Unified School Dist. No. 1 of Racine County v. Wisconsin Employment Relations Commission

• Decision Date: 30 November 1977
• Docket Number: No. 75-559,75-559
• Citation: 81 Wis.2d 89,259 N.W.2d 724
• Parties: , 97 L.R.R.M. (BNA) 2489 UNIFIED SCHOOL DISTRICT NO. 1 OF RACINE COUNTY, Petitioner-Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent.
• Court: Wisconsin Supreme Court

Page 724

259 N.W.2d 724

81 Wis.2d 89, 97 L.R.R.M. (BNA) 2489

UNIFIED SCHOOL DISTRICT NO. 1 OF RACINE COUNTY, Petitioner-Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent.

No. 75-559.

Supreme Court of Wisconsin.

Argued Nov. 2, 1977.

Decided Nov. 30, 1977.

Unified School District No. 1 of Racine County, petitioner-appellant, refused to bargain with a union with respect to a decision to subcontract its food service program. The Wisconsin Employment Relations Commission, respondent, determined that the district had violated its statutory duty to bargain, and ordered it to resume operation of the food service program. From a judgment of the circuit court for Dane county affirming and enforcing the order of the Commission, the school district appeals.

W. Thatcher Peterson, Coordinator of Employee Services, Racine, for petitioner-appellant.

Bronson C. La Follette, Atty. Gen., Charles D. Hoornstra, Asst. Atty. Gen., and John Niemisto, Asst. Atty. Gen. (argued), for respondent.

CONNOR T. HANSEN, Justice.

The material facts are not in dispute. The petitioner-appellant is a Wisconsin public school district and has for some time had a collective bargaining relationship with a union representing, among other groups, the district's food service personnel.

On July 11, 1973, the district began negotiating with the union for a labor contract for the 1973-74 school year. Among the union's proposals was a job security provision which would have prevented the district from contracting out the work performed by employees in the bargaining unit. ¹

The district's hot lunch program was to be substantially expanded during the 1973-74 school year, and the expansion was expected to create approximately forty food service jobs.

On July 18, 1973, the finance committee of the district's school board recommended that the board accept a proposal by a private corporation, ARA Services, Inc. (ARA), to take over the food service program. The finance committee also recommended that food service employees of the district be guaranteed re-employment by ARA without loss of seniority rights and without a wage cut.

Representatives of the union and the district met and discussed the finance committee's recommendations. The union claimed that the decision to contract out its members' On August 13, 1973, the school board voted to adopt the finance committee's recommendation. On August 16th, the school board entered into an agreement with ARA. Under the agreement, the district food service program remained substantially the same except that ARA assumed full responsibility for its operation, including employing and supervising personnel, collecting money from the students, preparing menus, purchasing food and cleaning supplies and assisting with the purchase of equipment for the expansion of the hot lunch program.

work was a mandatory subject of collective bargaining under the Municipal Employment Relations Act, sec. 111.70, et seq., Stats. Although the district expressed [81 Wis.2d 92] willingness to bargain with regard to the effect of such a decision on the employees, it maintained that the decision to contract with ARA was not itself a proper subject for collective bargaining.

The union filed a complaint with the Wisconsin Employment Relations Commission (Commission), alleging that the district's refusal to bargain violated the Municipal Employment Relations Act, sec. 111.70, et seq., Stats. After a hearing, the Commission determined that the refusal to bargain constituted an unfair labor practice under the statute. By its order dated October 17, 1974, the Commission ordered the district to resume operation of the food service program, reinstate its former employees, make them whole for any losses, post a notice of compliance, and, on request, bargain with the union regarding both the decision to subcontract and its effects.

The district petitioned for judicial review, and the Commission then petitioned for enforcement of its order. The trial court affirmed the order of the Commission and granted the petition for enforcement. The district appeals.

We believe this case presents two issues which may be identified as follows:

1. Was the school board's decision to subcontract its food service program a mandatory subject of collective bargaining under sec. 111.70(1)(d), Stats.?

