State ex rel. Teaching Assistants Ass'n v. University of Wisconsin-Madison

Decision Date15 April 1980
Docket NumberWISCONSIN-MADISON and G,No. 78-628,78-628
Citation292 N.W.2d 657,96 Wis.2d 492
PartiesSTATE ex rel. TEACHING ASSISTANTS ASSOCIATION, Plaintiff-Respondent, v. The UNIVERSITY OFlen Pound, as Chancellor of the University of Wisconsin-Madison, Defendants-Appellants.
CourtWisconsin Court of Appeals

Review Denied. *

Charles D. Hoornstra, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen. and David C. Rice, Asst. Atty. Gen., on brief, for defendants-appellants.

John S. Williamson, Jr. (argued), and Habush, Gillick, Habush, Davis & Murphy, S. C., Milwaukee, on brief, for plaintiff-respondent.



This is an appeal from a judgment and order of the circuit court for Dane County entered pursuant to the Wisconsin Arbitration Act, ch. 298, Stats., confirming in all respects an arbitration award in favor of the plaintiff Teaching Assistants Association (TAA). The award orders the defendants-appellants (hereafter referred to as "university") to bargain collectively with the TAA as the exclusive representative of all teaching assistants employed by the University of Wisconsin-Madison on the subject of wages, among other subjects; to cease and desist from certain practices which the arbitrator found to be in violation of labor agreements between the parties; and to make whole all teaching assistants who incurred financial losses as a result of the university's failure to implement during the 1977-78 school year an across-the-board, seven percent pay increase for teaching assistants in conformity with its practice in prior years.

On appeal the university raises eleven separate issues and many subissues, most of which concern the legal power of the university to enter into collective bargaining agreements with unclassified state employees and agreements with respect to wages absent express statutory authority. Despite the importance of these issues, we are compelled to conclude that this case must be reversed for two interrelated threshold reasons which preclude this court from reaching the merits of the dispute.

Even if the university has the power to enter a collective bargaining agreement with the TAA, and even if the agreements involved in this suit could be construed as requiring the university to bargain the issue of wages, courts do not have unlimited power to enforce such agreements. Courts can act only within the scope of the powers conferred upon them by statutes and the constitution of this state, and can exercise those powers only when they have been properly invoked. This case presents a unique test of those powers.

This is a lawsuit by unclassified state employees seeking the protection of the Wisconsin Arbitration Act against a state agency, the university. The legislature has expressly withheld the protection of the Wisconsin Arbitration Act from unclassified state employees. Other statutes permitting lawsuits against the state under certain conditions were not invoked, and the conditions which are prerequisite to the court's power to act under those statutes were not complied with. Courts therefore do not have the power to consider the contentions of either the TAA or the university in this action.

The Issues

In our view the dispositive issues on appeal are: (1) whether the circuit court had jurisdiction under ch. 298, Stats., or at common law to decide the merits of this lawsuit, and (2) whether the action is barred in any event by art. IV, sec. 27 of the Wisconsin Constitution, which embodies the doctrine of the state's sovereign immunity from suit without the legislature's express permission.

The TAA has not responded to the university's contention that the circuit court had no power to act under ch. 298, Stats. Both parties address the difficult issue of sovereign immunity in a single paragraph of their briefs on this appeal, with but a single case citation each.

Courts are required by law to observe the limits of their powers and to inquire into their jurisdiction over an action, even if neither party raises the question. 1 Because we conclude that the courts are without jurisdiction over this action, we may not address the many other issues raised on appeal.

Factual Background

In April 1969, the University of Wisconsin-Madison and the TAA entered into a "structure agreement" pursuant to which the TAA was recognized as the exclusive bargaining representative for all teaching assistants at the University of Wisconsin-Madison. The agreement provided that the collective bargaining relationship between the parties would be governed by secs. 111.80 to 111.94, Stats. (1969), which then comprised the entire State Employment Labor Relations Act (SELRA) regulating the employment relationship between classified state employees and the state. 2 Since teaching assistants are unclassified state employees, they were not and are not presently covered by SELRA. Sec. 111.81(15).

