STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
RACINE EDUCATION ASSOCIATION,
RACINE UNIFIED SCHOOL DISTRICT AND THE
BOARD OF EDUCATION OF THE RACINE UNIFIED SCHOOL DISTRICT,
Decision No. 29203-B
Kelly & Kobelt, by Attorney Brett C. Petranach, 122 East Olin
Avenue, Suite 195, Madison, Wisconsin 53713, appearing on behalf of Racine Education
Melli, Walker, Pease & Ruhly, S.C., by Attorney Jack D.
Walker and Attorney Douglas E. Witte, 119 Martin Luther
King Jr. Blvd., Suite 600, P.O. Box 1664, Madison, Wisconsin 53701-1664, appearing on
behalf of Racine Unified School District and the Board of Education of the Racine Unified
ORDER AFFIRMING EXAMINER'S FINDINGS OF
FACT, AFFIRMING AND MODIFYING EXAMINER'S CONCLUSIONS OF LAW AND
AFFIRMING EXAMINER'S ORDER
On April 9, 1998, Examiner Coleen A. Burns issued Findings of Fact, Conclusions
and Order with Accompanying Memorandum in the above matter wherein she concluded that
Respondents had not committed prohibited practices within the meaning of
Secs. 111.70(3)(a) 4, 5
or 1, Stats., by certain conduct which occurred in April, 1997 during a contract hiatus. She
dismissed the complaint.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Complainant timely filed a petition with the Wisconsin Employment Relations
seeking review of the Examiner's decision pursuant to Secs. 111.70(4)(a) and 111.07(5),
parties thereafter filed written argument in support of and in opposition to the petition, the
which was received July 3, 1998.
Having considered the matter and being fully advised in the premises, the
and issues the following
A. Examiner Findings of Fact 1-5 are affirmed.
B. Examiner Conclusions of Law 1-2 are affirmed.
C. Examiner Conclusion of Law 3 is affirmed as modified below to reflect that
Respondents did not commit a derivative violation of Sec. 111.70(3)(a)1, Stats.
3. The Racine Unified School District and its Board of Education have not
violated Secs. 111.70 (3)(a) 4, 5 or 1, Stats.
D. Examiner Order is affirmed.
Given under our hands and seal at the City of Madison, Wisconsin this 21st day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
Racine Unified School District
MEMORANDUM ACCOMPANYING ORDER
AFFIRMING EXAMINER'S FINDINGS OF FACT, AFFIRMING AND MODIFYING
EXAMINER'S CONCLUSIONS OF LAW AND AFFIRMING EXAMINER'S
In its complaint, Racine Education Association alleges that Respondents Racine
School District and the Board of Education of the Racine Unified School District violated
Secs. 111.70(3)(a) 4, 5 and 1, Stats., by disciplining teacher Michael Wagner without
just cause and
by failing to pay Wagner for time spent substituting for another teacher. Complainant
that Respondents be ordered to: cease and desist from such conduct; remove the discipline
Wagner's personnel file; and pay Wagner the monies owed him.
In their answer, Respondents deny having violated Secs. 111.70(3)(a)4, 5, or
1, Stats., and
affirmatively assert that the complaint is barred by Complainant's failure to follow the
procedure in the parties' expired contract and by withdrawing a grievance which was filed.
THE EXAMINER'S DECISION
The Examiner dismissed the complaint in its entirety based on her
determination that Wagner
had not been disciplined and had not been assigned as a substitute during the time for which
Complainant seeks compensation. She reasoned as follows:
Affirmative Defenses and Jurisdictional Claims
Complainant alleges that Respondents violated Sec. 111.70(3)(a)4 and 5,
Stats., and derivatively violated Sec. 111.70(3)(a)1, Stats., by disciplining Wagner
without good cause in violation of Sec. 5.4.4 of the 1992-1993 agreement and by
failing to provide substitute pay to Wagner in violation of past practice and
Sec. 10.4.4 of the 1992-1993 collective bargaining agreement. Prior to hearing,
Respondents asserted two affirmative defenses, i.e., that Complainant should be
barred from litigating its complaint because Complainant failed to follow the parties'
grievance procedure and Complainant withdrew Grievance 41-97. Thus, contrary to
the argument of Complainant, Respondents have not waived their right to challenge
the complaint on the basis that Complainant did not utilize the grievance procedure
contained in the expired collective bargaining agreement.
