on the disputed issues; it is that
party's position on all issues, whether stipulated or disputed.
When the statute is read together with the legislative council
notes, we are led to the conclusion that an arbitration decision
encompasses all matters, whether disputed or not. This result
makes sense, as the statutes direct the arbitrator to give weight
to the stipulations of the parties before choosing one party's
final offer on the disputed issues. See sec. 111.70(4)(cm)7.b,
In addition, the purpose behind arbitration is to produce an entire
agreement when the parties themselves are unable to. It is
sensible that the arbitrator's decision, which becomes the
resultant written collective bargaining agreement, necessarily
encompasses all items, including those which are undisputed.
We therefore hold that an arbitration decision, as that term is
used in sec. 111.70(3)(a)7, Stats., encompasses all items that are
incorporated into a resultant written collective bargaining
agreement, even those not in dispute before the arbitrator.
The second issue concerns the retroactive application of fair-share
fees and union dues. The WERC found that fair-share fees and union
dues were economic items easily capable of retroactive application.
We grant the WERC's decision great weight, and, because we find it
rational, we affirm the decision.
Labor contracts are often back-dated for the purpose of retroactive
application of economic items such as wage increases. Indeed, as
we noted above, "retroactivity is a way of life in labor
negotiations." Berns, 99 Wis.2d at 266.
A typical economic item in a bargaining agreement is wages, while
a typical noneconomic item would be a standard of cause for
discharge. We find that fair-share fees and union dues are almost
purely economic items similar to wages and are not a condition of
employment. The WERC's determination that fair-share fees and union
dues are economic items is, therefore, rational, and we defer to
In addition, the language of the agreement does not contradict a
finding that the fees and dues were to be applied retroactively.
The agreement's duration clause stated that it was to take effect
"as of the first day of January, 1985, and shall remain in full
force and effect through the 31st day of December, 1985 . . . ."
The agreement also contained a provision which required the county
to deduct fair-share fees and union dues "once each month." This
language supports our finding that the WERC's decision was
The county contends that our decision in Berns, 99 Wis.2d 252,
requires that the parties bargain for and reach an agreement on
retroactivity of fair-share fees before they may be deducted
retroactively. We do not agree. The issue in Berns was whether or
not a fair-share provision in a collective bargaining agreement may
be applied retroactively. Id. at 254. Nothing in the language of
Berns mandates that the parties to a fair-share provision
specifically bargain for the retroactivity of the provision before
it may be applied retroactively.
In fact, our language in Berns supports the WERC's finding of
retroactivity. In particular, when we addressed the policy behind
fair-share fees, we stated:
The availability of the fair-share device as protection
against `freeloaders' who benefit from the efforts of the
bargaining representative but who, being nonunion members, do not
pay regular union dues is important in light of the duty imposed by
statute upon the certified majority representative to bargain
collectively on behalf of all unit members.
Id. at 264. We reaffirm this holding and state that this policy
applies with equal force today. Because all the members in the
bargaining unit here were represented by the union during the
entire term of the contract, it is rational to require that all
members of the unit pay for the representation during the entire
The WERC's decision on the retroactivity of fair-share fees and
union dues was rational. Therefore, we defer to it and hold that
fair-share fees and union dues are economic items that should be
given retroactive effect.
The third issue is whether the county's actions in this case amount
to a failure to implement an arbitration decision, in violation of
sec. 111.70(3)(a)7, Stats. The WERC held that the county's actions
amounted to a refusal to implement an arbitration decision. We
review this issue de novo and grant no deference to the WERC.
The collective bargaining agreement in this case contained a broad
grievance arbitration provision which stated that "any dispute
concerning the interpretation or application of . . . this contract
. . . shall be handled [by arbitration]." The county argues that
this dispute is over the interpretation of the contract and should
therefore be before an arbitrator. The county also argues that if
we find a refusal to implement an arbitration decision in this
case, any dispute involving a violation of any part of an agreement
reached through arbitration could be viewed as a failure to
implement an arbitration decision. We do not agree.
An obvious situation which could give rise to a charge that an
employer has failed to implement an arbitration decision under sec.
111.70(3)(a)7 would be where an employer has refused to incorporate
specific items included in an arbitrator's award, such as a wage
increase. Where an arbitration decision provides that a contract
is to be retroactive, it would also be a failure to implement the
decision if an employer refused to give the pay increase
retroactively. In like manner, it is a failure to implement an
arbitration decision if an employer refuses to retroactively
implement economic items which were intended to be retroactive.
The county's failure to implement the arbitration award in this
case arose out of its refusal to retroactively implement an
economic item in the arbitration decision. The arbitration decision
called for the resultant agreement to be retroactive. Although
this dispute arose out of a difference in opinion as to the
interpretation of the retroactivity of certain terms of a contract,
that does not negate the fact that the county's actions literally
resulted in a failure to implement the arbitration decision.
