DANE COUNTY CIRCUIT COURT BRANCH 5
JUDGE: Robert R. Pekowsky
LOCAL 60, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO, Petitioner,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent.
DECISION NO. 28676-A
Case No. 96 CV 730
Admin. Review: 30607
DECISION AND ORDER
This is a petition for administrative review pursuant to Chapter 227, Stats., of a March
decision by the Wisconsin Employment Relations Commission.
Petitioner is Local 60 of the American Federation of State, County and Municipal
AFL-CIO. Local 60 and the Sun Prairie School District were parties to a collective
agreement which ran from July 1, 1993, through June 30, 1996. In February of 1995, the
created a new job classification and designated it a "Cleaner position." The subsequent
negotiations between Local 60 and the District regarding the wage to be paid to persons
Cleaner position ended in impasse.
Local 60 then petitioned the Wisconsin Employment Relations Commission ("WERC")
arbitration pursuant to sec. 111.70(4)(cm)(6), Stats. On July 18, 1995, a hearing on that
was held before Mr. Peter Davis, general Counsel for WERC. In its Findings of Fact,
Conclusions of Law and Order issued on March 22, 1996, WERC granted Sun Prairie's
to dismiss, holding that interest arbitration was not available to Local 60 under the statute.
doing so WERC followed its decision in Oak Creek Professional Policemen's
Association v. City
of Oak Creek, Comm. Dec. No. 27074-C (May 25, 1993), and concluded that
Because the 1993-1996 collective bargaining agreement
automatically applies to the Cleaner
position and the employes who hold same, the dispute between Local 60 and the Employer as
the cleaner wage rate is not [a] dispute over the terms of a "new collective bargaining
within the meaning of sec. 111.70(4)(cm)6, Stats.
Dec. No. 28676 (March 22, 1996) at 2. (1)
This petition for review followed.
A. Standard of Review
Before reaching the precise issue presented for review the Court must determine the
level of deference to be accorded WERC's interpretation of the statute. An agency decision
be granted one of three distinct levels of deference: great weight, due weight or de
Jicha v. DILHR, 169 Wis. 2d 284, 290 (1992).
De novo review is appropriate in cases of first impression.
UFE Inc. v. LIRC, 201 Wis. 2d 274,
285, [citing Kelley Co. Inc. v. Marquardt, 172 Wis. 2d 234, 244-45 (1992)].
This is not such
a case. WERC has had direct experience interpreting the statute at issue. As noted, WERC
previously interpreted sec. 111.70(4)(cm)6, Stats., in Oak Creek Professional
Association v. City of Oak Creek, Comm. Dec. No. 27074-C (May 25, 1993).
However, de novo review is also appropriate if "an agency's position
on an issue has been so
inconsistent so as to provide no real guidance." UFE, 201 Wis. 2d at 285,
[citing Marten Transp.,
Ltd. v. DILHR, 176 Wis. 2d 1012, 1018-19 (1993)]. Under this criteria, the court
of appeals in
Wausau Sch. Dist. Maintenance Union v. WERC, 157 Wis. 2d 315 (Ct.
App. 1990), held that
WERC's interpretation of sec. 111.70(4)(cm)6, Stats., was not "substantially uniform."
319. In fact, the Wausau court noted that WERC's interpretations changed as
the composition of
the Commission changed, and commented that "[i]t would require an enormous stretch of
to label WERC's contortions on this issue as 'substantially uniform,' and we therefore
accord deference to its most recent interpretation." Id. at 321. (2)
Thus the question becomes whether WERC has established a consistent and long
interpretation of sec. 111.70(4)(cm)6, Stats., since Wausau was issued. If
interpretation would qualify for great weight deference. In support of its request for great
WERC again points to its decision in Oak Creek, a decision which addressed
an issue virtually
identical to that in the case at bar. The Court, however, is not persuaded that one post1990
decision on this issue is sufficient to document a consistent and long standing interpretation.
For these reasons the Court finds that the appropriate level of deference to
decision is due weight. Under this standard, "an equally reasonable interpretation of a
should not be chosen over the agency's interpretation." Id. at 63, n.3. Due weight deference
based more upon the fact that the legislature has charged an administrative agency with the
enforcement of the statute than the agency's knowledge or skill. Id. WERC
has been charged by
the legislature with the enforcement of the Municipal Employment Relations Act. When an
agency "has had at least one opportunity to analyze the issue and formulate a position, a
not overturn a reasonable agency decision that comports with the purpose of the statute
court determines that there is a more reasonable interpretation available." Id.
Thus, when applying
due weight deference, "a court need not defer to an agency's interpretation which, while
reasonable, is not the interpretation which the court considers best and most reasonable."
201 Wis. 2d at 286 [quoting Hamischfeger Corp. v. LIRC, 196 Wis. 2d
650, 660 n.4 (1995)].
B. WERC's Interpretation of Sec. 111.70(4)(cm)6, Stats.
Having determined the appropriate standard of review the Court now turns to the
in this case: whether it is reasonable for WERC to conclude that, when impasse is reached in
negotiations regarding the wage for a newly created position within a bargaining unit, the
arbitration procedures specified in sec. 111.70(4)(cm)6, Stats., do not apply.
The statute provides in pertinent part as follows:
If a dispute has not been settled after a reasonable period of
negotiation and after mediation
by the commission under subd. 3 and other settlement procedures, if any, established by the
parties have been exhausted, and the parties are deadlocked with respect to any dispute
them over wages, hours and conditions of employment to be included in a new collective
bargaining agreement either party, or the parties jointly, may petition the commission, in
to initiate compulsory, final and binding arbitration, as provided in this paragraph.
