Browne v. Wisconsin Employment Relations Com'n
| Citation | 485 N.W.2d 376,169 Wis.2d 79 |
| Decision Date | 23 March 1992 |
| Docket Number | DISTRICT,J,No. 89-1094,AFL-CI,M,89-1094 |
| Parties | , 140 L.R.R.M. (BNA) 2647, 75 Ed. Law Rep. 502 Phyllis Ann BROWNE, Dorothy Ackerman, Oreba Alexander, Sheri L. Bartoli, Betty C. Bassett, Joanne Beck, Joann M. Behling, Jeanette A. Bennett, Donna J. Borowski, Ruth Buenger, Ruth Burba, Ivona M. Bureta, Therese Burger, Judith Campeau, Rosalie J. Cherrone, Margaret Cieszynski, Yetta Dietch, LaVerne Dugan, Beverly Engelland, Dorothy H. Gaus, Doris A. Gohlke, Judith D. Goss, Beverly A. Gray, Corinne T. Gross, Katherine L. Hanna, Mary J. Hanson, Nora R. Herriges, Donna J. Holstein, Mildred L. Hudson, Noreen M. Jacobi, Inez L. Kiles, Joyce Knippel, Linda Koebert, Hermine A. Kunda, Virginia Lemberger, Evelyn E. Markowski, Florence Markwiese, Mary Marinetto, Helen Marx, Barbara A. Morbeck, Christine M. Musial, Christine R. Nault, Esther Palsgrove, Eleanore Peliska, Faye M. Pohl, Josephine Pon, Lorraine Richardson, Annie L. Riley, Sandra Schueller, Esther L. Schueneman, Virginia A. Schwerm, Rosemarie Schwertfeger, Dorothy Strauss, Deborah J. Strelecki, Ninette Sunn, Lorraine Teske, Grace G. Voelz, Irene B. Wagner, Audrey A. Wickert, Dorothy E. Wilkes, Dorothy A. Koch, Walter J. Johnson, Edward L. Barlow, Erna Byrne, Lynn M. Kozlowski, Cherry Ann Lackey, Gerald Leranth, Irving E. Nicolai, Doris M. Piper, Christina Pitts, Mildred Pizzino, Helen Ryznar, Marshall M. Scott, John P. Skocir, Anne C. Tebo, Oliver J. Waldschmidt, Annabelle Wolter, Barbara Barrish, Doris M. Conner, Terese G. Fabian, Kathleen S. Fleury, Mary E. Jaeger, Regina S. Karpowitz, Carolyn Lohmiller, Kenneth E. Multhauf, Mildred Noffz, Teresa Patzke, Carol S. Peters, Dorothy E. Riedel, Cynthia Schneider, Ruth Cheryl Thompson, Ione Trachsel and Dolores V. Winter, Petitioners-Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent. The AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,COUNCIL 48, American Federation of State, County and Municipal Employees,ohn Parr, Director of District Council 48, Local 1053, American Federation of State, |
| Court | United States State Supreme Court of Wisconsin |
For the petitioner-appellant there were briefs by Charles P. Stevens and Lindner & Marsack, S.C., Milwaukee and Raymond J. LaJeunesse, Jr. and Milton L. Chappell and The Nat. Right to Work Legal Defense Foundation, Inc., Springfield, Va. and oral argument by Mr. Stevens and Mr. LaJeunesse.
For the respondent the cause was argued by John D. Niemisto, Asst. Atty. Gen., with whom on the brief was James E. Doyle.
For the intervenor-respondents there was a brief by Larry P. Weinberg and Robert D. Lenhard, Washington, D.C. and John H. Bowers and Lawton & Cates, S.C., Madison and oral argument by Mr. Weinberg and Mr. Bowers.
Amicus curiae briefs were filed by Pamela Jacobs and Bruce Meredith, Madison for the Wisconsin Educ. Ass'n Council.
This is a consolidated appeal on certification of the court of appeals from a judgment of the circuit court for Milwaukee County, Michael P. Sullivan, Circuit Judge, affirming on review pursuant to ch. 227, Stats., a final decision of the Wisconsin Employment Relations Commission (WERC) regarding constitutional and statutory claims arising out of fair-share agreements between the Milwaukee Board of School Directors, Milwaukee County and various local affiliated unions of Milwaukee District Council 48 (Council 48) of the American Federation of State, County and Municipal Employees (AFSCME). WERC concluded that the unions committed prohibited practices under sec. 111.70(3)(b), Stats., by deducting fair-share fees without first providing all of the procedural safeguards required by Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), and ordered a variety of retrospective and prospective relief. The circuit court upheld WERC's decision in its entirety.