We hold that under sec. 111.70(3)(a)7, Stats., failure to implement
an arbitration decision arises when an employer (a) fails to
incorporate specific terms of an arbitrator's award into a
resultant collective bargaining agreement or (b) fails to give
retroactive effect to economic items in a retroactive contract. We
do not hold that any violation of a term of a collective bargaining
agreement will give rise to a sec. 111.70(3)(a)7 violation.
Disputes over construction of terms of an arbitration decision or
resultant collective bargaining agreement after implementation of
the agreement are proper subjects for arbitration. However, if the
dispute relates to the retroactive effect of economic items in the
arbitration decision and leads to a failure to implement the
arbitration decision, the dispute may properly be the subject of a
sec. 111.70(3)(a)7 prohibited practice complaint.
By the Court. -- The decision of the court of appeals is affirmed.
1. Section 111.70(3)(a)7, Stats., provides:
111.70 Municipal employment . . . .
. . .
(3) Prohibited practices and their prevention. (a) It is a
prohibited practice for a municipal employer individually or in
concert with others:
. . .
7. To refuse or otherwise fail to implement an arbitration decision
lawfully made under sub. (4)(cm).
SHIRLEY S. ABRAHAMSON, J. (dissenting). If this court were the
appropriate body to decide the issue, I would be persuaded that the
fair share provision under the collective bargaining agreement was
retroactive. I dissent because the issue of retroactivity has not
been presented to the appropriate decision maker. The county's
refusal to give retroactive status to the fair share provision does
not, in my opinion, constitute a refusal or failure to implement an
arbitration decision under sec. 111.70(3)(a)7, Stats. 1989-90, and
therefore the issue was not appropriately before WERC.
I conclude that the dispute is governed by the parties' collective
bargaining agreement that provides that "any dispute concerning the
interpretation or application of a provision of this contract . .
. shall be handled [by arbitration]." The court should remand this
case to the circuit court, and the circuit court should direct the
parties to submit the issue to grievance arbitration.
As an initial matter, I must decide what standard of review to
apply to WERC's interpretation of sec. 111.70(3)(a)7. The statutes
as well as the cases give guidance.
Section 227.57(5), Stats. 1989-90, provides that "the court shall
set aside or modify the agency action if it finds that the agency
has erroneously interpreted a provision of law and a correct
interpretation compels a particular action . . . ." This provision
is silent about the weight or deference, if any, a court should
accord the agency's interpretation of a statute. Section
227.57(10) provides, however, that "due weight shall be accorded
the experience, technical competence, and specialized knowledge of
the agency involved, as well as the discretionary authority
conferred upon it." According to these provisions of the statutes,
the weight that is due an agency's interpretation of the law
depends on the comparative institutional capabilities and
qualifications of the court and the administrative agency in
deciding the issue.
The cases also provide some guidance, although one commentator
observed in 1973 that the Wisconsin Supreme Court defers to
agencies in an "inconsistent manner [and] employs different review
standards in cases involving similar issues without attempting to
resolve the conflict."1/ Some attorneys
probably think that the
same situation still exists today. Professor Davis also cautions
about "the formulas to which courts pay lip service." They are, he
writes, "guides that leave a good deal of room for judicial
discretion, which varies in response to judicial impressions of
acts and circumstances of particular cases." 2/
I find the brief of amicus curiae Wisconsin Education Association
Council (WEAC) helpful in stating the following standard of review
distilled from our cases. Courts retain the ultimate authority to
decide questions of law. 3/ Courts defer to administrative
agencies in specified situations where they believe the
administrative agencies can offer the court guidance on the
construction of a particular statute, rule, or policy or where
deference advances other important objectives. In considering the
weight to accord the agency's decision about a question Page of
law, a court considers such factors as the agency's actual
experience with the precise or similar issue or with a given
subject matter or area, 4/ the need for uniform administration and
application of the law, the consistency of the agency's decisions,
and the soundness of the agency's legal reasoning and methodology.
The court has explained this comparative institutional approach to
the scope of review as follows: "[M]erely labeling the question as
a question of law and labeling the commission's determination as a
conclusion of law does not mean that the court should disregard the
commission's determination . . . . We have recognized that when
the expertise of the administrative agency is significant to the
value judgment (to the determination of a legal question), the
agency's decision, although not controlling, should be given
weight. Milwaukee Co. v. ILHR Dept., 48 Wis.2d 392, 399, 180
N.W.2d 513 (1970)." Nottelson v. ILHR Department, 94 Wis.2d 106,
116-117, 287 N.W.2d 763 (1980). 6/ If on analysis of the
comparative qualifications of the court and the administrative
agency the court determines that it should accord great weight to
an agency's decision in a particular case, the court will uphold
the agency's interpretation of the law when reasonable, even if an
alternative view is also reasonable. Environmental Decade v. ILHR
Dept., 104 Wis.2d 640, 644, 312 N.W.2d 749 (1981).