The Examiner turns to the claim that the Complainant failed to follow the
grievance procedure. The requirement that a complainant follow, or exhaust, the
grievance procedure has been applied to a Sec. 111.70(3)(a)5 breach of contract
claim where the parties are subject to a collective bargaining agreement which
contains a contractual grievance procedure. Mineral Point Unified School
District, Dec. No. 14970-C (10/78) In such cases, exhaustion of the contractual
grievance procedure is required regardless of whether or not the contractual grievance
procedure results in final and binding arbitration. Winter School District, Dec.
No. 17867-C (5/81); City of Madison, Dec. No. 28864-B (WERC, 10/97).
An exception to this general rule will be made where the employer has
repudiated the grievance procedure; there has been unfair representation by the union;
or futility. City of Madison, Dec. No. 28864-A (Crowley, 1/97). The rationale
underlying the requirement to exhaust the contractual grievance procedure is to give
full effect to the parties' agreed-upon procedure for resolving disputes and to
encourage the voluntary settlement of disputes. Lake Mills School District, Dec.
No. 11529-A (7/73); Mineral Point, supra.
Since the parties are not subject to a collective bargaining agreement, there is
no contractual grievance procedure to exhaust. However, as Respondents argue, the
grievance procedure contained in the parties' expired collective bargaining agreement
continues as part of the status quo which is required to be
maintained by the parties
during the contract hiatus period. Barron County (Highway Department), Dec.
No. 19514-A (Malamud, 10/82).
Complainant is asking the Commission to determine the merits of disputes
which fall within the definition of a grievance under the terms of the grievance
procedure which continues as part of the status quo. Therefore, the
underlying the requirement to exhaust the contractual grievance procedure in a
Sec. 111.70(3)(a)5 breach of contract claim may be equally applicable to the
Sec. 111.70(3)(a)4 unilateral change claims brought by the Complainant.
The Examiner, however, is unaware of any case in which the Commission has
required a complainant to exhaust a grievance procedure as a precondition to the
Commission's assertion of jurisdiction over a Sec. 111.70(3)(a)4 claim. Thus,
regardless of whether or not assertion of the Commission's jurisdiction will open a
floodgate of complaint litigation between the parties, Commission law does not
require the Complainant to exhaust the grievance procedure contained in the expired
As a second affirmative defense, Respondents argue that Complainant should
be barred from litigating the merits of its complaint because, after entering into an
hoc agreement to arbitrate Grievance 41-97, Complainant withdrew this
Grievance 41-97, as filed, raises an issue with respect to the District's authority to
switch Wagner's lunch and prep period and to assign Wagner to substitute for Wiser
on April 18, 1997, but does not present any request for payment of substitution pay.
Nor does it reference Mitchell's letter of April 28, 1997, or claim that Wagner has
been disciplined without good cause.
To be sure, the April 28, 1997 Level I response of Principal Mitchell states
that "No violation of the contract has occurred and it should also be pointed out that
Mike Wagner did not substitute so therefore, he can not (sic) be paid as he asked to
be paid." This statement indicates that Mitchell believed that Wagner had made a
claim for substitution pay. However, neither this statement, nor any other record
evidence, establishes that Wagner's claim for substitution pay had been incorporated
into Grievance 41-97.
During a meeting on Grievances 40-97 and 41-97, Association Executive
Director Ennis provided the Board of Education with a written statement of position.
The written statement of position does not present a claim that Wagner be paid
substitute pay for April 18, 1997, nor does it present a claim that Wagner was
disciplined without good cause.
At hearing, the Respondents' Employee Relations Supervisor Keri Paulson,
recalled that, when Ennis presented Grievances 40-97 and 41-97 to the Board of
Education, he discussed the letter which Mitchell sent to Wagner. Since Paulson did
not relate the specifics of this discussion, Paulson's testimony does not provide a
reasonable basis to conclude that the Association had amended either grievance to
include the claim that Mitchell's letter constituted discipline without good cause.
