Dodgeland Educ. Ass'n v. WERC

• Decision Date: 28 February 2002
• Docket Number: No. 00-0277.,00-0277.
• Citation: 2002 WI 22,639 N.W.2d 733,250 Wis.2d 357
• Parties: DODGELAND EDUCATION ASSOCIATION, Petitioner-Appellant-Petitioner, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION and Dodgeland School District, Respondents-Respondents.
• Court: Wisconsin Supreme Court

250 Wis.2d 357

2002 WI 22

639 N.W.2d 733

DODGELAND EDUCATION ASSOCIATION, Petitioner-Appellant-Petitioner, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION and Dodgeland School District, Respondents-Respondents.

No. 00-0277.

Supreme Court of Wisconsin.

Oral argument October 2, 2001.

Decided February 28, 2002.

For the petitioner-appellant-petitioner there were briefs by Melissa A. Cherney, Chris Galinat, Bruce Meredith and Wisconsin Education Association Council, Madison, and oral argument by Melissa A. Cherney.

For the respondent-respondent, Wisconsin Employment Relations Commission, the cause was argued by William H. Ramsey, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

For the respondent-respondent, Dodgeland School District, there was a brief by Kirk D. Strang and Lathrop & Clark LLP, Madison, and oral argument by Kirk D. Strang.

An amicus curiae brief was filed by Jack D. Walker, Douglas E. Witte and Melli, Walker, Pease & Ruhly, S.C., Madison, and there was oral argument by Jack D. Walker, on behalf of the Wisconsin Association of School Boards.

¶ 1. N. PATRICK CROOKS, J

Dodgeland Education Association (Association) appeals from an order affirming a Wisconsin Employment Relations Commission (WERC) decision finding that an item, such as the teacher preparation time memorandum, must be a mandatory subject of bargaining in order to be a "fringe benefit" within the meaning of Wis. Stat. § 111.70(1)(nc)1.a. (1997-98),¹ and that teacher preparation time is not a mandatory but rather a permissive subject of bargaining and, therefore, is not a fringe benefit. The Association first argues that teacher preparation time is a mandatory subject of bargaining because it is primarily related to wages, hours and conditions of employment. Second, the Association claims that the Dodgeland School District (District) did not submit a qualified economic offer (QEO) because teacher preparation time is a fringe benefit which must be maintained in order to have a QEO. We conclude that we must afford great weight deference to WERC's decision that teacher preparation time is not a mandatory subject of bargaining, and due weight deference to WERC's interpretation of fringe benefits under § 111.70, and we, therefore, affirm WERC's ruling on both matters.

¶ 2. With regard to WERC's decision that teacher preparation time (hereinafter prep time) is a permissive rather than a mandatory subject of bargaining, we conclude that WERC's decision was reasonable because it employed the "primarily related" balancing test. Affording WERC's decision great weight deference, we affirm WERC's holding because it has a rational basis. We note, however, that we would affirm WERC's decision under the due weight deference standard as well, because the Association's view of teacher prep time as a mandatory subject of bargaining is not more reasonable than WERC's decision.

¶ 3. We also find that WERC's decision that an item must be a mandatory subject of bargaining in order to be a fringe benefit under Wis. Stat. § 111.70(1)(a), is reasonable and furthers the purpose of the statute. While the Association's interpretation of fringe benefits is also reasonable, under the due weight deference standard, the Association's interpretation is not more reasonable and we affirm WERC's ruling.

¶ 4. Finally, we affirm WERC's conclusions that the District submitted a valid QEO and that the Association cannot proceed to interest arbitration over the impact proposal. Because teacher prep time is not a fringe benefit under Wis. Stat. § 111.70(1)(a), the District was not required to continue the prep time guarantee, and the District's proposal was a valid QEO. Subsequently, we also affirm WERC's conclusion that the impact proposal is not subject to interest arbitration, because in the presence of a valid QEO neither party can proceed to interest arbitration over economic issues.

I

¶ 5. Before discussing the facts of this case, we briefly review the history of Wis. Stat. § 111.70, the Municipal Employment Relations Act (MERA), and the "qualified economic offer" (QEO) amendments. MERA provides procedures for the collective bargaining process for municipal employers and employees. Since its inception,² MERA has defined collective bargaining, in part, as:

. . . the performance of the mutual obligation of a municipal employer . . . and the representative of its municipal employes . . . to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement . . . with respect to wages, hours and conditions of employment . . . .

