2010 Wisconsin Code
Chapter 111. Employment relations.
111.70 Municipal employment.

111.70

SUBCHAPTER IV
MUNICIPAL EMPLOYMENT RELATIONS

Subch. IV of Ch. 111 - ANNOT.

Cross Reference: See also chs. ERC 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19, Wis. adm. code.
111.70 Municipal employment.

111.70(1)

(1) Definitions. As used in this subchapter:

111.70(1)(a)

(a) "Collective bargaining" means the performance of the mutual obligation of a municipal employer, through its officers and agents, and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement, with respect to wages, hours, and conditions of employment, and with respect to a requirement of the municipal employer for a municipal employee to perform law enforcement and fire fighting services under s. 61.66[,] and for a school district with respect to any matter under sub. (4) (o), and for a school district with respect to any matter under sub. (4) (n), except as provided in subs. (3m), (3p), and (4) (m) and (mc) and s. 40.81 (3) and except that a municipal employer shall not meet and confer with respect to any proposal to diminish or abridge the rights guaranteed to municipal employees under ch. 164. 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 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 municipal employees in a collective bargaining unit. In creating this subchapter the legislature recognizes that the municipal employer must exercise its powers and responsibilities to act for the government and good order of the jurisdiction which it serves, 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 municipal employees by the constitutions of this state and of the United States and by this subchapter.

111.70 - ANNOT.

NOTE: Par. (a) is shown as affected by 2009 Wisconsin Acts 15, 28, 34, and 60 and as merged by the legislative reference bureau under s. 13.92 (2) (i). A necessary comma is shown in brackets. Corrective legislation is pending.

111.70(1)(b)

(b) "Collective bargaining unit" means a unit consisting of municipal employees who are school district employees or of municipal employees who are not school district employees that is determined by the commission to be appropriate for the purpose of collective bargaining.

111.70(1)(c)

(c) "Commission" means the employment relations commission.

111.70(1)(d)

(d) "Craft employee" means a skilled journeyman craftsman, including the skilled journeyman craftsman's apprentices and helpers, but shall not include employees not in direct line of progression in the craft.

111.70(1)(e)

(e) "Election" means a proceeding conducted by the commission in which the employees in a collective bargaining unit cast a secret ballot for collective bargaining representatives, or for any other purpose specified in this subchapter.

111.70(1)(f)

(f) "Fair-share agreement" means an agreement between a municipal employer and a labor organization under which all or any of the employees in the collective bargaining unit are required to pay their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required of all members. Such an agreement shall contain a provision requiring the employer to deduct the amount of dues as certified by the labor organization from the earnings of the employees affected by said agreement and to pay the amount so deducted to the labor organization.

111.70(1)(g)

(g) "Labor dispute" means any controversy concerning wages, hours and conditions of employment, or concerning the representation of persons in negotiating, maintaining, changing or seeking to arrange wages, hours and conditions of employment.

111.70(1)(h)

(h) "Labor organization" means any employee organization in which employees participate and which exists for the purpose, in whole or in part, of engaging in collective bargaining with municipal employers concerning grievances, labor disputes, wages, hours or conditions of employment.

111.70(1)(i)

(i) "Municipal employee" means any individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial or executive employee.

111.70(1)(j)

(j) "Municipal employer" means any city, county, village, town, metropolitan sewerage district, school district, long-term care district, transit authority under s. 59.58 (7) or 66.1039, or any other political subdivision of the state, or instrumentality of one or more political subdivisions of the state, that engages the services of an employee and includes any person acting on behalf of a municipal employer within the scope of the person's authority, express or implied, but specifically does not include a local cultural arts district created under subch. V of ch. 229.

111.70(1)(k)

(k) "Person" means one or more individuals, labor organizations, associations, corporations or legal representatives.

111.70(1)(L)

(L) "Professional employee" means:

111.70(1)(L)1.

1. Any employee engaged in work:

111.70(1)(L)1.a.

a. Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work;

111.70(1)(L)1.b.

b. Involving the consistent exercise of discretion and judgment in its performance;

111.70(1)(L)1.c.

c. Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

111.70(1)(L)1.d.

d. Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher education or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical process; or

111.70(1)(L)2.

2. Any employee who:

111.70(1)(L)2.a.

a. Has completed the courses of specialized intellectual instruction and study described in subd. 1. d.;

111.70(1)(L)2.b.

b. Is performing related work under the supervision of a professional person to qualify to become a professional employee as defined in subd. 1.

111.70(1)(m)

(m) "Prohibited practice" means any practice prohibited under this subchapter.

111.70(1)(n)

(n) "Referendum" means a proceeding conducted by the commission in which employees in a collective bargaining unit may cast a secret ballot on the question of authorizing a labor organization and the employer to continue a fair-share agreement. Unless a majority of the eligible employees vote in favor of the fair-share agreement, it shall be deemed terminated and that portion of the collective bargaining agreement deemed null and void.

111.70(1)(ne)

(ne) "School district employee" means a municipal employee who is employed to perform services for a school district.

111.70(1)(nm)

(nm) "Strike" includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer. Such conduct by municipal employees which is not authorized or condoned by a labor organization constitutes a "strike", but does not subject such labor organization to the penalties under this subchapter. This paragraph does not apply to collective bargaining units composed of municipal employees who are engaged in law enforcement or fire fighting functions.

111.70(1)(o)

(o) "Supervisor" means:

111.70(1)(o)1.

1. As to other than municipal and county fire fighters, any individual who has authority, in the interest of the municipal employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

111.70(1)(o)2.

2. As to fire fighters employed by municipalities with more than one fire station, the term "supervisor" shall include all officers above the rank of the highest ranking officer at each single station. In municipalities where there is but one fire station, the term "supervisor" shall include only the chief and the officer in rank immediately below the chief. No other fire fighter shall be included under the term "supervisor" for the purposes of this subchapter.

111.70(2)

(2) Rights of municipal employees. Municipal employees shall have the right of self-organization, and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, and such employees shall have the right to refrain from any and all such activities except that employees may be required to pay dues in the manner provided in a fair-share agreement. Such fair-share agreement shall be subject to the right of the municipal employer or a labor organization to petition the commission to conduct a referendum. Such petition must be supported by proof that at least 30% of the employees in the collective bargaining unit desire that the fair-share agreement be terminated. Upon so finding, the commission shall conduct a referendum. If the continuation of the agreement is not supported by at least the majority of the eligible employees, it shall be deemed terminated. The commission shall declare any fair-share agreement suspended upon such conditions and for such time as the commission decides whenever it finds that the labor organization involved has refused on the basis of race, color, sexual orientation, creed or sex to receive as a member any employee of the municipal employer in the bargaining unit involved, and such agreement shall be made subject to this duty of the commission. Any of the parties to such agreement or any municipal employee covered thereby may come before the commission, as provided in s. 111.07, and ask the performance of this duty.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 15, Wis. adm. code.

111.70(3)

(3) Prohibited practices and their prevention.

111.70(3)(a)

(a) It is a prohibited practice for a municipal employer individually or in concert with others:

111.70(3)(a)1.

1. To interfere with, restrain or coerce municipal employees in the exercise of their rights guaranteed in sub. (2).

111.70(3)(a)2.

2. To initiate, create, dominate or interfere with the formation or administration of any labor organization or contribute financial support to it, but the municipal employer is not prohibited from reimbursing its employees at their prevailing wage rate for the time spent conferring with the employees, officers or agents.

111.70(3)(a)3.

3. To encourage or discourage a membership in any labor organization by discrimination in regard to hiring, tenure, or other terms or conditions of employment; but the prohibition shall not apply to a fair-share agreement.

111.70(3)(a)4.

4. To refuse to bargain collectively with a representative of a majority of its employees in an appropriate collective bargaining unit. Such refusal shall include action by the employer to issue or seek to obtain contracts, including those provided for by statute, with individuals in the collective bargaining unit while collective bargaining, mediation or fact-finding concerning the terms and conditions of a new collective bargaining agreement is in progress, unless such individual contracts contain express language providing that the contract is subject to amendment by a subsequent collective bargaining agreement. Where the employer has a good faith doubt as to whether a labor organization claiming the support of a majority of its employees in an appropriate bargaining unit does in fact have that support, it may file with the commission a petition requesting an election to that claim. An employer shall not be deemed to have refused to bargain until an election has been held and the results thereof certified to the employer by the commission. The violation shall include, though not be limited thereby, to the refusal to execute a collective bargaining agreement previously agreed upon. The term of any collective bargaining agreement covering municipal employees who are not school district employees shall not exceed 3 years, and the term of any collective bargaining agreement covering school district employees shall not exceed 4 years.

111.70(3)(a)5.

5. To violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employees, including an agreement to arbitrate questions arising as to the meaning or application of the terms of a collective bargaining agreement or to accept the terms of such arbitration award, where previously the parties have agreed to accept such award as final and binding upon them.

111.70(3)(a)6.

