STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
In the Matter of the Motion of
WEST CENTRAL EDUCATION
Requesting a Review of Implementation Pursuant to ERC 33.10(6)
Involving a Dispute Between the Association
RIVER FALLS SCHOOL DISTRICT
Decision No. 30563
Attorney Barry Forbes, Staff Counsel, Wisconsin Association of
School Boards, Inc., 122 West Washington Avenue, Room 500, Madison, Wisconsin 53703,
appearing on behalf of River Falls School District.
Mr. Brett J. Pickerign, Executive Director, West Central
Education Association, 105 21st Street, North, Menomonie, Wisconsin 54751, appearing on
behalf of West Central Education Association.
FINDINGS OF FACT, CONCLUSIONS OF LAW
On July 19, 2002, the West Central Education Association filed a motion to review
implementation with the Wisconsin Employment Relations Commission pursuant to
The motion asserts that the River Falls School District will be improperly implementing a
economic offer by failing to maintain a retirement fringe benefit that was in effect on the
90th day prior
to the expiration of the parties' 1999-2001 bargaining agreement. The District asserts that it
obligation to maintain the fringe benefit in question.
On September 23, 2002, the parties filed a stipulation of facts.
Dec. No. 30563
Dec. No. 30563
The parties thereafter filed written argument -- the last of which
was received December 23,
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Having reviewed the record and being fully advised in the premises, the
and issues the following
FINDINGS OF FACT
1. The River Falls School District, herein the District, is a municipal employer
principal offices in River Falls, Wisconsin.
2. The West Central Education Association, herein the Association, is a labor
organization serving as the exclusive collective bargaining representative of certain school
professional employees of the District.
3. The District and the Association were parties to an August 15, 1999-August
collective bargaining agreement that included the following Letter of Agreement:
LETTER OF AGREEMENT
This Letter of Agreement entered into between River Falls Board
of Education (hereinafter
referred to as the School District) and the West Central Education Association-River Falls
(hereinafter referred to as the Association) as follows:
1. The School District and the
Association are parties to a two-year collective bargaining
agreement, covering the period August 15, 1999 through August 14, 2001 bearing the same
date as this Letter of Agreement.
2. Among other things, the
collective bargaining agreement contains a severance grant provision
as Article VIII.
3. The parties to the collective
bargaining agreement have agreed to this Letter of Agreement
to provide a window period of enhancement in the provisions of Article VIII to encourage
retirement for eligible employees prior to the expiration of the collective bargaining
covering the period August 15, 1999 through August 14, 2001. The enhancements as agreed
to by the parties are as follows:
Dec. No. 30563
A. During the window period as provided in
this Letter of Agreement, Article VIII,
Paragraph A, shall be modified to reduce the service requirement from twenty-five
(25) years of service to fifteen (15) years of service and the calculation related to the
grant shall be reduced from 75% of the employee's daily rate to 50% of the
employee's daily rate at the time of retirement and the grant for which the employee
is eligible as provided herein shall be paid out over a three-year period in equal annual
B. The age requirement
of 57 as referred to in Article VIII, Paragraph B.2 shall be
reduced to 55, and the limitation of sixty (60) months shall not apply to employees
who retire during the window period as outlined in this Letter of Agreement. Such
an employee shall be eligible for the benefit until the employee becomes eligible for
Medicare/Medicaid, or age 65, whichever occurs first.
In addition, the obligation to select
either the retirement benefit in Article VIII,
Section A or Article VIII, Section B as provided in Article VIII, B.1 is suspended
during the window period and eligible employees who retire under the enhanced
provisions of Article VIII during the window period as provided in this Letter of
Agreement will receive both the benefits as outlined in Paragraphs A and B.
employees eligible for the enhanced provisions of Article VIII as provided in this
Letter of Agreement who retire at the end of the 1999-2000 school year or the end
of the 2000-2001 school year shall be eligible for the Employer contribution dollar
amount for health/dental/long-term care insurance in effect at the time of their
retirement and the dollar limitation of $350 per month shall not apply to employees
who retire during the window period as outlined in this Letter of Agreement.
D. The provisions of Article VIII in the
collective bargaining agreement, not modified
in this Letter of Agreement, shall remain in full force and effect for employees taking
enhanced early retirement under the provisions of this Letter of Agreement.
