Milwaukee Federation of Teachers, Local No. 252 v. Wisconsin Employment Relations Commission

• Decision Date: 06 June 1978
• Docket Number: No. 76-049,76-049
• Citation: 83 Wis.2d 588,266 N.W.2d 314
• Parties: , 98 L.R.R.M. (BNA) 2870 MILWAUKEE FEDERATION OF TEACHERS, LOCAL NO. 252, Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent, Milwaukee Board of School Directors, Co-Respondent, Milwaukee Teachers Education Association, Co-Respondent, United Milwaukee Educators, Co-Respondent.
• Court: Wisconsin Supreme Court

Page 314

266 N.W.2d 314

83 Wis.2d 588, 98 L.R.R.M. (BNA) 2870

MILWAUKEE FEDERATION OF TEACHERS, LOCAL NO. 252, Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent Milwaukee Board of School Directors, Co-Respondent Milwaukee Teachers Education Association, Co-Respondent United Milwaukee Educators, Co-Respondent.

No. 76-049.

Supreme Court of Wisconsin.

Argued May 3, 1978.

Decided June 6, 1978.

This is an appeal from an order of the circuit court for Milwaukee County which affirmed orders of the Wisconsin Employment Relations Commission (WERC).

In 1969, this court, in Board of School Directors of Milwaukee v. WERC, 42 Wis.2d 637, 168 N.W.2d 92 (1969), held inter alia that an exclusive checkoff agreement between a municipal employer and a certified bargaining representative was a prohibited practice under the Municipal Employment Relations Act, sec. 111.70, Stats. (1969) (hereinafter the "ACT"). Then, as now, the co-respondent, Milwaukee Teachers Education Association (hereinafter "MTEA" or "majority union"), was the representative of a majority of professional teaching personnel employed by the co-respondent, Milwaukee Board of School Directors (hereinafter "School Board") and had been certified as such by the respondent WERC as the exclusive bargaining representative for all of the School Board's teaching employees. Pursuant to the court's decision in Board of School Directors v. WERC, supra, the members of the appellant, Milwaukee Federation of Teachers, Local 252 (hereinafter "MFT"), then, as now, a minority union, were granted checkoff rights for the purpose of paying their dues to the union.

In November, 1971, the legislature amended the Act to permit fair-share agreements. Thereafter, the School Board and the majority union negotiated a fair-share payroll deduction providing MTEA members a dues checkoff and a fair-share payroll deduction for those members of the bargaining unit who were not members of the majority union. After the implementation of the "fair-share" agreement between the majority union and the School Board, the members of MFT, the minority union, continued to have their union dues deducted from their paychecks pursuant to the checkoff arrangement established following the decision in Board of School Directors v. WERC, supra.

However, two additional minority unions sought checkoff privileges for their members. The Milwaukee Association of Professional Educators (hereinafter "MAPE") sought a checkoff arrangement in July, 1973; the co-respondent, United Milwaukee Educators (hereinafter "UME"), requested a similar arrangement in August, 1974.

In September, 1974, the majority union filed a complaint with the WERC alleging that the School Board had committed a prohibited practice by offering to recognize these two additional minority unions, the MAPE and the UME, for purposes of a dues checkoff. About four months later, the UME also filed a complaint with the WERC alleging that the School Board had committed a prohibited practice by maintaining checkoff with the majority union and the MFT but refusing to establish a similar deduction for its members. Both complaints were consolidated for hearing, and the MFT participated at the hearings as an intervenor.

The hearing before the WERC was held on February 18 and March 13, 1975. In the decisions resulting from this hearing, the WERC concluded that by granting a dues checkoff to the MFT, the School Board had violated its duty to recognize and to bargain only with the MTEA and had thus committed a prohibited practice contrary to the provisions of the Act. Furthermore, the WERC concluded that because the School Board had not entered into a checkoff agreement with the UME or the MAPE, the School Board had not committed a similar prohibited practice with respect to those minority unions. Accordingly, the Commission ordered the School Board to cease maintaining a checkoff arrangement with the MFT and to refrain from entering into a similar arrangement with any other minority union.

The MFT moved the Commission to reconsider its decision but the motion was dismissed. Thereafter, the School Board complied with the Commission's decision by terminating the dues checkoff for members of the MFT.

The MFT sought judicial review of these decisions and orders, but the circuit court affirmed them in all respects.

Peter D. Goldberg (argued), John S. Williamson, Jr., and Goldberg, Previant & Uelmen, S. C., Milwaukee, on brief, for appellant.

