Milwaukee Dist. Council 48 v. Milwaukee Cnty.

Decision Date07 November 2017
Docket NumberAppeal No. 2016AP1525
Parties MILWAUKEE DISTRICT COUNCIL 48, Plaintiff-Respondent, v. MILWAUKEE COUNTY, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the brief of Mark A. Sweet of Sweet and Associates, LLC.

On behalf of the defendant-respondent, the cause was submitted on the brief of Alan M. Levy of Lindner and Marsack, S.C.

Before Brennan, P.J., Kessler and Dugan, JJ.

KESSLER, J.

¶1 Milwaukee County appeals an order granting summary judgment to Milwaukee District Council 48 (DC 48) finding that certain Milwaukee County employees, represented by DC 48, were not covered by a collective bargaining agreement (CBA) at the time Milwaukee County General Ordinance (MCGO) § 201.24(4.1) took effect, thus rendering them eligible for certain retirement benefits. We affirm.

BACKGROUND

¶2 At issue in this appeal is whether certain Milwaukee County employees, represented by DC 48, were eligible to utilize full pension benefits upon retirement from the County. The material facts underlying this appeal are not in dispute. For decades, Milwaukee County has provided retirement benefits to employees pursuant to ordinance. Those employees are considered "members" of the County's Employee Retirement System (ERS). In 1993, the County adopted the ordinance commonly referred to as the "Rule of 75," by which an "employee not covered by the terms of a collective bargaining agreement at the time his employment is terminated and who retires on or after September 1, 1993," received a full pension if the employee's age added with his or her years of service equaled seventy-five. Later that year, the County Board agreed to a collective bargaining agreement with DC 48, in which the Rule of 75 was extended to employees represented by the union who had become ERS members prior to January 1, 1994.

¶3 In 2005, the County amended the ordinance to end the Rule of 75 for ERS members who were not covered by a CBA if they first entered ERS after January 1, 2006. Those covered by the union's CBA continued to receive the Rule of 75 benefit only if they had been hired prior to January 1, 1994. The last CBA between the union and the County expired on December 31, 2008. By agreement, the CBA was extended to March 31, 2009. No successor CBA between DC 48 and the County was ever reached.

¶4 In 2011, the Wisconsin legislature adopted Act 10. See 2011 Wis. Act 10. Act 10 took effect on June 29, 2011. As relevant to this appeal, Act 10 drastically curtailed collective bargaining by prohibiting municipal employees represented by unions from negotiating pension provisions.1 Act 10 amended WIS. STAT . § 111.70 (2011-12)2 by limiting the scope of bargaining between municipalities and "general municipal employees" represented by a union to the "base wage" and it limited any increase in the base wage to the increase in the consumer price index. See § 111.70. Specifically, Act 10 defined "collective bargaining" as:

[T]he performance of the mutual obligation of a municipal employer, through its officers and agents, and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement with respect to wages ... for general municipal employees.

2011 Wis. Act 10 § 210 (emphasis added); WIS. STAT . § 111.70(1)(a).

¶5 Thereafter, on September 29, 2011, the County Board adopted an amendment to MCGO § 201.24(4.1) to extend the Rule of 75 to certain additional employees not covered by a CBA on that date:

2.(a) A member[3]who , on September 29, 2011 is employed and is not covered by the terms of a collectivebargaining agreement , and whose initial membership in the retirement system under section 201.24 began prior to January 1, 2006, and who retires on and after September 1, 1993, shall be eligible for a normal pension when the age of the member when added to his years of service equals seventy-five (75)....
(b) A member who, on September 29, 2011, is employed and is covered by the terms of a collective bargaining agreement with ... District Council 48 ... and whose initial membership date is prior to January 1, 1994, shall be eligible for a normal pension when the age of the member when added to his years of service equals seventy-five (75)....

MCGO § 201.24(4.1)(2) (2011) (emphasis added). Thus, the County specifically gave "members" who were employed by the County the benefit of the Rule of 75 whether or not the employees were covered by CBAs, but depending on when the employee became a member of the County's retirement system.

¶6 Pursuant to additional changes made by Act 10, DC 48's certification as a representative of the County general employees was revoked by the Wisconsin Employment Relations Commission effective January 30, 2012.

¶7 Following DC 48's decertification, the County moved for declaratory judgment, and ultimately summary judgment, on the grounds that, pursuant to MCGO § 201.24(4.1), the Rule of 75 benefit was not applicable to employees represented by DC 48 on September 29, 2011, if those employees entered ERS between January 1, 1994, and December 31, 2005.4 The County argued that the employees at issue were covered by a CBA on September 29, 2011, because DC 48 was not decertified until January 2012.

