COURT OF APPEALS
DATED AND FILED
February 26, 1998
Marilyn L. Graves
Clerk, Court of Appeals of Wisconsin
STATE OF WISCONSIN
IN COURT OF APPEALS
LOCAL 60, AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL
WISCONSIN EMPLOYMENT RELATIONS
Dec. No. 28676-A
APPEAL from an order of the circuit court for Dane County: ROBERT R.
Before Eich, C.J., Roggensack and Deininger, JJ.
ROGGENSACK, J. The Wisconsin Employment Relations Commission (WERC)
appeals a decision
of the circuit court which reversed WERC's conclusion that the arbitration procedures
specified in Sec. II 1.
70(4)(cm)6., Stats., do not apply to a deadlock in negotiations over wages for a position
created subsequent to
the institution of the existing labor agreement, when the position in all other respects will be
covered by the
existing contract. Because we conclude that the Municipal Employment Relations Act
(MERA) must be read
broadly, and in keeping with the strong legislative policy in Wisconsin which favors
arbitration as the mechanism
for resolving disputes and preventing individual problems in municipal collective bargaining
growing into major labor conflicts, we affirm the decision of the circuit court.
Local 60, AFSCME, AFL-CIO and the Sun Prairie School District were parties to a
collective bargaining agreement which commenced on July 1,
1993 and concluded on June 30,
1996. During the contract term, the administration of the District made a management
create a new position within the collective bargaining unit. The new position was called a
position" and was instituted after the District determined that additional assistance in cleaning
required because of the inability of the current custodian positions, which entailed cleaning in
addition to other functions, to adequately meet the needs of the schools. After making the
management decision to create a new position, Local 60 and the District agreed to a
determine an appropriate pay rate for the position. Based on the consultant's
District assigned the position a pay grade II wage, $6.54 per hour plus a premium for
night. This wage rate was less than that of the existing custodian positions because the
were to have fewer responsibilities than the custodians. Subsequent to the District's
$6.54 per hour plus a premium for working nights to the newly created position, the District
Local 60 met to discuss its wages, hours and conditions of employment.
The parties agreed to the hours and the working conditions, but they deadlocked on
proposed wage. Once that impasse was reached, Local 60 petitioned WERC for arbitration
pursuant to Sec. 1 1 1. 70(4)(cm)6., Stats. The District moved to dismiss the petition,
that arbitration under Sec. 1 1 1. 70(4)(cm)6. was available only under three conditions: (1)
a new collective bargaining agreement was being negotiated, (2) where an ongoing collective
bargaining agreement was reopened under a specific re-opener provision, or (3) where a
bargaining agreement that was to take effect subsequent to an ongoing collective bargaining
agreement was being negotiated. The District asserted that none of those descriptions fit the
situation here because the cleaner position was represented under the existing collective
agreement, which did not expire until June of 1996. Local 60 disputed that interpretation,
that for this new position the bargaining agreement was also new, even though most of its
provisions would track the existing collective bargaining agreement.
WERC agreed with the District and found, as a finding of fact, that the position of
differed from the existing bargaining unit custodian positions because the cleaners would not
perform any following: minor repairs or routine maintenance; seasonal jobs such as grass
snow removal; program support activities such as preparing for special events, meetings and
forth; building security responsibilities; or reporting to faculty or other school staff in a
context. Based on its findings, WERC then concluded that because the cleaner position "falls
within the scope of the bargaining unit represented by Local 60, " and the current labor
which had commenced in 1993 applied to the cleaner position, the parties were not
bargaining for a
"new collective bargaining agreement" within the meaning of Sec. 111.70(4)(cm)6., Stats.
60 appealed WERC's decision to the circuit court which reversed WERC based on our
WAUSAU SCH. DIST. MAINTENANCE AND CUSTODIAL UNION V. WERC, 157
315, 459 N.W.2D 861 (CT. App. 1990). This appeal followed.
Standard of Review.
This court reviews the decision of an agency, not the decision of the circuit court.
TRUCKING, INC. v. DILHR, 102 Wis.21) 256, 260, 306 NW.21) 79, 82 (CT. App.
agency's factual findings must be accepted if there is substantial evidence to support them.
