231 N.W.2d 206 (Wis. 1975), 410, City of Madison Joint School Dist. No. 8, City of Madison, Villages of Maple Bluff and Shorewood Hills, Towns of Madison v. Wisconsin Employment Relations Commission

Docket Nº:410.
Citation:231 N.W.2d 206, 69 Wis.2d 200
Opinion Judge:The opinion of the court was delivered by: Day
Party Name:CITY OF MADISON JOINT SCHOOL DISTRICT NO. 8, CITY OF MADISON, VILLAGES OF MAPLE BLUFF AND SHOREWOOD HILLS, TOWNS OF MADISON, ET AL., and its agent the Board of Education, City of Madison Joint School District No. 8, Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent, Madison Teachers, Incorporated, Intervenor-Respondent.
Attorney:For the appellants there was a brief by Edwin C. Conrad, city attorney, and Gerald C. Kops, assistant city attorney, and oral argument by Mr. Kops.
Case Date:June 30, 1975
Court:Supreme Court of Wisconsin

Page 206

231 N.W.2d 206 (Wis. 1975)

69 Wis.2d 200

CITY OF MADISON JOINT SCHOOL DISTRICT NO. 8, CITY OF

MADISON, VILLAGES OF MAPLE BLUFF AND SHOREWOOD HILLS, TOWNS

OF MADISON, ET AL., and its agent the Board of Education,

City of Madison Joint School District No. 8, Appellants,

v.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent,

Madison Teachers, Incorporated, Intervenor-Respondent.

No. 410.

Supreme Court of Wisconsin.

June 30, 1975.

Rehearing Denied Sept. 30, 1975.

Page 207

[Copyrighted Material Omitted]

Page 208

[69 Wis.2d 202] Edwin C. Conrad, City Atty., and Gerald C. Kops, Asst. City Atty., Madison, for appellants.

Joseph A. Melli and James K. Ruhly, Melli, Shiels, Walker & Pease, S.C., Madison, for the National Right to Work Legal Defense Foundation (amicus curiae brief).

Robert C. Kelly, Kelly & Haus, Madison, for intervenor-respondent.

Victor A. Miller, Atty. Gen., and Charles D. Hoornstra, Asst. Atty. Gen., Madison, for Wis. Employment Relations Commission.

DAY, Justice.

The question on this appeal is, was it error for the circuit court to affirm the conclusion of the Wisconsin Employment Relations Commission that the school board committed a prohibited labor practice in that it "negotiated" or "bargained" with other than the exclusive bargaining representative of the teachers on matters subject to collective bargaining when it allowed a representative of a minority group of teachers to speak at a board meeting, listened to his statements and received the results of a petition circulated by that group--all concerning matters subject to collective bargaining[69 Wis.2d 203] --when this was done at a regular public meeting of the board?

The appellant City of Madison Joint School District No. 8, including the City of Madison, Villages of Maple Bluff and Shorewood Hills, Towns of Madison, Blooming Grove, Fitchburg and Burke (hereinafter "school district") operates the school system of said municipalities; the appellant Board of Education of the district is an agent of the district and is charged with the possession, care, control and management of the property and affairs of the school district.

The respondent Wisconsin Employment Relations Commission (hereinafter "WERC") is an administrative body charged with the responsibility of administering statutory policy with respect to both public and private employees.

Madison Teachers, Incorporated (hereinafter "MTI"), intervenor respondent, is a labor organization which was, at the time of the events which give rise to this action, the exclusive majority collective bargaining representative of the teachers of the district.

The Board of Education (board) and MTI were, for the calendar year 1971, parties to a collective bargaining agreement covering wages, hours, and conditions of employment for all bargaining unit personnel, which included all teachers. The agreement terminated on December 31, 1971. Negotiations for a successor agreement began almost as soon as the previous one concluded. Thus, on January 25, 1971, MTI submitted a proposal for a new contract to take effect January 1, 1972. This proposal contained a "fair share" provision, a contractual requirement that all teachers, including those not then members, pay full union dues, i.e., their "fair share" of the costs of collective bargaining.

Such a provision was proposed by MTI the previous year and was rejected by the board. This fair-share provision was discussed throughout the 1971 negotiations[69 Wis.2d 204] and at all times was opposed by the board. Initially, the board objected because such a provision was then illegal. There were frequent requests by the board for MTI to defer fair share for another year.

On November 11, 1971, legislation (ch. 124, Laws of 1971) became effective which allowed inclusion of a fair-share provision in municipal-employee collective-bargaining agreements. This is now codified as sec. 111.70(1), Stats., and defined in sec. 111.70(1)(h). Soon thereafter MTI submitted

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another fair-share proposal to conform to the new law; again it was rejected by the board.

