City of Beloit by Beloit City School Bd. v. Wisconsin Employment Relations Commission, s. 75--105

Citation73 Wis.2d 43,242 N.W.2d 231
Decision Date02 June 1976
Docket NumberNos. 75--105,75--106,s. 75--105
Parties, 92 L.R.R.M. (BNA) 3318, 84 A.L.R.3d 221, 80 Lab.Cas. P 53,967 CITY OF BELOIT, a Municipal Corporation, By the BELOIT CITY SCHOOL BOARD, its agent, Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent. BELOIT EDUCATION ASSOCIATION and Wisconsin Education Association Council, Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent.
CourtUnited States State Supreme Court of Wisconsin

Robert J. Arnot, Madison (argued), for Beloit Ed. Ass'n, John C. Carlson and Lawton & Cates, Madison, on the brief.

Charles D. Hoornstra, Asst. Atty. Gen. (argued), for Wis. Employment Relations

Com'n; Bronson C. La Follette, Atty. Gen., on the brief.

Herbert P. Wiedemann, Milwaukee (argued), for City of Beloit by Beloit City School Bd.; Foley & Lardner, Milwaukee, and George Blakely, Beloit, on the brief.

Henry A. Gempeler, City Atty., and Gerald C. Kops, Deputy City Atty., filed a brief amicus curiae for the City of Madison Joint School Dist. No. 8 and its agent, the Bd. of Ed., in support of the city of Beloit and its agent the Beloit Bd. of Ed.


This is an appeal by a school board and by a teachers' association from a circuit court judgment. That judgment modified and affirmed a ruling of the state employment relations commission. That ruling declared the rights of the school board as employer and of the teachers' association as collective bargaining agent under sec. 111.70(1)(d), Stats.

THE STATUTE. This statute (sec. 111.70(1)(d), Stats.), establishing the right of 'collective bargaining' in the public sector in this state, provides as follows:

'(d) 'Collective bargaining' means the performance of the mutual obligation of a municipal employer, through its officers and agents, and the representatives of its employes, to meet and confer at reasonable times, in good faith, with respect to wages, hours and conditions of employment with the intention of reaching an agreement, or to resolve questions arising under such an agreement. The duty to bargain, however, does not compel either party to agree to a proposal or require the making of a concession. Collective bargaining includes the reduction of any agreement reached to a written and signed document. The employer shall not be required to bargain on subjects reserved to management and direction of the governmental unit except insofar as the manner of exercise of such functions affects the wages, hours and conditions of employment of the employes. In creating this subchapter the legislature recognizes that the public employer must exercise its powers and responsibilities to act for the government and good order of the municipality, its commercial benefit and the health, safety and welfare of the public to assure orderly operations and functions within its jurisdiction, subject to those rights secured to public employes by the constitutions of this state and of the United States and by this subchapter.' (Emphasis supplied.)

THE LIMITS. As to collective bargaining in the public sector, the italicized portions of the statute establish three categories: (1) Where collective bargaining is required; (2) where collective bargaining is permitted, but not required; and (3) where collective bargaining agreements are prohibited. 1 The obligation of the public employer to 'meet and confer' and its right to agree to a policy in a 'written and signed document' extends only to matters of 'wages, hours and conditions of employment.' Beyond such limit is the area of 'subjects reserved to management and direction of the governmental unit,' where the public employer may, but is not required, to 'meet and confer' and may, but is not required, to agree in a 'written and signed document.' Beyond such limit of voluntary bargaining is the area involving the exercise of the public employer's 'powers and responsibilities to act for the . . . good order of the municipality, its commercial benefit and the health, safety and welfare of the public.' Here the proper forum for the determination of the appropriate public policy is not the closed session at the bargaining table. More than the bilateral input of the public employer and the employees' bargaining agent is required for deciding the appropriate public policy. Here the multilateral input of employer, employees, taxpayers, citizen groups and individual citizens is an integral part of the decision-reaching process, and bargaining sessions are not to replace public meetings of public bodies in the determination of the appropriate public policy.