The dispute at bar centers around the interpretation of "new collective bargaining
WERC contends that, as it held in Oak Creek, the creation of new positions
does not trigger the
right to interest arbitration under sec. 111.70(4)(cm)6, Stats., because individuals filling the
created Cleaner position (which is within the existing bargaining unit), are automatically
by the collective bargaining agreement. In short, no "new" collective bargaining agreement
created; the new positions simply become part of the existing bargaining agreement.
Local 60, on the other hand, argues that its petition for interest arbitration is properly
characterized as relating to a new collective bargaining agreement for the employees
the Cleaner position. This is because neither the position nor the employees filling it existed
the bargaining agreement until it was created by the District.
It was previously held in Wausau that the phrase "new collective
bargaining agreement" is
ambiguous. Wausau, 157 Wis. 2d at 322. That case concerned a printer's
position that had not
before been part of the union. Under the applicable precedent, when unrepresented positions
accreted to an existing bargaining unit, the bargaining agreement did not cover those
After deadlock was reached in negotiations for the printer's wages, hours and conditions of
employment, the union petitioned for interest arbitration. WERC denied the petition, finding
the union was not seeking a "new collective bargaining agreement." Id. at
318. The court of
appeals reversed, reasoning that WERC's interpretation of sec. 111.70(4)(cm)6, Stats., was
unduly narrow and did not comport with MERA's legislative purpose, especially its
anti-fragmentation policy. (4)
Id. at 322.
WERC argues that Wausau is distinguishable from the instant case
because, unlike the accreted
printer's position at issue there, the Cleaner position created by the District is covered by the
collective bargaining agreement. WERC further asserts that because this interpretation is
reasonable it must be affirmed. In response, Local 60 points out that
Wausau court disfavored
unduly narrow readings of MERA and stressed the public policy behind the statute.
While both readings of sec. 111.70(4)(cm)6, Stats., are reasonable, the Court's inquiry
end here. When examining an agency decision pursuant to the due weight standard of
deference is not required for "an interpretation which, while reasonable, is not the
which [the Court] consider[s] best and most reasonable." Morris v. Employe Trust
Funds Bd. of
Wisconsin, 203 Wis. 2d 172, 183 (Ct. App. 1996). Thus while WERC's reading
111.70(4)(cm)6, Stats., is reasonable in a technical sense, it appears, as it did in
Wausau, to be
an unduly narrow interpretation. First, on a practical level it cannot be ignored that the
position did not exist before it was created by the District. Thus the collective bargaining
agreement is certainly "new" as far as those employees are concerned. (5)
Second, Wausau stressed the importance of arbitration as part of
dispute resolution when it noted
"the strong legislative policy in Wisconsin favoring arbitration in the municipal collective
bargaining context as a means of settling disputes and preventing individual problems from
growing into major labor disputes." Wausau, 157 Wis. 2d at 323, [quoting
Joint School dist. No.
10 v. Jefferson Educ. Ass'n, 78 Wis. 2d 94, 112 (1977)]. Finding that the Cleaner
subject to interest arbitration actively serves this policy in a way that WERC's narrow
interpretation does not.
Finally, this decision reflects concern that WERC's application of sec. 111.70(4)(cm)6,
encourages employers to seek out short term gains by creating new positions which
many of the duties of established job descriptions but pay substantially less. Even if the
conditions of employment are arbitrated in the subsequent collective bargaining agreement,
is the potential for substantial savings when the employer is able to unilaterally implement its
offer and the existing agreement will not expire for a year or more. Thus the unavailability
arbitration leaves the employee without a remedy while conferring a benefit upon the
For the above stated reasons the decision by the Wisconsin Employment Relations
is hereby REVERSED.
Dated this 5th day of May, 1997.
BY THE COURT:
Hon. Robert R. Pekowsky
Circuit Judge, Branch 5
1. Local 60 also contended in the proceedings before
WERC that the Cleaner position was little
different than the existing custodian positions and merely an attempt by the District to
a substandard wage rate. In Paragraph 3 of its Findings of Fact WERC found that "The
of Cleaner differs from existing bargaining unit custodian positions to the extent Cleaners
perform any minor repairs or routine maintenance; will not perform seasonal jobs such as
cutting or snow removal; will not perform any program support activities such as preparing
special events, meetings, etc.; will not have any building security responsibilities; and will
report to faculty or other school staff in a supervisory context.
2. Indeed, in light of the holding on this issue in Wausau,
the Court finds WERC's assertions that
its interpretation "is long continued, substantially uniform, and without challenge by
agencies and courts," to be rather disingenuous.
3. As stated by the Wisconsin supreme court under similar
circumstances, "one holding hardly
constitutes the type of expertise and experience needed by an agency for it to be afforded
weight deference by a court." UFE, 201 Wis. 2d at 61.
4. The purpose and spirit of MERA is set forth in the
Declaration of policy. The public policy of the state as to labor
disputes arising in municipal
employment is to encourage voluntary settlement through the procedures of collective
Accordingly, it is in the public interest that municipal employees so desiring be given an
opportunity to bargain collectively with the municipal employer through a labor organization
other representative of the employes' own choice. If such procedures fail, the parties should
available to them a fair, speedy, effective and, above all, peaceful procedure for settlement
provided in this subchapter.
Sec. 111.70(6), Stats.
5. For example, the Cleaner position is not present in the
Wage Matrix appended to the July 1,
1993, through June 30, 1996 Labor Agreement between Local 60 and the District.