Appeal No. 01-1671
Cir. Ct. No. 00CV49
STATE OF WISCONSIN
IN COURT OF APPEALS
Local 617 American Federation of State,
County and Municipal Employees, AFL-CIO,
Wisconsin Employment Relations Commission and
[Decision No. 29647-E]
[NOTE: This document was re-keyed by WERC. Original pagination has been
APPEAL from an order of the circuit court for Taylor County: DOUGLAS T. FOX,
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1 PER CURIAM. Local 617, AFSCME, AFL-CIO, appeals an order
affirming a decision
of the Wisconsin Employment Relations Commission. The commission found that Taylor
County did not
alter the status quo by requiring its highway department employees to work a five,
rather than a four, ten-hour-per-day workweek during the summer of 1999. Local 617
that a four, ten-hour-per-day workweek was the status quo after the 1996-98 collective
bargaining agreement expired. Therefore, according to Local 617, the County violated the
Municipal Employment Relations Act (MERA). We conclude that the commission could
reasonably find that a five, eight-hour-per-day workweek was the status quo during the
of 1999. Therefore, we affirm the order.
¶2 Local 617 represents employees of the highway department. Local 617
and the County were parties to a series
of collective bargaining agreements. The agreement for the period January 1, 1996, through
December 31, 1998,
contained an addendum that provided in pertinent part:
RE: TEN HOUR, FOUR DAY WORKWEEK
1) The parties agree that in 1996, 1997, and 1998 beginning
Memorial Day and continuing through the Friday preceding Labor
Day, the regular work week shall be forty (40) hours, and the
regular work day shall be ten (10) hours per day, Monday through
Thursday, except for two (2) patrolmen whose regular work day
schedule be ten (10) hours per day, Tuesday through Friday.
6) The ten hour day, four day week work period will be scheduled in 1996-1998
on the same basis as in 1990, unless either party notifies the other party, in
writing, prior to January 1, 1997 or January 1, 1998, that it wishes to discontinue
The addendum was first added to the 1988-89 collective bargaining agreement and was
in each successor contract with the dates updated to coincide with the period of the
¶3 In 1998, the parties commenced negotiations for an agreement to
succeed the 1996-98
agreement. In January 1999, Local 617 filed a petition for interest arbitration pursuant to
Wis. Stat. §
111.70(4)(cm)6. On April 1, the parties met with a commission investigator who attempted
to mediate the dispute.
At the mediation, the parties bargained over the modified work schedule. The County
offered to include the
addendum in the successor agreement if Local 617 was willing to make concessions in
existing leave of absence
provisions. Local 617 rejected this proposal and the parties were unable to reach an
agreement. Immediately after
the mediation session ended, the County eliminated the four, ten-hour-per-day workweek for
the summer of 1999.
¶4 Subsequently, the parties began to provide the commission's
investigator with their respective
final proposals for submission to an interest arbitrator. Local 617 attempted to negotiate the
addendum into the
body of the contract. However, neither the County's nor Local 617's final proposal
contained an offer that the
addendum be eliminated.1
¶5 On April 26, 1999, Local 617 fileda prohibited
practices complaint with the commission under
MERA. First, Local 617 alleged that the County altered the status quo by requiring highway
employees to work a five, eight-hour-per-day workweek rather than a four, ten-hour-per-day
workweek during the
summer of 1999, thereby committing a prohibited practice by refusing to bargain with Local
617. Second, Local
617 alleged the County altered the work schedule as a result of its hostility toward Local
1 Local 617's final proposal was selected by the arbitrator in an
April 26, 2000, interest arbitration award.
Thus, the parties' 1999-2001 contract does not contain the addendum.
¶6 A hearing was held before an examiner. The examiner
concluded that: (1) the
County altered the status quo when it changed the summer work schedule contrary to the
addendum; and (2) the County's decision to change the summer work schedule was
part, by hostility toward Local 617's protected, concerted activity. The examiner ordered the
County to pay the highway department employees eight hours at time and one-half for each
worked in the summer of 1999.
¶7 The County petitioned the commission for administrative review of the
decision and order. On June 12, 2000, the commission entered its own decision and order.
commission reversed the examiner's decision with respect to the status quo issue and the
of the order requiring the County to pay the employees compensation for the change in the
schedule in 1999. The commission concluded that the addendum was not part of the status
the County was obligated to maintain during the contract hiatus.
