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STATE OF WISCONSIN

BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION

THE MILWAUKEE TEACHERS'

EDUCATION ASSOCIATION,

Complainant,

vs.

THE MILWAUKEE BOARD

OF SCHOOL DIRECTORS,

Respondent.

Case 199

No. 39201 MP-1999

Decision No. 26437-D

Appearances:

Perry, Lerner & Quindel, S.C., by Mr. Richard Perry, Attorneys at Law, 823 North Cass Street, Milwaukee, Wisconsin 53202-3908, appearing for the Complainant.

Mr. Stuart S. Mukamal, Assistant City Attorney, City of Milwaukee, City Hall, 200 East Wells Street, Milwaukee, Wisconsin 53202-3551, appearing for the Respondent.

REVISED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

On August 6, 1987 the Milwaukee Teachers' Education Association filed a complaint with the Wisconsin Employment Relations Commission, alleging that the Milwaukee Board of School Directors had violated Sec. 111.70, Wis. Stats., by insisting upon the inclusion of an illegal layoff clause in their then-current collective bargaining. The parties agreed for a considerable time to defer proceeding on this matter, choosing instead to process to decision a parallel declaratory ruling proceeding involving substantially the same issues (Case 194 of the same title). But on April 6, 1990 Complainant requested that this matter be scheduled for hearing. The Commission thereafter appointed the undersigned as Examiner; a motion to defer proceedings pending appellate review of the declaratory ruling case was denied on May 29, 1990; and hearing was held in Milwaukee, Wisconsin on June 11, 1990. A transcript was made, and briefs were filed by both parties by July 24, 1990. But the parties agreed to reopen the record when, about September 5, 1990, Judge William J. Shaughnessy of Milwaukee County Circuit Court issued his decision reversing the Commission's decision in Case 194. The parties filed further briefs until October 23, 1990. The Examiner then issued Findings of Fact, Conclusions of Law and Order dismissing the complaint on November 13, 1990. Complainant filed a petition with the Commission requesting review of the Examiner's decision on November 28, 1990. On June 4, 1991 the Commission issued its Order Setting Aside and Remanding Examiner's Findings of Fact, Conclusion of Law and Order. The Examiner, having considered the Commission's decision as well as the evidence and arguments and being fully advised in the premises, makes and issues the following Revised Findings of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

1. That in Case 194 the Commission made the following Findings of Fact, here numbered 2 through 7 and therein numbered 1 through 6:

2. That the Milwaukee Board of School Directors, herein the Board, is a municipal employer having its principal offices at 5225 West Vliet Street, Milwaukee, Wisconsin.

3. That the Milwaukee Teachers' Education Association, herein the Association or the MTEA, is a labor organization having its principal offices at 5130 West Vliet Street, Milwaukee, Wisconsin; and that the Association is the collective bargaining representative for certain professional employes of the District including teachers and social workers.

4. That since 1981, the collective bargaining agreements between the Board and the Association have contained the following provision:

All layoffs shall be based on inverse order of seniority within qualifications as set forth in the following procedures provided that the racial balance of schools is not distributed.

that this provision was first included in a collective bargaining agreement between the parties pursuant to an interest arbitration award; and that as to this disputed provision the arbitrator's award stated:

The Racial Balance Criterion

Issue

The MTEA final offer provides that "All layoffs shall be based on the inverse order of seniority within certification/licensure ..." The offer does not include race as a factor in identifying teachers for layoff.

The Board's final offer provides that "All layoffs shall be based on inverse order of seniority ... providing that the racial balance of schools is not disturbed."

Position of the Parties

MTEA Position

The MTEA final offer enables the District to comply with the Federal Court Faculty Desegregation Order even though the Court indicated the Order would not affect the method to be utilized in the event of layoff.

If there were no racial exemption in the layoff procedure, it is clear from the evidence introduced by both parties that the overall percentage of Black faculty members in the District would not be significantly affected. In fact, in no example cited by either party was the overall percentage of Black teachers in the District reduced by more than .65%. Therefore, there is no demonstrable need for any exemption from layoff based upon racial considerations.

A loss of less than one percent of the Black teachers in the District will still allow the District to easily meet the racial balance ranges set by the Federal Court.

In analysis of 97 comparable school districts by geographic location, size, and other criteria indicates that the large majority of such districts do not use either race or affirmative action as a basis for selecting teaching employees for layoff.

During the entire process of negotiations, the Board never proposed anything that would indicate that the number of Blacks to be laid off in the faculty would not occur in an amount greater than their present representation, which is the current Board position. The Board has therefore violated ground rule 11 by never presenting in writing and negotiating what it now says its final offer means.

The Board in incorrect in asserting that Black teachers are concentrated near the bottom of the seniority list. In fact, in all of the hypothetical layoffs introduced by both parties, where race was not considered, the overall impact of such layoffs on the racial composition of the teachers would be negligible.

Board Position

It is reasonable and appropriate to structure the layoff procedure so that the percentage of Black teachers employed by the System is not adversely affected.

The MTEA proposal would permit a layoff to ignore the impact on the racial breakdown of the faculty. On the other hand, under the Board's proposal, layoffs of Black teachers would not occur in an amount greater than their present representation in the faculty.

The Board's Affirmative Action Policy Statement for Personnel indicates that it is the Board's objective "to achieve a staffing pattern which is reflective of our community." This is defined as meaning a staffing pattern in which the percentage of Black teachers lies between the Black population of the City of Milwaukee, which is approximately 23 percent, and the percentage of Black students in the system, which is approximately 47 percent.

It is highly desirable to have an adequate representation of Blacks on the school faculty, especially in view of the desegregation process in which the school system is presently involved. Adequate representation of minorities helps dispel myths regarding racial inferiority and confidence. It provides positive role models for all students. It eases the adjustment to desegregation of minority students, their parents, and majority teachers. It also helps provide a multi-cultural curriculum. Moreover, it is important that the representation be in sufficient numbers so that Black teachers can exercise power and influence in the System.

Although the Federal Court Order does not deal with the overall system-wide percentage of teachers who are Black or white, the potential for litigation in the event the proportion of Black teachers declines is clear.

Black teachers are concentrated near the bottom of the seniority list, and therefore, without special provisions being made to allow for the consideration of the racial composition of the group of employees that are to be laid off, the overall percentage of Black teachers in the District could drop as much as one-half of a percentage point, or greater.

Increasing the percentage of Black teachers in the system is a high priority of the Board. The percentage of Black teachers must continue to rise if the staffing pattern is to be reflective of the racial composition of the student population and the population of the City of Milwaukee.

An analysis of the experience in comparable Districts indicates that those which do not consider race or affirmative action in order of layoffs are in communities which have negligible Black populations and few Black teachers. On the other hand, Wisconsin communities with significant Black populations and other communities of similar size and demographic makeup often incorporate race or affirmative action in their layoff decisions.

Although it is true that the Federal Court Order under which the District is operating could be followed even if the MTEA proposal were adopted, this fact is irrelevant to the issue since that is not the objective the District is trying to accomplish. The objective the Board is trying to achieve is that of increasing the percentage of Black teachers in the system so that it is better reflective of the community. To achieve that goal, any drop in the employment of Black teachers due to layoff which results in a decline of the overall percentage of Black teachers cannot be tolerated.

Discussion

On its merits, the Board's final offer on this issue is the more reasonable of the two. In so concluding, the undersigned is relying primarily upon the following statutory criterion: The interests and welfare of the public. Although it is apparent that any layoff occurring in the near future which did not consider race as a legitimate criterion to be utilized in identifying the population to be laid off would not have a significant harmful effect on the overall percentage of Blacks on the District's faculty, the same conclusion would not necessarily apply in the more distant future as the percentage of Black teachers in the District continues to grow and as a larger percentage of Black teachers will be the least senior teachers in the System. Thus, a decision must be made on this issue based not only on past and current experience, but also upon the expectation that the District's affirmative action objectives will be given high priority in the future staffing of the District's schools. Those objectives, as set forth in the District's arguments, are both meritorious and commendable. In the undersigned's opinion, the need for such an affirmative action program in the District, with its history of litigation on the racial integration issue and with its multi-racial composition, cannot be reasonably questioned. The problems related to the achievement of those objectives are no less important during periods of retrenchment than they are during periods of growth. Thus, consideration of race in the identification of employees for layoff is legitimate, and the District's final offer, particularly when it is construed in the manner described by the District in the hearing, is clearly the more preferable of the two positions on this issue.

