CIRCUIT COURT BRANCH 6
JUDGE: Richard J. Callaway
MADISON TEACHERS, INC.,
WISCONSIN EMPLOYMENT RELATIONS
DECISION No. 28671-C
This is a Chapter 227 judicial review of a decision by the Wisconsin Employment
Commission that a high school principal's directive had no impact on the wages, hours or
conditions of employment of teachers which mandated collective bargaining. Because the
Commission's decision is supported by substantial evidence and free from material legal
it is affirmed.
REVIEW OF RECORD
The historical facts (what happened) are not disputed: For the 1992-93 school year,
Memorial High School, a school administered by the Madison Metropolitan School District
(MMSD), the respondent below, established a pilot Core program for entering students with
of increasing the percentage of them who could be promoted after one year. A "Core"
of about 80 students with common English, Social Studies and Science teachers. In
the Core program was expanded to cover the entire ninth grade in five Cores. Each Core
was given 2-1/2 periods a week for planning and discussing strategies to meet the students'
For the beginning of the 1994-95 school year, school administrators proposed that Core
each contact a certain number of their students' parents or guardians. The building
of Madison Teachers, Inc. (MTI), the teacher's union, objected on the grounds that the
telephone calls would take much time and effort and was an additional burden which could
be unilaterally imposed by the administration. The proposal remained in dispute and was not
implemented at that time. On September 6, 1995, Carolyn Taylor, Memorial's principal,
the memo which is the crux of this dispute to all Core teachers. The memo stressed the
importance of contact with parents to the academic success of students. Ex. 1.
Using some of the time provided by our Core arrangements (or
any other time you deem
appropriate to substitute), please make telephone contact with one parent of each student in
Core. Start with those you believe to be the shakiest. My assumption is that you will want
divide the students in a Core among the three Core teachers and the counselor supporting
Core in order to have fewer than 20 contacts each in most cases, but feel free to devise other
that might make more sense to the four of you . . . . In the event that the family has no
an individual note mailed home is acceptable. I would
appreciate your completing the project by
the end of Wednesday, September 20, and reporting
your results to me in terms of parents reached and any comments you wish to add.
Dec. No. 28671-C, Page 2
The memo suggested that certain topics be covered in the conversations, such as how
student was adjusting to high school and how adjustment could be facilitated, how well the
load was being managed, and the student's interests, talents and work habits. No guidance
direction was given as to how long the telephone calls were expected to take but Principal
testified to the effect that she expected the calls to take about five minutes each. Tr. at 123.
On October 25, 1995, MTI filed a complaint against MMSD with the Wisconsin
Relation Commission (WERC) asserting, among other things, that Principal Taylor could not
assign additional duties to teachers which had an impact on their working conditions without
bargaining over that impact. Apparently, implementation of the directive has been postponed
pending resolution of this dispute. The matter was heard by a hearing examiner on April 24,
1996. On August 8, 1996, the Examiner dismissed MTI's complaint, concluding that:
The District's Memorial High School Principal's directive dated
September 6, 1995, to make
telephone contact with Core parents had no impact on wages, hours or conditions of
so the District had no duty to bargain over said directive and the District did not commit any
violation of Sec. 111.70(3)(a)l or 4, Stats.
On September 6, 1996, WERC adopted the Examiner's decision as its own.
CONCLUSIONS OF LAW
MTI petitions for judicial review and reversal of WERC's decision. Under sec.
the Court's authority to review is governed by ch. 227, Stats. The Court's authority on
is strictly limited by sec. 227.57, Stats. Review is limited to the record. Sec. 227.57(1),
The Court shall set aside the agency's action if it determines that the agency has made a
error in interpreting the law. Sec. 227.57(5), Stats. The Court shall also set aside an
action based on any material findings of fact not supported by substantial evidence. Sec.
227.57(6), Stats. Substantial evidence is such evidence that reasonable minds might accept
adequate to support a conclusion. Gilbert v. Medical Examining
Bd., 119 Wis.2d 168, 195
(1984). The question is whether substantial evidence supports the findings the Commission
make, not whether evidence supports findings it did not make. Eastex Packaging Co.
