STATE OF WISCONSIN
IN COURT OF APPEALS
Dodgeland Education Association,
Wisconsin Employment Relations Commission
and Dodgeland School District
[Decision No. 29490-B]
[NOTE: This document was re-keyed by WERC. Original pagination has been
APPEAL from an order of the circuit court for
Dodge County: ANDREW P.
BISSONNETTE, Judge. Affirmed.
Before Roggensack and Deininger, JJ., and William Eich, Reserve Judge.
¶1 DEININGER, J. The Dodgeland Education Association appeals an
order in which
the circuit court affirmed a ruling of the Wisconsin Employment
Relations Commission. The commission determined that the Dodgeland School District
submitted a "qualified economic offer," and therefore that, although the district had a duty to
bargain with the association regarding the economic impact of a change in teachers'
time, the impact issue could not be arbitrated. The association claims that the commission
in concluding that the district had made a "qualified economic offer" because preparation
time is a
"fringe benefit" which must be maintained in order to have a "qualified economic offer."
conclude that we must accord the commission's interpretation of Wis. Stat. §
(1997-98)1 at least due weight deference, and under that standard of review,
we affirm the
¶2 The facts which spawned the present litigation are not in dispute. On
1996, the district and the association entered into a memorandum of understanding regarding
teachers' preparation time. It provided that "absent mutual agreement by the parties to
the number of preparation periods," middle school and high school teachers were to have two
preparation periods per day, and elementary teachers were to have them during art, music
physical education classes and at lunch. The parties further agreed in the memorandum that
current practice as set forth shall continue in effect until June 30, 1997," and that
agreed upon as a practice to continue through June 30, 1997, the Collective Bargaining
Agreement will not reflect the above references to preparation periods."
1 The relevant provisions of Wis. Stat. § 111.70, the
Municipal Employment Relations Act, are
quoted and discussed below. All references to the Wisconsin Statutes are to the 1997-98
¶3 The commission found that it was the district's "general expectation
general practice" that preparation time was to be used for such purposes as: lesson planning,
grading papers, meeting with students, making phone calls to parents, and numerous other
activities auxiliary to a teacher's classroom duties. The commission also found, however,
teacher performing in a satisfactory manner is not subject to discipline if he/she chooses to
accomplish the above tasks at times other than preparation periods and uses preparation
as break time."
¶4 The 1995-97 contract between the district and the association contained
for the compensation of teachers who were "assigned to cover other classes during their
assigned preparation periods." Basically, the compensation specified was the "per period"
provided in the contract for "substitute pay."
¶5 The district notified the association by letter in December 1997 that
Memorandum of Understanding regarding teacher preparation time ended June 30, 1997,
no longer any guarantee of prep time." The letter further advised the association that the
intended "to discontinue the alleged teacher prep time past practice commencing with the
semester." During negotiations for the parties' 1997-99 contract, the association submitted a
"preliminary final offer" which called for the "[c]ontinuation of preparation time
The district's "preliminary final offer" for the 1997-99 contract proposed to "maintain all
benefits and its percentage contribution toward the cost thereof" and to "provide the
increase in salary which Sec. 111.70(1)(nc)2, Stats., allows for the purposes of a qualified
¶6 The district subsequently petitioned the commission for a declaratory
ruling that it
could not be compelled to proceed to binding arbitration regarding either (1) the association's
proposal to continue the preparation time provisions contained in the previous memorandum
understanding, or (2) the terms of its offer for 1997-99 on "economic issues." In
before the commission, the association proposed that, if the district "chooses to establish a
schedule for a teacher which includes less preparation time" than that set forth in the
effective memorandum of understanding, the teacher would be compensated for "work
based on a formula related to his or her "regular teaching salary."
¶7 To better understand the parties' proposals, and their significance to the
under consideration, a brief description of impasse resolution procedures under Wis. Stat.
§ 111.70 and the changes effected by 1993 Act 16 is in order. Prior to the 1993
the parties to a municipal employment collecting bargaining agreement became "deadlocked
respect to any dispute between them over wages, hour and conditions of employment to be
included in a new collective bargaining agreement," either party (or both of them) could
the commission "to initiate compulsory, final and binding arbitration." Wis. Stat.
