BEFORE THE ARBITRATOR
In the Matter of the Arbitration of the Objection to the
Fair Share Determination Involving
SUSAN L. BARTLET, LAKSHMI HALL,
TIMOTHY SHOUSHA, CARSON WRIGHT
MILWAUKEE TEACHERS' EDUCATION
Perry, Shapiro, Quindel, Saks, Charlton & Lerner, S.C., Attorneys at Law, by
Mr. Richard Perry, on behalf of the Milwaukee Teachers Education
The Objectors did not appear.
The Milwaukee Teachers' Education Association, hereinafter referred to as "MTEA",
established a written procedure which provides that it will petition the Wisconsin
Relations Commission to appoint a Commissioner of staff member to act as arbitrator in
any disagreement concerning fair-share expenditures for non-member employees covered by
a fair-share agreement who file objections to MTEA's determination of the appropriate
pursuant to Ch. 111.70, Stats. Pursuant to that written procedure, on March 19, 2002,
requested that the Commission appoint David E. Shaw, a member of the Commission's staff,
as the arbitrator to resolve objections to fair-share expenditures that had been filed by four
of Milwaukee Public Schools covered by fair-share agreements and represented by MTEA.
Commission designated the undersigned to act as the arbitrator to resolve said disputes and
was scheduled for May 13, 2002, in Milwaukee, Wisconsin. On May 2, 2002, MTEA
filed a motion
to postpone the hearing and to dismiss the objections for failing to comply with the
MTEA's procedure that objectors identify the areas in MTEA's proposed budget that they
allege are not authorized by Ch. 111.70, Stats., within thirty-five (35) days from the
date of the fair-share notice packet they received. By letter of May 3, 2002, the undersigned
motion to postpone the hearing and gave the objectors twenty-one (21) days from the date of
letter to respond to MTEA's motion to dismiss their objections. The letter was sent to
counsel with the stated expectation that MTEA would forward the letter to the individual
No objector has filed a response to MTEA's motion at any time.
In support of its motion to dismiss, MTEA has submitted as evidence the fair-share
agreements contained in its collective bargaining agreements covering the Milwaukee Public
teachers and substitute teachers represented by MTEA, the MTEA fair-share procedure along
the fair-share notice packet it sent to non-member employees it represents in those bargaining
the objections filed by the four objectors in this proceeding, and Commission legal precedent
arbitral precedent. Also in the record, as set forth below, are the notices MTEA sent to the
on April 4, April 11 and April 15, 2002.
The MTEA's fair-share procedure is as follows:
MTEA Fair Share Procedure
The Milwaukee Teachers' Education
Association shall provide all MTEA non-member employes
covered by the fair-share provision in their collective bargaining contract with notice and
of the purposes for which the fair share fees collected under the fair share provision are
MTEA will also furnish such employes with an opportunity to disagree with any portion of
and have a prompt, impartial resolution of any disagreement which may arise concerning use
fair share fees in accordance with Section 111.70, Wisconsin Statutes, and the
Constitutions of the
United States and the State of Wisconsin.
Determination of Budgetary Expenditures Used for Purposes Authorized by
Section 111.70, Wisconsin Statutes
Prior to the beginning of each MTEA fiscal
year, September 1 through August 31, the MTEA
shall analyze which areas of its budget relate to Section 111.70 expenditures. In
budget expenditures are permitted under Section 111.70, the MTEA shall rely upon court
adjudications, administrative decisions, and arbitration awards which are relevant to this
3. Notice to
a. The MTEA shall
notify all non-member employes in the MTEA bargaining units who,
as of the end of the prior school year, had fair share fees deducted from their salaries,
of its determination as to the portion of MTEA Budget expenditures allowable under
the fair share provision of Section 111.70. The MTEA will provide such employes
with the MTEA's fiscal year budget, a copy of the most recently completed audit, the
MTEA's determination as to allowable and non-allowable expenditures, and a copy
of this procedure.
b. MPS will furnish the
MTEA with the following information as to all individuals newly
hired within an MTEA bargaining unit:
address of all new teachers as soon as MPS has received their
individual contracts, and the name and address of all other new employes in
the other MTEA bargaining units as soon as MPS hires these individuals.