6. To deduct labor organization dues from an employee's or supervisor's earnings, unless the municipal employer has been presented with an individual order therefor, signed by the municipal employee personally, and terminable by at least the end of any year of its life or earlier by the municipal employee giving at least 30 days' written notice of such termination to the municipal employer and to the representative organization, except where there is a fair-share agreement in effect.

111.70(3)(a)7.

7. To refuse or otherwise fail to implement an arbitration decision lawfully made under sub. (4) (cm).

111.70(3)(a)8.

8. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any grievance arbitration agreement in the expired collective bargaining agreement.

111.70(3)(a)9.

9. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any fair-share agreement in the expired collective bargaining agreement.

111.70(3)(b)

(b) It is a prohibited practice for a municipal employee, individually or in concert with others:

111.70(3)(b)1.

1. To coerce or intimidate a municipal employee in the enjoyment of the employee's legal rights, including those guaranteed in sub. (2).

111.70(3)(b)2.

2. To coerce, intimidate or induce any officer or agent of a municipal employer to interfere with any of its employees in the enjoyment of their legal rights, including those guaranteed in sub. (2), or to engage in any practice with regard to its employees which would constitute a prohibited practice if undertaken by the officer or agent on the officer's or agent's own initiative.

111.70(3)(b)3.

3. To refuse to bargain collectively with the duly authorized officer or agent of a municipal employer, provided it is the recognized or certified exclusive collective bargaining representative of employees in an appropriate collective bargaining unit. Such refusal to bargain shall include, but not be limited to, the refusal to execute a collective bargaining agreement previously agreed upon.

111.70(3)(b)4.

4. To violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employees, including an agreement to arbitrate questions arising as to the meaning or application of the terms of a collective bargaining agreement or to accept the terms of such arbitration award, where previously the parties have agreed to accept such awards as final and binding upon them.

111.70(3)(b)5.

5. To coerce or intimidate an independent contractor, supervisor, confidential, managerial or executive employee, officer or agent of the municipal employer, to induce the person to become a member of the labor organization of which employees are members.

111.70(3)(b)6.

6. To refuse or otherwise fail to implement an arbitration decision lawfully made under sub. (4) (cm).

111.70(3)(b)7.

7. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any grievance arbitration agreement in the expired collective bargaining agreement.

111.70(3)(c)

(c) It is a prohibited practice for any person to do or cause to be done on behalf of or in the interest of municipal employers or municipal employees, or in connection with or to influence the outcome of any controversy as to employment relations, any act prohibited by par. (a) or (b).

111.70 - ANNOT.

Cross Reference: See also ch. ERC 12, Wis. adm. code.

111.70(3m)

(3m) Milwaukee county enrollment services unit. A collective bargaining agreement that covers municipal employees performing services for the Milwaukee County enrollment services unit under s. 49.825 shall contain a provision that permits the terms of the agreement to be modified with respect to hours and conditions of employment by a memorandum of understanding under s. 49.825 (3) (b) 4.

111.70(3p)

(3p) Child care provider services unit. A collective bargaining agreement that covers municipal employees performing services for the child care provider services unit under s. 49.826 shall contain a provision that permits the terms of the agreement to be modified with respect to hours and conditions of employment by a memorandum of understanding under s. 49.826 (3) (b) 4.

111.70(4)

(4) Powers of the commission. The commission shall be governed by the following provisions relating to bargaining in municipal employment in addition to other powers and duties provided in this subchapter:

111.70(4)(a)

(a) Prevention of prohibited practices. Section 111.07 shall govern procedure in all cases involving prohibited practices under this subchapter except that wherever the term "unfair labor practices" appears in s. 111.07 the term "prohibited practices" shall be substituted.

111.70(4)(b)

(b) Failure to bargain. Whenever a dispute arises between a municipal employer and a union of its employees concerning the duty to bargain on any subject, the dispute shall be resolved by the commission on petition for a declaratory ruling. The decision of the commission shall be issued within 15 days of submission and shall have the effect of an order issued under s. 111.07. The filing of a petition under this paragraph shall not prevent the inclusion of the same allegations in a complaint involving prohibited practices in which it is alleged that the failure to bargain on the subjects of the declaratory ruling is part of a series of acts or pattern of conduct prohibited by this subchapter.

111.70 - ANNOT.

Cross Reference: See also chs. ERC 18 and 19, Wis. adm. code.

111.70(4)(c)

(c) Methods for peaceful settlement of disputes; law enforcement and fire fighting personnel.

111.70(4)(c)1.

1. `Mediation.' The commission may function as a mediator in labor disputes. Such mediation may be carried on by a person designated to act by the commission upon request of one or both of the parties or upon initiation of the commission. The function of the mediator shall be to encourage voluntary settlement by the parties but no mediator shall have the power of compulsion.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 13, Wis. adm. code.

111.70(4)(c)2.

2. `Arbitration.'

111.70(4)(c)2.a.

a. Parties to a dispute pertaining to the meaning or application of the terms of a written collective bargaining agreement may agree in writing to have the commission or any other appropriate agency serve as arbitrator or may designate any other competent, impartial and disinterested person to so serve.

111.70(4)(c)2.b.

b. A collective bargaining agreement may, notwithstanding s. 62.13 (5), contain dispute resolution procedures, including arbitration, that address the suspension, reduction in rank, suspension and reduction in rank, or removal of such personnel. If the procedures include arbitration, the arbitration hearing shall be public and the decision of the arbitrator shall be issued within 180 days of the conclusion of the hearing.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 16, Wis. adm. code.

111.70(4)(c)3.

3. `Fact-finding.' If a dispute has not been settled after a reasonable period of negotiation and after the settlement procedures, if any, established by the parties have been exhausted, and the parties are deadlocked with respect to any dispute between them arising in the collective bargaining process, either party, or the parties jointly, may petition the commission, in writing, to initiate fact-finding, as provided hereafter, and to make recommendations to resolve the deadlock.

111.70(4)(c)3.a.

a. Upon receipt of a petition to initiate fact-finding, the commission shall make an investigation with or without a formal hearing, to determine whether a deadlock in fact exists. After its investigation the commission shall certify the results thereof. If the commission decides that fact-finding should be initiated, it shall appoint a qualified, disinterested person or 3-member panel, when jointly requested by the parties, to function as a fact finder.

111.70(4)(c)3.b.

b. The fact finder may establish dates and place of hearings which shall be where feasible, and shall conduct the hearings pursuant to rules established by the commission. Upon request, the commission shall issue subpoenas for hearings conducted by the fact finder. The fact finder may administer oaths. Upon completion of the hearing, the fact finder shall make written findings of fact and recommendations for solution of the dispute and shall cause the same to be served on the parties and the commission. Cost of fact-finding proceedings shall be divided equally between the parties. At the time the fact finder submits a statement of his or her costs to the parties, the fact finder shall submit a copy thereof to the commission at its Madison office.

111.70(4)(c)3.c.

c. Nothing herein shall be construed as prohibiting any fact finder from endeavoring to mediate the dispute, in which the fact finder is involved, at any time prior to the issuance of the fact finder's recommendations.

111.70(4)(c)3.d.

d. Within 30 days of the receipt of the fact finder's recommendations, or within the time period mutually agreed upon by the parties, each party shall advise the other, in writing as to its acceptance or rejection, in whole or in part, of the fact finder's recommendations and, at the same time, transmit a copy of such notice to the commission at its Madison office.

111.70 - ANNOT.

Cross Reference: See also chs. ERC 14 and 40, Wis. adm. code.

111.70(4)(c)4.

4. `Applicability.' This paragraph applies only to municipal employees who are engaged in law enforcement or fire fighting functions.

111.70(4)(cm)

(cm) Methods for peaceful settlement of disputes; other personnel.

111.70(4)(cm)1.

1. `Notice of commencement of contract negotiations.' For the purpose of advising the commission of the commencement of contract negotiations, whenever either party requests the other to reopen negotiations under a binding collective bargaining agreement, or the parties otherwise commence negotiations if no such agreement exists, the party requesting negotiations shall immediately notify the commission in writing. Upon failure of the requesting party to provide such notice, the other party may so notify the commission. The notice shall specify the expiration date of the existing collective bargaining agreement, if any, and shall set forth any additional information the commission may require on a form provided by the commission.

111.70(4)(cm)2.

2. `Presentation of initial proposals; open meetings.' The meetings between parties to a collective bargaining agreement or proposed collective bargaining agreement under this subchapter which are held for the purpose of presenting initial bargaining proposals, along with supporting rationale, shall be open to the public. Each party shall submit its initial bargaining proposals to the other party in writing. Failure to comply with this subdivision is not cause to invalidate a collective bargaining agreement under this subchapter.

111.70(4)(cm)3.

3. `Mediation.' The commission or its designee shall function as mediator in labor disputes involving municipal employees upon request of one or both of the parties, or upon initiation of the commission. The function of the mediator shall be to encourage voluntary settlement by the parties. No mediator has the power of compulsion.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 13, Wis. adm. code.

111.70(4)(cm)4.

4. `Grievance arbitration.' Parties to a dispute pertaining to the meaning or application of the terms of a written collective bargaining agreement may agree in writing to have the commission or any other appropriate agency serve as arbitrator or may designate any other competent, impartial and disinterested person to so serve.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 16, Wis. adm. code.