Some of the circumstances of this case point to according WERC's
interpretation of sec. 111.70(3)(a)7 great weight. While WERC
admits it has not previously ruled on the issue of law in this
case, it does administer the Municipal Employee Relations Act and
possesses great expertise in working with the statutory scheme.
This factor might lead me to give great weight to WERC's
Other factors point, however, to giving little if any weight to
WERC's interpretation of the statute in this case. First, WERC
never decided the merits of this case; it merely adopted the
hearing examiner's decision because the county's petition to WERC
to review the examiner's decision was not timely filed. 7/ Thus we
do not have before us a decision of WERC interpreting the statute
in issue. Second, WERC has not decided cases involving the precise
question presented in this case or similar questions; it has not
even decided numerous cases interpreting sec. 111.70(3)(a)7. 8/
Third, the hearing examiner did not explain the bases for his
statutory interpretation, instead focusing primarily on whether the
fair share provisions should apply retroactively. 9/ I believe
that in this case the court is as qualified as or better qualified
than the hearing examiner to interpret the statute in issue.
Accordingly I conclude that little if any weight should be given to
the hearing examiner's decision in this case.
The question of law presented to the hearing examiner and to this
court is whether the county refused or failed to implement an
arbitration decision under sec. 111.70(3)(a)7, Stats. To answer
this question, we must distinguish between refusing to implement an
interest arbitration decision and disputing the meaning of the
terms of a collective bargaining agreement.
The county asserts that it has not refused to implement the
arbitration award. It acknowledges that the fair share provision
must be incorporated into the parties' agreement. It has not
refused to withhold fair share dues in any month following the
issuance of the award. The county asserts that it is implementing
the award but that the parties disagree about the meaning of the
terms of the agreement.
It is important to distinguish refusing to implement an interest
arbitration decision and disputing the meaning of the terms of a
collective bargaining agreement because they have different
consequences. An employer who refuses to implement an interest
arbitration award violates sec. 111.70(3)(a)7, faces a prohibited
practices hearing before WERC, and may be liable for attorneys'
fees under sec. 111.70(7m)(e). By contrast, an employer who
disputes the meaning of a collective bargaining agreement faces a
grievance arbitration proceeding with its own standard of judicial
review. Attorneys' fees awards are not ordinarily available in
If the parties had arrived at the collective bargaining agreement
through a voluntary settlement rather than through interest
arbitration and the same question of the retroactivity of the fair
share provision in the collective bargaining agreement had arisen,
this dispute would have likely gone before a grievance arbitrator
according to the terms of the collective bargaining agreement. In
this case the dispute involves the interpretation of language in
the collective bargaining agreement agreed to by both parties prior
to the interest arbitration. The dispute does not involve any
issue resolved in the arbitrator's decision. The dispute does not
involve any language in the arbitrator's decision except the
language of the parties which the arbitrator incorporated.
Arbitration is what the parties bargained for when there is a
dispute about the meaning of the agreement. The determination of
retroactivity turns on the language of the particular agreement and
the circumstances of the bargaining. Arbitrators handle
retroactivity disputes under the collective bargaining agreement
frequently. Why should this dispute be subject to a prohibited
practices complaint merely because the parties settled other
disputed terms of the collective bargaining agreement through
interest arbitration? The majority opinion does not answer this
question. The majority turns to defining the word "implement"
without examining these policy considerations.
The majority opinion defines the word "implement" in sec.
111.70(3)(a)7 to mean that an employer fails to incorporate
specific terms of an arbitrator's award into a resultant collective
bargaining agreement. I agree with this definition, but I do not
believe that Sauk County has failed to implement the arbitration
decision according to this definition.
If this case is to fall within sec. 111.70(3)(a)7, the majority
must adopt a broader definition of the word "implement." But the
majority cannot give the word "implement" too broad a reading.
Unless the majority limits the word "implement" in sec.
111.70(3)(a)7, every dispute involving any part of an agreement
reached through interest arbitration can be viewed as a failure to
implement the arbitration decision, and all grievance arbitration
may be supplanted by sec. 111.70(3)(a)7 proceedings.
