Madison Teachers, Inc. v. Wisconsin Employment Relations Com'n
| Decision Date | 26 March 1998 |
| Docket Number | No. 97-2116,97-2116 |
| Citation | 218 Wis.2d 75,580 N.W.2d 375 |
| Parties | , 158 L.R.R.M. (BNA) 2056 MADISON TEACHERS, INC., Petitioner-Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the petitioner-appellant, the cause was submitted on the briefs of Lester A. Pines and Stacy M. Rios of Cullen, Weston, Pines & Bach of Madison.
On behalf of the respondent-respondent, the cause was submitted on the brief of John D. Niemisto, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
Before EICH, C.J., and ROGGENSACK and DEININGER, JJ.
The Wisconsin Employment Relations Commission (WERC) decided that the Madison Metropolitan School District had no duty to bargain with teachers over a policy requiring certain teachers to telephone the parents of students during the first two weeks of the school year. The circuit court affirmed the WERC decision, and the teachers' labor organization, Madison Teachers, Inc. (MTI), appeals the circuit court order. MTI claims the WERC erred when it determined that the policy in question had "no impact" on the teachers' wages, hours or conditions of employment. We disagree and affirm the circuit court order upholding the WERC determination.
Under § 111.70(3)(a)4, STATS., it is a prohibited practice for a municipal employer to "refuse to bargain collectively with a representative" of its employees with respect to a subject for which the employer is under a [W]ages, hours and conditions of employment . 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.
duty to bargain. Section 111.70(1)(a), defines "collective bargaining," and describes subjects which must be bargained as follows:
(Emphasis added.) If a dispute arises regarding whether a particular issue is subject to mandatory bargaining, either party may request a determination from the WERC. Section 111.70(4)(b).
In determining whether a proposal is subject to mandatory bargaining, the WERC employs a "primarily related" standard. West Bend Educ. Ass'n v. WERC, 121 Wis.2d 1, 8, 357 N.W.2d 534, 538 (1984). That is, the initial inquiry must focus on "whether the proposals are 'primarily related' to 'wages, hours and conditions of employment,' [or] to 'educational policy and school management and operation.' " Id. (quoted source omitted). "If the proposal is primarily related to wages, hours and working conditions, it is a mandatory subject of bargaining, while if it is primarily related to educational policy and school management, it is a permissible subject concerning which the district has no duty to bargain." School Dist. of Drummond v. WERC, 121 Wis.2d 126, 136, 358 N.W.2d 285, 290 (1984).
Even where a proposal is primarily related to policy and management concerns, and is thus not mandatorily bargainable, the employer must bargain "[t]he impact 1 of an educational policy affecting wages, hours, and working conditions." Blackhawk Teachers' Fed'n v. WERC, 109 Wis.2d 415, 424, 326 N.W.2d 247, 252 (Ct.App.1982); see also Racine Educ. Ass'n v. WERC, 214 Wis.2d 352, 360 n. 3, 571 N.W.2d 887, 891 (Ct.App.1997). If bargaining the policy itself is mandatory, "the parties confer about whether the proposal should be adopted and what it should say"; but when bargaining over the impacts of a policy, the parties "discuss the manner of applying the policy adopted or exercising the function involved." School Dist. of Drummond, 121 Wis.2d at 140, 358 N.W.2d at 292.
The WERC made the following factual findings regarding the history of the present dispute between MTI and the District:
3. In the 1992-93 school year, Memorial High School established a pilot program for freshmen called the Core Program with a goal of increasing the percentage of ninth grade students who after the first year would have enough credits to be promoted. The pilot program involved only two Cores. Each Core consisted of about 80 students and had an English, Social Studies and Science teacher in common. In 1992-93, each Core teacher was given an extra period each day for planning and discussing strategies to meet the needs of students. In 1993-94, the Core program was implemented for the entire ninth grade and consisted of five Cores with about 80 students each and each Core teacher was given 2 1/2 periods per week for planning and discussing strategies for 4. In August, 1994, it was suggested by the Memorial High School administrators that over the first month of school each Core be divided up and each Core teacher contact the parents or guardians of their share of Core students. In September, 1994, the assistant principals at Memorial sent a memo to all Core teachers stating that now was an excellent time to make phone calls to parents/guardians. The MTI building representative, by a memo dated October 5, 1994, informed Core teachers that the phone calls would take considerable time and effort and was an additional burden and the District could not unilaterally impose it. This dispute was not resolved and the Core teachers were not required to make the calls.
meeting students' needs. In addition to meeting with each other, the Core teachers met with the guidance counselor as well as the social worker, school psychologist, principal, reading specialists and parents of the students.
5. On September 6, 1995, Memorial High School Principal Carolyn Taylor sent a memo to all Core teachers which stated, in part, as follows:
Using some of the time provided by our Core arrangements (or any other time you deem appropriate to substitute), please make telephone contact with one parent of each student in your Core.
