Board of School Directors of City of Milwaukee v. Wisconsin Employment Relations Commission

• Citation: 42 Wis.2d 637,168 N.W.2d 92
• Decision Date: 03 June 1969
• Docket Number: Nos. 213--215,s. 213--215
• Parties: , 71 L.R.R.M. (BNA) 2607, 60 Lab.Cas. P 52,097 BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE, Petitioner-Respondent, Milwaukee Teachers' Union Local 252 et al., Cross Petitioners-Respondents, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Appellant. MILWAUKEE TEACHERS' EDUCATION ASSN., Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Appellant. MILWAUKEE TEACHERS' UNION LOCAL 252, etc., Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Appellant, Board of School Directors of the City of Milwaukee, Intervening Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 92

168 N.W.2d 92

42 Wis.2d 637, 71 L.R.R.M. (BNA) 2607,

60 Lab.Cas. P 52,097

BOARD OF SCHOOL DIRECTORS OF the CITY OF MILWAUKEE,

Petitioner-Respondent, Milwaukee Teachers' Union Local 252

et al., Cross Petitioners-Respondents,

v.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Appellant.

MILWAUKEE TEACHERS' EDUCATION ASSN., Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Appellant.

MILWAUKEE TEACHERS' UNION LOCAL 252, etc., Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Appellant,

Board of School Directors of the City of Milwaukee,

Intervening Respondent.

Nos. 213--215.

Supreme Court of Wisconsin.

June 3, 1969.

Rehearing Denied Sept. 8, 1969.

On August 10, 1964, the Milwaukee Board of School Directors (hereinafter 'school board'), a municipal employer, presented a petition to the Wisconsin Employment Relations Board, now known as the Wisconsin Employment Relations Commission (WERC) for a declaratory ruling pursuant to sec. 277.06, Stats. The question presented to the WERC was whether a municipal employer, through collective bargaining, could grant certain privileges exclusively to the majority opinion representative of its employees.

On December 3, 1964, before the petition was argued, the Milwaukee Teachers' Union Local 252, an affiliate of the American Federation of Teachers, A.F.L.-C.I.O. (hereinafter the 'MTU'), filed a complaint in a prohibited practices proceeding which, among other things, raised the same question as the declaratory ruling case (the MTU represents some employees of the school board, but it is not the majority union). The WERC consolidated the prohibited practices case with the declaratory ruling case for a hearing.

On February 19, 1964, following an election, the WERC certified the Milwaukee Teachers' Education Association (hereinafter MTEA) as the exclusive bargaining representative for certain teaching employees of the school board. Following this certification, negotiations transpired between representatives of the school board and the MTEA.

On June 30, 1964, the school board, after reaching an agreement with the MTEA, adopted certain procedures which directly affected the school board's contact with minority union representatives:

'1. That communications addressed to the Board of School Directors from a teachers' organization not officially certified as the exclusive bargaining representative of the teaching staff be received at a regular meeting of the Board and referred to the appropriate committee.

'2. That at the option of the committee, time be made available at a meeting of the committee or hear individuals on those matters in the communication which are not considered to be subject to collective bargaining. Those matters in the communication which are considered to be subject to collective bargaining are to be referred directly to the Board's designated bargaining representative and under no circumstances are they to be the subject of a hearing before the committee. Speakers are to appear as individuals and not as representatives of the teachers' organization submitting the communication.

'3. That following the hearing, if any, unless the committee takes some action, or unless it directs the Superintendent or Secretary-Business Manager to prepare a report, the communication be placed on file.'

On August 27, 1964, and on October 14, 1964, a representative of the MTU (the minority union) attempted to speak on negotiable matters at a public meeting of one of the committees of the school board. He was denied the right to speak. ¹ Certain other members of the public who were not representatives of a minority union were permitted to speak on negotiable matters.

Certain other questions arose during negotiations between the school board and the MTEA. The school board wanted permission to grant exclusive privileges to the MTEA as part of a total agreement package. The propriety of granting exclusive privileges to the majority union was apparently questioned, and the school board sought a declaratory ruling from the WERC. Permission to grant the following privileges was sought:

(1) Exclusive checkoff of dues; ²

(2) Exclusive access to a list of newly-employed teachers and their addresses; and

(3) Other exclusive privileges not involved in this appeal. ³

The WERC solicited briefs from all the interested parties and conducted a hearing of the total controversy on February 2, 1965.