89 Wis.2d 739, 745 (1979). "Even if the findings . . . are contrary to the great weight and
preponderance of the evidence, reversal is not commanded. . . ." Id. The
Court may not reweigh
the evidence nor reevaluate the credibility of the witnesses, Id.
Under sec. 111.70(4)(a) and secs. 111.07(l) and (4), Stats., WERC may provide relief
prohibited labor practices involving municipal employers. A school district is a municipal
employer. Sec. 111.70(l)(j), Stats. Municipal employees have the right to bargain
with their employers through representatives of their own choosing. Sec. 111.70(2), Stats.
topics for collective bargaining include "wages, hours and conditions of employment"
but do not
subjects reserved to management and direction of the
governmental unit except insofar as the
manner of exercise of such functions affects the wages, hours and
conditions of employment of the municipal
employes in a collective bargaining unit.
Sec. 111.70(l)(a), Stats. Subjects reserved to the School District include
determinations of public
policy such as ". . . educational policy and school management and operation"
Beloit Education Assoc. v. WERC, 73 Wis.2d 43, 52 (1976).
The briefs of both parties are not entirely accurate in describing the analysis in
must be bargained when the subject has public policy implications. As interpreted by WERC
the courts, the statutory definition of municipal collective bargaining, now sec. 111.70(l)(a),
Stats., requires "mandatory bargaining as to (1) matters which are
primarily related to 'wages,
hours and conditions of employment,' and (2) the impact of the 'establishment of educational
policy' affecting the 'wages, hours and conditions of employment.'" Beloit
Education Asso., 73
Wis.2d at 54 (emphasis in original). "In bargaining the former, the parties confer about
whether the proposal should be adopted and what it should say. In bargaining the latter, they
discuss the manner of applying the policy adopted or exercising the function involved."
Dist. of Drummond v. WERC, 121 Wis.2d 126, 140 (1984). These are two
although they involve many of the same considerations, hence the confusion of the briefs.
Blackhawk Teachers' Federation v. WERC, 109 Wis.2d 415. 24, 429-30
(Ct. App. 1982). See
also, West Bend Education Asso. v. WERC, 121 Wis.2d 1, 14-15 n. 17
Under the first Beloit Education Asso. requirement, a matter which is
primarily related to wages,
hours or conditions of employment must be bargained collectively
regardless of the incidental
impact of the matter on public policy. See, e.g., School Dist. of
Drummond, 121 Wis.2d at 135
(quoting West Bend Education Asso., 121 Wis.2d at 5). Whether a matter is
primarily related to
working conditions or education policy involves a balancing of the competing interests.
Dist. of Drummond, 121 Wis.2d at 135.
Under the second Beloit Education Asso. requirement, matters
primarily related to questions of
policy are not entirely insulated from collective bargaining but must be bargained "insofar as
manner of exercise of such functions" has an impact on wages, hours or conditions of
employment. Sec. 111.70(l)(a), Stats. See Blackhawk Teachers'
Federation, 109 Wis.2d at 424;
West Bend Education Asso., 121 Wis.2d at 14-15 n. 17. Whether such a
matter has an impact on
working conditions under the second Beloit Education Asso. requirement
does not involve a
balancing of competing interests but simply the binary question of whether or not there is an
impact on working conditions. If there is an impact, only that impact is subject to mandatory
bargaining. An example of this is classroom size, which may be set by the administration as
matter of policy but the impact of which on teachers' work loads, must be bargained
Beloit Education Asso., 73 Wis.2d at 63-64 and n. 37.
Dec. No. 28671-C, page 4
Matters of public policy themselves, whether or not they affect working conditions,
subject to collective bargaining if the employer so chooses and the law does not otherwise
it. City of Brookfield v. WERC, 87 Wis.2d 819, 829 (1979).