111.70(4)(cm)5.

5. `Voluntary impasse resolution procedures.' In addition to the other impasse resolution procedures provided in this paragraph, a municipal employer and labor organization may at any time, as a permissive subject of bargaining, agree in writing to a dispute settlement procedure, including authorization for a strike by municipal employees or binding interest arbitration, which is acceptable to the parties for resolving an impasse over terms of any collective bargaining agreement under this subchapter. A copy of such agreement shall be filed by the parties with the commission. If the parties agree to any form of binding interest arbitration, the arbitrator shall give weight to the factors enumerated under subds. 7. and 7g. for a collective bargaining unit consisting of municipal employees who are not school district employees and under subd. 7r. for a collective bargaining unit consisting of municipal employees.

111.70(4)(cm)6.

6. `Interest arbitration.'

111.70(4)(cm)6.a.

a. If in any collective bargaining unit a dispute relating to one or more issues has not been settled after a reasonable period of negotiation and after mediation by the commission under subd. 3. and other settlement procedures, if any, established by the parties have been exhausted, and the parties are deadlocked with respect to any dispute between them over wages, hours and conditions of employment to be included in a new collective bargaining agreement, either party, or the parties jointly, may petition the commission, in writing, to initiate compulsory, final and binding arbitration, as provided in this paragraph. At the time the petition is filed, the petitioning party shall submit in writing to the other party and the commission its preliminary final offer containing its latest proposals on all issues in dispute. Within 14 calendar days after the date of that submission, the other party shall submit in writing its preliminary final offer on all disputed issues to the petitioning party and the commission. If a petition is filed jointly, both parties shall exchange their preliminary final offers in writing and submit copies to the commission at the time the petition is filed.

111.70(4)(cm)6.am.

am. Upon receipt of a petition to initiate arbitration, the commission shall make an investigation, with or without a formal hearing, to determine whether arbitration should be commenced. If in determining whether an impasse exists the commission finds that the procedures set forth in this paragraph have not been complied with and such compliance would tend to result in a settlement, it may order such compliance before ordering arbitration. The validity of any arbitration award or collective bargaining agreement shall not be affected by failure to comply with such procedures. Prior to the close of the investigation each party shall submit in writing to the commission its single final offer containing its final proposals on all issues in dispute that are subject to interest arbitration under this subdivision. If a party fails to submit a single, ultimate final offer, the commission shall close the investigation based on the last written position of the party. Such final offers may include only mandatory subjects of bargaining, except that a permissive subject of bargaining may be included by a party if the other party does not object and shall then be treated as a mandatory subject. No later than such time, the parties shall also submit to the commission a stipulation, in writing, with respect to all matters which are agreed upon for inclusion in the new or amended collective bargaining agreement. The commission, after receiving a report from its investigator and determining that arbitration should be commenced, shall issue an order requiring arbitration and immediately submit to the parties a list of 7 arbitrators. Upon receipt of such list, the parties shall alternately strike names until a single name is left, who shall be appointed as arbitrator. The petitioning party shall notify the commission in writing of the identity of the arbitrator selected. Upon receipt of such notice, the commission shall formally appoint the arbitrator and submit to him or her the final offers of the parties. The final offers shall be considered public documents and shall be available from the commission. In lieu of a single arbitrator and upon request of both parties, the commission shall appoint a tripartite arbitration panel consisting of one member selected by each of the parties and a neutral person designated by the commission who shall serve as a chairperson. An arbitration panel has the same powers and duties as provided in this section for any other appointed arbitrator, and all arbitration decisions by such panel shall be determined by majority vote. In lieu of selection of the arbitrator by the parties and upon request of both parties, the commission shall establish a procedure for randomly selecting names of arbitrators. Under the procedure, the commission shall submit a list of 7 arbitrators to the parties. Each party shall strike one name from the list. From the remaining 5 names, the commission shall randomly appoint an arbitrator. Unless both parties to an arbitration proceeding otherwise agree in writing, every individual whose name is submitted by the commission for appointment as an arbitrator shall be a resident of this state at the time of submission and every individual who is designated as an arbitration panel chairperson shall be a resident of this state at the time of designation.

111.70(4)(cm)6.b.

b. The arbitrator shall, within 10 days of his or her appointment, establish a date and place for the conduct of the arbitration hearing. Upon petition of at least 5 citizens of the jurisdiction served by the municipal employer, filed within 10 days after the date on which the arbitrator is appointed, the arbitrator shall hold a public hearing in the jurisdiction for the purpose of providing the opportunity to both parties to explain or present supporting arguments for their positions and to members of the public to offer their comments and suggestions. The final offers of the parties, as transmitted by the commission to the arbitrator, shall serve as the basis for continued negotiations, if any, between the parties with respect to the issues in dispute. At any time prior to the arbitration hearing, either party, with the consent of the other party, may modify its final offer in writing.

111.70(4)(cm)6.c.

c. Prior to the arbitration hearing, either party may, within a time limit established by the arbitrator, withdraw its final offer and mutually agreed upon modifications thereof, if any, and shall immediately provide written notice of such withdrawal to the other party, the arbitrator and the commission. If both parties withdraw their final offers and mutually agreed upon modifications, the labor organization, after giving 10 days' written advance notice to the municipal employer and the commission, may strike. Unless both parties withdraw their final offers and mutually agreed upon modifications, the final offer of neither party shall be deemed withdrawn and the arbitrator shall proceed to resolve the dispute by final and binding arbitration as provided in this paragraph.

111.70(4)(cm)6.d.

d. Before issuing his or her arbitration decision, the arbitrator shall, on his or her own motion or at the request of either party, conduct a meeting open to the public for the purpose of providing the opportunity to both parties to explain or present supporting arguments for their complete offer on all matters to be covered by the proposed agreement. The arbitrator shall adopt without further modification the final offer of one of the parties on all disputed issues submitted under subd. 6. am., except those items that the commission determines not to be mandatory subjects of bargaining and those items which have not been treated as mandatory subjects by the parties, and including any prior modifications of such offer mutually agreed upon by the parties under subd. 6. b., which decision shall be final and binding on both parties and shall be incorporated into a written collective bargaining agreement. The arbitrator shall serve a copy of his or her decision on both parties and the commission.

111.70(4)(cm)6.e.

e. Arbitration proceedings shall not be interrupted or terminated by reason of any prohibited practice complaint filed by either party at any time.

111.70(4)(cm)6.f.

f. The costs of arbitration shall be divided equally between the parties. The arbitrator shall submit a statement of his or her costs to both parties and to the commission.

111.70(4)(cm)6.g.

g. If a question arises as to whether any proposal made in negotiations by either party is a mandatory, permissive or prohibited subject of bargaining, the commission shall determine the issue pursuant to par. (b). If either party to the dispute petitions the commission for a declaratory ruling under par. (b), the proceedings under subd. 6. c. and d. shall be delayed until the commission renders a decision in the matter, but not during any appeal of the commission order. The arbitrator's award shall be made in accordance with the commission's ruling, subject to automatic amendment by any subsequent court reversal thereof.

111.70(4)(cm)7.

7. `Factor given greatest weight.' In making any decision under the arbitration procedures authorized by this paragraph, except for any decision involving a collective bargaining unit consisting of school district employees, the arbitrator or arbitration panel shall consider and shall give the greatest weight to any state law or directive lawfully issued by a state legislative or administrative officer, body or agency which places limitations on expenditures that may be made or revenues that may be collected by a municipal employer. The arbitrator or arbitration panel shall give an accounting of the consideration of this factor in the arbitrator's or panel's decision.

111.70(4)(cm)7g.

7g. `Factor given greater weight.' In making any decision under the arbitration procedures authorized by this paragraph, except for any decision involving a collective bargaining unit consisting of school district employees, the arbitrator or arbitration panel shall consider and shall give greater weight to economic conditions in the jurisdiction of the municipal employer than to any of the factors specified in subd. 7r.

111.70(4)(cm)7r.

7r. `Other factors considered.' In making any decision under the arbitration procedures authorized by this paragraph, the arbitrator or arbitration panel shall give weight to the following factors:

111.70(4)(cm)7r.a.

a. The lawful authority of the municipal employer.

111.70(4)(cm)7r.b.

b. Stipulations of the parties.

111.70(4)(cm)7r.c.

c. The interests and welfare of the public and the financial ability of the unit of government to meet the costs of any proposed settlement.

111.70(4)(cm)7r.d.

d. Comparison of wages, hours and conditions of employment of the municipal employees involved in the arbitration proceedings with the wages, hours and conditions of employment of other employees performing similar services.

111.70(4)(cm)7r.e.

e. Comparison of the wages, hours and conditions of employment of the municipal employees involved in the arbitration proceedings with the wages, hours and conditions of employment of other employees generally in public employment in the same community and in comparable communities.

111.70(4)(cm)7r.f.

f. Comparison of the wages, hours and conditions of employment of the municipal employees involved in the arbitration proceedings with the wages, hours and conditions of employment of other employees in private employment in the same community and in comparable communities.