§ 111.70(4)(cm)6. Such "interest arbitration," however, is available only for
of bargaining," that is, those which are "primarily related" to "wages, hours and conditions
employment," as opposed to those which are primarily related to the formulation or
of public policy, which are deemed "permissive subjects of bargaining." See
City of Beloit v.
WERC, 73 Wis. 2d 43, 54, 242 N.W.2d 231 (1976). Even those
matters which relate primarily to
educational policy, however, may impact on a teacher's "wages, hours
or conditions of employment," and those impacts are mandatorily bargainable and thus
binding interest arbitration. Id.
¶8 Based in part on prior rulings, the commission determined in this case
issue of how much preparation time, if any, a teacher should be allowed during the school
was not a mandatory subject of bargaining.2 The commission also
concluded, however, that the
association's proposal for compensation for reductions in the previously agreed upon
time was a mandatorily bargainable "impact." Thus, as the commission noted, the district
"have had no obligation to proceed to interest arbitration over" the preparation time issue
but "because a preparation time 'impact' proposal is a mandatory subject of bargaining, the
District would have had an obligation to bargain over the 'impact' proposal and could be
compelled [prior to 1993] to proceed to interest arbitration over the inclusion of the 'impact'
proposal in a successor agreement." In the commission's words, "[t]his litigation raises the
question of whether the foregoing allocation of rights and duties continues to be valid under
Stat. § 111.70] as it now exists."
¶9 In 1993, the legislature amended the provisions of Wis. Stat. §
111.70 as they
apply to bargaining units "consisting of school district professional employees."
§ 111.70(4)(cm)5s. Under the revised statute, if a school district makes a
offer," "no economic issues are subject to interest arbitration."
Id. To be a "qualified economic
offer," a proposal must "maintain the percentage contribution by [the district] to the
existing fringe benefit costs and maintain all fringe benefits provided to the
2 The association makes an alternative argument challenging this
determination, and we discuss
the matter further below.
employes in a collective bargaining unit, as such contribution and benefits existed on
day prior to expiration of any previous collective bargaining agreement between the parties."
111.70(1)(nc)1.a. Additionally, the district must propose to provide an average salary
which meets or exceeds certain percentages specified in the statute. See
§ 111.70(1)(nc). Either
a district or a bargaining unit may request the commission to determine whether the district
submitted a qualified economic offer" which would preclude compulsory interest arbitration
economic issues. See § 111.70(4)(cm)5s. The district did so in this
¶10 The association argued before the commission that it should declare the
preparation time provisions of the parties' previous memorandum of understanding to be a
benefit," which the district was obligated to maintain in order to have a valid "qualified
offer." The commission concluded, however, that "because the preparation time
a permissive subject of bargaining, it is not a 'fringe benefit' which the District must
maintain as a
part of its qualified economic offer." The commission further concluded that the
"impact proposal" (regarding compensation for reduced preparation time) was an "economic
issue," see Wis. Stat. § 111.70(1)(dm), which must be the subject of
bargaining, but cannot be
arbitrated in light of the district's qualified economic offer. One commissioner dissented,
concluding that the legislature intended to adopt an existing judicial definition for "fringe
in the qualified economic offer amendments, and that under that definition, the district must
maintain the status quo regarding teacher preparation time for it to have a qualified economic
¶11 The association sought review of the commission's determination in
The court affirmed the commission's decision, and the association appeals.
¶12 Our review is of the commission's decision, not that of the trial court.
Gordon v. State Med. Examining Bd., 225 Wis. 2d 552, 556,
593 N.W.2d 481 (Ct. App. 1999),
review denied, 228 Wis. 2d 168, 599 N.W.2d 409 (Wis. June 7, 1999).
The initial dispute in this
appeal, as in many involving our review of statutory interpretations by administrative
over the level of deference we should accord the commission's conclusion that teacher
preparation time is not a "fringe benefit" within the meaning of Wis. Stat.
When reviewing an agency's legal conclusion, a court may apply one of three levels of
to the agency's interpretation of the law:
First, if the administrative agency's experience, technical competence, and
specialized knowledge aid the agency in its interpretation and application
of the [law], the agency determination is entitled to "great weight." The
second level of review provides that if the agency decision is "very nearly"
one of first impression it is entitled to "due weight" or "great bearing."