In summary, the evidence fails to establish that Grievance 41-97 included
either a claim that Wagner was entitled to substitution pay or a claim that Wagner was
disciplined without good cause. Assuming arguendo, that the parties had an
agreement to arbitrate Grievance 41-97, neither the existence of such an agreement,
nor Executive Director James Ennis' conduct in withdrawing Grievance 41-97, serves
to bar Complainant from litigating the claims raised in the instant complaint.
According to Respondents, Grievance 41-97 did, or could have, raised the
claims presented in this complaint and, therefore, the complaint should be barred by
res judicata. In Northern States Power Co. v. Bugher, 189 Wis.2d
541, 550, the
Wisconsin Supreme Court adopted the term "claim preclusion" to replace the term
The doctrine of claim preclusion has been discussed in a prior decision
involving the parties. Racine School District, Dec. No. 29184-A (Shaw, 11/97).
In that decision, Examiner Shaw stated as follows:
. . . In Northern States, supra, the Wisconsin Supreme Court held that:
. . . under claim preclusion "a final judgment is conclusive in all
subsequent actions between the same parties [or their privies] as to all
matter which were litigated or which might have been litigated
in the former proceedings.'" (sic) Lindas v. Cady, 183 Wis. 2d 547,
558, 515 N.W. 2d 458, 463 (1994) (quoting DePratt v. West Bend
Mutual Ins. Co., 113 Wis. 2d 306, 310, 334 N.W. 2d 883, 885
(189 Wis. 2d at 550).
. . .
In order for the earlier proceedings to act
as a claim-preclusive
bar in relation to the present suit, the following factors must be
present: (1) an identity between the parties and their privies in the
prior and present suits; (2) an identity between the causes of action in
the two suits; and, (3) a final judgment on the merits in a court of
competent jurisdiction. Id. at 311, 334 N.W. 2d at 885; Pliska
City of Stevens Point, Wisconsin, 823 F.2d 1168, 1172 (7th Cir.
(189 Wis. 2d at 551).
. . .
With regard to the second element, identity between causes of action,
Wisconsin has adopted the "transactional approach." Northern States, supra,
DePratt, supra. In DePratt, the Court cited the following commentary to
Restatement (Second) of Judgements, Sec. 24:
The present trend is to see claim in factual terms and to make
it coterminous with the transaction regardless of the number of
substantive theories, or variant forms of relief flowing from those
theories, that may be available to the plaintiff; regardless of the
number of primary rights that may have been invaded; and regardless
of the variations in the evidence needed to support the theories or
rights. The transaction is the basis of the litigative unit or entity which
may not be split.
(113 Wis. 2d. at 311), cited with approval, Northern States,
189 Wis. 2d at 554.
In Northern States, the Court held:
Thus, "if both suits arise from the same transaction, incident or factual
situation, [claim preclusion] generally will bar the second suit.'"
. . .
. . . Under the transactional approach, regardless of the availability of
various substantive legal theories and the variations in evidence
needed to support the theories, the underlying transaction that is the
basis of the litigation may not be split.
. . .
The third element required for claim preclusion to apply is that
there has been a "final judgement" on the merits in a court of
With respect to the issue of entitlement to substitution pay, the first and
second elements of claim preclusion have been met. However, it is not evident, that
there has been a "final judgment" on the merits in a court of competent jurisdiction.
Therefore, Complainant's claim that Wagner is entitled to substitution pay is not
barred by the doctrine of claims preclusion.
With respect to the issue of whether or not Wagner was disciplined for good
cause, it is evident that the first element has been meet. The transaction giving rise
to Grievance 41-97 is the events of April 18, 1997, but the transaction giving rise to
the claim that Wagner was disciplined without good cause is the letter of April 28,
1997. Moreover, it is not evident that there has been a "final judgement" on the
merits in a court of "competent jurisdiction." Since neither the second, nor the third
element, has been met, Complainant's claim that Wagner was disciplined without good
cause is not barred by the doctrine of claims preclusion.