PRINCESS HOUSE, INC. v. DILHR, 111 Wis.21) 46, 54-55, 330 N.W.21) 169, 173-74
court is not bound by an agency's conclusions of law in the same manner as it is by its
WEST BEND EDUC. Ass'N V. WERC, 121 Wis.21) 1, 11, 357 N.W.2D 534, 539 (1984).
review WERC's conclusions of law under one of three standards of review: (1) great weight
(2) due weight deference or (3) de novo review. UFE, INC. V. LIRC, 201 Wis.21) 274,
NW.2D 57, 62 (1996).
The most deferential level of review of a legal conclusion of WERC is great weight
deference. That standard is not applicable unless all four of the following requirements are
(1) the agency was charged by the legislature with the duty of administering the
statute; (2) that
the interpretation of the agency is one of long-standing; (3) that the agency employed its
specialized knowledge in forming the interpretation; and (4) that the agency's interpretation
provide uniformity and consistency in the application of the statute.
ID. AT 284, 548 N. W. 2D AT 6 1, citing HARNISCHFEGER CORP. v. LIRC, 196
Wis. 2D 650,
660, 539 NW.21) 98, 102 (1995). We apply a mid-level of scrutiny, due weight deference,
to an agency's interpretation that we conclude is reasonable even though there may be
interpretation which is also reasonable, when an agency has some experience in making the
conclusion under scrutiny, but has not developed the level of expertise necessary to place it
in a better
position to make judgments regarding the interpretation of the statute than a court. UFE,
AT 286, 548 NW.2D AT 62.
We conduct a de novo review, granting WERC no deference, when the legal issue
agency is clearly one of first impression, KELLY CO. V. MARQUARDT, 172 Wis. 2D
234, 244-45, 493
NW.21) 68, 73 (1992), or when an agency's position has been so inconsistent on the legal
under scrutiny that it provides no real guidance. MARTIN TRANSPORT LTD. V.
DILHR, 176 Wis.21)
1012, 1018-19, 501 NW.2D 391, 394 (1993). Additionally, it is well established that no
given to an agency's interpretation of a statute when that interpretation conflicts with a prior
decision. See DOERING v. LIRC, 187 Wis. 2D 472, 477, 523, N.W.21) 142, 144 (CT.
Therefore, we review de novo whether an agency properly applied prior case law to the facts
by the case at hand. ID.
1. General Principles.
MERA was enacted by the legislature in an effort to encourage voluntary settlement
disputes and to avoid strikes and animosity between the employees and their municipal
That policy is clearly set forth in the statutes:
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
to bargain collectively with the municipal employer through a labor organization or other
of the employes' own choice. If such procedures fail, the parties should have available to
them a fair,
speedy, effective and, above all, peaceful procedure for settlement as provided in this
Section 111.70(6), Stats.
Under MERA, binding arbitration is an important part of resolving disputes in a
fashion. Judicial decisions concerning when to arbitrate are bottomed on the statements of
legislature and the Steelworkers Trilogy l/ to which Wisconsin appellate courts have looked
guidance. WAUSAU, 157 Wis.21) AT 323, 459 N.W.2D AT 864. "Our adherence to the
in keeping with the strong legislative policy in Wisconsin favoring arbitration in the
bargaining context as a means of settling disputes and preventing individual problems from
into major labor disputes." JOINT SCH. DIST. No. 10, CITY OF JEFFERSON V.
EDUC. Ass'N, 78 Wis.21) 94, 112, 253 N.W.21) 536, 545 (1977) (citations omitted).
Because of the strong policy favoring arbitration, when we examine whether
available, unless we can hold with assurance that arbitration is not available, the policies
MERA require a statutory interpretation favoring arbitration. ID. AT 113, 253 N.W.21)
WAUSAU, 157 Wis.21) AT 323, 459 N.W.21) AT 864.
2. The Cleaner Position.
This dispute, just as the dispute presented in WAUSAU, centers on the provisions of
111.70(4)(cm)6., Stats., which provide binding arbitration for only certain types of collective
bargaining agreements. WERC concluded that WAUSAU was not on point because the
position had never existed outside of the bargaining unit. However, if we conclude that our
interpretation set forth in WAUSAU Controls the question presented here, then we must
apply the statute in the same manner as we did in WAUSAU and not defer to WERC. See
DOERING, 187 Wis.2D AT 477, 523 NW.21) AT 144.