At the hearing, MTI stipulated that the District had the right to implement the
make the phone calls and that the question before WERC was whether it had a duty to
impact, if any, on wages, hours and conditions of employment. Tr. at 90-91. This
meant that MTI was agreeing that Principal Taylor's directive to make the telephone calls to
parents was not "primarily related" to wages, hours and working conditions and so that the
Beloit Education Asso. requirement was eliminated. The question before
WERC was limited to
the second requirement, involving a determination as to whether the implementation of the
directive had an impact on teachers' wages, hours and conditions of employment. WERC
expressly found that there was no impact, thus nothing to bargain about. Decision at 3. This
Court must determine whether that ruling was supported by the record.
MTI appears to argue that the determination of the existence of an impact is a question
The "bargaining nature" of a proposal--whether it is mandatorily or permissively
bargainable--involves a question of law within WERC's expertise and reviewed under a
rational basis standard.
West Bend Education Asso., 121 Wis.2d at 13. Here, the conclusion that
the impact of Principal
Taylor's directive was not bargainable was based on the underlying determination that it
have no impact, which strikes the Court as being a question of fact. Regardless of whether
question of impact is one of law, reviewable on a rational basis standard, or one of fact,
reviewable on a substantial evidence standard, the Court concludes that WERC's
was correct as it was both reasonable and supported by the evidence.
It is undisputed that Principal Taylor's directive had no impact on wages. It also does
that the directive had an impact on hours. The memo expected teachers to use time
allotted by Core arrangements and did not expect teachers to make phone calls after hours,
breaks or any other time not previously assigned for work duties. Ex. 1. The phone calls
expected to have top priority, replacing, if necessary, rather than supplementing activities
previously done in the allotted time. See Tr., at 117.
It is undisputed that telephone calls and other contacts with parents are an ordinary and
necessary part of a teacher's duties. The question here is whether this particular assignment
an impact on conditions of employment. Conditions of employment fairly include matters
as the quality and safety of the work environment, the work load for the time allotted, the
stressfulness of assignments and the potential for disciplinary problems with students. See
Education Asso., 73 Wis.2d at 64 n. 37.
A key to whether the directive had an impact on work load is the amount of time
required for the
phone calls. James Skaggs, Memorial's union representative, testified consistently with other
witnesses that phone calls to parents varied enormously in length from one to twenty
at 32-33. Principal Taylor testified that parent-teacher conferences were scheduled for five
minutes. Tr. at 115. She testified that the phone conversations should be less involved. Tr.
116. She expected the phone calls to average about five minutes each. Tr. at 123.
Dec. No. 28671-C, page 5
The Examiner implicitly found that Principal Taylor's expectation was reasonable.
Finding #5. The Court has no reason to disturb this finding. From the scope of suggested
questions contained in the directive, Ex. 1, the telephone calls were intended to provide basic
information to help students to adjust to their new school early in the school year. There
not appear to have been an expectation that the calls would involve in-depth discussions
counselling which would substantially increase their duration.
If the teachers and guidance counselors involved divided the task equally, each would
twenty phone calls. At five minutes a call, this would mean the entire task would take a
about 100 minutes of telephone time per person. The calls were expected to be completed
two weeks. Ex. 1. The Examiner noted that Core teachers were given two-and-a-half hours
week for Core planning, which consisted primarily of discussions among the teachers and
counselors. Decision at 8. See Tr. at 23 (Skaggs). One of the purposes of those meetings
in the school year was to gather information about the students. Tr. at 24. Thus, as the
saw it, the directive "simply substituted phone contacts for discussion about Core students.
discussion on students could occur at a later time." Decision at 9. It was his clear belief that
two or more hours each teacher would devote to the phone calls would come out of the five
allotted for teachers' planning meetings during the two week time frame.
Although the Court itself is not entirely convinced that two hours of previously
time would be adequate to complete the entire task--parents may be hard to reach during the
the Examiner's determination was not unreasonable or unsupported by the evidence. Given
basic introductory and informational nature of the phone calls, the record does support a
conclusion that the five hours allotted for planning discussions during the two weeks in which
calls were to be made would be adequate for both the calls and the most serious student
which might require immediate discussion among the teachers.
