School Dist. of Drummond v. Wisconsin Employment Relations Com'n, 83-1696
| Decision Date | 27 November 1984 |
| Docket Number | No. 83-1696,83-1696 |
| Citation | 121 Wis.2d 126,358 N.W.2d 285 |
| Parties | , 21 Ed. Law Rep. 338 SCHOOL DISTRICT OF DRUMMOND, Petitioner-Respondent and Cross-Appellant- Petitioner, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Appellant and Cross- Respondent, School District of Drummond Employee's Association, Co-Appellant and Cross- Respondent. |
| Court | Wisconsin Supreme Court |
Kathryn J. Prenn (argued), Cable, for petitioner-respondent and cross-appellant-petitioner; Dale R. Clark and Clark & Clark, Ashland, Cable, on briefs.
John D. Niemisto, Asst. Atty. Gen. (argued), for respondent-appellant and cross-respondent; Bronson C. La Follette, Atty. Gen., on brief.
Michael L. Stoll, (argued) Madison, staff counsel, Wisconsin Education Association Council, for the co-appellant and cross-respondent.
The issue in this case is whether there is a rational basis for the conclusion of the Wisconsin Employment Relations Commission (commission) that the adoption of an anti-nepotism policy of the School District of Drummond is a mandatory subject of bargaining. The issue concerns the scope of bargaining under the Municipal Employment Relations Act (MERA), secs. 111.70-111.77, Stats.
On May 23, 1979, the school board of the School District of Drummond (district) adopted a resolution which provided, inter alia, that the district would not employ the spouse of any board member. The policy was adopted by the board following public reaction across the district reflecting concern about conflicts of interest involving officials in the district.
When the School District of Drummond Employee's Association (association) learned that the board was contemplating the adoption of an anti-nepotism policy, the association's representative informed the school board that such policy potentially affected the wages, hours and conditions of employment of employees in the bargaining unit represented by the association, and demanded that the board negotiate the adoption of such policy. The board did not respond to the demand.
After the anti-nepotism resolution was adopted by the board, the association representative again demanded that the policy be rescinded until such time as the parties had an opportunity to bargain the impact of that policy. The board's response was that the entire matter was one of management policy and as such, was not subject to negotiation.
The association is the exclusive collective bargaining representative of the district's non-professional employees, including its school bus drivers. At the time of the adoption of the resolution, Eldon Kravick was employed by the district as a bus driver and had been for approximately eight years.
In April, 1979, the Drummond Board of Education voted to remove Kravick from the list of those bus drivers who were to be offered individual employment contracts for the ensuing school year because of a "questionable conflict of interest" involving his employment with the district. On July 16, 1979, the district terminated Kravick's employment. For a portion of the period of Kravick's employment with the district, his wife, Shirley Kravick, served as an elected member of the district's board of education with her term on the board expiring in April, 1980.
Following Kravick's dismissal, the association representative filed a grievance on Kravick's behalf, protesting the board's action and demanding Kravick's reinstatement pending negotiations. The grievance was denied through all steps of the contractual grievance procedure.
The association filed a complaint with the Wisconsin Employment Relations Commission alleging that the district had committed a prohibited practice in violation of sec. 111.70(3)(a)4, Stats., 1 by refusing to bargain with the association over the anti-nepotism policy and the impact of that policy upon the wages, hours and conditions of employment of the employees represented by the association. The association amended its complaint to include an allegation that the district had also committed a prohibited practice in violation of sec. 111.70(3)(a)5, 2 by terminating the employment of Kravick pursuant to the anti-nepotism policy and contrary to the "just cause provision" in the 1978-1980 collective bargaining agreement between the association and the district.
A Wisconsin Employment Relations Commission examiner was appointed. He concluded that the district committed a prohibited practice within the meaning of sec. 111.70(3)(a)4, Stats., by unilaterally adopting and implementing an anti-nepotism policy without bargaining with the association despite the fact the decision to adopt the policy affected district employees. The examiner also held that the district committed a prohibited practice within the meaning of sec. 111.70(3)(a)5, by refusing to renew the employment contract of Kravick as a result of the implementation of the district's anti-nepotism policy.