The WERC's written decision was handed down on March 24, 1966. The holdings were that denying a minority union representative the right to be heard at a public meeting was a prohibited practice, that granting exclusive access to a list of newly-acquired teachers was not a prohibited practice unless the list was a public record, and that granting exclusive checkoff was not a prohibited practice.

The MTU, the MTEA, and the school board all appealed to the circuit court from portions of the WERC's ruling. Two separate appeals were taken from the prohibited practices proceeding and one other appeal was taken from the declaratory ruling proceeding. The three files were docketed separately in the circuit court for Dane county. That explains why three separate cases are involved here. The circuit court consolidated the cases for trial. The judgments appealed from reversed in part, modified in part and affirmed in part two decisions of the WERC.

The circuit court, in its memorandum opinion of November 17, 1967 (as modified by an addendum opinion of February 29, 1968), determined that:

(1) A municipal employer could grant a dues checkoff to the majority union, but that it would be a prohibited practice to grant exclusive checkoff;

(2) The list of new teachers is a public record and the school board could not deny access thereto to any citizen; and

(3) The school board could prevent a minority union representative from speaking on negotiable matters at a public meeting.

The WERC has appealed from all three conclusions of the circuit court as set out above. The MTU seeks a review of that determination set out as No. 3 above. The MTEA has taken issue with the first and second determinations as set out above.

Bronson C. La Follette, Atty. Gen., William H. Wilker and David J. Hanson, Asst. Attys. Gen., Madison, for appellant.

John J. Fleming, City Atty. Harry G. Slater, Deputy City Atty., Carl F. Kinnel, Asst. City Atty., Milwaukee, for respondent board of directors.

Lawton & Cates, Robert C. Kelly, Madison, for respondent Teachers' Education Ass'n.

Goldberg, Previant & Uelmen, Milwaukee, for respondent Teachers' Union.

HANLEY, Justice.

The following issues are presented in this appeal:

(1) Is it a prohibited practice within the meaning of sec. 111.70(3)(a), Stats., for a municipal employer and the certified exclusive representative of its employees to enter into an agreement for the exclusive checkoff of dues;

(2) Is it a prohibited practice within the meaning of sec. 111.70(3)(a), Stats., for the school board to deny a representative of a minority union the right to speak on bargainable subjects at public meetings of its various committees where the sole reason for such denial is the representative's minority status;

(3) Is a municipal employer required to grant lists of new teachers and other information concerning employees which are not public records under sec. 14.90, Stats., to all organizations which claim to represent these employees?

We think that in addition to the above issues there is a preliminary issue which must be considered which affects this entire matter. The issue is whether the certified majority representative of an employee union in municipal employment is the exclusive bargaining agent for all the employees in that union. We shall consider that issue first.

Majority Union Is Exclusive Bargainer.

Subch. IV of ch. 111, Stats., is intricately involved in this entire controversy. The entire subchapter consists of one section i.e., sec. 111.70. Basically, the section is concerned with the right of municipal employees to organize and join labor organizations.

Sec. 111.70, Stats., was created by the Laws of 1959, ch. 509. When enacted, no provision was made for the election of a majority union representative. However, the Laws of 1961, ch. 663, created sec. 111.70(4), Stats., which specified certain procedures to be used in determining the majority union representative.

Sec. 111.70 does not now specifically state, nor has it ever so stated, that the majority union representative is the exclusive bargaining representative for all the employees. Yet, all the parties to this appeal, including the minority union, concede that it should be so interpreted or there would be little point in having an election to determine the majority union representative.

The situation was discussed in a recent article in the Wisconsin Law review:

'The statute as it presently exists does not expressly authorize exclusive recognition. However, the Board (WERC) has certified unions as exclusive representatives for the purpose of collective bargaining, and municipal employers have recognized unions as exclusive representatives of all employees within a particular unit. The statute lends itself to a construction which supports the authority of the Board to certify the majority representative as the exclusive representative * *

'In 1961 the legislature granted the Board certain administrative powers which were not given in 1959. Section 111.70(4)(d) provides that a union or the municipal employer may petition the Board to conduct an election whenever a question arises between a municipal employer and a labor union as to whether the union represents the employees of the employer. The provision directs the Board to determine questions of representation by following, insofar as applicable, the proceedings outlined in sections 111.02(6) and 111.05 which govern representation questions in private employment. Section 111.05(1) provides that the representative chosen by the...