111.70(4)(cm)7r.g.

g. The average consumer prices for goods and services, commonly known as the cost of living.

111.70(4)(cm)7r.h.

h. The overall compensation presently received by the municipal employees, including direct wage compensation, vacation, holidays and excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.

111.70(4)(cm)7r.i.

i. Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.

111.70(4)(cm)7r.j.

j. Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between the parties, in the public service or in private employment.

111.70(4)(cm)8.

8. `Rule making.' The commission shall adopt rules for the conduct of all arbitration proceedings under subd. 6., including, but not limited to, rules for:

111.70(4)(cm)8.a.

a. The appointment of tripartite arbitration panels when requested by the parties.

111.70(4)(cm)8.b.

b. The expeditious rendering of arbitration decisions, such as waivers of briefs and transcripts.

111.70(4)(cm)8.c.

c. The removal of individuals who have repeatedly failed to issue timely decisions from the commission's list of qualified arbitrators.

111.70(4)(cm)8.d.

d. Proceedings for the enforcement of arbitration decisions.

111.70(4)(cm)8m.

8m. `Term of agreement; reopening of negotiations.' Except for the initial collective bargaining agreement between the parties and except as the parties otherwise agree, every collective bargaining agreement covering municipal employees subject to this paragraph shall be for a term of 2 years, but in no case may a collective bargaining agreement for any collective bargaining unit consisting of municipal employees subject to this paragraph other than school district employees be for a term exceeding 3 years nor may a collective bargaining agreement for any collective bargaining unit consisting of school district employees subject to this paragraph be for a term exceeding 4 years. No arbitration award may contain a provision for reopening of negotiations during the term of a collective bargaining agreement, unless both parties agree to such a provision. The requirement for agreement by both parties does not apply to a provision for reopening of negotiations with respect to any portion of an agreement that is declared invalid by a court or administrative agency or rendered invalid by the enactment of a law or promulgation of a federal regulation.

111.70(4)(cm)9.

9. `Application.'

111.70(4)(cm)9.a.

a. Chapter 788 does not apply to arbitration proceedings under this paragraph.

111.70(4)(cm)9.b.

b. This paragraph does not apply to labor disputes involving municipal employees who are engaged in law enforcement or fire fighting functions.

111.70 - ANNOT.

Cross Reference: See also chs. ERC 32 and 33, Wis. adm. code.

111.70(4)(d)

(d) Selection of representatives and determination of appropriate units for collective bargaining.

111.70(4)(d)1.

1. A representative chosen for the purposes of collective bargaining by a majority of the municipal employees voting in a collective bargaining unit shall be the exclusive representative of all employees in the unit for the purpose of collective bargaining. Any individual employee, or any minority group of employees in any collective bargaining unit, shall have the right to present grievances to the municipal employer in person or through representatives of their own choosing, and the municipal employer shall confer with said employee in relation thereto, if the majority representative has been afforded the opportunity to be present at the conferences. Any adjustment resulting from these conferences shall not be inconsistent with the conditions of employment established by the majority representative and the municipal employer.

111.70(4)(d)2.

2.

111.70(4)(d)2.a.

a. The commission shall determine the appropriate collective bargaining unit for the purpose of collective bargaining and shall whenever possible, unless otherwise required under this subchapter, avoid fragmentation by maintaining as few collective bargaining units as practicable in keeping with the size of the total municipal workforce. In making such a determination, the commission may decide whether, in a particular case, the municipal employees in the same or several departments, divisions, institutions, crafts, professions, or other occupational groupings constitute a collective bargaining unit. Before making its determination, the commission may provide an opportunity for the municipal employees concerned to determine, by secret ballot, whether they desire to be established as a separate collective bargaining unit. The commission shall not decide, however, that any group of municipal employees constitutes an appropriate collective bargaining unit if the group includes both professional employees and nonprofessional employees, unless a majority of the professional employees vote for inclusion in the unit. The commission shall not decide that any group of municipal employees constitutes an appropriate collective bargaining unit if the group includes both craft employees and noncraft employees unless a majority of the craft employees vote for inclusion in the unit. The commission shall place the professional employees who are assigned to perform any services at a charter school, as defined in s. 115.001 (1), in a separate collective bargaining unit from a unit that includes any other professional employees whenever at least 30% of those professional employees request an election to be held to determine that issue and a majority of the professional employees at the charter school who cast votes in the election decide to be represented in a separate collective bargaining unit. Upon the expiration of any collective bargaining agreement in force, the commission shall combine into a single collective bargaining unit 2 or more collective bargaining units consisting of school district employees if a majority of the employees voting in each collective bargaining unit vote to combine. Any vote taken under this subsection shall be by secret ballot.

111.70(4)(d)2.b.

b. Any election held under subd. 2. a. shall be conducted by secret ballot taken in such a manner as to show separately the wishes of the employees voting as to the unit they prefer.

111.70(4)(d)2.c.

c. A collective bargaining unit shall be subject to termination or modification as provided in this subchapter.

111.70(4)(d)2.d.

d. Nothing in this section shall be construed as prohibiting 2 or more collective bargaining units from bargaining collectively through the same representative.

111.70(4)(d)3.

3. Whenever, in a particular case, a question arises concerning representation or appropriate unit, calling for a vote, the commission shall certify the results in writing to the municipal employer and the labor organization involved and to any other interested parties. Any ballot used in a representation proceeding shall include the names of all persons having an interest in representing or the results. The ballot should be so designed as to permit a vote against representation by any candidate named on the ballot. The findings of the commission, on which a certification is based, shall be conclusive unless reviewed as provided by s. 111.07 (8).

111.70(4)(d)4.

4. Whenever the result of an election conducted pursuant to subd. 3. is inconclusive, the commission, on request of any party to the proceeding, may conduct a runoff election. Any such request must be made within 30 days from the date of certification. In a runoff election the commission may drop from the ballot the name of the candidate or choice receiving the least number of votes.

111.70(4)(d)5.

5. Questions as to representation may be raised by petition of the municipal employer or any municipal employee or any representative thereof. Where it appears by the petition that a situation exists requiring prompt action so as to prevent or terminate an emergency, the commission shall act upon the petition forthwith. The fact that an election has been held shall not prevent the holding of another election among the same group of employees, if it appears to the commission that sufficient reason for another election exists.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 11, Wis. adm. code.

111.70(4)(jm)

(jm) Binding arbitration, first class cities. This paragraph shall apply only to members of a police department employed by cities of the 1st class. If the representative of members of the police department, as determined under par. (d), and representatives of the city reach an impasse on the terms of the agreement, the dispute shall be resolved in the following manner:

111.70(4)(jm)1.

1. Either the representative of the members of the police department or the representative of the city may petition the commission for appointment of an arbitrator to determine the terms of the agreement relating to the wages, hours and working conditions of the members of the police department and other matters subject to arbitration under subd. 4.

111.70(4)(jm)2.

2. The commission shall conduct a hearing on the petition, and upon a determination that the parties have reached an impasse on matters relating to wages, hours and conditions of employment or other matters subject to arbitration under subd. 4. on which there is no mutual agreement, the commission shall appoint an arbitrator to determine those terms of the agreement on which there is no mutual agreement. The commission may appoint any person it deems qualified, except that the arbitrator may not be a resident of the city which is party to the dispute.

111.70(4)(jm)3.

3. Within 14 days of the arbitrator's appointment, the arbitrator shall conduct a hearing to determine the terms of the agreement relating to wages, hours and working conditions and other matters subject to arbitration under subd. 4. The arbitrator may subpoena witnesses at the request of either party or on the arbitrator's own motion. All testimony shall be given under oath. The arbitrator shall take judicial notice of all economic and social data presented by the parties which is relevant to the wages, hours and working conditions of the police department members or other matters subject to arbitration under subd. 4. The other party shall have an opportunity to examine and respond to such data. The rules of evidence applicable to a contested case, as defined in s. 227.01 (3), shall apply to the hearing before the arbitrator.

111.70(4)(jm)4.

4. In determining those terms of the agreement on which there is no mutual agreement and on which the parties have negotiated to impasse, as determined by the commission, the arbitrator, without restriction because of enumeration, shall have the power to:

111.70(4)(jm)4.a.

a. Set all items of compensation, including base wages, longevity pay, health, accident and disability insurance programs, pension programs, including amount of pension, relative contributions, and all eligibility conditions, the terms and conditions of overtime compensation and compensatory time, vacation pay, and vacation eligibility, sickness pay amounts, and sickness pay eligibility, life insurance, uniform allowances and any other similar item of compensation.

111.70(4)(jm)4.b.

b. Determine regular hours of work, what activities shall constitute overtime work and all standards and criteria for the assignment and scheduling of work.

111.70(4)(jm)4.c.

c. Determine a seniority system, and how seniority shall affect wages, hours and working conditions.

111.70(4)(jm)4.d.

d. Determine a promotional program.

111.70(4)(jm)4.e.

e. Determine criteria for merit increases in compensation and the procedures for applying such criteria.