Section 111.91, Stats. (1969), 3 excluded wages, as a mandatory subject of collective bargaining for state employees. 4 4 The structure agreement provided that "stipends and such other elements of Teaching Assistant remuneration as are established at an all university or legislative level cannot be susceptible to collective bargaining culminating in a legally binding agreement," and excluded those subjects from collective bargaining between the parties. It further provided that the parties would "meet and discuss" such subjects in an effort to arrive at a joint recommendation to be submitted to the appropriate decision-making bodies, and that both were free to "submit their own independent recommendations" concerning the same in the event no agreement could be reached. The parties agreed that in all other respects the collective bargaining relationship between them would be governed by SELRA, and that disputes concerning the interpretation of sec. 111.91, "as applied to the peculiar relationship between the TAA and the University," were to be submitted to binding arbitration. 5 The Board of Regents approved this structure agreement in April 1970.

Pursuant to the structure agreement, the parties negotiated collective bargaining agreements covering various conditions of employment in the years following 1969. The 1976-77 agreement 6 provided in part:

There shall be two classifications of teaching assistants based on seniority:

(a) an inexperienced teaching assistant

(b) experienced teaching assistant

An inexperienced teaching assistant shall be a teaching assistant with less than one and two-thirds (1 2/3) semester-units of seniority.

The agreement further provided that experienced teaching assistants "shall be remunerated at the 'experienced teaching assistant' pay scale set by the Regents of the University of Wisconsin," and established a system for calculating a teaching assistant's movement from the inexperienced to the experienced pay category. 7

On May 28, 1976, the parties executed an addendum to the structure agreement to provide a machinery for handling allegations by either party "that the other has committed an act which, if the parties were covered by Section 111.90-.94 Wis.Stats. (1969 ), would be considered a prohibited practice." 8 (Emphasis supplied.) If informal accommodation could not be reached, the dispute was to be submitted to an arbitrator appointed by the Wisconsin Employment Relations Commission (WERC). The addendum provided:

The parties agree that the arbitrator's award shall be final and binding but further agree that either party may appeal the arbitrator's ruling in a prohibited practice case to County Court, as provided in Section 298, Wis.Stats.

Except as expressly provided herein, the parties agree that nothing in this section shall be construed as agreement to change the terms or coverage of the Structure Agreement of April 26, 1969. (Emphasis supplied.)

The record is silent as to whether the Board of Regents approved this addendum.

The parties agreed on May 28, 1976 to establish an "ad hoc advisory committee" to study teaching assistant remuneration during the 1976-77 school year. The committee of three teaching assistants, three members of the faculty, and three members of the university administration filed a report in January 1977, concluding that the combined effect of inflation and increased tuition fees had reduced the actual buying power of teaching assistant stipends by some twenty percent over the past five years. The report recommended increasing the stipends and implementing certain tuition remission credits to offset these factors.

On June 28, 1976, the university administration unilaterally adopted a teaching assistant stipend schedule for the 1977-78 school year, and communicated this decision to the TAA. The plan maintained the "experienced-inexperienced" differential established in the then-effective labor agreement, but divided the "experienced" category into three subcategories or "levels" of teaching assistants who were to receive increasingly higher salaries for each additional year of experience on the Madison campus.

Upon receipt of the stipend schedule plan, the TAA communicated various objections to university officials. It also sought to place the plan and the underlying issues of wages and seniority levels on the bargaining table during the negotiations for a 1977-78 labor agreement which were then in progress. The university rejected this attempt, contending that it had never agreed to, and would not, bargain the subject of wages.

On September 18, 1977, the TAA filed a grievance against the university contending that its unilateral adoption of the stipend schedule violated the seniority clause of the labor agreement by setting four levels of pay rather than the two levels agreed to, and by employing criteria other than those specified in the labor agreement to differentiate between the three "experienced"...

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