In so deciding this issue, it is important to note that the District clearly indicated in the arbitration hearing that in implementing the provision regarding racial balance, it intends to first identify the population to be laid off without giving consideration to the race of the identified population; and only after the population to be laid off is finally identified, which will occur after bumping has taken place will the racial composition of the population be laid off be analyzed. If the percentage of Blacks in said population exceeds the overall percentage of Black teachers in the system at the time, as reflected in what has been referred to as an E.E.O. 5 Report, the most senior Black teachers identified for layoff will be exempted and replaced by the least senior non-Black teachers with similar certification/licensure and other qualifications where relevant. The number of Black teachers to be exempted will be determined by the District's stated objective not to reduce the overall percentage of Black teachers in the system by virtue of the layoff.

While it is true that the above explanation was not communicated to the MTEA during the negotiation or mediation process, there was ample opportunity for both parties to obtain full explanations as to the meaning of the other party's proposals during the process. The parties' mutual failure to fully communicate their intent with respect to specific proposals, including the definition of all ambiguous terms utilized, cannot fairly be construed as a violation of the parties' ground rules regarding the negotiation of the contents of their final offers.

The undersigned's conclusion with respect to this issue is not based upon the legality of either party's position, but instead, is based upon the merits of the District's arguments that its affirmative action goals are just as legitimate when applied to this issue as they are when applied to all other issues in the operation of the District.

Lastly, although it is clear that consideration of race is not the norm in layoff plans in public education, the consideration of race in such plans is less unusual particularly in larger multi-racial communities. Furthermore, in the undersigned's opinion, it is the responsibility of the parties in such communities to address this issue through the use of voluntary mechanisms, even though it is difficult and controversial, and even though there may be sparce (sic) comparable precedent. Such voluntary agreements are clearly preferable to the lengthy, disruptive, complex, and expensive litigation which the parties in this relationship have heretofore experienced.

5. That in September, 1981, following issuance of arbitration award referenced in Finding of Fact 3, the Board sent the Association the following letter:

This letter is to inform you that we must contact 20 school social workers in accordance with the Yaffe award concerning Part XII of the contract between the Milwaukee Board of School Directors and the Milwaukee Teachers' Education Association and notify them that they are laid off in accordance with that award.

This letter commences the five days' notice to the Milwaukee Teachers' Education Association of these circumstances of layoff and will be followed in five days by individual letters to the affected school social workers. Copies of the correspondence to affected school social workers and the seniority list of school social workers upon which these decisions are based are enclosed for your review.

It should be noted in accordance with the provisions maintaining racial balance, a maximum of three black school social workers are included in the list of those to be laid off. To include more black social workers would involve the layoff of a percent greater than 17.4%, the current EEO-5 ratio of record for the 1981-82 year.

That thereafter the Board proceeded to layoff social workers represented by the Association; and that because of the contract language in dispute herein, one hispanic social worker and one white social worker were laid off while two less senior black social workers were retained.

6. That in 1982, the Board laid off teachers represented by the Association; and that because of the contract language in dispute herein, three white teachers were laid off while three less senior black teachers retained their employment.

7. That the Board has never asserted that it has discriminated against black applicants for positions within the MTEA bargaining unit; that there has been no administrative or judicial determination that the Board has discriminated against black applicants for positions within the MTEA unit; and that this record does not contain any convincing evidence of prior discrimination against black applicants for positions within the MTEA unit.

8. That in two letters dated June 18 and September 4, 1986 the Association demanded that the racial balance layoff clause be removed; and that the Board has continued to insist upon the inclusion of the racial balance layoff clause in its collective bargaining to date.

9. That on April 3, 1989, in Case 194 of the same title the Commission found that the racial balance layoff clause was a prohibited subject of bargaining within the meaning of Sec. 111.70(1)(a) and (3)(a)4, Stats.

10. That on or about September 5, 1990, Judge William J. Shaughnessy of Milwaukee County Circuit Court issued his Memorandum Decision reversing the Commission's decision in Case 194.

11. That on or about June 11, 1991 the Court of Appeals issued its decision, reversing the Circuit Court's decision and upholding the Commission's decision in Case 194; and that the time period for an appeal to the Supreme Court has expired without any party having filed an appeal of the Court of Appeals' decision.

12. That both the factual basis and the legal principles underlying this matter are identical to those ruled upon by the Commission, Circuit Court and Court of Appeals in Case 194.

Based upon the foregoing Findings of Fact, the Examiner makes and issues the following

CONCLUSIONS OF LAW

1. That the law of the case requires that the undersigned Examiner follow the decision of the highest authority to have ruled on the identical facts and legal principles in the parallel declaratory ruling proceeding.

2. That the Board insisted upon continued inclusion in the parties' collective bargaining agreement of the unlawful clause described in Finding of Fact 4 above, and thereby violated Sec. 111.70(3)(a)(1) and (4), Stats.

Upon the basis of the foregoing Findings of Fact and Conclusion of Law, the Examiner makes and issues the following

ORDER (1)

That Milwaukee Board of School Directors, its officers and agents shall, forthwith upon receipt of a copy of this decision, cease and desist from its insistence on maintaining the clause referred to in Finding of Fact 4 as a part of the parties' collective bargaining agreement; and notify the Wisconsin Employment Relations Commission in writing within 20 days from the date of this Order as to what steps it has taken to comply therewith.

Dated at Madison, Wisconsin this 12th day of August, 1991.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By

Christopher Honeyman, Examiner


MILWAUKEE PUBLIC SCHOOLS

MEMORANDUM ACCOMPANYING REVISED FINDINGS OF FACT,

CONCLUSIONS OF LAW AND ORDER

While the parallel declaratory ruling proceeding has undergone a further, and final, change in its status since the Commission remanded this proceeding, it remains true that this matter is directly controlled in its outcome by that very closely related proceeding, involving the same parties and facts (Case 194). Prior to the issuance of the Circuit Court's Memorandum Decision, the sole difference identified by either party between the substance of this proceeding and the prior one was that, because the prior proceeding was a declaratory ruling petition, no remedy for the Board's insistence upon inclusion of the disputed contract clause could be sought. The Association wished to reactivate the complaint proceeding without waiting to see if final court determination of the legality of the racial balance clause would cause the complaint issue to be settled. In a prior order denying motion to defer proceedings (Decision No. 26437-A) I found the Board's reasons for contending that the complaint matter should continue to be held in abeyance to be insubstantial. The record in this case, however, consists almost entirely of documents and findings from the prior interest-arbitration and declaratory ruling proceedings involving the same issue. As there is little new conceptual content, the following explanation of the parties' positions given by the Commission in the declaratory ruling proceeding remains accurate (2) for this proceeding:

The MTEA

The race-conscious layoff clause violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and thus should appropriately be ruled void by the WERC pursuant to its statutory authority under Sec. 111.70(4)(b), Stats. This case is controlled by the United States Supreme Court decision in Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986). Subsequent to Wygant, the United States Court of Appeals for the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) in an en banc decision, under circumstances compellingly similar to that herein, followed Wygant and nullified a similar public education seniority clause, Britton v. South Bend Community School Corp., 819 F.2d 766 (1987).

In Wygant, the Supreme Court plurality held that before a government interest in a racial preference, such as an affirmative action layoff clause, can be accepted as "compelling," there must be findings of prior discrimination by that employer. Findings of societal discrimination will not suffice; the findings must concern "prior discrimination by the government unit involved." Wygant, 106 S.Ct. at 1847. In this case, it is undisputed there have been no prior findings of race discrimination in hiring by the Board. In Wygant, the Supreme Court was very sensitive to the dislocation and harm caused to workers by layoffs as contrasted to the much less onerous burden of promotion or hiring affirmative action programs. Further, the Supreme Court in Wygant required employers, before undertaking affirmative action plans, to consider more narrowly focused alternatives.