Wis. Stat. § 111.70(1)(a). The definition of collective bargaining also specifically distinguishes matters subject to bargaining from those that are not.

. . . The municipal 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 municipal employes in a collective bargaining unit. . . .

Id.

[1, 2]

¶ 6. This court has acknowledged that conflict over whether certain matters are subject to bargaining is inevitable because a matter involving wages, hours, and conditions of employment may also relate to public policy. Beloit Educ. Ass'n v. WERC, 73 Wis. 2d 43, 52-53, 242 N.W.2d 231 (1976). The "primarily related" test was adopted to resolve such conflict. Id. at 54. "The question is whether a particular decision is primarily related to the wages, hours and conditions of employment of the employees, or whether it is primarily related to the formulation or management of public policy." Unified Sch. Dist. No. 1 v. WERC, 81 Wis. 2d 89, 102, 259 N.W.2d 724 (1977). Accordingly, we have consistently applied the "primarily related" standard as a balancing test:

If the employees' legitimate interest in wages, hours, and conditions of employment outweighs the employer's concerns about the restriction on managerial prerogatives or public policy, the proposal is a mandatory subject of bargaining. In contrast, where the management and direction of the school system or the formulation of public policy predominates, the matter is not a mandatory subject of bargaining.

West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 9, 357 N.W.2d 534 (1984).

[3]

¶ 7. Prior to the 1993 amendments, if the parties to a municipal employment collective bargaining agreement "are deadlocked with respect to any dispute . . . over wages, hours and conditions of employment . . . either party, or the parties jointly, may petition the commission . . . to initiate compulsory, final and binding arbitration . . ." Wis. Stat. § 111.70(4)(cm)6. This "interest arbitration" however, is available only for mandatory subjects of bargaining. Beloit Educ. Ass'n, 73 Wis. 2d at 54. To state this another way, interest arbitration is available only for disputes primarily related to wages, hours, and conditions of employment.

¶ 8. In 1993, the legislature amended MERA as it applies to bargaining units "consisting of school district professional employes . . ." See Wis. Stat. § 111.70(4)(cm)5s.³ Under the revised statute, a school district can submit a "qualified economic offer" (QEO) and subsequently "no economic issues are subject to interest arbitration." Id. In order to submit a valid QEO, a municipal employer must submit a proposal providing a statutorily required increase in the cost of wages and fringe benefits and maintain all fringe benefits existing on the 90th day prior to expiration of the previous collective bargaining agreement. See Wis. Stat. § 111.70(1)(nc)1.⁴ Under § 111.70(4)(cm)5s., either a district or a bargaining unit may request that WERC determine whether the district has submitted a valid QEO, which would preclude compulsory interest arbitration of economic issues.⁵

II

¶ 9. The facts of this case are not in dispute. The Dodgeland Education Association (Association) is the collective bargaining representative of teachers employed by the Dodgeland School District (District). During the period of the 1995-1997 collective bargaining agreement, the District and the Association had a memorandum of understanding (memorandum) setting forth the minimum prep time that would be available to teachers in the school district. The memorandum guaranteed that, "absent mutual agreement by the parties to modify the number of preparation periods," middle school and high school teachers were to have two prep periods per day, and elementary teachers were to have them during art, music, and physical education classes and at lunch. The prep time memorandum expired on June 30, 1997.

¶ 10. Prep time is a period when a teacher does not have assigned teaching responsibility. WERC found that it was the general expectation and practice for teachers to use that time for preparation activities, including lesson planning, meeting with students, grading schoolwork, making phone calls to parents, maintaining student records, ordering supplies, and other activities related to teaching. Dodgeland Sch. Dist., Dec. No. 29490, 5-8 (1/99). The teacher may also use that time as a break if he or she chooses to accomplish preparation tasks at times other than prep time. Id.

¶ 11. In the spring of 1997, the parties began negotiating a successor collective bargaining agreement. The Association proposed a continuation of the prep time guarantee, as reflected in the memorandum. The District's proposal did not renew or continue the prep time memorandum guarantee. In a letter dated April 25, 1997, District Superintendent Terry McLeod advised teachers that although he did "understand the importance of adequate prep time and would not support action to unnecessarily reduce such a valuable resource," the "financial picture for the District is not very bright," and "it may be necessary for everyone to make concessions." On December 22, 1997, McLeod sent a letter to Bob...