The lowest level of review, the de novo standard, is applied where it is
clear from the lack of agency precedent that the case is one of first
impression for the agency and the agency lacks special expertise or
experience in determining the question presented.
Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485
N.W.2d 256 (1992) (citations omitted).
¶13 The association argues that our review should be de novo because the
has not previously been called upon to define "fringe benefits" within the context of
whether a qualified economic offer has been made
under the "recent" amendments to § 111.70. In addition, the association claims
commission's interpretation is in conflict with a judicial definition of "fringe benefits," and
there are "broader reasons" for us to give little if any weight to the commission's
given that, in the association's view, the commission "failed to consider the extraordinarily
damaging impact of its interpretation on the union and its bargaining rights."
See West Bend
Educ. Ass'n v. WERC, 121 Wis. 2d 1, 14-15, 357 N.W.2d 534 (1984).
¶14 The commission and the district both respond that the commission's
that preparation time is not a "fringe benefit" within the meaning of the qualified economic
provision is entitled to great weight deference from this court. In support, they point to the
commission's experience and specialized knowledge in administering Wis. Stat. §
general, and the qualified economic offer provisions in particular, to the fact that the
has enacted rules regarding the implementation of the qualified economic offer provisions;
the need for uniformity and consistency which deference to the commission's interpretation
application of the qualified economic offer legislation will promote. Both respondents
acknowledge, however, that the dispute over the meaning of the term "fringe benefits" in the
present context is "very nearly" an issue of first impression, and argue in the alternative that
commission's ruling is entitled to at least "due weight" deference. We agree with the latter
¶15 There can be no question that the commission for over two decades
has, at the
legislature's direction, administered the statutes relating to municipal employment relations.
since the enactment of the qualified economic offer amendments in 1993, it has engaged in
rulemaking and issued declaratory rulings interpreting and applying the new provisions. The
commission has consistently
determined in prior rulings that teacher preparation time is primarily a matter of
and management, and is thus not a mandatory subject of bargaining. Thus, as we discuss
we have little difficulty granting great weight deference to the commission's conclusion that,
the present facts, the district had a duty to bargain only the impact of its decision to curtail
amount of preparation time from that previously allowed in its memorandum of
with the association, but not the preparation time allotment itself. See
West Bend Educ. Ass'n,
121 Wis. 2d at 13.
¶16 If we were to likewise grant great weight to the commission's
interpretation of the
term "fringe benefits" in the qualified economic offer statute, we would accept its
so long as its interpretation is "reasonable," even if the association's interpretation were more
reasonable. See Ufe Inc. v. LIRC,
201 Wis. 2d 274, 287, 548 N.W.2d 57 (1996). Due weight
deference, however, involves only the breaking of a tie between competing reasonable
interpretations in favor of the agency's position. Id.
¶17 We are satisfied that the commission has considerable expertise in
fringe benefit issues in other contexts, and that it has gained experience in interpreting many
aspects of the qualified economic offer provisions, through rulemaking and otherwise.
Racine Educ. Ass'n v WERC, 2000 WI App 149,
¶20, 238 Wis. 2d 33, 616 N.W.2d 504, review
denied, 2000 WI 121 (Wis. Oct. 17, 2000). The commission acknowledges,
however, that it "has
not been presented with numerous disputes involving Act 16's QEO amendments since the
went into effect in 1993." The present litigation presented the commission with its first
opportunity to consider whether a district's unilateral reduction of teacher preparation time
periods precludes it from having a qualified economic offer under Wis. Stat.
No longstanding commission interpretation is at
stake, and the question before us is thus "very nearly" one of first impression. Under
circumstances, we are content to affirm the commission's interpretation if it is reasonable,
provided that an alternative interpretation is not more reasonable. See
id. at ¶19.
¶18 We now apply this standard to the dispute at hand. The commission's
that teacher preparation time is not a "fringe benefit" within the meaning of Wis. Stat.
111.70(1)(nc)1.a is largely based on the following syllogism: All "fringe benefits" are
subjects of bargaining; teacher preparation time is not a mandatory subject of bargaining;
therefore, teacher preparation time cannot be a "fringe benefit." The commission noted in its
decision that in its rules implementing the qualified economic offer amendments, the
examples of "fringe benefits" include no permissive subjects of bargaining, but do include
numerous mandatory subjects, such as retirement benefits and various forms of group
The commission also surveyed its decisions interpreting the statute in question, other
references to "fringe benefits," and case law, and concluded that the term universally
only mandatory subjects of bargaining, such as holidays, mileage reimbursement, sick pay,
convention days, and the like.