This clause would not even have been sustainable under the Wygant dissent because central to that analysis was an affirmative action layoff provision that had been fully negotiated and agreed upon between all members of the collective bargaining unit. That is, an affirmative action plan having the mutual and joint endorsement of a majority of the union and the employer. See Wygant, 106 S.Ct. at 1858, 1860, 1866, and 1869-70. In this case, the MTEA did not agree to the arbitrator imposed layoff clause.

The constitutional analysis and ratio decidendi throughout Wygant, Regents of the University of California v. Bakke, 438 U.S. 265 (1978) and Fire-fighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) is that reverse discrimination and affirmative action programs in certain, although by no means all, situations either harm workers who are innocent and/or provide remedial affirmative benefits to parties who are unable to prove legally that they individually have been victims of past discriminatory conduct by a particular person or institution. This dual concept of identifiable minority victims in fact and remedies at the expense of parties not shown to have been personally at fault constitutes the tension over affirmative action and reverse discrimination. This tension often surfaces in the contrast between (1) a vision of the federal judiciary as an administrator of strictly neutral principles and (2) a vision of the federal courts as one of a number of possible tools for achieving social justice. The arguments supporting and opposing this tension have continued to trouble courts and commentators. "(I)t is...clear that impressive arguments can be marshalled under the Fourteenth Amendment and the civil rights statutes either to uphold or to invalidate minority admission programs," Bell, Bakke, Minority Admission, and the Usual Price of Racial Remedies, 67 Calif.L.Rev. 3, 18 (1979).

It is respectfully submitted that this case, based on the special layoff facts, scrupulously compels avoidance of this social/legal struggle because of the clear precedent established in Wygant. Indeed the tension between the two vantage points continues to this date but in the non-layoff arenas. That is, although the United States Supreme Court has upheld as constitutional the four affirmative action programs coming to its docket after Wygant, Local 28 of the Sheet Metal Workers' Intern. Assn. v. EEOC, 106 S.Ct. 3019 (1986), Local 93, International Assoc. of Firefighters v. City of Cleveland, 106 S.Ct. 3063 (1986), United States v. Paradise, 107 S.Ct. 1053 (1987), and Johnson v. Transportation Agency, 107 S.Ct. 1442 (1987); none of those cases involved the constitutionality of affirmative action layoff plans. In fact, those decisions reaffirmed Wygant by noting Wygant involved layoffs whereas these subsequent cases involved hiring and/or promotion affirmative action programs. E.g., Local 28, 106 S.Ct. at 3052. Equally compelling is that those recent four affirmative action cases also involved compelling findings of intentional employer race discrimination in hiring and/or promotions. This critical constitutional factor is absent in this case where the Board has argued previously (and always successfully) that it not only never discriminated in hiring based on race but in fact undertook pervasive and good faith affirmative action hiring efforts.

When examined under the strict scrutiny standard of the Fourteenth Amendment, as well as Title VII of the 1964 Civil Rights Act, the race-conscious affirmative action layoff clause lacks any compelling or substantial government interest, because there is no evidence of past teacher discrimination in hiring. The policy reasons asserted by Board for its layoff clause provide an inadequate predicate to give the clause a constitutional remedial purpose. Even if the Board had established a compelling (or substantial) governmental interest, the layoff clause is still invalid because it is not narrowly tailored to avoid unnecessarily trammeling the rights of innocent teachers. These characteristics, when coupled with the lack of a termination date and absence of waiver provisions, also render the clause invalid under Wygant. For these reasons, the MTEA urges this Commission to invalidate the arbitrator imposed layoff clause.

In attacking on constitutional grounds the layoff clause, the MTEA has not, other than by implication, set forth its agreement with certain affirmative action concepts. As an important introductory matter, the MTEA agrees with the words of Justice O'Connor, concurring in part and concurring in judgment, in Wygant, 106 S.Ct. at 1853: "The court is in agreement that . . . remedying past or present racial discrimination . . . is a sufficiently weighty state interest to warrant the remedial use of a carefully construed affirmative action program." The MTEA also agrees with the analysis in Wygant that "(n)o one doubts that there has been serious racial discrimination in this country." Id. at 1848 and that where there is in fact prior discrimination by an employer, "it may be necessary to take race into account." Id. at 1850. "It is now well established that government bodies including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination." United States v. Paradise, 107 S.Ct. 1053, 1064 (1987) (plurality opinion).

The MTEA expressed its position and support early in these proceedings; see page 3 of its correspondence to Examiner Davis of May 26, 1987:

In this regard, it is to be noted that the MTEA does not question the racial criteria set forth in the assignment, transfer, and excessing sections of the contract since those are carefully drafted to remedy the unlawful conduct of the employer as found by the United States District Court. It is because of express holdings by the United States Supreme Court that racial layoff quotas are unlawful, that the MTEA finds it necessary to seek a declaratory ruling to determine whether its present contractual language is unlawful.

Accordingly, the MTEA joins with the Board in advancing agreement for the continuation of affirmative action in hiring. "Appreciation of the facts about seniority encourages a shift of attention from race-based layoffs to affirmative discrimination hiring. The enlistment of black workers not only puts them in jobs but also places then on the seniority ladder. There they accumulate service with a firm, establish rights of recall during temporary layoffs, and eventually secure the kind of tenure that may insulate them from job loss even if the employer must institute a severe, long-term layoff." Fallon & Weiler, Conflicting Models of Racial Justice, 1984 S.Ct. Rev. 1, 65.

In concluding, one sees not simply a United States Supreme Court emerging constitutional doctrine but rather what appears to be the concluding position of the United States Supreme Court. The principles at play are the effective remedial administration of statutory and constitutional mandates versus the avoidance of harm to innocent parties. Indeed, Wygant, reaffirms the holding in Firefighters Local Union No. 1784 v. Stotts that the latter principle will normally prevail over the former when statutory language does not provide clear answers. In practical terms, Wygant and Stotts demonstrate the Supreme Court is moving toward a compromise on affirmative action that (1) permits race-conscious relief in the form of quotas and hiring goals, but (2) forbids race-conscious relief that entails actual harm to individuals who did not participate in the institutional discrimination at issue. The most recent Supreme Court decisions on affirmative action confirm this trend without altering this analysis of harm. See Johnson v. Transp. Agency, supra; United States v. Paradise, supra. At first blush, this compromise seems rational, especially considering the special status accorded seniority systems by Sec. 703(h) of Title VII.

The Court is astonishingly clear in its position that affirmative action hiring quotas are permissible under the circumstances carefully delineated by the Court but that layoffs implicate interests upon which neither Title VII nor the Fourteenth Amendment permit infringement.

In response to the Board's arguments regarding "ripeness" and the propriety of the Commission's ruling upon constitutional issues, the MTEA asserts that the Commission has previously ruled upon said arguments.

. . .

The Board

It is the Board's position that because the Commission possesses neither the jurisdiction nor the lawful authority to do so, the Commission must not even reach the constitutional issues raised by the MTEA and must summarily dismiss the petition. This stems from two premises: (a) that this matter is not presently "ripe" for adjudication because no actual layoff or other factual context against which the operation of the clause may be measured is currently pending, imminent, or even contemplated; and (b) that the Commission, as a quasi-legislative agency (and thus a judicial body), lacks authority to rule on questions of "pure" constitutionality and/or to declare a provision of a collective bargaining agreement to be unconstitutional.

Should the Commission erroneously conclude that it is appropriate to rule upon the merits of the MTEA's petition, the Board contends that the layoff provision in dispute is not a prohibited subject of bargaining. The Board takes issue with the MTEA assertion the Wygant requires a finding that the proposal is unconstitutional. In this regard, the Board asserts that the lack of a finding of prior discrimination against black applicants for teaching positions is not required by Wygant and thus is absolutely irrelevant to the issues raised by the MTEA's petition. The Board also argues that Wygant is anything but "clear precedent" upon which the Commission should rely. As to the operation of the clause itself, the Board asserts that although "race-conscious," the actual operation of the clause will depend upon the facts and circumstances at any given time. Indeed, the Board asserts that the clause could conceivably favor white teachers in certain circumstances. Thus the Board argues that the clause is both "dynamic" in nature and deliberately and judiciously tailored to meet the particular desegregation goals of the Board that have in turn been pursued over the years in pain-staking and laborious fashion.