THE PARTIES. Here we deal with collective bargaining between a local school board and a teachers' association. Both board and association are involved, not only in the collective bargaining process as statutorily defined, 2 but also in the political process as constitutionally assured. 3 The school board is an employer under the statute, 4 and it is also a public body of elected officials, with powers and duties for the operation of the school system in the public interest. 5 As such employer, it must bilaterally 'meet and confer' and may agree in a 'written and signed document' as to matters involving 'wages, hours and conditions of employment.' As such public body and as to matters of school management and educational policy, it cannot be required to collectively bargain with the collective bargaining agent for its employees. The teachers' association here is a collective bargaining agent under the statute, 6 and also a professional association of teachers concerned with matters of school system management and educational policy. 7 As such bargaining agent the association can collectively bargain with the board as to matters of 'wages, hour and conditions of employment.' As a professional association it may also be heard as to matters of school and educational policies, but it makes such contribution or input along with other groups and individuals similarly concerned. 8

THE PROBLEM. The difficulty encountered in interpreting and applying sec. 111.70(1)(d), Stats., is that many subject areas relate to 'wages, hours and conditions of employment,' but not only to such area of concern. Many such subjects also have a relatedness to matters of educational policy and school management and operation. What then is the result if a matter involving 'wages, hours and conditions of employment' also relates to educational policy or school administration? An illustration is the matter of classroom size, subsequently discussed. The number of pupils in a classroom has an obvious relatedness to a 'condition of employment' for the teacher in such classroom. But the question of optimum classroom size can also be a matter of educational policy. And if a demand for lowered classroom size were to require the construction of a new school building for the reduced-in-size classes, relatedness to management and direction of the school system is obvious. Would such required result of a new building not be a matter on which groups involved, beyond school board and teachers' association, are entitled to have their say and input? Other courts have faced this same problem. Some limit required bargaining to matters 'directly' related to 'wages, hours and conditions of employment.' 9 Some make the test whether the subject matter is 'significantly' related to 'wages, hours and conditions of employment.' 10 Some make the test whether the subject 'materially' affects the working conditions. 11 Commentators appear to agree that drawing the line or making the distinction is not easy. 12

THE CONSTRUCTION. The state employment relations commission was petitioned to determine by declaratory ruling which of various proposals for bargaining were mandatorily bargainable. It responded by initially concluding that only subject matters that were primarily related to wages or hours or conditions of employment were mandatorily bargainable. 13 As to such matters, the school board was required to 'meet and confer' and collectively bargain as to demands of the teachers' association. This construction of the statute was upheld as reasonable by the reviewing court. We agree. The dictionary defines 'primarily' as meaning 'fundamentally.' 14 It is in this sense of the word that 'primarily' is here used. What is fundamentally or basically or essentially a matter involving 'wages, hours and conditions of employment' is, under the statute, a matter that is required to be bargained. The commission construed the statute to require mandatory bargaining as to (1) matters which are primarily related to 'wages, hours and conditions of employment,' and (2) the impact of the 'establishment of educational policy' affecting the 'wages, hours and conditions of employment.' We agree with that construction.

THE APPLICATION. Having adopted the 'primarily so' test as to the matters where mandatory bargaining is required by the statute, the commission proceeded to apply that test to a variety of the teachers' association demands submitted to the commission for testing. That was correct for we have here a case-by-case approach to specific situations. There was no attempt by the commission and there is none by this court to develop broad and sweeping rules that are to apply across the board to all situations. 15 As did the commission and the reviewing court, we will now proceed to discuss the application of the 'primarily so' test to each of the subject areas claimed by the teachers' association to be appropriate subjects for required bargaining.

(A) TEACHER EVALUATION. A series of proposals relating to teacher evaluation were submitted to the school board by the teachers' association as appropriate subjects for required bargaining. As to two of them, (1) who was to evaluate teacher performance, and (2) assistance to teachers whose evaluations were poor, the commission held that they did not primarily involve 'wages, hours and...

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