Although Skaggs, the union representative, testified that the planning meetings were
intensive early in the school year, their primary focus was informational, such as comparing
observations about students. Tr. at 26-27. Skaggs did testify that tasks could not be
without damaging the program "one way or another," Tr. at 31, but MTI is not at all clear
what this damage might be. Skaggs' testimony suggested that there would be time to spare
planning meetings later in the school year, Tr. at 26, and MTI points to no evidence that
conditions would be adversely affected if discussions among the teachers would be reduced
postponed for two weeks when more time would be available for them. Additionally, these
discussions would benefit from the additional information obtained directly from the parents.
e.g., Tr. at 43.
Significantly, Principal Taylor's memo gave the teachers and counselors a great deal of
The three teachers and the guidance counselor for each Core had complete discretion to
task of contacting each parent among themselves in any manner; twenty contacts per teacher
only suggested. Thus, the teachers were allowed to adjust the assignment to accommodate
varying workloads and priorities.
Dec. No. 28671-C, page 6
The key weakness in MTI's position is that it never makes clear what the impact on
conditions would be. Although the Court agrees with MTI that the time to be spent on the
calls is substantial, the record is also clear that Principal Taylor expected this time to be
lieu of, rather than in addition to, time previously spent on related matters such as teachers'
discussion of students among themselves. The Examiner was not required to accept
MTI's essentially conclusory assertions that this rearrangement would make teachers'
difficult. Contrary to MTI's argument, there was no requirement that MMSD provide
evidence of "no impact." The Examiner could simply infer from the lack of evidence that
would be no impact.
In the absence of more specific evidence of an impact on working conditions, the
potential impact, on working conditions is connected with whether it would have an adverse
impact on the success of the acclimatization of new students, a policy question of itself, and
thereby make the teachers' jobs more difficult. The record indicates that the requirement of
telephoning parents for information about students might result in some delay in tailoring
responses to some students' needs and in somewhat less discussion among teachers devoted
formulating those responses. However, these potentially adverse results would be offset in
the teachers' responses to the students' needs would be made more informed by the
input provided by the parents early in the school year. It was WERC's task to weigh these
competing factors and its conclusion that the net effect of them would result in no significant
impact on conditions of employment was reasonable.
MTI's briefs devote much energy to the proposition that WERC could not conclude
directive had no impact on conditions of employment because the School District conceded
there was a "de minimis" impact. This argument is based on the mistaken notion that there
significant distinction between "no" impact and a "de minimis" impact.
The concept that insignificant departures from duties imposed by law will be
disregarded is well-established. Lawyers, who are fond of employing Latin and Norman
French phrases, use the term
"de minimis" to denote such insignificances. The term comes from the phrase: "De minimis
curat lex"--"The law does not concern itself about trifles." Black's Law Dictionary at 431
ed. 1990). The doctrine applies even in the field of labor law, as MTI itself recognized in
brief before WERC at 6. See Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 692 (1946).
The distinction it now tries to make between "no" impact and a "de minimis" impact is, in a
phrase, "de minimis."
The Examiner concluded and WERC concurred that Principal Taylor's memo
reorganization of policy-related priorities which had no impact on teachers' wages, hours and
conditions of employment. The record adequately supports WERC's conclusion that this
in priorities would not require teachers to work more hours and would have no more than an
insignificant impact on conditions of employment such as work load and increased potential
disciplinary problems. See Beloit Education Asso., 73 Wis.2d at 64 n. 37.
Dec. No. 28671-C, page 7
0 R D E R
IT IS HEREBY ORDERED that the decision of Respondent Wisconsin Employment
Commission is AFFIRMED.
Dated at Madison, Wisconsin, this 6th day of June, 1997.
BY THE COURT
Richard J. Callaway, Judge
Circuit Court, Branch
cc: Attorney Stacy M. Rios (MTI)
Assistant Attorney General John D. Niemisto (WERC)
Attorney Anne L. Weiland (MMSD)