The Board alleges that the promotion of "racial diversity among faculty" was found to be a constitutionally permissible rationale for a voluntary affirmative action layoff program by Justice O'Connor in Wygant. The Board contends that the promotion of such "racial diversity" is one of the five separate rationales which supported the Board's original desire to incorporate the clause in the collective bargaining agreement. Thus, while the remediation of past discrimination in hiring by the employer may be one of many permissible bases for the establishment or implementation of a voluntary affirmative action layoff program, it is by no means the only permissible basis therefor.

The Board contends that the MTEA has attempted to draw a spurious distinction between the societal value of "affirmative action and hiring" as opposed to "affirmative action in layoff." The Board asserts that the distinction is ill-founded. The Board asserts that the clause in question seeks to preserve the concept of "racial balance as applied to a particular population" (i.e., the Board's faculty). The Board argues that the concept of faculty "racial balance" is not only important in and of itself as a public policy objective, but is also a necessary and specific component of the continuing Board desegregation effort. The Board contends that removal of the clause from the collective bargaining agreement would cripple the Board's ability to maintain its adherence to faculty desegregation objectives during periods of retrenchment.

The Commission's analysis in the declaratory ruling proceeding likewise remains material here:

Jurisdiction and Ripeness

We have already ruled upon the Board's jurisdictional argument in our earlier Order Denying Motion to Dismiss or Defer to Federal Court Jurisdiction. In that Order we commented:

Section 111.70(4)(b), Stats., provides:

(b) Failure to bargain. Whenever a dispute arises between a municipal employer and a union of its employes concerning the duty to bargain on any subject, the dispute shall be resolved by the commission on petition for a declaratory ruling. The decision of the commission shall be issued with 15 days of submission and shall have the effect of an order issued under s. 111.07. The filing of a petition under this paragraph shall not prevent the inclusion of the same allegations in a complaint involving prohibited practices in which it is alleged that the failure to bargain on the subjects of the declaratory ruling is part of a series of acts or pattern of conduct prohibited by this subchapter.

Here, the Association has advised the Board that it believes the clause in question 1/ is illegal and thus unenforcable (sic) and that pursuant to the Savings Clause 2/ in the parties' agreement, the Board must bargain a legal replacement provision. The Board has refused the Association's demand for bargaining. In such circumstances we think it is clear that there is a "dispute . . . between a municipal employer and a union of its employes concerning the duty to bargain. . . ."

. . .

As to the Board's argument that this matter would be more appropriately deferred to the federal courts, we note that when we are confronted with contentions that a matter is a permissive or prohibited subject of bargaining, we are often of necessity obligated to examine external law, both statutory and constitutional, to resolve the dispute. 3/ (footnote text 1/ and 2/ omitted)

3/ School District of Drummond v. WERC, 121 Wis.2d 126 (1984); Teamsters Local No. 695 v. WERC, 121 Wis.2d 29 (1984); West Bend Education Association v. WERC, 121 Wis.2d 1 (1984); Milwaukee Board of School Directors, Dec. No. 23208-A (WERC, 2/87); Racine Unified School District, Dec. No. 20652-A (WERC, 1/84); aff'd (CtAppII) No. 85-0158 (3/86); Crawford County, Dec. No. 20116 (WERC, 12/82).

As we continue to be persuaded by the rationale expressed above, we will make no further comment herein. 2/

Turning to the issue of "ripeness", in our earlier Order we also responded to a large extent to the argument made again by the Board herein. We stated:

2/ The Board correctly noted that in City of Cudahy, Dec. No. 9381 (WERC, 12/69), we declined to determine constitutional issues. However, that case arose in the context of the declaratory ruling provision contained in Chapter 227 under which, as we noted in Cudahy, the exercise of jurisdiction is discretionary and limited to those rules or statutes enforced by the agency. Here, once we determine that there is a "dispute" under Sec. 111.70(4(b), Stats., we have jurisdiction and must proceed to exercise same.

As to the Board's contention that a "dispute" cannot exist until a factual context involving actual layoffs exists, we find such an argument misses the jurisdictional mark and is most appropriately considered as part of our deter-mination on the merits of the dispute before us. The requisite jurisdictional factual context has been established by the Association's demand and the Board's refusal to bargain over the clause. We would also note that in the majority of instances in which our Sec. 111.70(4)(b), Stats., jurisdiction is invoked, we are asked to rule upon the parties' duty to bargain on proposals which one side or the other seeks to place in a collective bargaining agreement. In such instances, we are obligated to determine the parties' duty to bargain over contract language which may never be "applied" in a factual context because it may never even become part of a contract. Furthermore, it should be noted that the MTEA asserts that the manner in which the clause in question has been applied in the past provides ample guidance as to the clause's interpretation.

As indicated in the above quoted text, we are often obligated to proceed under Sec. 111.70(4)(b), Stats., in a "factual vacuum" as to the manner in which a proposal has been interpreted. Nonetheless, in cases where we have felt the record to be insufficient for us to definitively rule upon the status of a proposal or a contract provision, we have so advised the parties and, if necessary, taken additional evidence. Here, the Board in essence asserts that until the clause actually functions in a teacher layoff context, it is speculative as to whether the clause will even adversely affect non-black teachers. We disagree. It is clear from the language of the clause itself and from the manner in which it was applied in 1981 and 1982 layoffs that non-black employes are subject to layoff because of their race. As the impact of the clause is clear, 3/ we have an adequate record upon which to proceed to determine whether the clause is constitutionally invalid.

It is undisputed that if the clause in question is unconstitutional, it is a prohibited subject of bargaining. Our role in this proceeding is to determine and apply existing constitutional law to the clause in question. As the parties have emphasized, personal views as to what the law should be play no role in this proceeding.

In Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986), the Court was confronted with a clause strikingly similar to that at issue herein. The Wygant clause stated:

3/ The Board argues that because other portions of the layoff clause have changed since the 1982 layoffs, the impact of non-black employes is presently less than clear. We disagree. While the changes referenced by the Board may change the manner in which the individuals facing layoff will be identified, once the layoff pool is established the clause continues to protect less senior employes because of their race.

"In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff.

Thus, while the parties herein obviously disagree as to the impact of the Court's decision in Wygant, the Wygant decision clearly controls the outcome of this case. The task of deciphering Wygant for the purposes of the case before us is made easier by the presence of the two Seventh Circuit Court of Appeals decisions - Britton v. South Bend School Corp., 819 F.2d 766 (1987) and Janowiak v. City of South Bend, 836 F.2d 1034 (1987). As these decisions constitute post-Wygant law in Wisconsin, we will herein apply the interpretations given Wygant in these two cases.

In Janowiak, the Seventh Circuit Court of Appeals reviewed Wygant and Britton and stated:

In Wygant, five Supreme Court Justices in three separate opinions held that a race-preferential layoff provision in a collective bargaining agreement between school teachers and Jackson, Michigan violated the fourteenth amendment's equal protection clause. Wygant, 106 S.Ct. at 1852. The provision, designed to safeguard the City's affirmative action hiring goals, stated that in the event layoffs were necessary, a greater percentage of minority personnel could not be laid off than the current percentage of minority personnel employed. Wygant, 106 S.Ct. at 1845.

Because there was no majority opinion in Wygant, the Court did not elaborate a clear constitutional standard applicable to all affirmative action plans. We have already noted, however, that a "'lowest common denominator' majority position can be pieced together" from the Wygant opinions. Britton v. South Bend Community School Corporation, 819 F.2d 766, 768, (7th Cir. 1987). We start with the benchmark standard agreed upon by the members of the majority (and apparently, according to Justice O'Connor, by all members of the Court): (1) the plan must be justified by a compelling government interest and (2) the means chosen by the government must be narrowly tailored to effectuate the plan's purpose. See Wygant, 106 S.Ct. at 1852 (O'Connor, J., concurring in part and concurring in the judgment).