2. The expected
first date of employment of each new employe in the MTEA bargaining
3. The pay date
on which fair share deductions would commence for new
employes who do not become members.
c. The MTEA will
furnish the information referred to in Part 3(a) to all newly-hired
employes in the MTEA bargaining units who do not become members of the MTEA
within fifteen (15) days of when the MTEA learns of their being hired.
4. Employe Response
Any employe who received the foregoing
notification and information from the MTEA shall
respond within thirty-five days from the date of this notification. For purposes of this
notification and materials shall be deemed received three (3) days after the date of
a. Employes who do
not respond within thirty-five (35) days from the date of the notice
shall be deemed to have accepted that 100% of the MTEA member dues will be
deducted from their earnings, and it will be assumed that the employes do not object
to the MTEA's use of deductions from their earnings for the expenditures identified
in the MTEA budget.
b. Employes who wish
to disagree with the use of such portion of the budget which the
MTEA has identified as not authorized by Section 111.70, shall make their
disagreement known to the MTEA within thirty-five (35) days from the date of the
notice and that amount shall not be deducted from their wages.
c. Those employes who
wish to disagree with the uses identified by the MTEA as not
authorized by Section 111.70 and wish to object to additional MTEA expenditures,
shall identify such areas in the proposed budget which they allege are not authorized
by Section 111.70 within thirty-five (35) days from the date of the notice.
a. Employes who wish to disagree with the
uses identified by the MTEA as not
authorized by Section 111.70 and wish to object to additional MTEA expenditures
have the right to proceed to arbitration.
b. No fair share
deductions will be made pending WERC arbitration of employe
objections to the MTEA's determination of those funds that are related to collective
bargaining and contract administration. Employe objections will be promptly resolved
through WERC arbitration. After the arbitrator's award is issued in determining the
appropriate amount that can be charged fair share employes, that yearly amount will
be deducted from their remaining checks during the school year.
c. The MTEA shall petition the Wisconsin
Employment Relations Commission to
appoint a Commissioner or a WERC staff arbitrator to act as arbitrator in determining
any disagreement which may exist concerning the subjects identified as permitted
expenditures pursuant to Section 111.70, Wisconsin Statutes. The arbitrator so
appointed shall schedule a hearing which consolidates all of the individual
disagreements raised by non-members. The hearing shall be held as soon as may be
practicable. The arbitrator shall issue his or her decision in accordance with the
mandate of the United States Supreme Court in Chicago Federation of Teachers vs.
Hudson, 103 S.Ct. 1066 (1986). The arbitrator's award shall be final and binding.
d. If there are
objections from a new employe which cannot be included in the
consolidated hearing, the arbitrator shall schedule a hearing as soon as practicable.
e. Commissioners or
WERC staff arbitrators serve as arbitrators in Wisconsin without
a fee. The MTEA shall bear the cost of transcripts and other necessary costs of the
arbitrator acting in his or her role in this procedure. Witness fees, salaries for
witnesses, subpoena fees, attorney fees or transcripts requested by any party shall be
borne by the party requesting or authorizing such costs.
Employes who wish to disagree with the uses identified by the
MTEA as not authorized by
Section 111.70 and wish to object to additional MTEA expenditures have the right to proceed
in court. Proceeding in court shall constitute a waiver of the arbitration procedure outlined
7. Savings Clause
The MTEA reserves the right to modify this procedure at any
time if in its opinion such
modification is required by state or federal law.
Along with the MTEA's fair-share procedure, the
employees represented by
MTEA and covered by the fair-share labor agreements were sent a "Summary of Legislative
Legal Background" consisting of a brief summary of Sec. 111.70(1)(h), Stats.,
and applicable legal precedents relating to fair-share deductions, a "Teacher Option
proposed 2001-2002 MTEA budget, the "2001-2002 MTEA Budget Narrative
MTEA's "Financial Report For the Fiscal Year Ended August 31, 2000", along with
auditor's opinion letter and financial statements for 1999 and 2000, and MTEA's
to allowable and non-allowable expenses for 1999-2000.