¶8 In reaching its decision, the commission relied on the language of the
itself. First the commission looked to the phrase, "The parties agree that in 1996, 1997,
and determined that the language on its face indicated that the addendum had no application
beyond 1998. Second, the commission relied on the last part of the addendum and concluded
if the addendum was to be part of the County's status quo obligations for the summer of
addendum would have included the phrase "or January 1, 1999."
¶9 Next, the commission found that the bargaining history between the
County and Local
617 was inconclusive. Finally, the commission found that there was no evidence of past
help in the analysis because this was the first hiatus to occur since the inception of an
¶10 Local 617 petitioned for review in circuit court. The court
STANDARD OF REVIEW
¶11 We review the commission's decision, not that of the circuit court,
Trucking, Inc. v. DILHR, 102 Wis. 2d 256, 260, 306 N.W.2d 79 (Ct.
App. 1981). We must
affirm the commission's determination as long as a reasonable fact finder could have reached
same determination, even if other, equally reasonable interpretations could be drawn from
same record. Barnes v. DNR, 178
Wis. 2d 290, 307, 506 N.W.2d 155 (Ct. App. 1996). The
commission's status quo determination under MERA is entitled to great weight.
County v. WERC, 187 Wis. 2d 647, 651-55, 523 N.W.2d
172 (Ct. App. 1994).
¶12 An employer has a duty under MERA to maintain the status quo with
mandatory subjects of bargaining during contract negotiations.
Id. at 654. Any unilateral change
in employment conditions constitutes a refusal to bargain collectively and an interference
right of municipal employees to bargain collectively. Id.
The status quo is determined by
examining three factors: (1) the contractual language from the expired collective bargaining
agreement; (2) bargaining history; and (3) past practices of the parties.
Id. at 655-56.
¶13 The issue here is whether the County changed the status quo when it
highway department employees to work a five, eight-hour-per-day workweek rather than a
ten-hour-per-day workweek during the summer of
1999. Local 617 and the County reach opposite conclusions when examining the
record in light
of the three factors.2
I. The Contractual Language
¶14 Local 617 argues that the commission's reading of the contractual
erroneous. Local 617 adopts the examiner's rationale and contends that, like the collective
bargaining agreement, the addendum did not expire at the end of the last year stated in the
addendum. Local 617 further contends that the addendum does not contain a "sunset
although the parties knew how to use that type of provision because one was contained in a
of understanding appended to the 1988-89 agreement.3 Finally, Local 617
asserts that the
commission's status quo determination is inconsistent with its previous decisions in
Brookfield Employes Union Local 20 v. City of Brookfield,
No. 19822-C (WERC, Nov. 1984),
and Chequamegon United Teachers v.
Washburn Pub. Schs.,
No. 28941-B (WERC June
¶15 The commission began its analysis by examining the contractual
language from the expired
collective bargaining agreement. It noted that the bargaining agreement expressly provided
five, eight-hour-per-day workweek. By comparison, the commission noted that the
providing a four, ten hour-per-day workweek in the summer began with the language, "The
2 Local 617 additionally argues that the examiner's remedy must be
reinstated. Because we conclude that
the County did not change the status quo, we need not address this argument. See
Sweet v. Berge, 113 Wis. 2d 61,
67, 334 N.W.2d 559 (Ct. App. 1983).
3 At nearly the same time as the parties signed the summer
work hours addendum affixed to the 1988-89
agreement, the parties signed another side letter. Paragraph 4 of the letter stated: "Both
parties agree that this
Letter of Understanding sunsets on December 31, 1989, unless otherwise extended by mutual
agree that in 1996, 1997, and 1998 ." In addition, the addendum expressly provided
four, ten-hour-per-day workweek "will be scheduled in 1996-1998 on the same basis as in
unless either party notifies the other party, in writing, prior to January 1, 1997 or January 1,
that it wishes to discontinue the schedule." The commission observed that the addendum did
provide for the notice of discontinuance on January 1, 1999, and concluded that in the
that language, it is less likely that the addendum was to be part of the County's status quo
obligations for the summer of 1999. Based upon the specific language of the addendum, the
commission concluded that a four, ten-hour-per-day workweek was not part of the status quo.
¶16 We note that the 1996-1998 collective bargaining agreement had a
stating that the agreement would be in full force and effect from January 1, 1996, through
December 31, 1998. If the agreement had a single provision dealing with hours of work
summer months, those terms clearly would constitute the status quo for periods of contract
hiatus. However, the agreement provided for a five, eight-hour-per-day workweek, while
addendum provided for a four, ten-hour per day workweek during the summer months.
addendum had specific language identifying the years in which it would apply, and since the
agreement contained a provision providing for a five, eight-hour-per-day workweek, we
that the commission could reasonably read the contractual language to conclude that the
quo required a five, eight-hour-per-day workweek.