The remedying of prior hiring discrimination was clearly recognized by the Wygant Court as a "compelling government interest." As the Janowiak Court stated:

Justice O'Connor, the fifth member of the Wygant majority, reserved the question whether a racially preferential layoff plan designed "to correct apparent prior employment discrimination against minorities while avoiding further litigation" might ever be constitutionally permissible. See Britton, 819 F.2d at 769 (citing Wygant, 106 S.Ct. at 1854, 1857 (O'Connor, J., concurring in part and concurring in the judgment)). Because she concurred in the judgment of reversal on the narrowest ground, her opinion is critical to our determination of Wygant's lowest common denominator holding and our disposition of the present case. See id., 819 F.2d at 769.

Justice O'Connor agreed with the plurality that "remedying past or present racial discrimination by a state actor is a sufficiently weighty state interest to warrant the remedial use of a carefully constructed affirmative action program," Wygant, 106 S.Ct. at 1853.

However, even where such a compelling government interest is established, the remedial means must be narrowly tailored. Thus, when remedying prior hiring discrimination, a race-preferential layoff clause must seek to maintain minority employment levels which are established by reference to the minority percentage in the employer's work force and the percentage of minorities in the relevant labor pool. As noted in Janowiak:

Thus, for our purposes, the lowest common denominator holding of Wygant is that a statistical comparison upon which an affirmative action plan is based must compare the percentage of minorities in employer's workforce with the percentage of minorities in the relevant qualified area labor pool before it can establish the predicate past discrimination required to justify an affirmative action remedy under the fourteenth amendment." We therefore hold that the City's plan here runs afoul of the fourteenth amendment's equal protection clause and that the district court erred in granting the City summary judgment. It is clear under Wygant that, at a minimum, the statistical comparison proffered by the City to justify its affirmative action program cannot focus on general population statistics alone. The City's comparison does just that.

Thus, if the Board were herein premising the validity of its race-preferential layoff clause upon the remedying of past hiring discrimination, the clause would not pass constitutional muster because the percentage of black teachers the layoff clause seeks to maintain is not related to a relevant labor pool and thus the clause is not "narrowly tailored."

Here, the Board has never asserted that it seeks to remedy past hiring discrimination with the race-preferential layoff clause. The record before us contains no persuasive evidence of such discrimination. Thus, we must turn to the rationale advance by the Board herein to determine whether it constitutes a "compelling government interest" and, if so, whether the clause is "narrowly tailored" to meet the interest.

As noted in the arbitrator's summary of the Board's argument before him, which is set forth in Finding of Fact 3 herein, the Board sought the race-preferential layoff clause as a means of obtaining and maintaining an "appropriate" percentage of black teachers as measured against the percentage of black citizens in Milwaukee and the percentage of black student in the public school system. The Board believed that the maintenance of sufficient numbers of black teachers was desirable because: (1) positive role models would be provided for black students; (2) myths of racial inferiority would be dispelled; (3) desegregation efforts would be enhanced; (4) the viability of a multi-cultural curriculum would be improved; and (5) black teachers would be more likely to successfully exercise power and influence in the school system.

In Wygant, Justices Powell, Burger, Rehnquist, White and O'Connor found the governmental interests in providing "role models" 4/ and "remedying the effects of societal discrimination" to be insufficiently "compelling" to pass constitutional muster. The Court's holding in this regard is dispositive of virtually all of the bases set forth by the Board in support of the layoff clause in dispute herein. To the extent that the Board relies upon Justice O'Connors distinction between "role models" and "racial diversity among faculty" 5/ it is clear from her opinion that the Court was not reaching any conclusion as to the magnitude of this separate interest.

However, even assuming that this interest were to be found "compelling" or that some separate educational policy interest can be refined from the Board's stated justifications which would be found "compelling," we further believe the clause would still be unconstitutional because it is not a "narrowly tailored" to accomplish the "compelling" interest. 6/ In this regard, the record does

4/ We can understand and appreciate why a school board in a racially diverse district might well regard providing qualified racial "role models" as essential to its ultimate objective or more effectively educating its students, thus constituting a compelling governmental interest. Nonetheless, it is clear to us from Wygant that a majority of justices do not give this view any Constitutional credence. Hence, we cannot.

5/ Justice O'Connor stated:

The goal of providing "role-models" discussed by the courts below should not be confused with the very different goal of promoting racial diversity among the faculty. Because this latter goal was not urged as such in support of the layoff provision before the District Court and the Court of Appeals, however, I do not believe it necessary to discuss the magnitude of that interest or its applicability in this case. The only governmental interests at issue here are those of remedying "societal" discrimination, providing "role models," and remedying apparent prior employment discrimination by the School District.

Justice O'Connor also stated as a preliminary matter in her opinion:

Additionally, although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently "compelling," at least in the context of higher education, to support the use of racial considerations in furthering that interest. See, e.g., Bakke, 438 U.S. at 311-315.

However, as the Bakke case referenced in her opinion involved questions regarding the "racial diversity" among students, her remark does not seem directly probative of the constitutionality of a race-preferential layoff clause.

6/ The Board has made some reference to the desirability of the disputed clause as a means of continuing to remedy the racial discrimination in the teacher assignment patterns found in Armstrong v. Board of School Directors, 471 F.Supp. 827 (1979). However, as the Armstrong Court did not impose any race-preferential layoff provision as part of its remedy, as the Board admits that a layoff clause without a race preference provision would still allow it to honor Armstrong, and as the Court in Britton held that race-preferential layoff clauses are not a "logical remedy" for assignment discrimination, any Board argument based on Armstrong does not provide a persuasive basis for finding this clause constitutional.

not contain any persuasive evidence which establishes why the precise percentage level of black employes which the clause protects based on each year's EEO-5 report is essential to meeting any of the interests put forth by the Board. Even assuming the need for such precision, the evidence placed before the arbitrator in 1981 by the MTEA and the evidence herein as to the layoffs in 1981 and 1982 strongly suggests that the Board's aggressive hiring posture as to black applicants is sufficient to maintain virtually the same percentage level of black staff as has been produced through the protection of the race-preferential clause. Thus, the record does not warrant the conclusion that the job loss for non-blacks caused by the disputed clause has enhanced any of the interest advanced by the Board herein. Indeed, when the clause functions as it did in 1981 to cause the layoff of a more senior hispanic employe and the retention of a less senior black employe, it can reasonably be argued that the clause does not promote "racial diversity among faculty," a "multi-cultural" curriculum, empowerment of minority staff members or enhancement of desegregation.

Given the foregoing, we find the clause to be violative of the Fourteenth Amendment rights of non-black employes and, as such, a prohibited subject of bargaining.

The Circuit Court's Contrary Analysis:

On September 5, 1990 Judge Shaughnessy, in reversing the Commission's decision, wrote as follows:

WERC and META contend that WERC properly found the contractual provision was unconstitutional under the Fourteenth Amendment and the United States Supreme Court decision in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). The Board, however, submits that WERC erred in making its ruling since the issue was not ripe for determination and because WERC violated the separation of powers doctrine in making a judicial decision on the constitutionality of the contract clause. In deciding whether WERC acted properly, this court must inquire into the two issues presented by the Board.

In State ex. rel. Lynch v. Conta, 71 Wis.2d 662, 669, 239 N.W.2d 313 (1976), the Wisconsin Supreme Court set forth four requirements that must be met in order to issue a declaratory judgment. The first requirement states, "There must exist a justiciable controversy, that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it." And the fourth requirement states, "the issue involved in their controversy must be ripe for determination." As a result, the court must determine whether WERC's declaratory ruling on the constitutionality of the lay-off provision was ripe for determination, since a result, the court must determine whether WERC's declaratory ruling on the constitutionality of the lay-off provision was ripe for determination, since declaratory judgment is unavailable unless the issue is ripe for determination. City of Janesville v. Rock County, 107 Wis.2d 187, 202, 319 N.W.2d 891 (1982).