Respondents argue that Complainant should be barred from litigating the
merits of the complaint because Complainant unilaterally changed the existing terms
of employment by failing to follow the grievance procedure. To address this unilateral
change argument, the Examiner would have to determine whether or not Complainant
committed a prohibited practice. Since the hearing before the Examiner involved only
a complaint of prohibited practices against the Respondents, the Examiner does not
have jurisdiction to determine whether or not the Complainant unilaterally changed
the existing terms of employment by failing to follow the grievance procedure, or
committed any other prohibited practice.
Alleged Violation of Sec. 111.70(3)(a)5, Stats.
Complainant alleges a violation of Sec. 111.70(3)(a)5, Stats., and a
violation of Sec. 111.70(3)(a)1, Stats. Section 111.70(3)(a)5, Stats., makes it a
prohibited practice for a municipal employer:
5. To violate any collective bargaining agreement
previously agreed upon
by the parties with respect to wages, hours and conditions of employment affecting
municipal employes, including an agreement to arbitrate questions arising as to the
meaning or application of the terms of a collective bargaining agreement. . . .
Complainant alleges that the Respondents violated the 1992-1993 collective
bargaining agreement in violation of Sec. 111.70(3)(a)5, Stats., when the
Respondents disciplined Wagner without good cause and did not pay substitution pay
to Wagner for the time that he was in Wiser's fifth hour math class on April 18, 1997.
The parties' 1992-1993 collective bargaining agreement expired in 1993. At
the time of hearing, the parties had not agreed upon a successor agreement.
All of Complainant's allegations involve Respondent conduct which occurred
during a contract hiatus period. Since there was no collective bargaining agreement
in effect, the complained of conduct could not have violated Sec. 111.70(3)(a)5,
Stats. Complainant's Sec. 111.70(3)(a)5 allegations have been dismissed in their
Alleged Violation of Sec. 111.70(3)(a)4, Stats.
Complainant alleges a violation of Sec. 111.70(3)(a)4, Stats., and a derivative
violation of Sec. 111.70(3)(a)1, Stats. Specifically, Complainant alleges that
Respondents unilaterally changed the status quo required to be
maintained during a
contract hiatus period. In Village of Saukville, Dec. No. 28032-B (WERC, 3/96),
the Commission stated that:
It is well settled that, absent a valid defense, a unilateral change
in the status
quo wages, hours or conditions of employment during a contractual hiatus is a
violation of the employer's duty to bargain under the Municipal Employment Relations
Act. Such unilateral changes are tantamount to an outright refusal to bargain about
a mandatory subject of bargaining because they undercut the integrity of the collective
bargaining process in a manner inherently inconsistent with the statutory mandate to
bargain in good faith. 2/ In addition, such an employer unilateral change evidences
a disregard for the role and status of the majority representative which is inherently
inconsistent with good faith bargaining. 3/
2/ City of Brookfield, Dec. No. 19822-C (WERC, 11/84) at 12;
Green County, Dec.
No. 20308-B (WERC, 11/84) at 18-19; and School District of Wisconsin Rapids,
Dec. No. 19084-C (WERC, 3/85) at 14.
3/ School District of Wisconsin Rapids, supra, at
The Commission's definition of the status quo turns on its
consideration of relevant
language from the expired contract as historically applied or as clarified by bargaining
history, if any. Outagamie County, Dec. No. 27861-B (WERC, 8/94) What
constitutes a "practice" as a matter of contract interpretation need not be what
constitutes a "practice" as a matter of interpreting the status quo
District of Plum City, Dec. No. 22264-A (McLaughlin, 10/85), aff'd Dec. No.
22264-B (WERC, 6/87).
Relying upon the language contained in Sec. 5.4 of the expired 1992-1993
collective bargaining agreement, Complainant argues that Respondents have a
quo duty to discipline only for good cause and that Respondents unilaterally
this status quo duty when Respondents disciplined Wagner without
Complainant argues that the letter dated April 28, 1997, is a written reprimand
and, thus, is discipline. Respondents deny that the letter is discipline. According to
Respondents, this letter sets forth Mitchell's opinion of events and recommends
The letter dated April 28, 1997, sets forth Mitchell's view of the events of
April 18, 1997, including the view that Michael Wagner did not substitute during the
fifth period, that Mitchell did not believe Wagner, and that there was insubordination.