The facts are undisputed. In the early 1970's, the Milwaukee Board of School Directors and Milwaukee County (the employers) entered into fair-share agreements with Council 48 and its affiliated locals (collectively, the unions), as authorized by sec. 111.70(1)(f) and (2), Stats. 1 The fair-share agreements required nonunion employees in the bargaining units represented by the unions to pay a proportionate share of the cost of collective bargaining and contract administration. The fair-share fee was equal to the dues paid by union members.
Two groups of nonunion employees filed actions challenging the constitutionality of sec. 111.70(1)(f) and (2), Stats. 2 This court held the statute constitutional in Browne v. Milwaukee Bd. of School Directors, 83 Wis.2d 316, 265 N.W.2d 559 (1978) (Browne II ). 3 Additional facts in respect to this case appear in Browne II. The cases were ultimately remanded by the circuit court to WERC to make findings of fact and conclusions of law regarding what portion of the fair-share fees had been used for purposes unrelated to collective bargaining or contract administration.
On March 4, 1986, the United States Supreme Court decided Hudson, which set forth certain procedural safeguards necessary for the collection of fair-share fees:
[T]he constitutional requirements for the Union's collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.
Hudson, 475 U.S. at 310, 106 S.Ct. at 1078. In response to Hudson, the unions published a "NOTICE TO ALL NONMEMBER FAIRSHARE PAYORS," which purported to provide nonunion employees an explanation of the basis for the fair-share fee, give them an opportunity to object to the use of the fees for nonchargeable activities, and provide a mechanism by which objecting nonunion employees could challenge the unions' calculation of the fee before an impartial decisionmaker.
The notice first breaks down the unions' activities into 38 separate categories and indicates which categories the unions consider "chargeable" and which categories the unions consider "nonchargeable." 4 The notice then lists 18 of the major categories of AFSCME's audited expenses, and the portion of each which AFSCME determined to be chargeable. Next, the notice provides a detailed summary of Council 48's activities and expenses, and states the percentage of which it determined were chargeable. The notice states that the general expenses of both AFSCME and Council 48 were audited.
Under the heading "AFSCME Council 48 Affiliated Locals Financial Information," the notice provides that "Council 48 has determined that the percentage of chargeable activities of these local unions is at least as great as the percentage of chargeable activities of Council 48." The notice does not indicate the basis for this "local presumption," and does not indicate whether the local unions' expenses were audited.
Next, the notice provides a procedure whereby nonunion employees, within 30 days of the notice, can object to the unions' use of fair-share fees for nonchargeable activities, at which point those employees receive an advance rebate of the portion of the fees which the unions determined to be nonchargeable. The notice then provides a procedure for objecting employees to challenge the unions' calculation of the nonchargeable amount. "Challengers" must inform the unions in writing of their intent to challenge the calculation, at which point the unions will place in escrow 100 percent of the fair-share fees collected from the challengers. 5 All challenges are consolidated into a single hearing before an impartial arbitrator, at which the unions bear the burden of proof for the accuracy of the calculation. The escrowed amounts are disbursed pursuant to and in accordance with the arbitrator's decision.
In April, 1986, the nonunion employees requested WERC to review the fair-share agreements in light of Hudson. On May 9, 1986, WERC issued an order to show cause and notice of hearing in both Browne and Johnson, and consolidated the cases. On May 30, 1986, WERC held a hearing. On April 24, 1987, WERC issued an extensive decision, determining that the unions had committed prohibited practices under sec. 111.70(3)(b), Stats., by providing only some of the procedural safeguards required by Hudson, and ordered extensive retrospective and prospective relief.
WERC held that the unions' notice and procedures were legally deficient in several aspects and legally sufficient in several others, and that the Hudson holding is to be retroactively applied. WERC ordered the union to: (1) refund to the complainants, at percentages established in the various stipulations, all nonchargeable fair-share fees collected prior to December 31, 1982, with interest; 6 (2) escrow an amount equal to all fair-share fees deducted from the complainants between January 1, 1983 to March 4, 1986 (the date Hudson was decided), with interest; (3) rectify the deficiencies in the notice to comply with Hudson; and (4) continue the present advance rebate, and escrow all fair-share fees deducted after March 4, 1986 from all fair-share fee payors, plus interest. WERC also held that the escrow amounts must be in the control of a neutral third party, and that the escrowed amounts would be disbursed in accordance with the approved Hudson procedures.
The unions and the nonunion employees both sought review of portions of WERC's decision...
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