111.70(4)(jm)4.f.

f. Determine all work rules affecting the members of the police department, except those work rules created by law.

111.70(4)(jm)4.g.

g. Establish any educational program for the members of the police department deemed appropriate, together with a mechanism for financing the program.

111.70(4)(jm)4.h.

h. Establish a system for resolving all disputes under the agreement, including final and binding 3rd-party arbitration.

111.70(4)(jm)4.i.

i. Determine the duration of the agreement and the members of the department to which it shall apply.

111.70(4)(jm)4.j.

j. Establish a system for administration of the collective bargaining agreement between the parties by an employee of the police department who is not directly accountable to the chief of police or the board of fire and police commissioners in matters relating to that administration.

111.70(4)(jm)4.k.

k. Establish a system for conducting interrogations of members of the police department that is limited to the hours between 7 a.m. and 5 p.m. on working days, as defined in s. 227.01 (14), if the interrogations could lead to disciplinary action, demotion, or dismissal, but one that does not apply if the interrogation is part of a criminal investigation.

111.70(4)(jm)5.

5. In determining the proper compensation to be received by members of the department under subd. 4., the arbitrator shall utilize:

111.70(4)(jm)5.a.

a. The most recently published U.S. bureau of labor statistics "Standards of Living Budgets for Urban Families, Moderate and Higher Level", as a guideline to determine the compensation necessary for members to enjoy a standard of living commensurate with their needs, abilities and responsibilities; and

111.70(4)(jm)5.b.

b. Increases in the cost of living as measured by the average annual increases in the U.S. bureau of labor statistics "Consumer Price Index" since the last adjustment in compensation for those members.

111.70(4)(jm)6.

6. In determining all noncompensatory working conditions and relationships under subd. 4., including methods for resolving disputes under the labor agreement, the arbitrator shall consider the patterns of employee-employer relationships generally prevailing between technical and professional employees and their employers in both the private and public sectors of the economy where those relationships have been established by a labor agreement between the representative of those employees and their employer.

111.70(4)(jm)7.

7. All subjects described in subd. 4. shall be negotiable between the representative of the members of the police department and the city.

111.70(4)(jm)8.

8. Within 30 days after the close of the hearing, the arbitrator shall issue a written decision determining the terms of the agreement between the parties which were not the subject of mutual agreement and on which the parties negotiated in good faith to impasse, as determined by the commission, and which were the subject of the hearing under this paragraph. The arbitrator shall state reasons for each determination. Each proposition or fact accepted by the arbitrator must be established by a preponderance of the evidence.

111.70(4)(jm)9.

9. Subject to subds. 11. and 12., within 14 days of the arbitrator's decision, the parties shall reduce to writing the total agreement composed of those items mutually agreed to between the parties and the determinations of the arbitrator. The document shall be signed by the arbitrator and the parties, unless either party seeks judicial review of the determination pursuant to subd. 11.

111.70(4)(jm)10.

10. All costs of the arbitration hearing, including the arbitrator's fee, shall be borne equally by the parties.

111.70(4)(jm)11.

11. Within 60 days of the arbitrator's decision, either party may petition the circuit court for Milwaukee County to set aside or enforce the arbitrator's decision. If the decision was within the subject matter jurisdiction of the arbitrator as set forth in subd. 4., the court must enforce the decision, unless the court finds by a clear preponderance of the evidence that the decision was procured by fraud, bribery or collusion. The court may not review the sufficiency of the evidence supporting the arbitrator's determination of the terms of the agreement.

111.70(4)(jm)12.

12. Within 30 days of a final court judgment, the parties shall reduce the agreement to writing and with the arbitrator execute the agreement pursuant to subd. 9.

111.70(4)(jm)13.

13. Subsequent to the filing of a petition before the commission pursuant to subd. 1. and prior to the execution of an agreement pursuant to subd. 9., neither party may unilaterally alter any term of the wages, hours and working conditions of the members of the police department or any other matter subject to arbitration under subd. 4.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 31, Wis. adm. code.

111.70(4)(L)

(L) Strikes prohibited. Except as authorized under par. (cm) 5. and 6. c., nothing contained in this subchapter constitutes a grant of the right to strike by any municipal employee or labor organization, and such strikes are hereby expressly prohibited. Paragraph (cm) does not authorize any strike after an injunction has been issued against such strike under sub. (7m).

111.70(4)(m)

(m) Prohibited subjects of bargaining; school district municipal employers. In a school district, the municipal employer is prohibited from bargaining collectively with respect to:

111.70(4)(m)1.

1. Reassignment of municipal employees who perform services for a board of school directors under ch. 119, with or without regard to seniority, as a result of a decision of the board of school directors to contract with an individual or group to operate a school as a charter school, as defined in s. 115.001 (1), or to convert a school to a charter school, or the impact of any such reassignment on the wages, hours or conditions of employment of the municipal employees who perform those services.

111.70(4)(m)2.

2. Reassignment of municipal employees who perform services for a board of school directors, with or without regard to seniority, as a result of the decision of the board to close or reopen a school under s. 119.18 (23), or the impact of any such reassignment on the wages, hours or conditions of employment of the municipal employees who perform those services.

111.70(4)(m)4.

4. Any decision of a board of school directors to contract with a school or agency to provide educational programs under s. 119.235, or the impact of any such decision on the wages, hours or conditions of employment of the municipal employees who perform services for the board.

111.70(4)(m)6.

6. Solicitation of sealed bids for the provision of group health care benefits for school district employees as provided in s. 120.12 (24).

111.70(4)(mc)

(mc) Prohibited subjects of bargaining. The municipal employer is prohibited from bargaining collectively with respect to:

111.70(4)(mc)1.

1. The prohibition of access to arbitration as an alternative to the procedures in s. 62.13 (5).

111.70(4)(mc)2.

2. The reduction of standards in s. 62.13 (5) (em) 1. to 7.

111.70(4)(mc)3.

3. The payment of compensation in a way that is inconsistent with s. 62.13 (5) (h).

111.70(4)(mc)4.

4. The judge's authority over the supervisory tasks provided in s. 755.10, if the municipal employee is a clerk who is not an employee of a city of the first class.

111.70 - ANNOT.

NOTE: Subd. 4. is created eff. 1-1-11 by 2009 Wis. Act 402.

111.70(4)(n)

(n) Mandatory subjects of bargaining. In a school district, in addition to any subject of bargaining on which the municipal employer is required to bargain under sub. (1) (a), the municipal employer is required to bargain collectively with respect to time spent during the school day, separate from pupil contact time, to prepare lessons, labs, or educational materials, to confer or collaborate with other staff, or to complete administrative duties.

111.70(4)(o)

(o) Mandatory subjects of bargaining. In a school district, in addition to any subject of bargaining on which the municipal employer is required to bargain under sub. (1) (a), the municipal employer is required to bargain collectively with respect to the development of or any changes to a teacher evaluation plan under s. 118.225.

111.70(5)

(5) Procedures. Municipal employers, jointly or individually, may employ a qualified person to discharge the duties of labor negotiator and to represent such municipal employers, jointly or individually, in conferences and negotiations under this section. In cities of the 1st, 2nd or 3rd class any member of the city council, including the mayor, who resigns therefrom may, during the term for which the member is elected, be eligible to the position of labor negotiator under this subsection, which position during said term has been created by or the selection to which is vested in such city council, and s. 66.0501 (2) shall be deemed inapplicable thereto.

111.70(6)

(6) Declaration of policy. The public policy of the state as to labor disputes arising in municipal employment is to encourage voluntary settlement through the procedures of collective bargaining. Accordingly, it is in the public interest that municipal employees so desiring be given an opportunity to bargain collectively with the municipal employer through a labor organization or other representative of the employees' own choice. If such procedures fail, the parties should have available to them a fair, speedy, effective and, above all, peaceful procedure for settlement as provided in this subchapter.

111.70(7)

(7) Penalty for striker.

111.70(7)(a)

(a) Whoever violates sub. (4) (L) after an injunction against such a strike has been issued shall be fined $10. After the injunction has been issued, any employee who is absent from work because of purported illness shall be presumed to be on strike unless the illness is verified by a written report from a physician to the employer. Each day of continued violation constitutes a separate offense. The court shall order that any fine imposed under this subsection be paid by means of a salary deduction at a rate to be determined by the court.

111.70(7)(b)

(b) This subsection applies only to municipal employees who are engaged in law enforcement or fire fighting functions.

111.70(7m)

(7m) Injunctive relief; penalties; civil liability.

111.70(7m)(a)

(a) Injunction; prohibited strike. At any time after the commencement of a strike which is prohibited under sub. (4) (L), the municipal employer or any citizen directly affected by such strike may petition the circuit court for an injunction to immediately terminate the strike. If the court determines that the strike is prohibited under sub. (4) (L), it shall issue an order immediately enjoining the strike, and in addition shall impose the penalties provided in par. (c).