¶17 Local 617 argues that the parties' intent not to "sunset" the addendum
established by the deliberate use of that term in a side letter to the 1988-89 agreement.
the use of this term in the 1988-89 agreement does
not compel the conclusion that the workweek specified in the addendum necessarily
¶18 In City of Brookfield, the
commission ruled that during a contract hiatus, the
employer lawfully reverted from a work schedule specified in a side agreement to the work
schedule specified in an expired contract. Id. at 2-3.
The side agreement specifically provided
that the work schedule constituted summer hours for a "trial period" that ended on a
date. Id. at 5.
¶19 Had the addendum in this case contained similar language as the side
City of Brookfield, it would have been easier for the
commission to conclude that the language of
the expired 1996-1998 agreement constituted the status quo for the summer of 1999.
the absence of that language does not require the commission to reach a contrary result.
¶20 In Washburn Public Schools, the
contract at issue stated that the employer would
pay for health insurance premiums for all eligible employees "for the years 1994-95 and
Id. at 4-5. The commission concluded that the status
quo required the employer to continue to
pay the premiums. However, the commission observed:
The practice of the parties is the decisive evidence in this dispute.
If we had only the language of the expired agreement to consider,
we would reasonably conclude that the use of specific years in the
contract creates a status quo which freezes the Respondent's
premium payment obligations at a monthly level no higher than that
in effect when the contract expires. But we have more than the
language to consider. The payment of the premium increases which
occurred after the expiration of all three contracts with "specific
year" health insurance premium language speaks far louder
regarding the status quo than does the expired contract language on
Id. at 8.
¶21 Washburn Public Schools
supports the commission's position that the use of
specific years in a contract may reasonably be relied upon in determining that the status quo
not require the employer to continue a practice as part of the status quo. Further, the
in that case noted that the examiner had concluded that "on its face, the language could
reasonably be interpreted as supporting either party's position in the litigation."
Id. at 3. Here,
the language in the addendum can reasonably be interpreted as supporting both the position
Local 617 and the commission. Therefore, the commission's interpretation of the contract
language is reasonable. Jefferson County, 187 Wis.
2d at 651-53.
II. The Parties' Bargaining History
¶22 Local 617 challenges the commission's conclusion that the bargaining
evidence was mixed or inconclusive. Local 617 argues that the commission's conclusion that
addendum automatically expired is inconsistent with the fact that neither party had believed it
necessary to mention the addendum in prior negotiations in order to continue its existence.
¶23 However, during the mediation on April 1, 1999, the County proposed
the addendum in the contract in return for concessions by Local 617. Following the
Local 617 attempted to negotiate the terms of the addendum into the body of the contract.
Further, when the parties exchanged final proposals for submission to an interest arbitrator,
the County had already reverted back to a five, eight-hour-per-day workweek, neither the
nor Local 617 proposed that the addendum be eliminated. We conclude
4 As noted earlier, the parties' 1999-2001 contract does not contain
that the commission could reasonably interpret the County's proposal at the mediation
failure to propose elimination of the addendum as evidence that the terms of the addendum
not part of the status quo.
III. The Parties' Past Practice
¶24 The commission found that since this was the first contract hiatus to
the inception of the addendum, "there is no evidence of past practice to help us in our
analysis." Local 617 argues that the relevant past practice would be the manner in which the
parties observed the summer work schedule during those summers in which no addendum
place. Local 617 contends the evidence does not support the commission's conclusion and
there was in fact a previous contract hiatus.
¶25 However, Local 617 did not make this argument before the examiner or
commission. In fact, after the examiner specifically found that past practice was not
because the parties always had reached agreement before Memorial Day and the addendum
applied, Local 617 never intimated that the examiner's finding was incorrect.
¶26 We will not consider issues beyond those that were properly presented
Goranson v. DILHR, 94 Wis. 2d 537, 545, 289
N.W.2d 270 (1980). Here, the circuit court properly
refused to consider Local 617's past practice argument because Local 617 did not raise the
the administrative proceeding before the commission. We must do likewise. Based upon the
the commission reasonably could conclude that this was the first contract hiatus to occur
inception of the addendum, and that there was no past practice of the parties that would be
to determining the status quo.
By the Court. --Order affirmed.
This opinion will not be published. See Wis. Stat. Rule