2. Does the Municipal Employment Relations Act violate the "one man, one vote" principle of the fourteenth amendment?

MANDATORY BARGAINING

This appeal, like Beloit Education Asso. v. WERC, 73 Wis.2d 43, 242 N.W.2d 231 (1976), raises questions concerning the subjects of mandatory collective bargaining under the Municipal Employments Relations Act, and in particular sec. 111.70(1)(d) of the Act. The decision of the Commission in this case and the Beloit Case were nearly contemporaneous. ² Therefore, we conclude this case is subject to the same standard of review as Beloit.

In Beloit Education Asso., supra, this court discussed the standard of review applicable to a decision of the Commission concerning the areas of mandatory bargaining under sec. 111.70(1)(d), Stats. Because the case raised "very nearly questions of first impression," this court held that it was " 'not bound' " by the Commission's interpretation of the statute, although the Commission's decision would have " 'great bearing' " on the court's decision, and would be accorded " 'due weight.' " Beloit Education Asso., supra, at 68, 242 N.W.2d 231. As in the Beloit Case, because of the limited experience of the Commission with the questions presented, and their strictly legal nature, it is appropriate for this court to reach an independent determination of the intent and meaning of the statute, giving due weight to the decision of the Commission.

We begin by setting forth the definitions of "collective bargaining" as determined by the legislature and set forth in the statutes and as related to private employment relations and municipal employment relations.

In private employment relations, "collective bargaining" is defined as " . . . the negotiating by an employer and a majority of his employes in a collective bargaining unit (or their representatives) concerning representation or terms and conditions of employment of such employes in a mutually genuine effort to reach an agreement with reference to the subject under negotiation." (Emphasis supplied.) Sec. 111.02(5), Stats.

In municipal employment relations collective bargaining is defined by sec. 111.70(1)(d), Stats., as:

". . . the performance of the mutual obligation of a municipal employer, through its officers and agents, and the representatives of its employes, to meet and confer at reasonable times, in good faith, with respect to wages, hours and conditions of employment with the intention of reaching an agreement, or to resolve questions arising under such an agreement. The duty to bargain, however, does not compel either party to agree to a proposal or require the making of a concession. Collective bargaining includes the reduction of any agreement reached to a written and signed document. The employer shall not be required to bargain on subjects reserved to management and direction of the governmental unit except insofar as the manner of exercise of such functions affects the wages, hours and conditions of employment of the employees. In creating this subchapter the legislature recognizes that the public employer must exercise its powers and responsibilities to act for the government and good order of the municipality, its commercial benefit and the health, safety and welfare of the public to assure orderly operations and functions within its jurisdiction, subject to those rights secured to public employes by the constitutions of this state and of the United States and by this subchapter." (Emphasis supplied.)

A reading of the two definitions leads to the conclusion that the legislature intended, and in fact declared, that the rights and responsibilities of all parties in the area of collective bargaining in private employment relations were to be distinguished from those in the area of municipal employment relations.

In Beloit Education Asso. v. WERC, supra, this court considered whether various areas of concern to a teachers' association were mandatory subjects of collective bargaining with a school board. The court recognized that the Municipal Employment Relations Act requires an accommodation between, on one hand, the bargaining rights of the employees and, on the other, the rights of the public, through its elected representatives, to control the functions of government.

Sec. 111.70(1)(d), Stats., recognizes these conflicting concerns. It requires municipal employers to bargain "with respect to wages, hours and conditions of employment . . . ." At the same time, it provides that bargaining is not required "on subjects reserved to management and direction of the governmental unit except insofar as the manner of exercise of such functions affects the wages, hours and conditions of employment . . ." In addition, the statute recognizes the public employer's duty to act for the government, good order and commercial benefit of the municipality and for the health, safety and welfare of the public, subject to the constitutional and statutory rights of the public employees.

In the Beloit Case, this court addressed the conflict inherent in these propositions. The result in that case reflects the fact that governmental decisions fall along a spectrum from matters plainly bargainable (e. g., teachers' salary levels) to matters reserved to the exclusive discretion of the governmental unit (e. g., construction of new schools), and that, while it is necessary to do so, "drawing the line or making the distinction is not easy." Beloit, supra, at 53, 242 N.W.2d at 236.

Collective bargaining is required, the court held, with regard to matters "primarily" related, or "fundamentally," "basically" or "essentially"...