In adopting the U.S. Supreme Court's decision on ripeness made in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507 (1967), the Wisconsin Supreme Court stated: "The basic rationale of the ripeness doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagree-ments . . . ." Lister v. Board of Regents, 72 Wis.2d 282, 309, 420 N.W.2d 610 (1976). The Abbott decision indicated that ripeness turns on the fitness of the issues and the hardship to the parties if the court withholds a determination. Abbott, at 149. A further requirement of ripeness is an actual injury. "A substantial number of ripeness cases ask whether the plaintiff has suffered harm or threat of harm that is 'direct and immediate' rather than conjectural, hypothetical, or remote." Nichol, Ripeness and the Constitution, 54 U. Chi. L. Rev. 153, 170 (1987).

In the case at hand, there were no pending plans for a lay-off in either the near or the distant future. In fact, there has not been a teacher lay-off in the 140 year history of the Milwaukee Public Schools. However, WERC and MTEA argue that the issue was ripe under sec. 111.70(4)(b), Stats., which states: "Whenever a dispute arises between a municipal employer and a union of its employees concerning the duty to bargain on any subject, the dispute shall be resolved by the commission on petition for a declaratory ruling."

It is not sufficient to simply cite the statute the (sic) confers the authority upon WERC to make a declaratory ruling on any subject. This in itself does not mean that the issue was ripe for determination. WERC's authority under sec. 111.70(4)(b), Stats., is only conferred when the issue is ripe. City of Janesville, at 202. As stated earlier, the standard for ripeness required fitness of issues, hardship to the parties, and actual injury.

First, the determination of the constitutionality of the lay-off provision should not be decided upon by an administrative body. Such issues are solely within the province of the judiciary. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.ED. 60 (1803). As a result, the fitness question actually goes to the Board's separation of powers argument which will be discussed below. However, if WERC does not have the jurisdiction to decide upon the issue, it certainly would not meet the fitness requirement. Second, there has been no hardship to the parties. Since there has been no lay-off and there ar no plans for one in the future, neither the Board nor MTEA have been affected by the provision. This leads to the third requirement, actual injury. While it is not necessary for a lay-off to have occurred, someone must be actually affected by the provision.

Since the provision has never been implemented, it cannot be said exactly how it will work. The provision simply states that the racial balance of the teachers at the schools must not be disturbed. It does not state that white teachers must be laid off before black teachers. Such a provision would actually affect the job security of the white teachers and an actual injury would result. However, without an actual or pending lay-off, it would be pure conjecture to say who would be injured by the provision.

It is the composition of the faculty that determines how the provision works. Today, there may be more white teachers than minority teachers. However, this may not always be the case. The ratio of white to minority teachers is not static. The make-up of the faculty at the point in time of a lay-off establishes which parties would be affected under the provision. As a result, there has been no actual injury to anyone without a lay-off or threat of lay-off.

The second issue presented by the Board is whether WERC violated the separation of powers doctrine in making a decision upon the constitutionality of the contract clause. WERC contends that the issue falls within its jurisdiction since it is primarily a matter of collective bargaining. Pursuant to that power, WERC states that it simply applied the Wygant decision.

It is true that WERC has been given wide latitude in deciding matters regarding collective bargaining. WERC v. Evansville, 69 Wis.2d 140, 158 N.W.2d 688 (1975). However, the matter in the case at hand is not within WERC's collective bargaining powers. Section 111.70(1)(d), Stats., defines collective bargaining as "the performance of mutual obligation . . . to meet and confer at reasonable time, in good faith, with respect to wages, hours and conditions of employment . . . ." In their briefs, WERC and MTEA do not address the lay-off clause as such a matter. Instead, they simply state the precedent cases that recognize WERC's expertise in matter of collective bargaining. They do not attempt to show how the lay-off provision affects wages, hours, or working conditions. Instead, their main argument in regard to the provision treats the matter as a constitutional matter.

Also, it was not simply a matter of applying the Wygant decision. In order to apply the decision, WERC had to form an interpretation. Since Wygant is not clear on its face, it cannot be simply applied as WERC asserts. This is evidenced by the fact that both the petitioner and the respondent each submitted briefs with very different interpretations of the Wygant decision. As a result, it is clear that different interpretations can be made. And, it cannot be applied to the case at hand without some branch of government interpreting the case. Therefore, it is not simply an issue of collective bargaining. The real issue is whether an administrative agency has the authority to interpret a U.S. Supreme Court decision without violating the separation of powers doctrine.

In Glendale Prof. Policeman's Assoc. v. Glendale, 83 Wis.2d 90, 100, 264 N.W. 594 (1978), the Wisconsin Supreme Court looked at WERC's ability to decide upon the relationship between two Wisconsin statutes. The court stated that this issue was "within the special competence of the courts rather than the Commission (WERC), and therefore this court need not give great weight to the arbitrator's determination of the issue." Id. at 101. The court also stated the WERC is "primarily charged with administering secs. 111.70-77. Wis. Stats." Id. at 100. In a similar situation in City of Brookfield v. WERC, 87 Wis.2d 819, 275 N.W.2d 723 (1978), the court stated, "WERC should not be accorded the authority to interpret the appropriate statutory construction . . . ." It can be inferred from these two cases that if WERC does not have the authority to interpret statutory construction beyond its expertise in administering secs. 111.70-77, Stats., it cannot interpret U.S. Supreme Court decisions and the U.S. Constitution either.

WERC simply lacks the power to make determinations on constitutional issues. "Administrative boards and commissions have no common law power. Their powers are limited by the statute conferring such powers expressly or by fair implication." Nekoosa-Edwards v. Public Serv. Comm., 8 Wis.2d 582, 593, 99 N.W.2d 821 (1959). WERC has not either expressly or impliedly been granted the authority to decide upon constitutional issues. In fact, our system of government has not delegated the authority to administrative agencies to decide upon matters of constitutional importance. Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400 (1959).

In one of WERC's own decision, WERC recognized its inability to issue a declaratory ruling upon the constitutionality of barring supervisors from joining unions. It stated, "There are judicial forums available which are better suited to determine such constitutional questions." In the Matter of the Joint Petition of City of Cudahy and International Association of Firefighters, AFL-CIO, Local 1801, WERC Dec. No. 9381.

Furthermore, A Florida court found that separation of powers "stands as a permanent bar to administrative determination of fourteenth amendment problems." Carrollwood State Bank v. Lewis, 362 So.2d 110, 114 (Fla. Dist. Ct. App. 1978). The court went on to say that constitutional issues cannot be delegated to administrative bodies for determination. Id. While the Florida and Wisconsin Constitutions are not identical, they both divide governmental powers into three branches: executive, legislative and judicial. As a result, it is reasonable to conclude that separation of powers in Wisconsin would work in a similar manner in light of the argument stated above.

In conclusion, the court holds the WERC did not act within its powers in issuing this declaratory ruling. The issue was not ripe for determination, and it was not within WERC's authority to interpret matters of constitutional importance. Accordingly, WERC's decision is vacated and reversed, in its entirety, pursuant to sec. 227.56, Stats.

Arguments specific to the present proceeding

The MTEA

MTEA contends that under NLRB v. Wooster Division of Board Warner Corp., (3) the Commission clearly has jurisdiction to determine whether or not a bargaining proposal is unlawful. MTEA argues that in a number of decisions, including City of Greenfield (4) and Milwaukee Board of School Directors (5) the Commission has found bargaining proposals unlawful based on its construction of statutes other than Section 111. MTEA argues that it is an essential function of the Commission to issue an appropriate cease and desist order where an illegal provision is still part of a collective bargaining agreement. MTEA further argues that the legality of the disputed layoff clause is ripe for determination because despite the fact that no layoffs have been scheduled in the District since the issue arose in 1987, layoff issues are best dealt with when persons on both sides are most likely to be objective in their treatment of these sensitive issues, and a period in which layoffs are unlikely is ideal for that purpose. MTEA further notes that the Commission considered and rejected a related argument in the declaratory ruling proceeding. MTEA argues that there is no rule requiring that separate but related actions be suspended while a given proceeding is pending, and that to allow this matter to be set aside further would unnecessarily delay a final result.

MTEA has appealed the Court's decision, and it argues that that decision was in error on a number of points. In relevant part, MTEA has argued since the Court's decision that this matter stands independently of the declaratory ruling proceeding and should be decided by the Examiner in terms consistent with the Commission's analysis.