Dec. No. 30563
4. The window period as
referred to in this Letter of Agreement shall apply only to those
employees otherwise eligible for Article VIII who make application and retire at the end of
the 1999-2000 and 2000-2001 school years and the provisions of this Letter of Agreement
shall be of no force and effect except for those employees who have submitted their request
for early retirement at the end of the business day on April 15, 2001. Any employee who
retires after the window period as defined herein shall be subject to all provisions of Article
VIII of the collective bargaining agreement and shall not be entitled to any of the provisions
of this Letter of Agreement.
5. The District agrees that it
will conduct a study of the fiscal impact of the changes in the early
retirement benefit program as outlined in this Letter of Agreement during the next two years
of this contract and the District shall share the results of such study with the Association.
6. Except as otherwise
provided herein, hand for the specific window period as described, the
terms of the collective bargaining agreement, for the period August 15, 1999 through August
14, 2001 shall remain in full force and effect.
4. The District advised the Association that it intended to
implement a qualified
offer that did not include the fringe benefits set forth in the Letter of Agreement.
Based on the above and foregoing Findings of Fact, the Commission makes and
CONCLUSIONS OF LAW
1. The benefits created by the Letter of Agreement set forth in Finding of
Fact 3 are
"fringe benefits provided to the municipal employees in a collective bargaining agreement, as
. . . benefits existed on the 90th day prior to expiration of" the parties'
bargaining agreement within the meaning of Sec. 111.70(1)(nc)1.a., Stats.
2. A labor organization can waive its statutory right to require that a
implement a qualified economic offer that complies in all respects with
Sec. 111.70 (1)(nc), Stats.
Based on the above and foregoing Findings of Fact and Conclusions of Law, the
makes and issues the following
Dec. No. 30563
Within 15 days of the date of this Order, the River Falls School District must either:
(1) request an evidentiary hearing as to whether the West Central Education
Association waived its
right to require that the District implement a qualified economic offer that includes
the fringe benefits in the Letter of Agreement; or (2) advise the Association and Commission
will maintain the fringe benefits in the Letter of Agreement when implementing a qualified
offer; or (3) advise the Association and Commission that it will not maintain the fringe
benefits in the
Letter of Agreement and thereby withdraws its qualified economic offer.
Given under our hands and seal at the City of Madison, Wisconsin, this 26th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
A. Henry Hempe, Commissioner
Paul A. Hahn,
Dec. No. 30563
River Falls School District
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSIONS OF LAW AND
The Association's motion raises the question of whether the District must maintain
retirement benefits created by the Letter of Agreement if the District wishes to properly
a qualified economic offer within the meaning of Secs. 111.70(1)(nc) and 4(cm)5s,
The District contends that evidence of the parties' intent as to whether the benefits in
Letter of Agreement must be part of an implemented qualified economic offer is relevant
answering this question. The Association disagrees. To potentially expedite resolution of
dispute by avoiding the need for an evidentiary hearing, the parties agreed that the
should proceed to decide the dispute based on a factual stipulation. Should the Commission
that the parties' intent is relevant to resolution of the dispute, the parties reserve the right to
evidence as to their intent before the dispute is ultimately resolved.
Both parties agree that if the District wishes to make a "qualified economic offer" as
in Sec. 111.70(1)(nc)1.a. Stats., 1/, the District must offer to maintain all fringe benefits in
the 90th day prior to the expiration on the 1999-2001 contract. Both parties
agree that the retirement
benefits in the Letter of Agreement are fringe benefits within the meaning of Sec.
Stats. The parties disagree over: (1) whether the Letter of Agreement fringe benefits
the 90th day prior to expiration; and, if so, (2) whether the parties
could nonetheless agree that these
fringe benefits need not be maintained if the District were to implement a qualified economic
We proceed to resolve those disagreements.
(nc) 1. "Qualified
economic offer" means an offer made to a labor organization by a municipal
employer that includes all of the following, except as provided in subd.2:
a. A proposal to
maintain the percentage contribution by the municipal employer to the municipal
employees' existing fringe benefit costs as determined under sub. (4)(cm) 8s., and to
maintain all fringe benefits
provided to the municipal employees in a collective bargaining unit, as such contributions
and benefits existed on
the 90th day prior to expiration of any previous collective bargaining
agreement between the parties, or the 90th day
prior to commencement of negotiations if there is no previous collective bargaining
agreement between the parties.