¶19 The commission also noted that including a permissive subject of
as preparation time, in the definition of "fringe benefit," would require the district to
existing educational policies or forfeit its opportunity to have a "qualified economic offer."
concluded that this would represent "the loss of employer control over matters primarily
to educational policy," and that there was no evidence in the legislative history of the
economic offer amendments of "such a significant concept." Additionally, the commission
that requiring the district to bargain the impact
of any reduction in teacher preparation time, albeit without recourse to binding
not "meaningless," given that (1) prior to 1978, the collective bargaining statute for
non-protective employees did not provide for interest arbitration; and (2) the parties had
the preparation time memorandum in 1996, even though it was a permissive subject of
and even though the qualified economic offer legislation was in effect.
¶20 We conclude that the commission's interpretation that "fringe benefits,"
as used in
Wis. Stat. § 111.70(1)(nc)1.a, does not include teacher preparation time is reasonable.
agency's interpretation is reasonable if it does not directly contravene the words of the
it is not clearly contrary to legislative intent, and if it has a rational basis. See
Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 N.W.2d 98 (1995). The
meets these criteria. The legislature has not defined "fringe benefits" in § 111.70(1),
in the history of the legislation provided by the parties suggests an intent to include
subjects of bargaining within the term. We also deem the commission's analysis to be
based on the historical treatment of fringe benefits of bargaining, as contrasted to teacher
preparation time, which has traditionally been deemed a permissive subject.
¶21 We turn now to the association's interpretation to see if it presents a
reasonable alternative tot hat of the commission. The association first points out that this
has established the definition of a "fringe benefit" as "an employment benefit granted by an
employer that involves a money cost without affecting basic wage rates."
Attorneys Ass'n v. Brown County, 169 Wis. 2d 737, 742-43, N.W.2d
312 (Ct. App. 1992). It
notes further that our Brown County opinion was
published prior to the enactment of the
economic offer provisions, and thus, the legislature must be presumed to have
knowledge of "the
legal definition" of fringe benefits when it used the term in the new provisions. The
further claims that the provision of preparation time to teachers meets the
definition because preparation time "is of substantial value" to teachers, and it represents a
to the district. Finally, given the longstanding distinction between mandatory and permissive
subjects of bargaining, the association agrees with the dissenting commissioner, who notes
the legislature wished to limit the "fringe benefits" which must be maintained in order to
qualified economic offer to benefits that are mandatory subjects of bargaining, it could have
said so. According to the association, because the legislature chose instead to focus on
"economic" and "non-economic" issues in the qualified economic offer provisions, the
commission "had no authority" to read in a mandatory-subject-of-bargaining limitation.
¶22 The association also makes several arguments grounded in what it sees
purpose and intent of the legislature, as well as the public policy at stake, in the qualified
economic offer provisions. It notes that the net effect of the commission's ruling in this case
means that the association members will be required to work longer hours for the same
compensation because the district continues to expect teachers to perform all of the duties
previously accomplished during preparation time. The association argues that the legislature
expressly conditioned a district's ability to avoid binding interest arbitration on its
the status quo for employee benefits, and that to permit the district to "gut the existing
arrangements between the parties" and still avoid arbitration, violates both the language of
statute and the intent of the legislature.
¶23 The association points out that the commission has previously
"importance of interest arbitration to meaningful bargaining,"
given its members' lack of right to strike. It thus argues that the commission's present
interpretation, in the words of the dissenting commissioner, "is simply unfair [T]eachers are
peremptorily stripped of their previous legal right to arbitrate the economic impact of the loss
their benefit without any compensatory recourse .. [which is] in total disharmony with
legislative efforts to create a balanced quid pro quo." Finally, the
association asserts that its
interpretation does not hamstring a school board's ability to set educational policy--the
may still choose to reduce the number of preparation periods it previously provided to
but if it does so, it may not avail itself of the qualified economic offer amendments to avoid
binding arbitration on economic issues in the event of a bargaining impasse.