The "Teacher Option Form" sets forth the options from which the non-member
to select. The options include the following:
4. I choose to proceed to arbitration in accordance with the
MTEA Fair Share Procedure
because I believe that more MTEA expenditures than those identified by the MTEA do not
the cost of collective bargaining and contract administration. I do not want deductions from
earnings under the fair share agreement used for the MTEA Budget expenditures which I
below. I understand that deductions from my paychecks for 2001-02 will reflect the amount
expenditures determined by the arbitrator to be allowable.
The form also includes the notice that it must be completed and
returned to MTEA within 35 days
from the notification date or the individual the full MTEA dues (not including political action
contributions) will be deducted from their pay and they will have been deemed to have
objections to the use of the deductions for any MTEA budget expenditure for fiscal year
The four objectors in this timely returned their "Teacher Option Form" to MTEA in
or February of 2002, and selected option 4, set forth above. None of the objectors listed the
expenditures to which they were objecting on the form.
On March 19, 2002, MTEA's counsel filed a request with the Commission that the
undersigned be appointed as arbitrator to resolve the objections. The undersigned was so
and hearing was set for May 13, 2002 in Milwaukee, Wisconsin. MTEA sent each of the
objectors the following "Notice of Hearing" along with the undersigned's scheduling letter:
Re: Milwaukee Public Schools
398 No. 61016 MA-11776
(MTEA Fair Share Fee Arbitration)
Notice of Hearing
April 4, 2002
Mr. Carson Wright
Dear Mr. Wright:
On February 10, 2002, you objected to
MTEA expenditures and exercised your right to proceed
to arbitration for a ruling to decide your fair share obligation pursuant to Section 111.70,
(Copy of the objection is enclosed for your convenience.)
Arbitrator David S. (sic) Shaw has been
appointed by the Wisconsin Employment Relations
Commission to act as impartial arbitrator to determine the amount of the MTEA expenditures
allowable from fair share funds.
Arbitrator Shaw has scheduled the hearing
as follows (copy of Arbitrator's letter of April 3, 2002
is enclosed for your convenience):
When: Monday, April 13, 2002 (sic) 1/
Place: Astor Hotel, George Walker Room 924 E Juneau
Avenue Milwaukee, Wisconsin 53202
Time: 10:00 a.m. until 5:00 p.m. or until the case is fully
presented, whichever comes first.
Present at this hearing will be the
Arbitrator, a court reporter to transcribe the testimony, counsel
and witnesses on behalf of the MTEA and the four objecting MTEA represented employees
and their witnesses who wish to present evidence in support of their objections. You may be
represented by counsel of your choosing at your own expense.
1/ The Arbitrator's
scheduling letter sets forth the correct date of May 13,
The MTEA will bear the full cost of the
conference room, the WERC Arbitration fee and the
Court Reporter's fees. As noted, if you retain individual counsel, it will be at your own
With respect to release from work or any other questions, please contact me at
you for your attention to this matter.
Mark Rosenbaum /s/Mark
RosenbaumAssistant Executive Director
By letter of April 11, 2002, MTEA again attempted to obtain
response from the individual
objectors as to whether they planned to attend the arbitration hearing:
Re: Fair Share Arbitration Hearing May 13,
2002Dear Mr. Wright:In a letter dated April
4, 2002 (copy attached for your own convenience), I informed you of the scheduling of the
arbitration hearing. A week has passed and I have not heard from you. I have attempted,
success, to reach you by telephone.
If you plan to attend the hearing, it is
important that you contact me as soon as possible so that
I can have you released by the MPS Department of Labor Relations. It will also be
necessary for you
to arrange for a substitute as you normally do for any absence.
Thank you for your prompt attention to this
matter. If you have any questions, please contact
Mark K. Rosenbaum /s/Mark
RosenbaumAssistant Executive Director
On April 15, 2002, MTEA's counsel sent each of the
the following notice:
State of WisconsinIn Arbitration
Notice of Motion
Motion to Dismiss
Wright Teacher Objector
David E. Shaw, Arbitrator
Richard Perry MTEA Attorney
Please take notice of the following:
1. On February 2, 2002 you
indicated your (sic) objected to more expenditures than the MTEA
procedure had disallowed from your fair share contributions under the Hudson
line of cases.