In WAUSAU, we interpreted the statute for the position of "printer, " which was
added to the
bargaining unit during the term of the collective bargaining agreement. At the time the
was added to the unit, it was occupied by a person who was already employed by the
School District in an unrepresented capacity. After determining that the correct standard of
for Sec. I 1 1. 70(4)(cm)6., Stats., was a de novo review, we concluded that the terms "new
collective bargaining agreement" were ambiguous. ID. AT 322, 459 N.W.21) AT 864.
statute was ambiguous, we presumed that the legislature intended it to be interpreted in a
that advanced the purposes of the statute. VERDOLJAK V. MOSINEE PAPER CORP., 200
2D 624, 635, 547 NW. 2D 602, 606 (1996). Therefore, after examining the stated purposes
legislature in enacting Sec. 111.70(4)(cm)6., we concluded that binding arbitration was
for the position of printer. We reasoned that if we were to read Sec. I 1 1. 70(4)(cm)6.,
as the district was suggesting, the printer would have no choice except to give up his request
become a member of the union, strike or accept his addition to the bargaining unit with no
mechanism for resolving the deadlock in negotiations over his wages, hours and conditions of
employment. We reasoned that such a result would be in conflict with the policies that
MERA and therefore, we rejected it. WAUSAU, 157 Wis.2D AT 324, 459 NW.21) AT
also noted that MERA had an "anti-fragmentation policy" that encouraged a limited number
bargaining units in each municipality so that denying arbitration under Sec. 111.70(4)(cm)6.
have run contrary to MERA's antifragmentation policy by forcing the printer to form his
bargaining unit. ID.
The claim presented here is factually similar to that presented in WAUSAU in four
respects. First, there was an ongoing collective bargaining agreement in place when the
about the application of Sec. 111.70(4)(cm)6., Stats., arose. Second, all of the parties
that the employees who would occupy the positions that were central to the disputes would be
represented as part of the existing bargaining unit. Third, neither agreement had salary
nor hours of employment for the positions at issue; and fourth, management and the union
deadlocked over an issue within the scope of Sec. 111.70(4)(cm)6., which was not specified
position in question in the existing agreement. Those similarities support reaching the same
as we did in WAUSAU.
The only material factual difference is that in WAUSAU the printer was already
employed by the district, but outside of
the bargaining unit, while here, the District created the cleaner position within the bargaining
unit, for persons yet to be hired.
That factual difference is relevant to, and in accord with, MERA's anti-fragmentation policy
because the employees who would
occupy the cleaner position did not have to petition to join the bargaining unit, as the printer
did. Therefore, their potential for
forming a separate bargaining unit was not a concern. However, that difference is not
relevant to our concerns for effective
bargaining about a fair wage and the peaceful resolution of disputes in the municipal work
place, which we
described in WAUSAU.
Furthermore, WERC has identified nothing on which we can rely as a statement of
intent that MERA was meant not to permit arbitration under Sec. 111.70(4)(cm)6., Stats., for
created by management during the course of a collective bargaining agreement.
conclude that our interpretation of Sec. 111.70(4)(cm)6. in WAUSAU controls the outcome
dispute. Therefore, under MERA, the negotiation of an initial agreement for wages, hours
of employment for a position created by management during the term of an existing
bargaining agreement, which the union and management agree will apply to the new position
other respects, is the negotiation of a finew " agreement for the newly created position within
meaning of Sec. 11 1.70(4)(cm)6. We come to this conclusion because MERA is to be read
and because arbitration is the favored means of dispute resolution under MERA. WAUSAU,
15 7 Wis.
2D AT 3 22, 45 9 N. W. 2D AT 863.
We have concluded that our decision in WAUSAU is controlling on the question
here; therefore, we reviewed WERC's decision de novo, to determine whether it had
our holding in WAUSAU to the facts in this case. Because we could find no clear assurance
legislature intended to limit the role of arbitration for dispute resolution in circumstances
such as herein
presented, and because the policies that underlie MERA are promotive of arbitration, we
arbitration under Sec. 1 1 1. 70(4)(cm)6., Stats., should have been available to the cleaner
Therefore, we affirm the decision of the circuit court.
By the Court. Order affirmed.
Not recommended for publication in the official reports.
1. UNITED STEELWORKERS v.
AMERICAN MFG. Co.,
363 U.S. 564 (1960); UNITED STEELWORKERS
V. WARRIOR & GULF NAVIGATION Co., 363 U.S. 574 (1960); UNITED
ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593 (1960).