¶24 We conclude that the association's proffered interpretation is also
focuses on the language of the statute, arguably relevant case law, and colorable claims as to
legislative purpose and intent behind the qualified economic offer provisions. We cannot
conclude, however, that an interpretation that the legislature intended to require that, in order
have a qualified economic offer, a school district must maintain the status quo on matters
those fringe benefits that have traditionally been deemed mandatory subjects of bargaining, is
more reasonable than the commission's conclusion that it did not so intend.
¶25 First, we do not agree with the association that our definition of "fringe
in Brown County Attorneys Ass'n v. Brown County,
169 Wis. 2d 737, 487 N.W.2d 312 (Ct.
App. 1992), necessarily informs us of the legislature's intent when it used the term in Wis.
§ 111.70(1)(nc). The collective bargaining rights of municipal employees under
§ 111.70 were
not before us in Brown County, and the statute we
construed was one of very limited scope
dealing with the transition of prosecutors from county to state employment
in 1990. Wisconsin Stat. § 978.12(6) provides that prosecutors making the
transition to state
employment could opt to remain covered by a county's fringe benefit plan in lieu of state
Id.; Brown County, 169 Wis. 2d at 740. We reversed
a circuit court declaratory judgment that
legal education seminar fees, bar dues, mileage reimbursement, beeper pay, and a casual
day/disability plan were not fringe benefits within the meaning of §
978.12(6). Brown County,
169 Wis. 2d at 740. In doing so, we applied a dictionary definition of the term ('"[A]n
employment benefit granted by an employer that involves a money cost without affecting
wage rates,'" see id. at 742-43 (citation omitted)) and
concluded that each of the disputed items
came within it. Although we accept the association's assertion that we must presume the
legislature is aware of judicial interpretations of a statute when amending
that statute, see State v.
Rosenburg, 208 Wis. 2d 191, 196 ¶10, 560 N.W.2d 266 (1997),
we reject the notion that the
same presumption applies with respect to the judicial interpretation of a different statute in a
context not relevant to the new legislation under consideration.
¶26 Even if our Brown County
definition were controlling, however, we are not
convinced that "teacher preparation time" would necessarily come within it. We note first,
the commission in its decision, that the specific items under consideration in
(reimbursement for legal education, bar dues, and mileage; beeper pay; a casual
plan) all primarily relate to wages, hours and conditions of employment, and would thus be
mandatory subjects of bargaining. We concluded in our Brown
County opinion that all "fringe
benefits are essentially 'compensation' for work done."
Id. at 743. It makes little sense to talk
in terms of teacher preparation time as being "compensation for work done." As the district
notes, at issue in Brown County was whether the county's past practice of paying prosecutors
being on call
during evenings, weekends and holidays was a "fringe benefit," as opposed to being
part of their
"basic wage rate." See id. at 742-43. The fringe
benefit question did not involve whether the
county (or the state) could require prosecutors to be on call, or how much on-call time could
demanded of them, which are closer analogues to the present dispute over the amount of
preparation time the district will allow during a class day.3
¶27 Finally, we acknowledge the important and significant role that binding
arbitration has played in the resolution of municipal employment disputes in Wisconsin over
past two decades. The fact remains, however, that in the 1993 amendments, the legislature
sought to limit the occasions that an employer of "school district professional employees" can
required to submit contract disputes to interest arbitration. We conclude that it is not more
reasonable to conclude that in so doing, the legislature intended to require an employer to
maintain the status quo in matters not subject to mandatory bargaining, than to conclude, as
the commission, that the legislature's fringe benefit maintenance requirement extends only to
matters traditionally subject to mandatory bargaining. If it is true, as the association argues,
the determination at issue involves significant policy judgments relating to the implementation
administration of the qualified economic offer amendments to Wis. Stat. § 111.70, that
is all the
more reason for us to defer to the commission's interpretation. See Ufe
Inc., 201 Wis. 2d at 286
("The deference allowed an administrative agency under due
3 The commission was careful to distinguish a policy decision
regarding the amount of preparation
time to be allowed, which it concluded was not a "fringe benefit," from the
impact of the decision on
teachers, which the commission expressly held was mandatorily bargainable. Because the
was an "economic issue," however, the commission determined that it was not subject to
in light of the district's qualified economic offer. See Wis. Stat.
weight is not so much based upon its knowledge or skill as it is on the fact that the
charged the agency with the enforcement of the statute in question.").
