Berns v. Wisconsin Employment Relations Commission

• Decision Date: 25 November 1980
• Docket Number: No. 79-359,79-359
• Parties: , 111 L.R.R.M. (BNA) 3178 Judith D. BERNS, Phyllis A. Browne, and Sixty-One other named individuals, Plaintiffs-Appellants-Petitioners, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 248

299 N.W.2d 248

99 Wis.2d 252, 111 L.R.R.M. (BNA) 3178

Judith D. BERNS, Phyllis A. Browne, and Sixty-One other

named individuals, Plaintiffs-Appellants-Petitioners, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Defendant-Respondent.

No. 79-359.

Supreme Court of Wisconsin.

Argued Oct. 27, 1980.

Decided Nov. 25, 1980.

David T. Bryant, Rex H. Reed of National Right to Work Legal Defense Foundation, Inc., Springfield, Va., and Willis B. Ferebee, Milwaukee, on brief; David T. Bryant, Springfield, Va., and Willis B. Ferebee, Milwaukee, Wis., argued, for plaintiffs-appellants-petitioners.

John D. Niemisto, Asst. Atty. Gen., argued; Bronson C. La Follette, Atty. Gen., on brief, for defendant-respondent.

Nola J. Hitchcock Cross (argued) and Podell, Ugent & Cross, S. C., on brief, for Milwaukee District Council 48.

CALLOW, Justice.

The court of appeals 94 Wis.2d 214, 287 N.W.2d 829, affirmed the order and judgment of the circuit court for Milwaukee County, the Honorable George A. Burns, Jr., presiding, which affirmed an order of the Wisconsin Employment Relations Commission. On this review we are presented with the question whether a "fair-share" provision in a collective bargaining agreement between a municipal employer and a union may, by its terms, be given retroactive effect. We conclude it may, and we affirm the decision of the court of appeals.

Petitioners Berns and Browne initiated this action on February 23, 1976, by filing with the Wisconsin Employment Relations Commission (Commission) a prohibited practices complaint charging the Milwaukee Board of School Directors (School Board), Local 1053 affiliated with District Council 48, AFSCME, AFL-CIO, and District Council 48 (Unions) with conduct in violation of sec. 111.70(3)(a)6, ¹ 111.70(3)(b)2, ² and 111.70 (3)(c), ³ Stats. The petitioners were subsequently permitted to amend their complaint to add the names of sixty-one other individuals similarly situated.

I.

The dispute arises from the following facts. The petitioners were, at the time of the commencement of the action, employes of the School Board but not members of Local 1053. During 1973 through 1974 the petitioners were members of a collective bargaining unit represented by Local 1053 which, in its exclusive representative capacity, was a party to a collective bargaining agreement with the School Board. That agreement, which expired by its terms on December 31, 1974, included a fair-share provision which read as follows:

"UNION SECURITY

"1. Fair Share Agreement. All employes represented by the Union who have completed sixty calendar days of service with the Board, are compensated for forty-eight (48) or more hours in a month, and are not members of the Union shall be required, as a condition of employment, to pay to the Union each month a proportionate share of the cost of the collective bargaining process and contract administration. Such charge shall be deducted from the employe's paycheck in the same manner as Union dues and shall be the same amount as the Union charges for regular dues, not including special assessments or initiation fees."

Pursuant to that provision, deductions were made from the petitioners' paychecks during the term of the agreement and turned over to the local union.

Negotiations were in progress for a successor agreement when the 1973-1974 agreement expired. On December 31, 1974, the School Board offered by letter to extend the expiring agreement until a new agreement was reached. That offer was rejected by the Unions by letter of January 2, 1975, although the Unions expressed their intention to continue working until further notice. On February 3, 1975, at 2:50 a. m., the negotiators for the School Board and the Unions reached agreement on terms for the successor agreement and initialed a document which reads, in part, as follows:

"It is understood that the Union will agree to extend the previous contract to the date of ratification of the new contract."

A successor collective bargaining agreement was executed by the Board and the Unions on April 2, 1975. That agreement, which by its terms was made effective from January 1, 1975, through June 30, 1977, contained a fair-share clause identical to the one in the previous agreement.