111.70(7m)(b)

(b) Injunction; threat to public health or safety. At any time after a labor organization gives advance notice of a strike under sub. (4) (cm) which is expressly authorized under sub. (4) (cm), the municipal employer or any citizen directly affected by such strike may petition the circuit court to enjoin the strike. If the court finds that the strike poses an imminent threat to the public health or safety, the court shall, within 48 hours after the receipt of the petition but after notice to the parties and after holding a hearing, issue an order immediately enjoining the strike, and in addition shall order the parties to submit a new final offer on all disputed issues to the commission for final and binding arbitration as provided in sub. (4) (cm). The commission, upon receipt of the final offers of the parties, shall transmit them to the arbitrator or a successor designated by the commission. The arbitrator shall omit preliminary steps and shall commence immediately to arbitrate the dispute.

111.70(7m)(c)

(c) Penalties.

111.70(7m)(c)1.

1. `Labor organizations.'

111.70(7m)(c)1.a.

a. Any labor organization which violates sub. (4) (L) shall be penalized by the suspension of any dues check-off agreement and fair-share agreement between the municipal employer and such labor organization for a period of one year. At the end of the period of suspension, any such agreement shall be reinstated unless the labor organization is no longer authorized to represent the municipal employees covered by such dues check-off or fair-share agreement or the agreement is no longer in effect.

111.70(7m)(c)1.b.

b. Any labor organization which violates sub. (4) (L) after an injunction has been issued shall be required to forfeit $2 per member per day, but not more than $10,000 per day. Each day of continued violation constitutes a separate offense.

111.70(7m)(c)2.

2. `Individuals.' Any individual who violates sub. (4) (L) after an injunction against a strike has been issued shall be fined $10. Each day of continued violation constitutes a separate offense. After the injunction has been issued, any municipal employee who is absent from work because of purported illness is presumed to be on strike unless the illness is verified by a written report from a physician to the municipal employer. The court shall order that any fine imposed under this subdivision be paid by means of a salary deduction at a rate to be determined by the court.

111.70(7m)(c)3.

3. `Strike in violation of award.' Any person who authorizes or otherwise participates in a strike after the issuance of any final and binding arbitration award or decision under sub. (4) (cm) and prior to the end of the term of the agreement which the award or decision amends or creates shall forfeit not less than $15. Each day of continued violation constitutes a separate offense.

111.70(7m)(c)4.

4. `Contempt of court.' The penalties provided in this paragraph do not preclude the imposition by the court of any penalty for contempt provided by law.

111.70(7m)(d)

(d) Compensation forfeited. No municipal employee may be paid wages or salaries by the municipal employer for the period during which he or she engages in any strike.

111.70(7m)(e)

(e) Civil liability. Any party refusing to include an arbitration award or decision under sub. (4) (cm) in a written collective bargaining agreement or failing to implement the award or decision, unless good cause is shown, shall be liable for attorney fees, interest on delayed monetary benefits, and other costs incurred in any action by the nonoffending party to enforce the award or decision.

111.70(7m)(f)

(f) Application. This subsection does not apply to strikes involving municipal employees who are engaged in law enforcement or fire fighting functions.

111.70(8)

(8) Supervisory units.

111.70(8)(a)

(a) This section, except subs. (1) (nm), (4) (cm) and (7m), applies to law enforcement supervisors employed by a 1st class city. This section, except subs. (1) (nm), (4) (cm) and (jm) and (7m), applies to law enforcement supervisors employed by a county having a population of 500,000 or more. For purposes of such application, the term "municipal employee" includes such a supervisor.

111.70(8)(b)

(b) This subchapter does not preclude law enforcement supervisors employed by municipal employers other than 1st class cities and counties having a population of 500,000 or more or fire fighting supervisors from organizing in separate units of supervisors for the purpose of negotiating with their municipal employers.

111.70 - ANNOT.

Cross Reference: See also ch. ERC 11, Wis. adm. code.

111.70(8)(c)

(c) The commission shall by rule establish procedures for certification of such units of supervisors and the levels of supervisors to be included in the units. Supervisors may not be members of the same bargaining unit of which their subordinates are members. The commission may require that the representative of any supervisory unit shall be an organization that is a separate local entity from the representative of the nonsupervisory municipal employees, but such requirement does not prevent affiliation by a supervisory representative with the same parent state or national organization as the nonsupervisory municipal employee representative.

111.70(9)

(9) Powers of chief of police. Nothing in s. 62.50 grants the chief of police in cities of the 1st class any authority which diminishes or in any other manner affects the rights of municipal employees who are members of a police department employed by a city of the 1st class under this section or under any collective bargaining agreement which is entered into between a city of the 1st class and a labor organization representing the members of its police department.

111.70 - ANNOT.

History: 1971 c. 124, 246, 247, 307, 336; 1973 c. 64, 65; 1977 c. 178, 186, 272, 442, 449; 1979 c. 32 s. 92 (15); 1981 c. 20, 112, 187; 1983 a. 189, 192; 1985 a. 29; 1985 a. 182 s. 57; 1985 a. 318; 1987 a. 153, 399; 1991 a. 136; 1993 a. 16, 429, 492; 1995 a. 27, 225, 289; 1997 a. 27, 237; 1999 a. 9, 65; 1999 a. 150 s. 672; 2001 a. 16; 2005 a. 253; 2007 a. 20; 2009 a. 15, 21, 28, 34, 60, 402; s. 13.92 (2) (i).

111.70 - ANNOT.

A collective bargaining provision that releases only teacher members of a majority union from in-service days to attend, with pay, a state convention of the union is discriminatory, but the school board can deny compensation to minority union members who attend a regional convention of their union, if the board does so in good faith. Ashland Board of Education v. WERC, 52 Wis. 2d 625, 191 N.W.2d 242 (1971).

111.70 - ANNOT.

A school district may discharge teachers who engage in a strike. There is a meaningful distinction between governmental employees and nongovernmental employees. The strike ban imposed on public employees is based upon a valid classification and the legislation creating it is not an unconstitutional denial of equal protection. Hortonville Education Association v. Joint School District No. 1, 66 Wis. 2d 469, 225 N.W.2d 658. Reversed on other grounds. 426 U.S. 482, 49L. Ed 2d 1 (1976).

111.70 - ANNOT.

A letter sent to city employees by the mayor and council members during a representation election campaign that coercively and erroneously warned employees that all fringe benefits would cease if union representation were accepted was a prohibited labor practice under sub. (3) (a) 1.; "benign generalities" contained elsewhere in the letter were insufficient to overcome its specific threats. A 2nd letter, which predicted a relative loss in benefits and freedom of action, cited the cost of union dues, and emphasized wage rates and fringe benefits, also constituted a prohibited labor practice. An employer may not camouflage threats under the guise of predictions, and the statements in context were intended as threats and accepted as such by the employees. WERC v. City of Evansville, 69 Wis. 2d 140, 230 N.W.2d 688 (1975).

111.70 - ANNOT.

Although employees seeking to enforce the terms of a collective bargaining agreement are bound by the remedial provisions therein, the plaintiffs were not required to exhaust contractual remedies prior to filing their action in court. Browne v. Milwaukee Board of School Directors, 69 Wis. 2d 169, 230 N.W.2d 704 (1975).

111.70 - ANNOT.

The board of education of a city school district was a proper party and had the capacity to maintain an action to enjoin a strike by district teachers. Wisconsin Rapids Joint School District No. 1 v. Wisconsin Rapids Education Association, 70 Wis. 2d 292, 234 N.W.2d 289 (1975).

111.70 - ANNOT.

The fine under sub. (7) applicable to employees violating an injunction against a strike by municipal employees, to be paid by salary deduction, is inapplicable to a labor association composed of such employees. Kenosha Unified School District No. 1 v. Kenosha Education Association, 70 Wis. 2d 325, 234 N.W.2d 311 (1975).

111.70 - ANNOT.

Managerial employees are those who participate in the formulation, determination, and implementation of management policy or possess effective authority to commit the employer's resources. City of Milwaukee v. WERC, 71 Wis. 2d 709, 239 N.W.2d 63 (1976).

111.70 - ANNOT.

A WERC order under sub. (4) (d) 2. a. determining the voting unit and directing that an election be held was not reviewable under ch. 227. City of West Allis v. WERC, 72 Wis. 2d 268, 240 N.W.2d 416 (1976).

111.70 - ANNOT.

Mandatory subjects of collective bargaining under sub. (1) (d) [now sub. (1) (a)] between teachers' associations and school boards are: 1) those primarily related to wages, hours, and conditions of employment; and 2) the impact of the establishment of educational policies affecting wages, hours, and conditions of employment. Beloit Education Association v. WERC, 73 Wis. 2d 43, 242 N.W.2d 231 (1976).

111.70 - ANNOT.

A grievance was arbitrable under the "discharge and nonrenewal" clause of a bargaining agreement when the contract offered by the board was signed by the teacher after deleting the title "probationary contract" and the board did not accept this counteroffer or offer the teacher a 2nd contract. Jefferson Jt. School District No. 10 v. Jefferson Education Association, 78 Wis. 2d 94, 253 N.W.2d 536 (1977).

111.70 - ANNOT.

