West Bend Educ. Ass'n v. Wisconsin Employment Relations Com'n

• Decision Date: 13 November 1984
• Docket Number: No. 1,C,No. 82-1824,1,82-1824
• Citation: 121 Wis.2d 1,357 N.W.2d 534
• Parties: , 122 L.R.R.M. (BNA) 2705, 21 Ed. Law Rep. 305 WEST BEND EDUCATION ASSOCIATION, Petitioner-Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Appellant-Petitioner, West Bend Joint School Districto-Appellant-Petitioner
• Court: Wisconsin Supreme Court

Page 534

357 N.W.2d 534

121 Wis.2d 1, 122 L.R.R.M. (BNA) 2705,

21 Ed. Law Rep. 305

WEST BEND EDUCATION ASSOCIATION, Petitioner-Respondent, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION Respondent-Appellant-Petitioner West Bend Joint School District No. 1, Co-Appellant-Petitioner.

No. 82-1824.

Supreme Court of Wisconsin

Argued Sept. 4, 1984.

Decided Nov. 13, 1984.

John D. Niemisto, Asst. Atty. Gen. (argued), for respondent-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on briefs.

Michael R. Wherry (argued), Milwaukee, for co-appellant-petitioner; Robert W. Mulcahy and Mulcahy & Wherry, S.C., Milwaukee, on briefs.

Michael L. Stoll (argued), Madison, staff counsel for the Wisconsin Education Association Council, for petitioner-respondent; Gordon McQuillen, Madison, on brief.

Michael J. Julka, Kenneth B. Axe and Isaksen, Lathrop, Esch, Hart & Clark, Madison, for the Wisconsin Association of School Boards, Inc., amicus curiae.

ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals, 115 Wis.2d 698, 341 N.W.2d 417, filed October 25, 1983, affirming an order of the circuit court for Washington county, J. Tom Merriam, Circuit Judge, which in turn affirmed in part and reversed in part a ruling of the Wisconsin Employment Relations Commission on the duty of the parties to bargain certain layoff proposals.

This review arises from the December 5, 1979, petition by the West Bend Joint School District No. 1 (District) and the West Bend Education Association (Association) to the Wisconsin Employment Relations Commission (WERC) for a declaratory ruling ¹ to determine whether the District had a duty to bargain under sec. 111.70(1)(d), Stats.1979-80, on several contract proposals relating to layoffs. ² Two of these proposals are currently in dispute before the court: One provides that "layoffs of teachers shall be accomplished in accordance with the time frame and provisions of Section 118.22, Wis.Stats.," which in turn provides a time sequence and procedure for the annual renewal and nonrenewal of teachers' contracts. The other provides that "[t]he lay off of each teacher shall commence on the date that he or she completes the teaching contract for the current school year." ³ The proposals thus relate to the timing and effective date of layoffs.

The parties agree that it is legally permissible for them to reach an agreement on these proposals. See Mack v. Joint School District No. 3, 92 Wis.2d 476, 285 N.W.2d 604 (1979). They disagree as to whether these proposals are mandatory subjects of bargaining.

WERC ruled that these proposals were not mandatory subjects of bargaining within the meaning of sec. 111.70(1)(d), Stats.1979-80. The circuit court reversed the WERC ruling, and the court of appeals affirmed the order of the circuit court on these two proposals. ⁴ We affirm the decision of the court of appeals. ⁵

Sec. 111.70(1)(d) sets forth the legislative delineation between mandatory and nonmandatory subjects of bargaining. ⁶ It requires municipal employers, a term defined as including school districts, sec. 111.70(1)(a), to bargain "with respect to wages, hours and conditions of employment." At the same time it provides that a municipal 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 employes." Furthermore, sec. 111.70(1)(d) recognizes the municipal 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.

Sec. 111.70(1)(d) thus recognizes that the municipal employer has a dual role. It is both an employer in charge of personnel and operations and a governmental unit, which is a political entity responsible for determining public policy and implementing the will of the people. Since the integrity of managerial decision making and of the political process requires that certain issues not be mandatory subjects of collective bargaining, Unified School District No. 1 of Racine County v. WERC, 81 Wis.2d 89, 259 N.W.2d 724 (1977), sec. 111.70(1)(d) provides an accommodation between the bargaining rights of public employees and the rights of the public through its elected representatives.

