Berns v. Wisconsin Employment Relations Commission

• Decision Date: 11 December 1979
• Docket Number: No. 79-359,79-359
• Citation: 94 Wis.2d 214,287 N.W.2d 829
• Parties: , 105 L.R.R.M. (BNA) 2092 Judith D. BERNS, Phyllis A. Browne, and Sixty-One Other Named Individuals, Plaintiffs-Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 829

287 N.W.2d 829

94 Wis.2d 214, 105 L.R.R.M. (BNA) 2092

Judith D. BERNS, Phyllis A. Browne, and Sixty-One Other Named Individuals, Plaintiffs-Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Defendant-Respondent.

No. 79-359.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 7, 1979.

Opinion Released Dec. 11, 1979.

Opinion Filed Dec. 11, 1979.

Review Granted.

David T. Bryant, National Right To Work Legal Defense Foundation, Fairfax, Va., and Willis B. Ferebee, Milwaukee, for plaintiffs-appellants.

Bronson C. La Follette, Atty. Gen., with whom in the brief was John D. Niemisto, Asst. Atty. Gen., for defendant-respondent.

Nola J. Hitchcock Cross, Podell, Ugent & Cross, S. C., Milwaukee, for respondent-intervenor Milwaukee Dist. Council 48, American Federation of State, County & Municipal Emp., AFL-CIO.

Before DECKER, C. J., MOSER, P. J., and CANNON, J CANNON, Judge.

On February 23, 1976, plaintiffs-appellants, Berns and Browne, filed a complaint with the Wisconsin Employment Relations Commission (WERC) on behalf of themselves and a group of, at that time, unnamed individuals alleging the Milwaukee Board of School Directors and Local 1053 ¹ and District Council 48 ² had committed prohibited practices in violation of sec. 111.70, Stats. The practices referred to were the retroactive deductions of fair-share fees for a period when there was no collective bargaining agreement "in effect." Plaintiffs alleged that this constituted a violation of secs. 111.70(3)(a)6, 111.70(3)(b)2 and 111.70(2), Stats. ³

An examiner appointed to hear the matter concluded that neither respondent had committed any prohibited practice within sec. 111.70(3), Stats., and dismissed the complaint. By its order of August 8, 1978, the WERC upheld the examiner's finding and concluded that the retroactive provisions of the bargaining agreement were valid. Plaintiffs next filed a petition to review with the circuit court of Milwaukee county. The WERC decision was affirmed. Plaintiffs now appeal the judgment of the trial court.

The dispute arises out of the following facts. Appellants were employed by the School Board during the 1973-74 school year. They were not members of the union, although they were employed within a bargaining unit represented by Local 1053 affiliated with District Council 48, and chartered by American Federation of State, County and Municipal Employees AFL-CIO. The collective bargaining agreement between the School Board and Local 1053 included a "fair share agreement," ⁴ which provided that the Board would deduct an amount equal to the monthly dues paid by union members from the earnings of non-union members every month. These deductions were made and remitted to Local 1053 for the 1974 calendar year.

On December 31, 1974, the collective bargaining agreement expired, and no agreement to extend the contract was reached. On February 3, 1975, representatives of the union and the School Board reached accord on a new agreement which was ratified on April 2, 1975. The new agreement contained a fair-share clause, the entire agreement being retroactive by its own terms to January 1, 1975. ⁵ In April, 1975, the School Board again began deducting fair-share fees from plaintiffs' wages as provided in the new agreement. In February, 1976, the School Board made additional deductions for fair-share fees for the period between January 1, 1975 and March 31, 1975. The current controversy ensued.

It should be noted here that while not named defendants, the employer, Milwaukee Board of School Directors and the exclusive representative, Local No. 1053, American Federation of State, County and Municipal Employees, AFL-CIO were permitted to intervene in the trial court, and will be considered as defendants-respondents in this appeal.

The issue presented for our consideration is whether the fair-share provision of the successor collective bargaining agreement can apply retroactively by virtue of its own terms to cover the deduction of dues for the period of time between the expiration of the 1974 contract and the execution of the 1975 agreement. Specifically, plaintiffs object to the deductions for the time period between January 1, 1975 and February 3, 1975. Resolution of this question will turn on the construction of the statutory language found in sec. 111.70(3)(a)6, Stats.:

(3) Prohibited Practices and Their Prevention. (a) It is a prohibited practice for a municipal employer individually or in concert with others;

6. To deduct labor organization dues from an employe's or supervisor's earnings, unless the municipal employer has been presented with an individual order therefor, signed by the municipal employe personally, and terminable by at least the end of any year of its life or earlier by the municipal employe giving at least 30 days' written notice of such termination to the municipal employer and to the representative organization, Except where there is a fair-share agreement in effect. (Emphasis supplied.)