David C. Rice, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief, for respondent Wisconsin Employment Relations Commission.

Richard P. Perry (argued), Arthur Heitzer, and Perry & First, S. C., Milwaukee, on brief, for co-respondent Milwaukee Teachers Education Association.

HANLEY, Justice.

Two issues are presented on this appeal:

1. Does the Municipal Employment Relations Act, as amended, prohibit a municipal employer from entering into and maintaining a dues checkoff arrangement with a minority union?

2. Is it a denial of equal protection for a municipal employer to enter into a dues checkoff arrangement with a majority union while refusing to enter into a similar arrangement with minority unions?

Statutory Prohibition to Minority Union Checkoffs

The first issue involves the construction of sec. 111.70, Stats. (1973), which governs the relationships between the municipality and its employees. The MFT asserts that under the provisions of this section, the School Board may not enter into a dues checkoff arrangement with the majority union, MTEA, while at the same time refusing to enter into a similar arrangement with the MFT and other minority unions. The Commission and the MTEA argue, on the other hand, that the employer and the majority union may establish an exclusive checkoff arrangement and, furthermore, that the employer would commit a prohibited practice if it were to agree to such an arrangement with any other union.

The appellant, MFT, bases its argument substantially on this court's decision in Board of School Directors v. WERC, supra. Decided in 1969, this decision held, inter alia, that an exclusive checkoff agreement between a municipal employer and the majority and certified union representative was prohibited under the then applicable statute.

Recognizing first that a union which is certified by the Commission pursuant to the statute becomes the exclusive collective bargaining representative of all of the employees in the bargaining unit, Board of School Directors v. WERC, supra at 647, 168 N.W.2d 92, the court noted that although sec. 111.70(3)(a), Stats., prohibits a municipal employer from interfering with an employee's exercise of his or her right to join or not to join a labor organization, the court observed that not all differences in treatment accorded labor organizations purporting to represent municipal employees within the unit constitutes a violation of this section. Nevertheless, this court concluded that an exclusive dues checkoff arrangement made only with the majority, certified union was not a difference of treatment permissible under the Act.

"The WERC made no attempt to explain how the granting of exclusive checkoff was rationally related to the functioning of the majority organization in its representative capacity ; nor can we see any relationship whatsoever. The sole and complete purpose of exclusive checkoff is self-perpetuation and entrenchment. While a majority representative may negotiate for checkoff, he is negotiating for all the employees, and, if checkoff is granted for any, it must be granted for all.

"While the interpretation given to an administrative agency's interpretation of a statute is entitled to great weight, the construction of a statute is still a question of law and this court is not bound by the agency's construction. Johnson v. Chemical Supply Co. (1968), 38 Wis.2d 194, 156 N.W.2d 455. We think an exclusive checkoff agreement is a prohibited practice as a matter of law." Board of School Directors v. WERC, supra, 42 Wis.2d at 649-50, 168 N.W.2d at 98.

In assessing the purpose of an exclusive checkoff as being a device to perpetuate and entrench the dominant union, this court observed in a footnote:

"Agreements which seek to perpetuate the majority representative are often referred to an 'union security' provisions. Most often 'union security' agreements require that employees in a given unit must be members of the majority union to keep their jobs. Assembly Bill 389 (1965) would have authorized a municipal employer to enter into a 'union security' agreement. The Senate failed to override the governor's veto by one vote and the bill was rejected.

"An exclusive checkoff agreement, while not nearly as effective as a 'union security' agreement, certainly falls into the same family." Board of School Directors v. WERC, supra at 649, n. 4, 168 N.W.2d at 98.

Barring changes in the law subsequent to this decision, the rule in Board of School Directors v. WERC would be applicable to this appeal and would necessitate a reversal of the circuit court's order.

The respondents argue that the law has been changed so as to nullify the Board of School Directors decision. There is no doubt that changes have been made in the provisions of sec. 111.70, Stats., since that decision. In 1971 the legislature amended the statute to provide for fair-share agreements. 1971 Wis.Laws, ch. 124. A fair-share agreement is defined by sec. 111.70(1)(h), Stats. (1975), as follows:

"(h) 'Fair-share agreement' means an agreement between a municipal employer and a labor organization under which all or any of the employes in the collective bargaining unit are required to pay their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required of all members. Such an agreement shall contain a provision requiring the employer to deduct the amount of dues as...