2. Although requested to do so,
you did not list or specify any expenditure to which you
3. Previous administrators have
ruled that failure to specify the particular categories objected
to is jurisdictional and requires dismissal of the objections. (If you wish to review these
decisions, copies are available for your inspection, studying and copying at the MTEA
Please call Mark Rosenbaum (414-259-1990) to arrange a time and place for your review.
4. The MTEA has written to
you on April 4 and 11, 2002 and attempted to reach you by
telephone all without any response from you.
5. Please file by May 1, 2002,
a written statement listing the specific categories of MTEA
expenditures to which you object.
Wherefore Please Take
If you fail to file a timely written
specification of your objection(s) to MTEA expenditures by
May 1, 2002, the MTEA will so notify the arbitrator and move for an Order:
1. Postponing the currently scheduled
2. Dismissing your objection
for non-compliance with the MTEA Procedure in accordance with
the decisions of prior Arbitrators delineating the jurisdiction of the Arbitrator under this
Dated at Milwaukee, Wisconsin this
15th day of April 2002.
/s/Richard PerryMTEA Attorney
The Arbitrator also received a copy of an April 22, 2002
to objector Timothy Shousha
from Mark Rosenbaum, Assistant Executive Director of MTEA, confirming that
Mr. Shousha was
withdrawing his objection from the arbitration process.
On May 3, 2002, MTEA filed its Notice of Motion and Motion to Postpone the
Dismiss the Objections, along with the following cover letter and indicated materials:
May 2, 2002
David E. Shaw, Arbitrator
Wisconsin Employment Relations
18 South Thornton Avenue
P.O. Box 7870
Madison, WI 53707-6780
Re: Milwaukee Public Schools
Case 398 No. 61016 MA-11776
(MTEA Fair Share Fee Arbitration)
Dear Arbitrator Shaw:
Enclosed please find the Notice of Motion
to Postpone the Hearing and Dismiss the
Objections in the above captioned matter. Accompanying the Notice and Motion are:
The entire packet
which was originally sent to Objectors pursuant to the MTEA Hudson
which were filed by the Objectors.
The relevant Teacher
and Substitute Teacher contract Provisions
All of the cases
decided under the MTEA Objection procedure with the relevant sections
Copies of the foregoing material are being
sent this date to each of the Objectors with
identical highlighting. By a copy of this letter I am inviting the Objectors to reply to the
within fourteen days of the date of this letter. I request that they respond directly to the
with a copy of their response sent to me.
If you wish copies of the entire collective
bargaining agreements or any other material, please
Thank you for your attention to this
Richard Perry /s/
The cover letter indicated that the four objectors were sent the same documents and
that the Arbitrator received.
In its Motion, the MTEA asserted the following facts in support of its motion:
1. This matter arises pursuant to the Teacher
Contract Part II, Section F(2) Fair Share
(attached) and Part II, Section F(2) of the Substitute Teacher Contract (attached).
2. Each of the four Objectors
filed general objections to paying their fair share contributions but
failed to comply with the MTEA Objection Procedure by listing the expenditures to which
they objected. Copies of the four objections are attached.
3. The MTEA gave each
Objector explicit written notice that prior arbitration awards held that
the listing of specific objections was required by the objection procedure and that failure to
do so would necessitate dismissal of their objections. Copies of the MTEA letters of April
4 and 11, 2002, to all of the objectors were sent to the Arbitrator at the same time they were
mailed to the Objectors.
4. Attached hereto are the
awards of Lionel L. Crowley, dated December 17, 1986, Richard B.
McLaughlin, dated July 20, 1987, Lionel L. Crowley, dated March 11, 1988, Raleigh Jones,
dated January 24, 1989. These awards established that failure to list specific
which an employee objected under the MTEA procedure requires dismissal of the objection.