Collective bargaining is required regarding decisions primarily related to wages, hours, and conditions of employment, but not is not required for decisions primarily related to the formulation or management of public policy. Unified School District No. 1 of Racine County v. WERC, 81 Wis. 2d 89, 259 N.W.2d 724 (1977).

111.70 - ANNOT.

A labor contract under s. 111.70 may limit the scope of the police chief's discretion under s. 62.13 (4) (a). Glendale Professional Policemen's Association v. Glendale, 83 Wis. 2d 90, 264 N.W.2d 594 (1978).

111.70 - ANNOT.

In applying the doctrine of primary jurisdiction, the trial court did not abuse its discretion by transferring a case involving a prohibited practice under sub. (3) (a) 1. to the commission after all constitutional issues had been resolved. Browne v. Milwaukee Board of School Directors, 83 Wis. 2d 316, 265 N.W.2d 559 (1978).

111.70 - ANNOT.

Under sub. (3) (a) 6., a municipal employer may deduct union dues from the paycheck of a minority union member. Milwaukee Federation of Teachers, Local No. 252 v. WERC, 83 Wis. 2d 588, 266 N.W.2d 314 (1978).

111.70 - ANNOT.

The layoff of public employees due to budget cuts was not a mandatory subject of bargaining. City of Brookfield v. WERC, 87 Wis. 2d 819, 275 N.W.2d 723 (1979).

111.70 - ANNOT.

The question of primary jurisdiction arises only when an agency and a court have jurisdiction over the subject of a matter of dispute. The decision for the court is whether it should exercise its discretion to retain the case. McEwen v. Pierce County, 90 Wis. 2d 256, 279 N.W.2d 469 (1979).

111.70 - ANNOT.

Under sub. (3) (a) 6., the fair-share provision of a successor collective bargaining agreement was applied retroactively to a hiatus between agreements. Berns v. WERC, 94 Wis. 2d 214, 287 N.W.2d 829 (Ct. App. 1979); affirmed. 99 Wis. 2d 252, 299 N.W.2d 248 (1980).

111.70 - ANNOT.

Arbitrators appointed pursuant to the grievance procedure contained in a collective bargaining agreement properly held a de novo factual hearing to determine whether just cause existed for the school board to terminate a teacher. Fortney v. School District of West Salem, 108 Wis. 2d 167, 321 N.W.2d 255 (1982).

111.70 - ANNOT.

Mediation-arbitration under s. 111.70 (4) (cm) is a constitutional delegation of legislative authority. Milwaukee County v. District Council 48, 109 Wis. 2d 14, 325 N.W.2d 350 (Ct. App. 1982).

111.70 - ANNOT.

A contract provision stating that a teacher speaking or writing as a citizen shall be free from administrative and school censorship and discipline was primarily related to employment conditions, and was a mandatory subject of bargaining. Blackhawk Teachers' Federation v. WERC, 109 Wis. 2d 415, 326 N.W.2d 247 (Ct. App. 1982).

111.70 - ANNOT.

Sub. (4) (jm) is constitutional. Brennan v. WERC, 112 Wis. 2d 38, 331 N.W.2d 667 (Ct. App. 1983).

111.70 - ANNOT.

WERC did not abuse its discretion by finding no community of interest between professional teachers and student interns. Unit fragmentation under d. 111.70 (4) (d) 2. a. is discussed. Arrowhead United Teachers v. WERC, 116 Wis. 2d 580, 342 N.W.2d 709 (1984).

111.70 - ANNOT.

A school board's anti-nepotism policy was a mandatory subject of bargaining. School District of Drummond v. WERC, 121 Wis. 2d 126, 358 N.W.2d 285 (1984).

111.70 - ANNOT.

Because school supervisors are not subject to this section, a fair-share deduction from the paychecks of nonunion supervisors was not authorized. Perry v. Milwaukee Board of School Directors, 131 Wis. 2d 380, 388 N.W.2d 638 (Ct. App. 1986).

111.70 - ANNOT.

A provision in a union's constitution requiring a local to forfeit its treasury upon a vote of disaffiliation was void as against public policy. Wells v. Waukesha Marine Bank, 135 Wis. 2d 519, 401 N.W.2d 18 (Ct. App. 1986).

111.70 - ANNOT.

The defense of "good cause" under s. 111.70 (7m) (e) is available to an employer that fails to implement an arbitration award of retroactive wages within 31 days pursuant to s. 109.03 (1). Employees Local 1901 v. Brown County, 146 Wis. 2d 728, 432 N.W.2d 571 (1988).

111.70 - ANNOT.

The 3-year limitation under sub. (3) (a) 4. on the term of agreements does not limit the scope of deferred compensation proposals. City of Brookfield v. WERC, 153 Wis. 2d 238, 450 N.W.2d 495 (Ct. App. 1989).

111.70 - ANNOT.

The interest arbitration provisions in sub. (4) (cm) 6. apply during the negotiation of wages, hours, and conditions of employment for positions newly accreted to a bargaining unit. Wausau School District Maintenance Union v. WERC, 157 Wis. 2d 315, 459 N.W.2d 861 (Ct. App. 1990).

111.70 - ANNOT.

A county's decision to sell a health care center was not a mandatory subject of bargaining. Local 2236, AFSCME, AFL-CIO v. WERC, 157 Wis. 2d 708, 461 N.W.2d 286 (Ct. App. 1990).

111.70 - ANNOT.

Whether a subject is a mandatory, permissive, or prohibited subject of bargaining, including finding a particular contract provision constitutionally prohibited, is for the determination of WERC. Milwaukee Board of School Directors v. WERC, 163 Wis. 2d 739, 472 N.W.2d 553 (Ct. App. 1991).

111.70 - ANNOT.

"Arbitration decision" in sub. (3) (a) 7. encompasses all items incorporated into a resultant collective bargaining agreement, including those not in dispute. The failure to implement an "arbitration decision" arises when an employer fails to incorporate specific terms of the award into the resultant agreement or to give retroactive effect to economic items in a retroactive contract. Sauk County v. WERC, 165 Wis. 2d 406, 477 N.W.2d 267 (1991).

111.70 - ANNOT.

Whether payments under an arbitration award are due from the entry of the award depends on the overall circumstances. Kenosha Fire Fighters v. City of Kenosha, 168 Wis. 2d 658, 484 N.W.2d 152 (1992).

111.70 - ANNOT.

A sheriff's assignment of a deputy to an undercover drug investigation falls within the constitutionally protected powers of the sheriff and could not be limited by a collective bargaining agreement. Manitowoc Co. v. Local 986B, 168 Wis. 2d 819, 484 N.W.2d 534 (1992). See also Washington County v. Deputy Sheriff's Association, 192 Wis. 2d 728, 531 N.W.2d 468 (Ct. App. 1995).

111.70 - ANNOT.

The constitutional requirements of a union's collection of agency fees under a fair-share agreement include: 1) an adequate explanation of the basis of the fee; 2) a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker; and 3) an escrow for the amounts reasonably in dispute. Browne v. WERC, 169 Wis. 2d 79, 485 N.W.2d 376 (1992).

111.70 - ANNOT.

To be chargeable to nonunion, public sector employees under a fair share agreement, union activities must: 1) be germane to collective bargaining activity; 2) be justified by the government's vital policy interest in labor peace and avoiding "free riders;" and 3) not significantly add to the burdening of free speech that is inherent in an agency or union shop. Browne v. WERC, 169 Wis. 2d 79, 485 N.W.2d 376 (1992).

111.70 - ANNOT.

No bright-line test exists for determining whether a register in probate, probate register, or probate commissioner is subject to s. 111.70 and eligible for union membership. Factors to be considered include budget and administrative duties assigned to that person. Manitowoc County v. Local 986A, 170 Wis. 2d 692, 489 N.W.2d 722 (Ct. App. 1992). See also Iowa County v. Iowa County Courthouse, 166 Wis. 2d 614, 480 N.W.2d 499 (1992).

111.70 - ANNOT.

When a collective bargaining agreement could cover a dispute and there is no provision that specifically excludes the dispute, the agreement's grievance and arbitration provisions apply. Racine Education Association. v. Racine Unified School District, 176 Wis. 2d 273, N.W.2d (Ct. App. 1993).

111.70 - ANNOT.

Making pension contributions for jailers equal in amount to those for its protective occupation participants (POPS) under s. 40.02 (48) does not require reclassification of the jailers as POPS, is allowed under s. 40.05 (2) (g) 1., and is a mandatory subject of bargaining under sub. (1) (a). County of LaCrosse v. WERC, 180 Wis. 2d 100, 508 N.W.2d 9 (1993).

111.70 - ANNOT.

A school board's unilateral change in rules governing the use of sick leave after the expiration of a collective bargaining agreement changed the status quo and was impermissible. A "zipper" clause in the expired agreement providing that the agreement superseded all previous agreements did not prevent the examination of past practice in determining the status quo. St. Croix Falls School District v. WERC, 186 Wis. 2d 671, 522 N.W.2d 507 (Ct. App. 1994).

111.70 - ANNOT.