Dec. No. 30563
As to the question of whether the Letter of Agreement fringe benefits "existed" on
day prior to expiration of the 1999-2001 contract, the District contends that the benefits did
because teachers giving notice of intent to retire on the 90th day prior to
contract expiration would
be too late to take advantage of the Letter of Agreement benefits. The Association counters
pointing out that the Letter of Agreement has a duration which parallels that of the
contract and thus argues that the fringe benefits clearly existed on the 90th
day prior to expiration of
that 1999-2001 contract.
We conclude the Letter of Agreement fringe benefits "existed" on the
90th day prior to
expiration of the 1999-2001 contract. The Letter of Agreement created the fringe benefits in
and the Letter of Agreement existed on the 90th day prior to contract
expiration. Although eligibility
for those fringe benefits expired prior to the 90th day, the benefits remained
and "existed" on the 90th
day for anyone who had previously met the eligibility requirement.
Given our conclusion that the Letter of Agreement fringe benefits "existed" on the
prior to expiration of the 1999-2001 contract and given the parties' accurate assessment that
of Agreement fringe benefits are "fringe benefits" within the meaning of
Stats., we are satisfied that the District must offer to maintain the Letter of Agreement fringe
if it wishes to implement an enforceable qualified economic offer
unless, as argued by the District,
the Association can waive this statutory requirement. 2/ We turn to a consideration of
2/ Although the parties have framed their
argument as to this issue in terms of the relevance of evidence as
to their intent regarding the relationship between the Letter of Agreement and implementation
of a qualified
economic offer, the issue is best framed in terms of the waiver of a statutory right. If the
right cannot be waived,
then intent is irrelevant. If the right can be waived, then intent is
We have held that rights created by the statutes we administer can be waived but that
waiver must be established by clear and unmistakable evidence. City of Eau Claire,
27941 (WERC, 2/94); West Allis-West Milwaukee Schools, Dec. No. 23805-C
Waupun School District, Dec. No. 22409 (WERC, 3/85); City of Green Bay, Dec.
(WERC, 4/76). Thus, we conclude that the law allows the Association to waive its right to
the Letter of Agreement benefits be implemented as part of a qualified economic offer.
Our administrative rules regarding implementation of a qualified economic offer
permit a school district to implement fringe benefits that differ from those contained in a
economic offer but only if both parties so agree. ERC 33.10(5) 3/ specifically
Dec. No. 30563
provides that a qualified economic offer may be implemented consistent with the terms
of that offer
"or as otherwise agreed to by the parties." Moreover, allowing the parties to so agree is
with the Declaration of Policy contained in Sec. 111.70(6), Stats. 4/ that encourages
settlement of labor disputes and gives parties desirable flexibility when they seek voluntary
to the difficult problems they confront.
(5) Implementation of a
qualified economic offer. (a) After a reasonable period of negotiations and an
invetigation by the commission or its investigator, if the parties are determined to be
their negotiations, the municipal employer may implement its qualified economic offer if no
bargaining agreement is in effect and it maintains all other economic provisions contained in
predecessor agreement (or, where the parties are negotiating a reopener under an existing
agreement,m if it maintains all other economic provisions of the existing agreement) except
modified only by the terms of the salary and fringe benefit qualified economic offer or
agreed to by the parties. (emphasis added)
(6) 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 bargaining.
is in the public interest that municipal employees so desiring be given an opportunity to
collectively with the municipal employer through a labor organization or other representative
employees' own choice. If such procedures fail, the parties should have available to them a
speedy, effective and, above all, peaceful procedure for settlement as provide din this
We should emphasize that a union has an absolute right to insist
on strict implementation
of a qualified economic offer. Any waiver of that right by the Union is strictly voluntary.
noted earlier, a party seeking to establish that such a waiver occurred will not succeed unless
has clear and unmistakable evidence of waiver.
Much of the argument presented to us by the Association goes
to the question of whether
the Letter of Agreement fringe benefits are part of a qualified economic offer. We have
that Association argument persuasive. As to the question of whether the Association waived
right to insist that the Letter of Agreement fringe benefits be implemented if the District
implements a qualified economic offer, the parties have agreed that any litigation of that
must follow an evidentiary hearing. As indicated in our Order, if the District believes that
clear, unmistakable evidence of waiver, it can request a
Dec. No. 30563
hearing. In the alternative, the District must advise the Association
and the Commission whether
it will implement a qualified economic offer that includes the fringe benefits in the Letter of
Agreement or whether it withdraws its qualified economic offer because it is not willing to
maintain said benefits.
Dated at Madison, Wisconsin, this 26th day of February,
WISCONSIN EMPLOYMENT RELATIONS