¶28 The association argues in the alternative that, if we conclude the
not err in determining that an item must a be mandatory subject of bargaining in order to be
"fringe benefit" under Wis. Stat. § 111.70(1)(nc), we must then conclude that the
erred when it determined that the teacher preparation time at issue in the present case was
mandatory subject of bargaining. We disagree.
¶29 The commission noted that it has consistently ruled that the amount and
of teacher preparation time is a permissive subject of bargaining.4 It then
relied on the testimony
of the district's superintendent as support for its conclusion that
the amount of preparation time provided to teachers during the workday
directly impacts on fundamental educational policy issues such as:
(1) how many and what types of classes can be offered to students;
(2) how will existing school buildings be used; and (3) how should the
student day be structured.
As we have noted, the commission's determination that a particular item is not a
subject of bargaining is generally entitled to great weight deference from a reviewing court.
Blackhawk Teachers' Fed'n v. WERC, 109 Wis. 2d
415, 421-24, 326 N.W.2d 247 (Ct. App.
1982). The commission's determination in this case that the teacher preparation time at issue
permissive subject of bargaining
4 See Racine Unified Sch.
Dist., Dec. No. 28859-B (WERC, 3/98); Milwaukee
Bd. of Sch.
Dirs., Dec. No. 20093-A (WERC, 2/83); Oak Creek
Sch. Dist., Dec. No. 11827-D (WERC, 9/74).
satisfies all four of the criteria identified by the supreme court for granting great
to an agency's legal ruling. See Harnischfeger Corp.,
196 Wis. 2d at 660 ("(1)[T]he agency was
charged by the legislature with the duty of administering the statute; (2) the
the agency is one of long-standing; (3) the agency employed its expertise or specialized
knowledge in forming the interpretation; and (4) the agency's interpretation will provide
uniformity and consistency in the application of the statute."). The association does not
argue otherwise, and in fact concedes that "there may be greater deference due" the
determination regarding whether preparation time is a mandatory or permissive subject of
bargaining than is due its interpretation of "fringe benefits."
¶30 The association notes, however, that the commission has also
determined employee "break periods" to be a mandatory subject of bargaining. It argues
the present record, teacher break periods are the real issue, not the structuring of a student's
The association points to testimony from the district's superintendent that teachers may use
preparation time any way they choose, including spending time in the teacher's lounge, and
testimony that reducing teacher preparation periods represents a cost savings to the district
because it reduces the need to hire additional staff to cover time with students. Thus, in the
association's view, preparation time is in reality "break time," that its reduction directly
hours a teacher must work, and that the issue is therefore primarily related to hours and
conditions of employment. As a mandatory subject of bargaining, the teacher preparation
memorandum of understanding would thus, according to the association, meet the
test for "fringe benefit" which the district must maintain in order for it to have a qualified
economic offer under Wis. Stat. § 111.70(1)(nc).
¶31 Under the great weight deference standard of review, we will uphold
commission's determination that the teacher preparation time at issue is not a mandatory
of bargaining if it has "any rational basis." See Blackhawk Teachers'
Fed'n, 109 Wis. 2d at 424.
The commission's ruling, if it is reasonable, must prevail regardless of whether the
proposes an alternative that is more reasonable. See Ufe
Inc., 201 Wis. 2d at 286-87. We are
satisfied that the commission's determination that the teacher preparation time at issue was
mandatorily bargainable has a rational basis.
¶32 First, the commission's present determination is consistent with its
treatment of the
issue in rulings spanning the past twenty-five years. More important, however, although the
record establishes that teachers may exercise considerable discretion over how they choose to
utilize preparation time, and further that maintaining the practices set forth in the
has cost implications for the district, the district also presented testimony that the number of
preparation periods in a class day has significant impacts on the number of courses the
may offer, its provision of library and guidance services, and the possible restructuring of a
student's day. In short, we conclude that the commission engaged in a proper balancing of
impacts of teacher preparation time on educational policy, as opposed to its impact on
hours and conditions of employment; and reached a rationally-based conclusion that the
outweighed the latter.
¶33 For the reasons discussed above, we affirm the circuit court's order.
By the Court. -- Order affirmed.
Recommended for publication in the official reports.