The number of unresolved issues between the parties had been reduced to about 13 by November, 1971. Two of these were considered of overriding importance by both sides: (1) the fair-share provision, and (2) the provision for binding arbitration of non-renewal of teacher contracts and teacher dismissals. The board had opposed both of these issues throughout the negotiations. However, in late October or early November, the chairman of the board's negotiating team indicated, informally and unofficially, to the chairman of MTI's negotiating team that there was "no way" arbitration for dismissals and non-renewals would be accepted by the board, but there was a "distinct possibility" the fair-share provision could be accepted. He said two members of the board said they would approve fair share if MTI would withdraw its arbitration proposal.

On the other hand, at the WERC hearing in this case, the chairman of MTI's negotiating team testified that the union's bargaining strategy was to lead the board to believe that MTI's primary interest was in fair share when in fact it was in arbitration. If this stratagem were successful, MTI could at some point offer to "sacrifice" fair share for arbitration and celebrate the result.

On November 14, 1971, Ralph Reed and Albert Holmquist, teachers employed by the district, neither of whom were members of MTI, sent a letter opposing the fair-[69 Wis.2d 205] share provision, which they considered a denial of freedom of choice, to all teachers employed by the district. The letter solicited responses and 200 were received, the majority sympathetic to their position. A meeting of some of these teachers was scheduled for December 2, 1971. Fourteen teachers attended, half of whom were MTI members. They prepared a petition and formulated plans for circulating it in the schools on December 6, 1971. The petition supported a one-year deferral of consideration of fair share. It was intended to present the results of the petition to both MTI and the board at the board's regular public meeting on the evening of December 6, 1971. The petition was circulated in the schools, in non-working areas on non-working time, that day and a letter, also urging deferral of fair share, was distributed to the teachers of two schools through their school mailboxes. The principals of those two schools, agents of the board, knew of the latter activity.

By December 6, 1971, negotiations between the board and MTI had reached an impasse. For the board's regular public meeting that evening MTI had arranged to have pickets present and 300-400 teachers in attendance at the auditorium. MTI's representative John Mathews knew in advance that Messrs. Reed and Holmquist intended to present the results of their petition and speak to the board against fair share. He encountered Mr. Holmquist and Mr. Reed in the auditorium before the meeting was to begin and tried to talk them out of presenting the petition or speaking to the board.

Soon thereafter, Mr. Mathews met a member of the board, Mr. Yelinek, outside. He informed Mr. Yelinek of what Messrs. Reed and Holmquist intended to do that evening and also showed him underlined portions of the Board of Sch. Directors of Milwaukee v. WERC (1969), 42 Wis.2d 637, 168 N.W.2d 92. Mr. Yelinek responded that he "would take care of it."

Mr. Mathews met Messrs. Reed and Holmquist again, soon after talking with Mr. Yelinek. He again tried, unsuccessfully,[69 Wis.2d 206] to talk them out of presenting the petition and speaking to the board, telling them that the negotiations were delicate and urging them to refrain "or we were going to lose the whole ball game."

At the board meeting, a portion of time was devoted to public appearances. Mr. Holmquist completed a registration form stating that he wished to speak during this

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period. He did not say on this form what he wished to speak about. Several individuals spoke during this time and then the president of MTI rose and spoke. At the conclusion of his remarks he presented to the board a statement signed by 1300 to 1400 teachers, declaring "We, the undersigned wish the parties to resume negotiations and reach agreement as quickly as possible."

Immediately following this speaker, Mr. Holmquist was allowed to speak. He said

" 'My name is Albert Holmquist. I reside at 5626 Crestwood Place. I am another teacher. I represent an informal committee of 72 teachers in 49 schools. I would like to inform the Madison Board of Education, as I already have the Madison Teachers, Incorporated, about the results of an informational survey regarding one of the thirteen or so items now on the conference table and one of the main items that will certainly be included in some form in the new package.' "

He then read the petition:

" 'To: Madison Board of Education, Madison Teachers, Incorporated. We the undersigned ask that the fair-share proposal (agency shop) being negotiated by Madison Teachers, Incorporated and the Madison Board of Education be deferred this year. We propose the following: 1) The fair-share concept being negotiated be thoroughly studied by an impartial committee composed of representatives from all concerned groups. 2) The findings of this study be made public. 3) This impartial committee will ballot (written) all persons affected by the contract agreement for their opinion on the fair share proposal. 4) The results of this written ballot be made public.' "

He added:

[69 Wis.2d 207] " 'We feel this study necessary because neither the board's negotiators who have placed entirely too much emphasis on this one point nor Madison Teachers, Inc. which speaks euphemistically about the "whole package" and therefore is not issue specific ... Neither has properly addressed the serious issue of fair-share and agency shop. We find much...

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