The inclusion of such comments, together with Mitchell's statements on April 18,
1997, that Wagner was in trouble and that he should get an Association
representative, gives rise to the inference that the letter is discipline. This inference,
however, is rebutted by the following factors: the letter does not identify itself as
being a written reprimand, or any other form of discipline; the letter specifically states
that Mitchell is recommending that Wagner be disciplined by suspension; the record
fails to establish that Mitchell had identified the letter as discipline; the Respondents
have affirmed that the Respondents do not consider Mitchell's letter to be discipline;
and the disciplinary procedure agreed upon by the parties in Sec. 5 of the expired
collective bargaining agreement recognizes a distinction between written disciplinary
charges and discipline.
The expired 1992-1993 collective bargaining agreement provides as follows:
Any written complaint about a teacher or written material the teacher's
other supervisor deems derogatory shall be promptly called to the teacher's attention.
The teacher may respond; his/her response shall be reviewed by the administrator,
attached to the complaint or written material and included in the teacher's personnel
In light of this provision, the placement of Mitchell's letter of April 28, 1997, in
Wagner's personnel file does not warrant the conclusion that the letter is discipline.
Nor does the placement of the letter in Wagner's personnel file demonstrate that
Respondents have acknowledged the letter to be a written reprimand, or any other
form of discipline.
In summary, Complainant has the burden to prove, by a clear and satisfactory
preponderance of the evidence, that Mitchell's letter of April 28, 1997, is discipline.
Complainant has not done so.
Under the facts of this case, Mitchell's letter of April 28, 1997, is not a
reprimand, nor is it any other form of discipline. Since Wagner was not disciplined,
there is no merit to Complainant's allegation that Respondents violated Sec.
111.70(3)(a)4, Stats., by unilaterally changing the status quo
obligation to discipline
only for good cause.
Relying upon the language of Sec. 10.4.4., and past practice, Complainant
argues that the Respondents unilaterally changed the status quo
which was required
to be maintained during the contract hiatus when it failed to pay Wagner substitution
pay for the time that Wagner was present in Wiser's math class during the fifth hour
on April 18, 1997.
On April 18, 1997, Wagner's normal work schedule included fifth period
and sixth period prep. While Wagner had been instructed to switch his fifth period
lunch and sixth period prep, he did not do so. Wagner ate lunch during fifth period
and arrived in Wiser's fifth hour class some twenty minutes after the start of fifth
period. Within a minute or two of Wagner's arrival, Debbie Thilleman entered the
classroom and told Wagner that Principal Schroeder had told her to cover this
classroom. (T. at p. 49 and 74.) Wagner told Thilleman that he would remain in the
classroom and Thilleman left the classroom. Wagner remained in the classroom for
the remainder of the fifth period.
The contract language relied upon by the Complainant states as follows:
10.4.4 Pay for Substituting During Prep
An elementary or secondary teacher who is assigned to substitute
preparation period shall be compensated at the rate of seventeen cents (17) per minute
for such time spent substituting.
The most reasonable construction of the plain language of Sec. 10.4.4 is that teachers
are assigned substitution duties by District administrative staff. Such a construction
is consistent with the evidence of the parties' past practice. Neither
the language of 10.4.4, nor any other evidence, establishes a status
quo in which a
teacher may assign himself or herself to substitute for another teacher and receive
substitution pay for that assignment.
When Wagner failed to make a timely appearance to perform the fifth hour
substitution duties which he had been assigned by Mitchell, District administrative
staff reassigned those duties to Thilleman. Since Wagner was not assigned to
substitute for Wiser's fifth hour class at the time that he was in the classroom, the
Respondents do not have any status quo obligation to pay
substitution pay to Wagner
for the time that Wagner was present in Wiser's fifth hour math class on April 18,
1997. There is no merit to Complainant's allegation that Respondents violated Sec.
111.70(3)(a)4, Stats., by unilaterally changing the status quo on
Respondents have not violated either Sec. 111.70(3)(a)4, Stats., or
Sec. 111.70(3)(a)5, Stats., as alleged by the Complainant. Thus, there can be no
derivative violation of Sec. 111.70(3)(a)1, Stats. The complaint is dismissed in its
POSITIONS OF THE PARTIES ON
Complainant contends the Examiner erred when she failed to find that
Secs. 111.70(3)(a)4, 5 and 1, Stats.