The majority further defines "implement" to mean that an employer
"fails to give retroactive effect to economic items in a
retroactive contract." Majority op. at 420. Nothing in the
language or legislative history of sec. 111.70(3)(a)7 or in the
general usage of the word "implement" supports the majority's
interpreting the word "implement" as referring only to economic
items retroactively applied. Section 111.70(3)(a)7 simply states:
(3) Prohibited practices and their prevention. (a) It is a
prohibited practice for a municipal employer individually or in
concert with others: 7. To refuse or otherwise fail to implement
an arbitration decision lawfully made under sub.(4)(cm).
The majority's interpretation of "implement" as being the failure
to "give retroactive effect to economic items" permits the court to
resolve the substantive issues in this case. The problem is that
this interpretation cannot be derived from sec. 111.70(3)(a)7 or
sec. 111.70(4)(cm) and permits prohibited practices complaints in
more circumstances than the logic of the statutory scheme allows.
Although I believe an arbitrator would reach the same result as the
hearing examiner did about retroactivity, I do not think the
majority's decision complies with the procedures the legislature
established. For the reasons set forth, I dissent.
1. Paul B. Hewitt, The Scope of Judicial Review
Agency Decisions in Wisconsin, 1973 Wis. L. Rev. 554, 575, quoted
in West Bend Education Ass'n v. WERC, 121 Wis.2d 1, 12-13 n.13, 357
N.W.2d 534 (1984).
2/ Kenneth Culp Davis, 1982 Supplement to Administrative Law
Treatise sec. 29.00, at 562-63, quoted in West Bend Education Ass'n
v. WERC, 121 Wis.2d 1, 12-13 n.13, 357 N.W.2d 534 (1984). See also
Kenneth Culp Davis, 5 Administrative Law Treatise ch. 29 (1984 and
3/ Local No. 695 v. LIRC, 154 Wis.2d 75, 82, 452 N.W.2d 368
(1990) (quoting West Bend Ed. Ass'n, 121 Wis.2d at 11).
4/ The Wisconsin Education Association Council asked the court to
clarify the standard of review, expressing concern that Local No.
695 v. LIRC, 154 Wis.2d 75, 452 N.W.2d 368 (1990), was a change in
the court's approach to reviewing an agency's decision about a
question of law. According to WEAC, in cases prior to Local No.
695 a factor in determining the weight due an agency's decision
about a question of law was the agency's prior experience with the
general subject matter at issue, as well as the agency's experience
with the precise question or a question similar to that presented
to the court. According to WEAC, LIRC had considerable experience
in the general subject matter of defining "wages" for the purpose
of the unemployment compensation system but was accorded no
deference in Local No. 695. As a result, WEAC and others read
Local No. 695 to suggest that the agency must have considerable
experience in the precise question presented, rather than in the
general subject matter at issue, for its decision to be granted any
In interpreting Local No. 695, the majority opinion unfortunately
appears to confirm WEAC's view that Local No. 695 has ushered in a
new rule. The majority opinion looks only to LIRC's experience in
"determining whether the refunds in question constituted wages" and
not to its experience in determining the meaning of wages under
unemployment compensation law in numerous other fact situations.
Majority op. at 414.
5/ See, e.g., West Bend Education Ass'n v. WERC, 121 Wis.2d 1,
12, 357 N.W.2d 534 (1984); Nottelson v. ILHR Department, 94 Wis.2d
106, 117, 287 N.W.2d 763 (1980); Berns v. WERC, 99 Wis.2d 252,
261-62, 299 N.W.2d 248 (1980).
6/ A similar question of deference arises in the context of
appellate review of trial court decisions. See Oakley v. Fireman's
Fund of Wisconsin, 162 Wis.2d 821, 825, 470 N.W.2d 882 (1991)
(Abrahamson, J., concurring) (urging analysis of the issue under
review rather than the use of boilerplate language).
7/ Sauk County, WERC Dec. No. 23489-B (1987).
8/ Indeed a WERC regulation could be read as contradicting the
hearing examiner's decision in this case. The regulation appears
to interpret sec. 111.70(3)(a)7 as referring only to the employer's
failing to incorporate the award into a written collective
bargaining agreement. See Wis. Admin. Code, ERB 32.16 (1986).
9/ The sum total of the hearing examiner's reasoning is as
follows: ". . . it is concluded that where, as here, the alleged
violation arises in the context of implementing the new agreement
pursuant to the award, as opposed to after the implementation of
the award, and the issue goes to whether a provision of the
agreement is to be given retroactive effect under the award, a
(3)(a)7 charge will lie. This is true even if the provision in
question was not directly in issue in the interest arbitration."
Sauk County, WERC Dec. No. 23489-A, at 18 (1987).
The hearing examiner cites no authority for his interpretation of
the term "implement." Sauk County WERC Dec. No. 23489-A, at 18