The district filed a petition for review with the commission seeking a reversal of the order of the examiner and dismissal of the association's complaint. On June 15, 1982, the commission issued its decision, enlarging upon the examiner's findings of fact, conclusion of law and order and affirmed the examiner's decision as so modified.
The commission concluded:
(1) The decision to adopt the anti-nepotism policy and the impact of the implementation of such a policy were mandatory subjects of collective bargaining within the meaning of MERA.
(2) The district, by unilaterally adopting and implementing its anti-nepotism policy with respect to the employment status of Kravick, without bargaining with the association, had committed a prohibited practice in violation of sec. 111.70(3)(a)4; Stats.
(3) The district, by refusing to grant Kravick a contract of employment for the 1979-80 school year and thereafter, terminated Kravick's employment for a reason other than "cause" in violation of the collective bargaining agreement between the district and the association, and thereby committed a prohibited practice within the meaning of sec. 111.70(3)(a)5, Stats.
The commission ordered the district to rescind its unilaterally adopted anti-nepotism policy, to bargain with the association with respect to any contemplated decision to adopt an anti-nepotism policy affecting any of the employees in the bargaining unit represented by the association, and to reinstate Kravick as a bus driver and to make him whole for any losses he suffered by reason of the district's prohibited practices.
On July 13, 1982, the district petitioned the circuit court of Bayfield county, the Honorable Douglas S. Moodie, to vacate the commission's order. The circuit court rejected the district's position that its anti-nepotism resolution was necessary to give local effect to sec. 946.13(1)(a) and (b), Stats. 3 The circuit court concluded that the impact of the resolution on Kravick's conditions of employment was of secondary importance in a determination as to the bargainability of the resolution and that the resolution was concerned principally with the formulation of public policy. The circuit court set aside the commission's order and directed the district to commence bargaining over the "effects of passage of the anti-nepotism resolution upon the employment of Eldon Kravick as a school bus driver" which was consistent with part of the commission's order. The circuit court did not provide any effective retrospective economic remedy for Kravick, who was the only employee affected by the implementation of the anti-nepotism resolution.
The commission and the association appealed to the court of appeals. The district cross-appealed. The court of appeals found the commission had a rational basis for interpreting sec. 111.70, Stats., to require collective bargaining concerning the district's decision to adopt and implement its anti-nepotism policy and therefore reversed the judgment and remanded the cause to the trial court with directions to reinstate and affirm the commission's order. 4
When the legislature charges an administrative agency to apply and enforce a particular statute as it has with the commission and ch. 111, Stats., the agency's construction and interpretation of the statute are entitled to great weight and any rational basis will sustain its practical interpretations. Arrowhead United Teachers v. ERC, 116 Wis.2d 580, 593, 342 N.W.2d 709 (1984); Beloit Education Asso. v. WERC, 73 Wis.2d 43, 67, 242 N.W.2d 231 (1976). We have qualified this standard, though, by stating that where the question involved is one of first impression, the court will accord the agency's interpretation only due weight in determining the appropriate statutory construction, rather than the great weight--rational standard. Berns v. Wis. Employment Relations Comm., 99 Wis.2d 252, 261, 299 N.W.2d 248 (1980). The great weight--any rational basis standard applies in situations where the Arrowhead, 116 Wis.2d at 594, 342 N.W.2d 709.
The district alleges the commission has no experience on the subject of anti-nepotism rules and their effect on labor relations. Though this may be true, that allegation ignores the experience of the commission in determining subjects of mandatory or permissible bargaining which is the issue in this action. In any case where the commission is asked to determine whether a subject matter is mandatorily or permissibly bargainable, this court will apply the great weight--any rational basis standard to its "primary relation" conclusion.
As we stated in West Bend Education Association v. Wisconsin Employment Relations Commission and West Bend Joint School District No. 1, 121 Wis.2d 1, 357 N.W.2d 534 (198...
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