Sauk County v. Wisconsin Employment Relations Com'n, 3148

• Decision Date: 04 September 1991
• Docket Number: No. 89-2059,No. 3148,C,AFL-CI,3148,89-2059
• Citation: 165 Wis.2d 406,477 N.W.2d 267
• Parties: SAUK COUNTY, Petitioner-Respondent-Petitioner, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Co-Appellant, AFSCME, Local Unionomplainant-Appellant. . Oral Argument
• Court: Wisconsin Supreme Court

Page 267

477 N.W.2d 267

165 Wis.2d 406

SAUK COUNTY, Petitioner-Respondent-Petitioner, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Co-Appellant, AFSCME, Local Union No. 3148, AFL-CIO, Complainant-Appellant.

No. 89-2059.

Supreme Court of Wisconsin.

Oral Argument Sept. 4, 1991.

Decided Dec. 9, 1991.

Robert M. Hesslink, Jr., argued, Hesslink Law Offices, S.C., on briefs, Madison, for petitioner-respondent-petitioner.

Richard V. Graylow, argued, Lawton & Cates, S.C., Madison, for complainant-appellant.

David Rice, Asst. Atty. Gen., argued for co-appellant.

Marianne G. Robbins, Naomi E. Eisman, and Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Milwaukee, amicus curiae, for Wisconsin State AFL-CIO.

Richard Thal, and Cullen, Weston, Pines & Bach, Madison, amicus curiae, for Wisconsin Professional Police Association/Law Enforcement Employee Relations Div Bruce Meredith, Madison, amicus curiae, for Wisconsin Educ. Ass'n Council.

Timothy E. Hawks, Linda Schmidt Quartaro, and Shneidman, Myers, Dowling & Blumenfield, Milwaukee, amicus curiae, for Wisconsin Federation of Teachers.

Bruce F. Ehlke, and Lawton & Cates, Madison, amicus curiae, for Wisconsin State Employees Union and Professional Firefighters of Wisconsin.

CECI, Justice.

This case is before the court on petition for review of a decision of the court of appeals, Sauk County v. WERC, 158 Wis.2d 35, 461 N.W.2d 788 (Ct.App.1990). The majority of the court of appeals (Sundby, J., dissenting) reversed the order entered by the circuit court for Sauk county, Howard W. Latton, Reserve Circuit Judge. The circuit court's order reversed a Wisconsin Employment Relations commission (WERC) decision which found that Sauk County (the county) had violated sec. 111.70(3)(a)7, Stats., ¹ by refusing to retroactively deduct fair-share fees and union dues to cover the period of time between the expiration of one employment contract and the ratification of a successor contract.

Three issues are presented on review. The first issue is whether an "arbitration decision," as that phrase is used in sec. 111.70(3)(a)7, Stats., encompasses all items that are incorporated into a resultant written collective bargaining agreement, even those not in dispute before the arbitrator. We hold that it does.

The second issue is whether fair-share fees and union dues are economic items that should be given retroactive effect. We hold that they are.

The third issue is whether the county's refusal to retroactively deduct fair-share fees and union dues in this case amounts to a failure to implement an arbitration decision, in violation of sec. 111.70(3)(a)7, Stats. We hold that it does. We therefore affirm the decision of the court of appeals.

The facts of this case are not in dispute. AFSCME, Local Union No. 3148, AFL-CIO (the union), is certified as the exclusive bargaining representative of all employees at Sauk County Health Care Center. The union and the county were parties to a labor contract covering calendar years 1983-84. Prior to the expiration of the 1983-84 contract, negotiations began for an agreement to cover 1985. During negotiations, neither party proposed any changes to the 1983-84 contract provision which required fair-share fees and union dues to be deducted once each month from paychecks. The county ceased deducting fair-share fees and union dues from paychecks when the 1983-84 contract expired.

The parties entered into interest arbitration pursuant to sec. 111.70(4)(cm)6, Stats., after negotiations stalled. Each party submitted its final offer to the arbitrator. The arbitrator issued his decision in October, 1985. He chose the union's final offer, which contained the following clause: "IX. All provisions of the Labor Agreement of 1983-84 except as modified above." The union's offer also indicated that its wage proposal was to be retroactive to January 1, 1985. Neither party's offer contained any specific language regarding the retroactivity of the fair-share fees and union dues. The arbitrator's decision directed that "the Union's final offer ... be incorporated into an agreement containing the other items to which the parties have agreed."

