In a decision dated December 1, 2009, the Wisconsin Employment Relations Commission (WERC) has decided that a municipal employer may no longer maintain existing language in a collective bargaining agreement which uses the procedures of § 62.13(5) for review of discipline police or fire department employees, if the union objects upon the expiration of the contract. This is the first decision from the WERC regarding the application of § 62.13(5) and bargaining since the budget law change two years ago. In City of Menasha, the WERC held that a municipal employer cannot propose contract language (or maintain existing language) which uses (or continues to use) the procedures in § 62.13(5) for police and fire discipline. According to the WERC, only a union can make such a proposal. If the union proposes language, and the parties agree, then a contract can use the procedures of § 62.13(5) to resolve discipline. City of Menasha, WERC Dec. No. 32918 (12/1/09).
Summary of Facts
The current police contract in the City of Menasha contains longstanding language wherein the parties use the procedures of § 62.13(5), Stats. to determine police discipline. Thus, a hearing before the police & fire commission serves as the exclusive means to review discipline of police officers. Although not an issue in negotiations, during the course of exchanging final offers, the union challenged the existing status quo contract language regarding the procedure for discipline. The union argued that such language was now prohibited based on the changes to the Municipal Employment Relations Act (MERA) enacted two years ago.
In 2007, as part of the budget bill, MERA was changed to include the following two new provisions:
Section 111.70 (4) (c) 2 b:
b. A collective bargaining agreement may, notwithstanding s. 62.13 (5), contain dispute resolution procedures, including arbitration, that addresses 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 inclusion of the hearing.
Section 111.70 (4) (mc)
(mc) Prohibited subjects of bargaining. The municipal employer is prohibited from bargaining collectively with respect to:
1. The prohibition of access to arbitration as an alternative to the procedures in s. 62.13 (5).
These new provisions were universally recognized as changes intended to overturn a 1995 Wisconsin Court of Appeals decision which held that parties could not bargain to use the grievance procedure for discipline since § 62.13(5) was a matter of statewide concern and the exclusive procedure for resolving police and fire discipline. City of Janesville v. WERC, 193 Wis.2d 492, 532 N.W.2d 726 (1995). Following Janesville, a municipal employer could insist upon the exclusive use of § 62.13 for discipline of police officers and firefighters.
In this new Menasha decision, the union argued that the Legislature not only intended to overturn Janesville, but also prohibited contract language keeping § 62.13(5) as the method for discipline resolution, even if the parties had agreed to it through bargaining in the past. The City argued that the new law did not prohibit the use of a police and fire commission under § 62.13(5), it simply overturned Janesville, allowing the parties to bargain over the use of grievance arbitration. The City’s position was well supported by the legislative history of the law changes.
In its decision, the WERC acknowledged that the legislative history supported the City’s position and that the new statutory provisions were less than clear. Yet, for the first time ever, the WERC determined that one party has the unilateral right to propose a mandatory subject of bargaining that the other party does not. The Commission made two clear findings: (1) the City was proposing to use § 62.13 for discipline resolution because they were seeking to retain existing contract language; and (2) a municipal employer is prohibited from making such a proposal.
In support of its decision, the Commission stated:
Thus, statutory language that gives ongoing viability to Sec. 62.13(5), Stats., but prohibits certain municipal employer conduct can most reasonably be understood as conveying a legislative intent that the union-but not the municipal employer-can propose that Sec. 62.13(5), Stats., be the contractually adopted mechanism by which discipline is challenged. Under our interpretation, a union could propose and the parties could agree that Sec. 62.13(5) , Stats. be the contractually adopted mechanism for challenge of discipline. However, where, as here, the municipal employer proposes that Sec. 62.13(5), Stats. be the exclusive mechanism for challenge of discipline is challenged, it is thereby necessarily also proposing to prohibit access to grievance arbitration contrary to Sec. 111.70(4)(mc) Stats.
Menasha, Dec. No. 32918 at 6.
This decision has far reaching implications for police and fire commissions throughout the state because its impact will minimize or eliminate any local input into police and fire discipline through a PFC hearing. This decision could also result in duplicate hearings, because a police officer or firefighter could first take his/her discipline case before the police and fire commission and then decide to use grievance arbitration for a second round of hearing and review of the discipline imposed. Finally, this decision shifts the power at the bargaining table on the issue of discipline, since the WERC has ruled that only a union can make a proposal on disciplinary review procedures. As one might anticipate, the City of Menasha is evaluating its option for an appeal to this decision to circuit court.
If you would like more information on this topic, or have questions regarding the Menasha decision, please contact your Davis & Kuelthau attorney.