Complainant initially asserts the Examiner improperly required that
Complainant carry the
burden of proof as to the discipline portion of the complaint. Complainant asserts the
has long held that in complaint proceedings involving discipline, the employer bears the
proving that the discipline did not violate the contractually established standard -- in
this case just
Complainant next alleges that the Examiner erred by concluding that Wagner
had not been
disciplined for his failure to appear for a portion of his substitution duty. The Complainant
the memo which Wagner received clearly constitutes a written reprimand. Had the Examiner
concluded that Wagner had been disciplined, Complainant contends the record establishes
reprimand was not for just cause. Complainant asserts that Wagner simply forgot that he was
substitute during the class in question and thus that discipline was not warranted.
Turning to the issue of compensation for the period of time Wagner was
present in the
classroom, Complainant argues the Examiner incorrectly concluded that Wagner was not
compensation because Respondents rescinded Wagner's assignment when he initially failed to
to the classroom. Complainant alleges that Wagner was assigned to substitute and is entitled
for the period of time he was present in the classroom.
Given the foregoing, Complainant asks that the Examiner be reversed and that
receive the relief requested in the complaint.
Respondents ask that the Examiner's decision be affirmed in all respects.
They argue that the
Examiner properly allocated the burden of proof to Complainant and correctly concluded that
was not disciplined and that Wagner was not entitled to compensation. Should the
conclude that Wagner was disciplined, Respondents assert the record warrants a conclusion
discipline was for just cause.
Respondents reiterate their view that the complaint should be dismissed
without any analysis
of its merits because Complainant failed to exhaust the grievance procedure in the expired
before it filed the instant complaint.
We affirm the Examiner's determination that Respondents did not violate
5 or 1, Stats. We have modified her Conclusion of Law 3 only to incorporate her dismissal
of the Sec.
111.70 (3)(a)1, Stats. alleged violation -- as reflected in her Memorandum.
As to the contention that the Examiner improperly allocated the burden of
proof in this
proceeding, we find her conduct at hearing and her decisional treatment of this issue to be
Complainant correctly notes that in Shell Lake School District, Dec. No. 20024-B
In an unfair labor practice complaint alleging that an employer has violated a
collective bargaining agreement by taking action against an employe, e.g., discipline,
suspension, discharge, etc., where the employer, in defense thereto, alleges that the
'just cause' provision in the collective bargaining agreement permits such action by
the employer, the employer has the burden of establishing, by a clear and satisfactory
preponderance of the evidence, that there was just cause for its action, provided the
Complainant first establishes a prima facie violation of the collective bargaining
agreement involved. 6/
6/ Horicon Joint School District, Dec. No. 13765-A (6/76),
amended and revised
on other grounds, Dec. No. 13765-B (1/78); See also, Stolper Industries, Inc.,
Dec. No 12626-A (10/74); see also Abbotsford Joint School District, Dec. No.
Respondents aptly retort that because the above-noted holding evolved from
alleged violation of contracts which did not provide for arbitration, it is by no means
clear that this holding should apply in a duty to bargain/status quo
case where no
contract was in effect (and thus no contract can be violated) and where, in any event,
the expired contract included an arbitration clause which Respondents have been
willing to utilize in all cases in which a grievance has been filed and cannot be resolved.
Thus, to the extent Complainant is critical of the Examiner for having failed to follow
long-standing precedent, that criticism is totally unwarranted. There is no established
precedent as to whether the above-quoted Shell Lake holding does or does not transfer intact
to duty to bargain complaint cases in which it is alleged that an employer violates the
status quo during
a contract hiatus by disciplining an employe.
More importantly, the necessary premise to any applicability of a Shell Lake
proof allocation is that the employer in fact disciplined the employe. If the Examiner
concluded that no discipline is present, then Shell Lake would not be applicable - even
if it is
otherwise appropriate to transfer its applicability from a violation of contract to a duty to
bargain/status quo case. We turn to the question of whether
discipline was present here.