¶8 DC 48 filed its own summary judgment motion, arguing that its members were not represented by a CBA at the time MCGO § 201.24(4.1) was amended, and thus were eligible for the Rule of 75 benefit.

¶9 Ultimately, the circuit court granted summary judgment in favor of DC 48, stating:

There is no question that the collective bargaining agreement between the parties expired on March 31, 2009 and no successor agreement was ever agreed upon, or received final formal approval of the union or the County. Further, there were no settled-upon expectations between the parties based upon an exchange of promises and consideration....
Therefore, the court finds that, as it pertains solely to the plaintiffs and defendant in the instant case, upon the effective date of Wisconsin 2011 Act 10, there was no collective bargaining agreement in effect, or executed, or even being negotiated; there was no status quo protection existing under [the Municipal Employment Relations Act] with regard to "conditions of employment;" and therefore there was no pre-existing legal obligation between the parties as it related to conditions of employment beyond wages. Therefore, because no collective bargaining agreement was in effect, the plaintiffs were not "covered by the terms of a collective bargaining agreement" as used in [the ordinance] for purposes of evaluating their eligibility for the Rule of 75.

(Italics added.) This appeal follows.

DISCUSSION

¶10 The central question in this appeal is whether, as of September 29, 2011, County employees who were in the bargaining unit represented by DC 48 and who entered ERS between January 1, 1994, and December 31, 2005, were covered by the terms of a CBA. We agree with the circuit court that the employees were not covered by the terms of a CBA and thus were eligible for the Rule of 75 benefit.

¶11 In reviewing the grant or denial of a summary judgment, we apply the same methodology as the circuit court and review de novo the grant or denial of summary judgment. See Green Spring Farms v. Kersten , 136 Wis.2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is proper if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. WIS. STAT . § 802.08(2). Here, there are no disputed facts; the issue before us is purely one of law involving the construction of statutes and an ordinance.

¶12 It is undisputed that the CBA between the County and DC 48 expired on March 31, 2009, and that the parties did not negotiate toward a new CBA. Relying on a series of cases discussing various scenarios in which there was an expired CBA, the County maintains that the employees at issue remained represented by a CBA between the date the CBA expired and the date the DC 48 was decertified. The County contends that the enactment of Act 10 did not "end the parties' reciprocal bargaining obligations and the preservation of the status quo after contract expiration." (Italics added.) In other words, the County contends that because DC 48 maintained a duty to bargain about wages as of September 29, 2011, until its decertification, the employees remained "covered" by the terms of a CBA and were not entitled to the Rule of 75 benefit under the ordinance. Accordingly, we briefly discuss the purpose of a CBA, some of the cases relied upon by the County, and the plain language of the ordinance at issue.

¶13 Fifty years ago, the Supreme Court succinctly explained the role and function of a CBA:

The collective bargaining agreement states the rights and duties of the parties. It is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. The collective agreement covers the whole employment relationship. It calls into being a new common law—the common law of a particular industry or of a particular plant.

United Steelworkers of Am. v. Warrior & Gulf Nav. Co. , 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) (internal citation and footnote omitted). Following that understanding, the law relating to collective bargaining evolved. Two years later, in National Labor Relations Board v. Katz , 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), the Supreme Court dealt with duties when a collective bargaining agreement had expired. The court phrased the question before it as:

Is it a violation of the duty "to bargain collectively" imposed by [§] 8(a)(5) of the National Labor Relations Act for an employer, without first consulting a union with which it is carrying on bona fide
...

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3 cases
  • Milwaukee Dist. Council 48 v. Milwaukee Cnty.
    • United States
    • Wisconsin Supreme Court
    • March 19, 2019
    ...covered by the terms of a collective bargaining agreement on September 29, 2011. The court of appeals affirmed. Milwaukee Dist. Council 48 v. Milwaukee Cty., 2017 WI App 82, ¶1, 379 Wis. 2d 322, 905 N.W.2d 140. The County filed a petition for review, which we granted.II. DISCUSSION¶10 Altho......
  • Dietscher v. Pension Bd. of the Employees' Ret. Sys. of the Cnty. of Milwaukee
    • United States
    • Wisconsin Court of Appeals
    • June 25, 2019
    ...Bruno , 260 Wis. 2d 633, ¶14, 660 N.W.2d 656.¶38 Such an interpretation would also lead to an absurd result. See Milwaukee District Council 48 v. Milwaukee Cty. , 2017 WI App 82, ¶23, 379 Wis. 2d 322, 905 N.W.2d 140, aff'd , 2019 WI 24, 385 Wis. 2d 748, 924 N.W.2d 153 (stating that "[o]rdin......
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