In recognizing the interests of the employees and the interests of the municipal employer as manager and political entity, the statute necessarily presents certain tensions and difficulties in its application. Such tensions arise principally when a proposal touches simultaneously upon wages, hours, and conditions of employment and upon managerial decision making or public policy. To resolve these conflict situations, this court has interpreted sec. 111.70(1)(d) as setting forth a "primarily related" standard. Applied to the case at bar, the standard requires WERC in the first instance (and a court on review thereafter) to determine whether the proposals are "primarily related" to "wages, hours and conditions of employment," to "educational policy and school management and operation," to " 'management and direction' of the school system" or to "formulation or management of public policy." Unified School District No. 1 of Racine County v. WERC, 81 Wis.2d 89, 95-96, 102, 259 N.W.2d 724 (1977). This court has construed "primarily" to mean "fundamentally," "basically," or "essentially," Beloit Education Asso. v. WERC, 73 Wis.2d 43, 54, 242 N.W.2d 231 (1976).

As applied on a case-by-case basis, this primarily related standard is a balancing test which recognizes that the municipal employer, the employees, and the public have significant interests at stake and that their competing interests should be weighed to determine whether a proposed subject for bargaining should be characterized as mandatory. If the employees' legitimate interest in wages, hours, and conditions of employment outweighs the employer's concerns about the restriction on managerial prerogatives or public policy, the proposal is a mandatory subject of bargaining. In contrast, where the management and direction of the school system or the formulation of public policy predominates, the matter is not a mandatory subject of bargaining. In such cases, the professional association may be heard at the bargaining table if the parties agree to bargain or may be heard along with other concerned groups and individuals in the public forum. Unified School District No. 1 of Racine Co. v. WERC, supra, 81 Wis.2d at 102, 259 N.W.2d 724; Beloit Education Asso., supra, 73 Wis.2d at 50-51, 242 N.W.2d 231. Stating the balancing test, as we have just done, is easier than isolating the applicable competing interests in a specific situation and evaluating them. ⁷

First we observe that the two proposals in issue here are not concerned with the District's decision that it is necessary to reduce the work force by layoff. The parties agree that the decision of whether retrenchment is necessary belongs to the Board. In City of Brookfield v. WERC, 87 Wis.2d 819, 833, 275 N.W.2d 723 (1979), a case involving firefighters, we held that "a budgetary lay off decision is not a subject of mandatory bargaining," but noted that the effects of the layoff were mandatory subjects of bargaining. Rather, the proposals currently before the court (1) require the District to notify the teachers by a certain date of the District's decision to lay off and (2) establish the date of layoff as the end of the current school year. The proposals thus relate to the timing and effective date of layoff, the necessity of which is decreed by the District.

When WERC viewed the competing interests surrounding the timing and effective date of layoff, it concluded that the proposals were not mandatory subjects of bargaining. The effect of WERC's conclusion was to make the proposals permissive subjects of bargaining and thus allow the District to determine unilaterally when notice of layoff would be given and when layoff would be implemented. If the proposals had been viewed as mandatory subjects of bargaining, the District could not decide these matters unilaterally. The District would have to bargain these proposals to agreement or to impasse.

WERC reasoned that the effect of the proposals would be to force the District to initiate layoffs on the basis of anticipated, rather than actual, events, e.g., anticipated reductions in revenue or enrollment rather than the actual reductions in revenue or enrollment. WERC viewed the proposals as so intertwined with the decision of layoff as to constitute an undue interference with and an "unwarranted restriction upon" the District's power to lay off. WERC therefore concluded that the proposals were not mandatory subjects of bargaining. WERC's position in this review is that "since the District is not required to bargain over the necessity for such layoffs, it follows that it has complete discretion to make that decision and to implement it on whatever date it determines to be in the best interests of the District." (WERC's brief, p. 26.)

The initial question to be considered is this court's scope of review of WERC's ruling in this case. ⁸ The facts were stipulated; the only evidence before WERC was the proposals. WERC's ruling that the proposals are not mandatory subjects of bargaining involves an application of this court's interpretation of sec. 111.70(1)(d), Stats.1979-80, to the particular proposals in issue. ⁹ Generally questions relating to interpretation and application of statutes are labeled questions of law, ¹⁰ and the blackletter rule is that a court is not bound by an agency's conclusions of law. ¹¹ Courts, however, frequently refrain from exercising the power to substitute their interpretation or application of a statute for that of an agency charged with the...