Simply stated, we must determine whether there was a fair-share agreement "in effect" during the hiatus between agreements.

In determining the meaning of any single phrase or word in a statute, it is necessary to look at it in light of the whole statute. State ex rel. Tilkens v. Board of Trustees, 253 Wis. 371, 373, 34 N.W.2d 248, 249 (1948). The primary recourse in construing a statute is to the language of the statute itself. The entire section and related sections are to be considered in its construction or interpretation. Omernik v. State, 64 Wis.2d 6, 12, 218 N.W.2d 734, 738 (1974). Moreover, the statute must be interpreted in a manner consistent with the manifest intent of the legislature if there is an ambiguity. Such intent can be determined from an examination of the statute in relation to its scope, history, general statutory context, subject matter and the object intended by the legislature to be accomplished. State v. Wachsmuth 73 Wis.2d 318, 324-5, 243 N.W.2d 410, 414 (1976); Ortman v. Jensen & Johnson, Inc., 66 Wis.2d 508, 520, 225 N.W.2d 635, 642 (1975); State v. Automatic Merchandisers, 64 Wis.2d 659, 663, 221 N.W.2d 683, 686 (1974); Wisconsin Southern Gas Co. v. Public Serv. Comm., 57 Wis.2d 643, 648, 205 N.W.2d 403, 406 (1973). The object to be accomplished must be given great weight in determining legislative intent. Town of Menominee v. Skubitz, 53 Wis.2d 430, 437, 192 N.W.2d 887, 890 (1972).

On appeal, the construction and interpretation of a statute adopted by an administrative agency is ordinarily entitled to great weight. However, because this case involves an issue of first impression, this court will not be bound by the agency's interpretation. Thus, while we will carefully consider the WERC's ruling, we refuse to limit our review of the question. Department of Administration v. WERC, 90 Wis.2d 426, 429-30, 280 N.W.2d 150, 152 (1979); Beloit Education Asso. v. WERC, 73 Wis.2d 43, 67-8, 242 N.W.2d 231, 242-3 (1976).

A fair-share agreement is a form of union security which provides that all employees must pay the majority union a pro rata share of bargaining costs, whether or not they are a member of the union.

Fair-share agreements are generally regarded as devices whereby all public employees in the bargaining unit are "compelled to pay . . . his or her 'fair-share' of the (certified) union's actual cost of negotiations and representation . . . ." Hay, "Union Security and Freedom of Association," in Labor Relations Law in the Public Sector, 145, 146 (A.Knapp ed. 1977). Its validity rests on the theory that all employees who benefit from the majority union's representative efforts should financially support those efforts; the fair-share agreement is, in the words of this court in Board of School Directors v. WERC, supra at 649, 168 N.W.2d at 98, "related to the functioning of the majority organization in its representative capacity . . . ." Mil. Fed. of Teachers, Local No. 252 v. WERC, 83 Wis.2d 588, 595-6, 266 N.W.2d 314, 317 (1978).

Fair-share agreements were sanctioned by the Wisconsin Legislature in 1971 when the Laws of 1971, ch. 124 permitted inclusion of fair-share clauses in municipal employee collective bargaining agreements.

The statutory scheme makes a fair-share agreement a mandatory subject of bargaining. This is reinforced by several WERC decisions. Under the Municipal Employment Relations Act (MERA: ch. 111.70, Stats.), the issue of retroactivity of wages, hours and working conditions contained in a collective bargaining agreement between a municipal employer and a labor organization is a mandatory subject of bargaining. Racine County Deputy Sheriffs' Association v. Racine County, WERC Dec. No. 10917-A (1973), Aff'd, Racine County v. WERC, WERC Dec. No. 10917-B (1973), Branch II, Circuit Court for Racine County (1973). A fair-share agreement is also a mandatory subject of collective bargaining because of its effect on wages. Thus the terms of such a clause are subject to negotiated agreement between a municipal employee and a labor organization. Madison Joint School Dist. No. 8 v. City of Madison, et al., WERC Dec. No. 11271 (1972), Aff'd Madison Joint School District No. 8 v. WERC, 69 Wis.2d 200, 231 N.W.2d 206 (1975), Rev'd on other grounds, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976). The WERC has also ruled that specific terms of a negotiated fair-share agreement, including its effective dates, continue during the stated term of the fair-share agreement unless and until such time as the WERC certifies unfavorable results of a referendum to discontinue the fair-share agreement. ⁶ In the Matter of the Petition of City of Appleton, WERC Dec. No. 11043 (1...