The memo provided that the Core students be divided into fourths and it was anticipated that each teacher would have fewer than 20 contacts with each contact taking about five minutes and the memo stated that the contacts should be completed by September 20, 1995.
On October 25, 1995, MTI filed a prohibited practice complaint with the WERC alleging that the District had failed to "bargain with MTI over the subject of the requirement that Memorial Core teachers perform additional work by making telephone contacts with 'Core parents,' " and had failed to "bargain with MTI over the impact of the directive that Memorial Core teachers make telephone contact with Core parents." At the hearing before a WERC hearing examiner, however, MTI stipulated that "the [D]istrict does indeed have the right to implement this responsibility to make the phone calls and that the issue before the hearing examiner is the duty to bargain the impact, if any, of that responsibility." After considering the testimony at the hearing and the briefs of the parties, the examiner ordered MTI's complaint dismissed, concluding:
The District's Memorial High School Principal's directive dated September 6, 1995, to make telephone contact with Core parents had no impact on wages, hours or conditions of employment so the District had no duty to bargain over said directive .
MTI sought review of the WERC's decision and order in the circuit court and now appeals the circuit court's order affirming the WERC determination.
We independently review the WERC's determination, not the decision of the circuit court. Racine Educ. Ass'n, 214 Wis.2d at 355, 571 N.W.2d at 889. The scope of our review depends, initially, on whether the agency determination under review is its finding of a fact or its interpretation of law. See § 227.57(3), (5) and (6), STATS. MTI asserts that the WERC's determination, that the proposed District policy had "no impact" on wages, hour or conditions of employment, is a conclusion of law which we should review de novo, or to which we should accord, at most, "due weight" deference. The WERC, on the other hand, devotes most of its brief to developing its argument that the "no impact" determination was factual in nature and was based on "substantial evidence in the record." The WERC also requests in one paragraph, however, that we grant "great weight deference" to the WERC's "interpretation and application of the statute" in deciding "whether the establishment of [the District policy] had an impact on teachers' wages, hours and conditions of employment."
Whether the WERC's "no impact" determination is a factual finding or a statutory interpretation, and if the latter, what level of deference should be accorded by a reviewing court, are apparently questions of first impression. In most of the reported cases, the principal matter in dispute is whether a proposed school district policy is "primarily related" to educational policy or to wages, hours and conditions of employment. The second statutory requirement, that a policy's impact on the three listed employee interests must be bargained, is often conceded or not seriously in dispute. See, e.g., Beloit Educ. Ass'n v. WERC, 73 Wis.2d 43, 242 N.W.2d 231 (1976); West Bend Educ. Ass'n, 121 Wis.2d at 14-15 n. 17, 357 N.W.2d at 541; School Dist. Of Drummond, 121 Wis.2d at 139 n. 7, 358 N.W.2d at 292; Blackhawk Teachers' Fed'n, 109 Wis.2d at 429-30, 326 N.W.2d at 255; Racine Educ. Ass'n, 214 Wis.2d at 360 n. 3, 571 N.W.2d at 891.
The WERC's "no impact" determination is included within a segment of its decision entitled "CONCLUSION OF LAW," although it appears that the actual legal conclusions being made are these: (1) that the District had no duty to bargain over the Core parent telephone policy, and (2) that the District did not commit a prohibited practice. We are not bound by an agency's characterization of whether it is finding a fact or making a conclusion of law....
To continue reading
Request your trial
-
Milwaukee Journal Sentinel v. Department of Administration
...111.93(2) and (3)). ¶ 46 The court of appeals also addressed the meaning of "conditions of employment" in Madison Teachers, Inc. v. WERC, 218 Wis.2d 75, 580 N.W.2d 375 (Ct.App.1998). There, the parties agreed that "conditions of employment" for a teacher in a classroom environment included ......
-
State ex rel. Gendrich v. Litscher
...as being unsupported by the evidence. The test on certiorari review is the substantial evidence test. Madison Teachers, Inc. v. WERC, 218 Wis. 2d 75, 85, 580 N.W.2d 375 (Ct. App. 1998) (citation omitted). The test is not whether a preponderance of the evidence supports the Commission's dete......
-
WDER v. Bldg. Trades Negotiating Comm.
...are so classified or constitute an exhaustive or exclusive listing of work assignments. 11. See also Madison Teachers, Inc., v. WERC, 218 Wis. 2d 75, 88-89, 580 N.W.2d 375 (Ct. App. 1998) (noting that the parties in that case had agreed that "conditions of employment" included "`matters suc......
-
Rosneck v. Wis. Emp't Relations Comm'n
...determination, but whether reasonable minds could arrive at the same conclusion reached by the WERC." Madison Teachers, Inc. v. WERC , 218 Wis. 2d 75, 85, 580 N.W.2d 375 (Ct. App. 1998). Moreover, when reviewing the record, we look for evidence that supports WERC's determination, not for ev......