The School Board, which had not made any fair-share deductions for the months of January, February, or March, 1975, resumed making deductions in April, 1975. Also in April of 1975 the president of the local union informed all members of the bargaining unit that the new agreement was retroactive to January 1, 1975, and that fair-share deductions would be made for each month of 1975. It was not until late February, 1976, however, that deductions were taken from the paychecks of fair-share personnel in the amount of $6.50 per month for January, February, and March of 1975. It is the taking of these deductions for the hiatus period after the expiration of the predecessor labor agreement and before the ratification of the successor agreement which the petitioners claimed constituted a prohibited practice under the Municipal Employment Relations Act (MERA).

Hearings were held before a Commission hearing examiner on May 13 and July 23, 1976. The petitioners argued that the deductions for the three months in question were in violation of sec. 111.70(3)(a)6, Stats., since they were not made "where there is a fair-share agreement in effect." Critical to the petitioners position is their view that the words "in effect" do not contemplate retroactive application of a fair-share agreement. On July 15, 1977, the Commission hearing examiner issued findings of fact and conclusions of law and an order accompanied by a written memorandum. In essence the hearing examiner concluded on two separate grounds that no prohibited practice was committed:

"a. respondents' February 3, 1975 agreement ... extended their 1973-74 agreement, including fair-share, retroactively from January 1, 1975 through the date of mutual ratification of a successor agreement, and their ratification of a successor agreement ... created an enforceable fair-share agreement in effect, inter alia, on and after said date of mutual ratification; and

"b. independent of (a) above, respondents' April 2, 1975 execution of their 1975-77 agreement, including fair-share, ... created a fair-share agreement in effect retroactively as regards certain times from and after January 1, 1975 including January, February and March, 1975."

Relative to the question of retroactivity, the examiner concluded that MERA reflected a policy judgment that "desirable public policy ends are served" when nonunion bargaining unit members are required to pay their proportionate share of the costs involved in the bargaining process. Thus, he continued,

"... That legislative judgment and purpose would logically be furthered by enforcing such agreements as regards all (but only) periods of time during which the labor organization was the exclusive representative of the bargaining unit involved, i. e., periods of time during which the labor organization was incurring the costs referred to in the statute in representing the bargaining unit employes from which deductions are sought.

"Furthermore, nothing in the above statutory language itself requires or warrants the conclusion that the Legislature intended to subject the enforceability of fair-share agreements to one or more of the following additional conditions:

"1. that they be in fact agreed upon at or before the period of time they are intended to be in effect;

"2. that deductions be made from paychecks issued in the month to which the deductions relate; or

"3. that they be implemented precisely as written (or become void for the period in which noncompliance occurs).

"Interpreted in the light of the foregoing analysis, Sec. 111.70(3)(a)6 permits fair-share deductions where the parties agree that such deductions should be made as regards a period of time past (throughout which the labor organization represented the deductee and the deductee's bargaining unit) even if that agreement is reached after the period of time to which the agreed-upon deductions relate, so long as the total deductions related to the past period do not exceed the 'amount of dues uniformly required of all members' as regards such period, and so long as the deductions are made after such retroactive agreement has been in fact reached between the labor organization and the municipal employer." (Footnote omitted.)

Accordingly, the hearing examiner found there was no prohibited practice committed by the School Board or the Unions, and he dismissed the complaint. On review the WERC affirmed the findings, conclusions, and order of the hearing examiner.

The petitioners then sought judicial review of the WERC order under Chapter 227, Stats. Both the School Board and the Unions were permitted to intervene in the trial court proceedings. At the trial court the petitioners conceded that, in view of the February 3 agreement extending the expired contract until a new one was ratified, the only deductions at issue were those covering the period from January 1 to February 3, 1975. The trial court affirmed the Commission's decision stating:

"... sound legislative policy supports the Commission's construction that the effective dates of a fair-share agreement are dictated by the terms that the parties have agreed upon. Its holding here is wholly consistent with and furthers the salutary policy adopted by our legislature in 1971:

" 'A public policy of the state as to labor disputes arising in municipal employment to encourage voluntary settlement through the procedures of collective bargaining.' Sec. 111.70(3)(a)6, Wis. Stats., Cf. Sec. 10 Ch. 124, Session Laws (1971).

"... A reading of the statute convinces us that there are no conditions precedent to the commencement of deductions pursuant to such an agreement, nor does it in any way restrict the parties from agreeing upon effective...