The resultant 1985 contract contained a fair-share provision which was identical to the fair-share provision in the 1983-84 contract. The provision required that fair-share fees and union dues be deducted "once each month." The 1985 contract's duration clause stated that the contract "shall be effective as of the first day of January, 1985, and shall remain in full force and effect throughout the 31st day of December, 1985...." The 1985 contract also contained a grievance arbitration procedure whereby the parties agreed to submit to arbitration "any dispute concerning the interpretation or application of a provision of this contract...."

After the county refused to retroactively deduct fair-share fees and union dues for the period of time between the expiration of the 1983-84 contract and the ratification of the 1985 contract, the union filed a prohibited practice complaint with the WERC. The complaint alleged violations of secs. 111.70(3)(a)1-4 and 7, Stats. The WERC hearing examiner determined that the county had violated sec. 111.70(3)(a)7, Stats., by refusing to retroactively deduct fair-share fees and union dues.

The hearing examiner decided that even though fair-share fees and union dues were not in dispute before the arbitrator, the arbitration decision nonetheless included those items. The examiner also determined that a fair-share/voluntary dues provision is most likely to be considered an economic item capable of being applied retroactively and should have been retroactively applied here. After noting that the issues posed by this case had not been "addressed before this by the Commission," the examiner decided that a sec. 111.70(3)(a)7 violation could be found where "the alleged violation arises in the context of implementing the new agreement pursuant to the award, as opposed to after the implementation of the award, and the issue goes to whether a provision of the agreement is to be given retroactive effect under the award...." The examiner concluded that the county's refusal to retroactively deduct the fair-share fees and union dues amounted to a failure to implement the arbitration decision and therefore was a violation of sec. 111.70(3)(a)7, Stats.

The WERC issued an order confirming the examiner's decision, and the county then instituted proceedings in Sauk county circuit court for review of that order. The circuit court determined that the county had not violated sec. 111.70(3)(a)7 and reversed the commission's order. The court of appeals reversed the circuit court and found that the county had violated sec. 111.70(3)(a)7. We granted the county's petition for review and affirm the court of appeals.

The issues presented by this case are questions of law. When reviewing questions of law, we are not bound by an administrative agency's conclusions. Local No. 695 v. LIRC, 154 Wis.2d 75, 82, 452 N.W.2d 368 (1990). This court has in the past generally applied three levels of deference to conclusions of law and statutory interpretations in agency decisions. The first and highest amount of deference given to agency interpretations is the "great weight" standard. Under this standard, it is "only when the interpretation by the administrative agency is an irrational one that a reviewing court does not defer to it." Beloit Education Ass'n v. WERC, 73 Wis.2d 43, 67, 242 N.W.2d 231 (1976) (footnote omitted). The "great weight" standard is "the general rule in this state." Id. We have described the proper use of the "great weight" standard as follows:

[I]f the administrative agency's experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency's conclusions are entitled to deference by the court. Where a legal question is intertwined with factual determinations or with value or policy determinations or where the agency's interpretation and application of the law is of long standing, a court should defer to the agency which has primary responsibility for determination of fact and policy.

West Bend Education Ass'n v. WERC, 121 Wis.2d 1, 12, 357 N.W.2d 534 (1984) (footnote omitted).

The second level of review is a mid-level standard, referred to as either the "due weight" or "great bearing" standard. We use this standard if the agency decision is "very nearly" one of first impression. Beloit Education Ass'n, 73 Wis.2d at 67-68, 242 N.W.2d 231.

The lowest level standard of review we use in reviewing agency decisions is the "de novo " standard, in which no weight at all is given to the agency interpretation. Local No. 695, 154 Wis.2d at 84, 452 N.W.2d 368.

In Local No. 695, we reversed a labor and industry review commission determination that dues refunds to union stewards constituted "wages" for purposes of unemployment compensation. In deciding the case, the commission "neither relied on, nor referred to, any precedents or any prior decision in its own proceedings." Id. at 81, 452 N.W.2d 368. The case was clearly one of first impression for the commission. It was also clear from the lack of precedent that the commission had no special expertise or experience in determining whether the refunds in question constituted wages. Id. at 84, 452 N.W.2d 368. A de novo standard of review was therefore necessarily used. Id.

Against this background, we have determined that this case involves two standards of review. The first issue, whether an arbitration decision encompasses those items not in dispute, and the third issue, whether the county's actions constitute a violation of sec. 111.70(3)(a)7, Stats., are questions of first impression before the WERC. Although we normally accord an agency's interpretation of a statute great weight, we cannot do so here because this is a case of first impression, and there is no precedent for the...