The Board

The Board contended initially that this proceeding constituted nothing more than an MTEA demand for the Board to abandon its position in the circuit court proceedings and surrender to MTEA's wishes. The Board contends that the Commission erred in its decision that the clause was unlawful, and that the Board has the right to invoke judicial review in support of a provision which it considers constitutional. The Board contends that an additional and unjustifiable penalty would be applied to the Board by a finding that the clause must be removed forthwith. The Board further argues that MTEA has not fulfilled the requisite contractual procedure for severing an allegedly illegal clause from the contract, because it has not offered to enter into immediate negotiations for the purpose of arriving at a replacement, as required by the agreement. The Board contends that the "low pressure" of the current layoff environment is an irrelevant consideration in determining ripeness, and that neither this matter nor the declaratory ruling procedure could be considered ripe for adjudication unless and until an actual layoff occurs. The Board contends, in sum, that merely because the opposing party contends that a clause should be deleted from the contract as allegedly unlawful, it has no obligation under Sec. 111.70 to accede to that demand without contesting it through the appropriate channels, including the Commission and courts. The Board contends that invocation of the prohibited practice mechanism is improper in the present context.

Following the Circuit Court's decision, the Board argued in addition that the Examiner is bound by the Court's determination as a matter of law.

The Examiner's Initial Decision and the Commission's Remand Order

I agreed with the last of the Board's contentions, and found that this matter must now be treated as governed by the "law of the case."

Contrary to the Association, I found nothing in the record that would justify treating this matter as independent of the parallel declaratory ruling proceeding. The Association's arguments to that effect are directly undercut by two factors. One is the complete absence of any new circumstance of fact, such as an actual layoff, since the completion of the factual record relied on by the Commission and Circuit Court alike in the declaratory ruling proceeding. The other is the paired statements of the parties' representatives at the hearing, in which one point clearly agreed on was the relationship between the two cases. (6) There is nothing in either of the parties' arguments since the Circuit Court's decision to make the statements noted above either untrue or no longer relevant; all that has changed is which party is favored by the most recent decision.

The primary issue squarely posed -- not by the Circuit Court's decision per se but by the fact of a then-pending appeal of that decision by both the Association and the Commission -- was whether, as an Examiner employed by the Commission, I was obligated to follow the Commission's view; to follow the Court's view; or to render an original opinion on the merits of this case.

I concluded initially that an original opinion on the merits would be improper, in the perhaps-unique circumstances of this case. Here there is no colorable claim that stare decisis should not apply because of alleged differences in the facts between the prior case and its successor. For the reasons discussed above, no two cases more closely related are likely to be found. Thus the cases cannot be distinguished, and any decision commenting on the merits of the underlying claims would inevitably assume something of the character of an attack from below on the reasoning of one or the other of the two conflicting higher tribunals. Due deference to higher authority thus weighs in favor of restraint.

I found, thereupon, that the operative principle accordingly became that of the "law of the case." A particular form of stare decisis, this principle holds that "The decision, judgment, opinion or rulings on former appeal or writ of error becomes 'law of the case' (and is binding) on subsequent proceedings or trials (between the same parties) in trial court." (7)

The Commission reversed and remanded the case on that point in its June 4, 1991 decision. The Commission then stated:

In our view, the doctrine of the "law of the case" is not presently applicable to this prohibited practice proceeding. A fundamental element of the doctrine of the "law of the case" is the presence of a final determination 1/ (footnote omitted) in a parallel action involving the same parties. Here, as evidenced by the fact that Judge Shaughnessy's Order is currently on appeal before the Court of Appeals, there has been no final determination in the declaratory ruling proceeding. Thus, the Examiner erred when he concluded that the doctrine of the "law of the case" governed the outcome of the proceeding before him.

There remains the question of whether we should proceed to decide the merits of this prohibited practice proceeding or remand the complaint to the Examiner. We note that the Board has raised certain defenses to the complaint which the Examiner deemed unnecessary to address, given his "law of the case" rationale. Included among these defenses is the assertion that the Association has never demanded bargaining over a replacement to the layoff clause in question and has not honored the Association's obligations under the savings clause in the parties' collective bargaining agreement. Under these circumstances, we find it appropriate to remand the complaint to the Examiner for further consideration and additional fact finding, if necessary, to determine the validity of such defenses. On remand, we would also advise the parties and the Examiner that it continues to be the view of the Commission that the layoff clause in question is a prohibited subject of bargaining.

A week after the Commission's ruling, there occurred a further change in the basis of this case, when the Court of Appeals reversed the Circuit Court in Case 194.

The Court of Appeals' Decision

The Court stated in pertinent part as follows:

We agree with the MTEA and WERC that the circuit court erred in its conclusion that this dispute was not ripe and also erred in its conclusion that WERC was without jurisdiction to determine the constitutionality of this provision. We address each error separately. In State ex rel. Lynch v. Conta, 71 Wis.2d 662, 669, 239 N.W.2d 313, 322 (1976), our court held that four requirements must be met to permit a declaratory judgment. One of the requirements was that "[t]he issue involved in the controversy must be ripe for judicial determination." Id. (citation omitted). 3/ Here, the circuit court held that the dispute was not ripe because first, there was no showing of hardship, and second, there was no actual injury, 4/ relying on City of Janesville v. Rock County, 107 Wis.2d 187, 199, 202, 319 N.W.2d 891, 897-99 (1982), 5/ and Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). The court's conclusions were predicated on clearly erroneous facts.

{di}_______________________

3/ The other requirements are: (1) a justifiable controversy; (2) a controversy between parties whose interests are adverse; and (3) the party seeking relief have a "legally protectable interest." Lynch, 71 Wis.2d at 669, 239, 239 N.W. 2d at 322. The only challenge made by the Board and addressed by the circuit court was whether the case was ripe. Accordingly, we limit our review to this issue.

_

This dispute is ripe. First, the court was wrong when it stated that no layoff had ever occurred in the Milwaukee public schools' history. The undisputed findings of fact of WERC state that two prior occasions the layoff clause was implemented and, as a direct result, more white and hispanic bargaining unit members were laid off in deference to black members with less seniority. The Board admits in its brief that there have been prior layoffs and that non-black members have been adversely affected. The court's conclusion that there was no hardship was error.

Second, the court's conclusion that no actual injury has occurred is equally erroneous. The court stated that the operation of the clause was speculative because it had never been implemented. WERC identified, in its findings of fact, how the clause was intended to operate:

[I]t is important to note that the District [the Board] clearly indicated in the arbitration hearing that in implementing the provision regarding racial balance, it intends to first identify the population to be laid off without giving consideration to the race of the identified population; and only after the population to be laid off is finally identified, which will occur after bumping has taken place, will the racial composition of the population [to] be laid off be analyzed. If the percentage of Blacks in said population exceeds the overall percentage of Black teachers in the system at the time, as reflected in what has been referred to as an E.E.O. 5 Report, the most senior Black teachers identified for layoff will be exempted and replaced by the least senior non-Black teachers with similar certification/licensure and other qualifications where relevant. The number of Black teachers to be exempted will be determined by the District's stated objective not to reduce the overall percentage of Black teachers in the system by virtue of the layoff.

_

4/ The court also recognized a "fitness of the issues" question but decided that this was resolved by WERC's lack of jurisdiction over the constitutional determination. We deal with the constitutional argument later in this opinion.

5/ The court's hardship and injury analysis stems from the Abbott case. Janesville's standard for whether a dispute is ripe is whether there is "an abstract or future issue," which will not be resolved by immediate judicial relief. Janesville, 107 Wis.2d at 202, 319 N.W.2d at 899. As in Janesville, the facts here present an issue that is neither future not abstract.

_

This finding of fact is supported by substantial evidence and shall not be reversed. See sec. 227.56(6), Stats. When the layoff clause was implemented in the past, it operated exactly as WERC described. The court's conclusion that the clause's operation was speculative and no actual injury had occurred was error. On more than one occasion non-blacks with more seniority were laid off instead of blacks so as to not reduce the overall percentage. The specific identification of these individuals was in the record before the circuit court. There was actual injury.