Copies of these decisions were earlier made available to all objectors to inspect, study and
copy at the MTEA office at their convenience if they cared to do so. A set of these awards
with identical highlighting is being sent to each Objector with this motion. These awards
constitute all of the awards that have issued relating to Fair Share Provisions of the Teacher
and Substitute Teacher Collective Bargaining Agreements.
5. When none of the objectors responded to the
MTEA requests to specify their objections as
required by the Objection Procedure, the MTEA gave them further notice, dated
2002, that they had until May 1, 2002, to comply with the objection procedure by listing the
expenditures to which they had objection or the MTEA would move the Arbitrator for an
order postponing the arbitration hearing and dismissing their objections. A copy of this
Notice was furnished to the Arbitrator at the same time it was sent to the Objectors.
6. None of the objectors
responded to the May 1, 2002, deadline for listing objections to specific
7. One employee, Timothy
Shousha, telephoned MTEA Assistant Executive Director, Mark
Rosenbaum on April 22, 2002, and informed him that he wished to withdraw his objection.
Mr. Rosenbaum confirmed this conversation in a letter of the same date and a copy of his
letter was sent to the Arbitrator on that date.
On May 3, 2002, the Arbitrator issued the following letter
ruling, sending it directly to
May 3, 2002
Mr. Richard PerryPerry, Shapiro, Quindel, Saks, Charlton &
Lerner, S.C.Attorneys at Law823
North Cass StreetP.O. Box 514005Milwaukee, WI 53203-3405
Re: Milwaukee Public Schools Case 398
61016 MA-11776 (MTEA Fair Share Fee
Arbitration)Dear Mr. Perry: I am in receipt of the Association's May 2, 2002 Motion
Hearing and Dismiss the Objections and accompanying materials. Your cover letter of the
indicates that the same documents sent to myself have also been sent to each Objector.
I am granting the Association's motion to postpone the
set for May 13, 2002. (I do
note that the notices of the hearing that the Association sent to the Objectors erroneously
the hearing was scheduled for April 13, 2002.) If the Objectors
wish to respond to the Association's
Motions before I rule on them, such responses should be postmarked no later than
days from the date of this letter and should be sent to myself at the above address, with a
to yourself. I assume that, as has been the case, you will see that the Objectors receive a
my letter. Very truly yours,
David E. Shaw
The Arbitrator has not received any responses from the
objectors to date.
The facts, presented to the Arbitrator as set forth above, establish that MTEA's
procedure requires that:
c. Those employes who wish to disagree with the
uses identified by the MTEA as not authorized
by Section 111.70 and wish to object to additional MTEA expenditures, shall identify such
areas in the proposed budget which they allege are not authorized by Section 111.70 within
thirty-five (35) days from the date of the notice.
Despite being given notice of this requirement in the fair-share notice packet they
received, and again in MTEA's April 15, 2002 notification of its intent to file the motion to
which also gave them additional time to file such a list of the specific categories of
which they objected, the objectors have not complied with the above requirement.
MTEA cites the previous decisions of arbitrators who have resolved fair-share
under MTEA's fair-share procedure in support of its motion to dismiss the objections for
specificity. Relying on the above-stated requirement, along with the wording on the response
(options) form which indicates they are to list the expenditures to which they object on that
those arbitrators held that the procedure requires objectors to identify specific areas of
to which they object and that failure to do so precludes the arbitrator from determining the
As those arbitrators have noted, it is the MTEA's fair-share procedure which provides the
the authority to determine these fair-share disputes. That procedure does not contemplate the
wholesale objection to all expenditures, but only authorizes the arbitrator to make a
as to those specific areas of expenditures where a disagreement exists. Where, as here, such
specificity is lacking, the Arbitrator is without authority to resolve the dispute.
Given the objectors' failure to identify specific areas of expenditures to which they
non-allowable, as required by the MTEA fair-share procedure, their objections must be
Based upon the foregoing, the undersigned makes the following
The objections of Bartlet, Hall and Wright are dismissed. 2/
Dated at Madison, Wisconsin, this 11th day of June, 2002.
2/ Shousha's objection having previously