Earlier herein, we quoted the Examiner's analysis of whether Wagner was
disciplined. As her
analysis indicates, this is a close question. However, on balance, we are persuaded that she
weighed the facts and contractual provisions when she concluded that no discipline was
we affirm her determination in that regard. Having reached this conclusion, we need not and
determine whether a Shell Lake burden of proof allocation would be appropriate. We do
even under Shell Lake, Complainant is obligated to proceed first - just as the Examiner
Complainant to proceed first in this case.
Having determined that there is no discipline present to be measured against
of the status quo, we turn to the question of whether the
status quo created by the expired contract
entitled Wagner to $4.87 for the period of time he was present in the classroom on April 18,
We again find the Examiner's analysis persuasive. Wagner was assigned to substitute for
teacher during the fifth period on April 18, 1997. His supervisor observed Wagner in the
during the first portion of fifth period. Another staff person was then assigned to cover the
happenstance, Wagner thereafter found his way to the room to which he had been assigned
but by then
the Respondents had been forced to cover the class in another manner. Under such
the Examiner correctly concluded that Wagner's assignment was no longer operative and that
not entitled to compensation for the time he chose to remain in the classroom after he arrived
through the period. Thus, this portion of the complaint was also properly dismissed.
Lastly, we acknowledge Respondents' contention that the merits of the
status quo allegations
should not be reached because Complainant should have but did not exhaust the grievance
before filing the instant complaint. In School District No. 6, City Of Greenfield, Dec. No.
14026-B (WERC, 11/77), we held that the grievance procedure in an expired contract is part
status quo during a contract hiatus. We stated:
Unlike an arbitration provision, however, the grievance procedure comes within the
rule that an employer must maintain the status quo of conditions
contained in the
expired agreement. Although utilization of the grievance procedure upon expiration
of the agreement cannot culminate in final and binding arbitration, for the noted
reasons peculiar to the wholly contractual nature of arbitration, the grievance
procedure is the established channel for discussing employe dissatisfactions respecting
the established terms and conditions of employment about which the employer
mandatorily is required to bargain. The grievance procedure, upon expiration,
becomes the vehicle for bargaining over employe dissatisfactions. (footnote omitted)
After contract expiration, the grievance does not concern the employer's contractual
obligations, but rather the employer's duty not to change established terms until it
discharges its duty to bargain about those proposed changes, the grievance procedure
itself is the established mechanism for resolving alleged departures from the terms and
conditions. A contrary holding that the established mechanism for day-to-day dispute
resolution evaporates on contract expiration, would exacerbate tensions in the
employment relationship as the parties seek a successor agreement and, the
Commission is persuaded, would gravely frustrate the overall legislative objective to
secure labor peace.
Reviewing the policy considerations recited in Greenfield, we are persuaded
of the status quo grievance procedure should be required as a
pre-condition to assertion of jurisdiction
over duty to bargain complaints which allege a violation of the
status quo. As these parties and this
case establish, labor peace is poorly served when parties can ignore an existing dispute
mechanism which is part of the status quo and turn to lengthy and
expensive litigation as a matter of
right. Thus, as to all complaints filed after the date of this decision, we will not assert
alleged violations of the status quo unless any applicable grievance
procedure contained in the expired
contract has been utilized and exhausted. 1/ Because this requirement is new and not
by existing precedent [Browne v. WERC 169 Wis.2d 79, 112 (1992)], it is
not appropriate to apply
it to this proceeding and we have not done so. 2/
1/ Because grievance arbitration is not part of the status
quo, See Greenfield, supra, neither
party can compel the other to arbitrate grievances which arise during the contract hiatus.
However, agreement to use arbitration has the potential to provide the parties with a prompt
inexpensive resolution of contract hiatus grievances.
2/ We also acknowledge that Respondents made a claim
preclusion argument to the Examiner
which she rejected. Because we need not reach that issue to decide this case, we make no
comment on whether claim preclusion is applicable herein or whether the Examiner properly
applied the doctrine (assuming its applicability).
Dated at Madison, Wisconsin this 21st day of October, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
A. Henry Hempe, Commissioner
Paul A. Hahn, Commissioner