The second issue is whether WERC violated the separation of powers doctrine by deciding the constitutionality of the contract clause. The court stated that the determination of the constitutionality of the lay-off provision was "solely within the province of the judiciary." 6/ The court determined that first, this provision was not within WERC's collective bargaining powers; and second, that the "real" issue was whether WERC "had the authority to interpret a U.S. Supreme Court decision." The trial court erred. 7/

The MTEA filed its petition for a declaratory ruling under sec. 111.70(4)(b), Stats. This section gives WERC the jurisdiction to render a declaratory ruling "[w]henever a dispute arises between a municipal employer and a union of its employes concerning the duty to bargain on any subject . . . ." Following Wygant, the MTEA requested bargaining with the Board, pursuant to the Savings Clause, 8/ which required that once a portion of the contract was held invalid by operation of law, the parties must enter immediate collective bargaining to arrive at a replacement provision. The Board refused to bargain. This refusal provided the basis for the requested declaratory ruling under sec. 111.70(4)(b).

6/ At this point, the court dealt with the fitness issue, see supra note 4, concluding that if WERC did not have jurisdiction over the constitutional issue, "it certainly would not meet the fitness requirement."

7/ The merits of WERC's interpretation of Wygant was not reviewed by the court and is not before us on appeal. The court addressed WERC's denial of a motion to dismiss on jurisdictional grounds, made by the Board at the WERC hearings. We conclude that denial was proper. WERC had jurisdiction because the issue was ripe and WERC had the power to decide whether this clause was a prohibited subject of bargaining.

8/ See supra note 1.

Section 111.70(1)(g), Stats., defines a "labor dispute" as follows:

"Labor dispute" means any controversy concerning wages, hours, and conditions of employment, or concerning the representation of persons in negotiating, maintaining, changing or seeking to arrange wages, hours and conditions of employment.

Section 111.70(4)(b) explicitly empowers WERC to resolve labor disputes "concerning the duty to bargain on any subject." It is fundamental that under the Municipal Employment Relations Act, the employer and the union representative have a duty, enforceable by WERC, to negotiate in good faith even to the point of impasse, where a matter is a mandatory subject of bargaining. See sec. 111.70, Stats. Conversely, where a subject is unlawful or a forbidden subject of bargaining, there can be no negotiations and neither party can insist on including it in a collective bargaining agreement.

It is clear that seniority within a bargaining unit is a very important right secured by the collective bargaining agreement. See Franks v. Bowman Transp. Co., 424 U.S. 747, 766 (1976). Wisconsin law also amply supports the proposition that layoff provisions are close to the core of the collective bargaining obligation. See West Bend Educ. Ass'n, 121 Wis.2d at 15-21, 357 N.W.2d at 541-43; Beloit Educ. Ass'n v. WERC, 73 Wis.2d 43, 58-60, 242 N.W.2d at 231, 238-239 (1976). This dispute between the MTEA and the Board is a classic labor dispute. The MTEA demanded that the Board delete the racial preference provision in the layoff clause of the teacher's contract, contending that the provision was illegal and a prohibited subject of bargaining. The Board's insistence that the clause was lawful and a mandatory subject of bargaining provided the factual basis for the requested declaratory ruling pursuant to sec. 111.70(4)(b), Stats. The issue presented to WERC in the declaratory ruling petition was whether the disputed clause was a prohibited or mandatory subject of collective bargaining. The issue before WERC arose from the existence of a disagreement between the employer and the union about whether a disputed clause can, consistent with the duty to bargain in good faith, be insisted upon to point of impasse or be included in a collective bargaining agreement.

Jurisdiction under sec. 111.70(4)(b), Stats., was established by this factual context. See, e.g., Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis.2d 565, 570-71, 263 N.W.2d 214, 217 (1978) (generally, the word "shall" in a statute is presumed mandatory). WERC determined that under sec. 111.70(4)(b), its "jurisdiction" was mandatory when the question was whether any subject is a prohibited subject of collective bargaining. The resolution of whether a subject is a mandatory, permissive or prohibited collective bargaining proposal is the specific authority granted to WERC under sec. 111.70(4)(b). WERC stated, "once we determine that there is a dispute under [s]ec. 111.70(4)(b), Stats., we have jurisdiction and must proceed to exercise the same." WERC determined that a dispute existed: "The Board has refused the Association's [MTEA] demand for bargaining. In such circumstances we think it is clear that there is a 'dispute . . . between a municipal employer and a union of its employes concerning the duty to bargain.'"

In its decision that this provision was illegal, WERC did not exercise judicial power in the sense that it decided a case or controversy involving liability for the violation of a particular "external" law. WERC actions simply declared that a particular contract provision was prohibited, just as it could have declared it mandatory or permissive, in accordance with the mandate of sec. 111.70(4)(b), Stats. If the contract clause is unconstitutional, it is a prohibited subject of bargaining. For WERC to determine whether it is a prohibited subject, it must apply existing constitutional law to the clause in question. WERC properly exercised its authority under sec. 111.70(4)(b). It was error for the trial court to effectively relieve WERC of its mandatory statutory duty. The court's decision is reversed and WERC's determination is reinstated.

DISCUSSION

The Commission's remand order identified three reasons for the remand: erroneous application of the "law of the case" doctrine, and in turn, two defenses raised by the District but not previously discussed by me because of my view of the "law of the case" rendered them irrelevant.

In the meantime, however, the Court of Appeals' action renders the "law of the case" doctrine applicable under the Commission's interpretation, though application of the doctrine now produces the opposite result. This is because, no party having sought to appeal the Court of Appeals' ruling within the time allowed, that decision is now "final" in the sense in which the Commission interprets the word.

At the same time, it is incumbent on me, since the "law of the case" doctrine no longer results in dismissal of the complaint, to address the defenses referred to by the Commission. It requires little discussion, however, to find these defenses meritless. The parties stipulated at the hearing that in letters dated June 18 and September 4, 1986, the Association demanded removal of the language in question from the contract on the grounds that it was illegal. Though the parties also stipulated that there was no discussion of 2these matters directly at the bargaining table, the letters themselves and the subsequent litigation clearly constitute a demand to bargain, a proposal for alternate language and an attempt to secure compliance with the severance clause in the contract. Indeed, both the Court of Appeals (8) and the Commission (9) have already stated as much.

I therefore conclude, consistent with the decision of the Court of Appeals, that the Board did insist on maintaining the clause in question, that the Association did propose its removal as well as specific language to remain in the agreement, that the clause was unlawful, and that the Board thereby committed a prohibited practice.

Dated at Madison, Wisconsin this 12th day of August, 1991.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By

Christopher Honeyman, Examiner


1. Any party may file a petition for review with the Commission by following the procedures set forth in Sec. 111.07(5), Stats.

Section 111.07(5), Stats.

(5) The commission may authorize a commissioner or examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed or modified by such commissioner or examiner within such time. If the findings or order are set aside by the commissioner or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside or modify such findings or order, in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order it may extend the time another 20 days for filing a petition with the commission.

2. See below for certain supplemental arguments made by both parties.

3. 356 U.S. 342 (1958).

4. Decision No. 19872 (9/82).

5. Decision No's. 24106-A, 24107-A and 24108-A (3/87).

6. The Board's position expressed at that time was "The Board views this case as indistinguishable from the other case . . ." (TR. p. 17.) The Association replied: "I agree . . . the cases are virtually identical, the Declaratory Ruling and this one. The only reason we are here is because the Declaratory Ruling has no remedy and we feel, this has been filed over three years now, about three years now. We do need that remedy and that's the difference." (TR. p. 21.)

7. Black's Law Dictionary, Revised Fourth Ed., West Publishing Co., Minneapolis 1968.

8. At p. 11 of the Court's (pre-publication) decision.

9. "Here, the Association has advised the Board that it believes the clause in question is illegal and thus unenforceable and that pursuant to the Savings Clause in the parties' agreement, the Board must bargain a legal replacement provision. The Board has refused the Association's demand for bargaining. . . ." Decision No. 24748-A at p. 11.