The status quo to be maintained during negotiations is dynamic. When history shows changes in compensation upon employee attainment of specified experience levels, the employer is required to continue the practice during negotiations. Jefferson County v. WERC, 187 Wis. 2d 646, 523 N.W.2d 172 (Ct. App. 1994).

111.70 - ANNOT.

A proposal to make the suspension of a police officer subject to arbitration, rather than review under s. 62.13, is not a mandatory subject of bargaining and is in irreconcilable conflict with s. 62.13. City of Janesville v. WERC, 193 Wis. 2d 492, 535 N.W.2d 34 (Ct. App. 1995).

111.70 - ANNOT.

The sheriff's power to appoint, dismiss, or demote a deputy is not constitutionally protected and may be limited by a collective bargaining agreement not in conflict with the statutes. Heitkemper v. Wirsing, 194 Wis. 2d 182, 533 N.W.2d 770 (1995). See also Brown County Sheriff Dept. v. Employees Association, 194 Wis. 2d 266, 533 N.W.2d 766 (1995).

111.70 - ANNOT.

The phrase "consisting of school district professional employees" in sub. (4) (cm) 5s. means consisting exclusively of school district professional employees. Madison Teachers, Inc. v. Madison Metropolitan School District, 197 Wis. 2d 731, 541 N.W.2d 786 (Ct. App. 1995), 93-3323.

111.70 - ANNOT.

Sub. (4) (d) deals with the rights of an employee or minority group of employees to participate in collective bargaining, and not with the rights of an employee to proceed directly against an employer for a breach of the collective bargaining agreement. Gray v. Marinette County, 200 Wis. 2d 426, 546 N.W.2d 553 (Ct. App. 1996), 95-1906.

111.70 - ANNOT.

A school board's implementation of year-round school programs was primarily related to educational policy, not hours and wages, and was not a mandatory subject of bargaining. Racine Education Association v. WERC, 214 Wis. 2d 353, 571 N.W.2d 887 (Ct. App. 1997), 97-0306.

111.70 - ANNOT.

The negotiation for wages, hours, and terms of employment for a position created during the term of a collective bargaining agreement, which will apply to the new position, is a new agreement for that position within sub. (4) (cm) 6., subject to arbitration. Local 60 v. WERC, 217 Wis. 2d 602, 579 N.W.2d 59 (Ct. App. 1997), 97-1877.

111.70 - ANNOT.

If an employee agrees to waive any federal statutory right, that is an agreement between the employee and the employer and is not a collective bargaining agreement. As such, it is not a violation of a collective bargaining agreement for an employee to refuse to sign such a waiver in a settlement, and WERC cannot order the employee to sign the agreement. Thomsen v. WERC, 2000 WI App 90, 234 Wis. 2d 494, 610 N.W.2d 155, 99-1730.

111.70 - ANNOT.

The existence of a qualified economic offer (QEO) under sub. (1) (nc) is fundamentally distinct from the QEO's implementation and numerical calculations. A QEO is made when an employer submits an offer to maintain fringe benefits and minimum salary increases consistent with sub. (1) (nc). Once a QEO is made, any issues concerning the calculation of fringe benefit costs and salaries may still be addressed but will not render a QEO invalid. Racine Education Association v. WERC, 2000 WI App 149, 238 Wis. 2d 33, 616 N.W.2d 504, 99-0765.

111.70 - ANNOT.

Subs. (1) (nc) 1. b. and c. and (4) (cm) 8p. are in conflict. The use of "at least" in sub. (1) (nc) 1. b. and c. sets a minimum threshold for salary increases while sub. (4) (cm) 8p. states that any modification in a salary schedule can only occur at a minimum cost to the employer. Sub. (4) (cm) 8p. prevails as the latest expression of legislative will. Racine Education Association v. WERC, 2000 WI App 149, 238 Wis. 2d 33, 616 N.W.2d 504, 99-0765.

111.70 - ANNOT.

The 2-year contract requirement in sub. (4) (cn) did not prohibit the consideration of successive 2-year contracts in a single vote. Hoffman v. WERC, 2001 WI App 87, 243 Wis. 2d 1, 625 N.W.2d 906, 00-1368.

111.70 - ANNOT.

WERC's determinations that teacher preparation periods are not a mandatory subject of bargaining and that permissive subjects of bargaining are not to be included within "fringe benefits" under sub. (1) (nc) are adopted. As such, a change in preparation time did not result in the school district failing to meet the requirements for a qualified economic offer and subject the matter to arbitration under sub. (4m) (cm) 5s. Dodgeland Education Association v. WERC, 2002 WI 22, 250 Wis. 2d 357, 639 N.W.2d 733, 00-0277.

111.70 - ANNOT.

It was reasonable to conclude that an employee of a school district with access to computer files containing information regarding collective bargaining but who had never been directed to open or read those files and who was trusted not to read those files was not a confidential employee under sub. (1) (i). Mineral Point Unified School District v. WERC, 2002 WI App 48, 251 Wis. 2d 325, 641 N.W.2d 701, 01-1247.

111.70 - ANNOT.

It was reasonable for WERC to conclude: 1) sub. (4) (d) 2. a. addresses all determinations of appropriate bargaining units and is not limited to the initial certification of a bargaining unit; and 2) if craft employees in an existing craft and non-craft bargaining unit file a severance petition and if the craft employees at issue have never voted among themselves for inclusion in the mixed unit, the craft employees are entitled to a separate vote on the issue. City of Marshfield v. WERC, 2002 WI App 68, 252 Wis. 2d 656, 643 N.W.2d 122, 01-0855.

111.70 - ANNOT.

Under the facts of the case, WERC did not err in ruling that the school board could not bar teachers posting in certain areas of their classrooms signs that stated "Fair Contract NOW!" and "Do the Right Thing!" produced by the teacher's union in support of its contact negotiations with the school, as such action constituted "lawful concerted activity" within the protection of sub. (2) and not political advocacy. Milwaukee Board of School Directors v. Wisconsin Employment Relations Commission, 2008 WI App 125, 313 Wis. 2d 525, 758 N.W.2d 814, 07-0840.

111.70 - ANNOT.

A municipal employer may agree to pay the employees' portion of retirement contributions to the state fund. 59 Atty. Gen. 186.

111.70 - ANNOT.

A county ordinance implementing a collective bargaining agreement providing for the payment to county employees, upon their leaving government employment, compensation for accumulated sick leave earned both before and after the effective date of the ordinance is valid. 59 Atty. Gen. 209.

111.70 - ANNOT.

School boards have authority to contract with teachers to provide for an increment or sum in addition to the regular salary in return for the teacher choosing an early retirement option. 63 Atty. Gen. 16.

111.70 - ANNOT.

The attorney general declines to render an opinion on what is subject to collective bargaining in view of a preferred legislative intent that, under sub. (4) (b), such questions be resolved by WERC through the declaratory judgment procedure, subject to judicial review. 63 Atty. Gen. 590.

111.70 - ANNOT.

The Milwaukee school board is authorized by s. 111.70 to contract for a retirement system supplementary to the one under subch. II of ch. 42, 1979 stats. 67 Atty. Gen. 153.

111.70 - ANNOT.

The application of the open meetings law to the duties of WERC is discussed. 68 Atty. Gen. 171.

111.70 - ANNOT.

A board of education may not prevent a nonunion teacher from speaking on a bargaining issue at an open meeting. Madison School District, v. WERC, 429 U.S. 167 (1976).

111.70 - ANNOT.

A teacher's alleged de facto tenure is not a protected property interest. Liberty interests are discussed. Stevens v. Jt. School Dist. No. 1, Rusk County 429 F. Supp. 477 (1977).

111.70 - ANNOT.

WERC and trial courts have concurrent jurisdiction over alleged violations of this section. Aleman v. Milwaukee County, 35 F. Supp. 2d 710 (1999).

111.70 - ANNOT.

The crisis of the 70'swho will manage municipal government? Mulcahy, 54 MLR 315.

111.70 - ANNOT.

Municipal personnel problems and solutions. Mulcahy, 56 MLR 529.

111.70 - ANNOT.

Right to strike and compulsory arbitration: panacea or placebo? Coughlin, Rader, 58 MLR 205.

111.70 - ANNOT.

Wisconsin's municipal labor law: A need for change. Mulcahy and Ruesch, 64 MLR 103 (1980).

111.70 - ANNOT.

Final offer interest arbitration in Wisconsin: Legislative history, participant attitudes, future trends. Clune and Hyde, 64 MLR 455 (1981).

111.70 - ANNOT.

Public sector collective bargaining. Anderson, 1973 WLR 986.

111.70 - ANNOT.

Impartial decisionmakerauthority of school board to dismiss striking teachers. 1977 WLR 521.

111.70 - ANNOT.

Final offer mediation-arbitration and the limited right to strike: Wisconsin's new municipal employment bargaining law. 1979 WLR 167.

111.70 - ANNOT.

Union security in the public sector: Defining political expenditures related to collective bargaining. 1980 WLR 134.

111.70 - ANNOT.

Fact-finding in public employment disputes. Marshall, 43 WBB, No. 6.

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