Labor Law Update Going Forward Under Act 10 Union Elections Discipline, Discharge and Grievances Weingarten and Concerted Activity Rights

Transcription

1 Wisconsin School Attorneys Association and Wisconsin Association of School Boards School Law Seminar 2014 Labor Law Update Going Forward Under Act 10 Union Elections Discipline, Discharge and Grievances Weingarten and Concerted Activity Rights presented by JoAnn M. Hart October 17, 2014 Madison Office 1 S. Pinckney Street, Suite 410 Madison, Wisconsin (608) jhart@boardmanclark.com

2 I. INTRODUCTION The Supreme Court s July 31, 2014 decision in Madison Teachers, Inc. v. Walker upheld Act 10 in all respects. This outline addresses the law changes that Act 10 brought about for school districts in the areas of elections for union certification and recertification, employee rights under the remaining labor laws, including in the context of discipline and grievances, and the prohibition on the collection of dues or fair share payments. The outline also addresses current interpretations of the law and regulations relating to these changes, and open meetings issues for school boards to keep in mind as to meetings of the board or other groups to develop and revise handbooks, compensation systems, and other benefits and conditions of employment. II. UNION ELECTIONS Act 10 created a new requirement that a union must petition for an election annually to prove that it continues to have the support of at least 51% of all employees included in the collective bargaining unit. The Wisconsin Employment Relations Commission (WERC) is charged with overseeing this recertification process. On July 1, 2014 the WERC s rules governing this process became final. The rules are contained in ERC Chapter 70 of the Wisconsin Administrative Code. A. Annual Recertification Election Rules. 1. A union that currently represents employees as the exclusive bargaining representative must submit a recertification petition on or before September 15 of each year. This change was effective for 2014 elections, so the petitions were due on or before September 15, (The deadline under the emergency rule had been August 30.) a. Petition must be received by the WERC on or before September 15. b. Amount of filing fee ranges from $200 to $2,000 based on number of employees in unit. c. WERC announces intent to strictly enforce rules for petitions. Adams-Friendship Area Education Association, WERC Decision No (Dec. 18, 2013). 2. If the currently certified union did not file a petition for annual certification with the WERC on or before September 15, 2014: a. If there is no collective bargaining agreement in effect for that bargaining unit, the union is no longer the certified bargaining representative as of September 15, 2014.

3 b. If there is a collective bargaining agreement in effect for that bargaining unit, the union continues its status as the certified bargaining representative until the expiration date of the collective bargaining agreement, but has no right to negotiate a successor collective bargaining agreement during that time. 3. If a timely petition for an annual certification election was filed with the WERC on or before September 15, 2014: a. Election will be conducted between noon on Wednesday, November 5 through noon on Tuesday, November 25, b. Employees may vote by telephone or online. c. Frequently asked questions document created by WERC. Copy attached to this outline, and also available online at: ections.htm d. Union must receive at least fifty-one percent (51%) of the votes of the entire bargaining unit to be recertified. e. If the union does not receive votes totaling at least fifty-one percent (51%) of the votes of all employees in the bargaining unit: i. If there is no collective bargaining agreement in effect for that unit, the union is no longer the bargaining representative as of the date of certification of the election by the WERC. ii. If there is a collective bargaining agreement in effect for that unit, the union continues its status as the certified bargaining representative until the expiration date of the collective bargaining agreement, but has no right to negotiate a successor collective bargaining agreement during that time. 4. The imposition at impasse of a final offer by a school board made during collective bargaining is likely not going to be construed as a collective bargaining agreement in effect for purposes of determining the continuing certified status of the exclusive bargaining representative. 5. If the certified exclusive bargaining representative is decertified, the affected employees may not be represented by any union in a substantially similar bargaining unit for a twelve month period after the date of decertification. 2

4 B. Petitions for Election After 12 Month Period Following Decertification. 1. Unions may petition for an election to represent employees after 12 months and a 30 % showing of interest. 2. Union will be certified as the collective bargaining agent if it wins 51% of the ballots cast (not 51% of all employees in the unit). C. Voluntary Recognition After 12 Month Period. A union may also become the collective bargaining agent through voluntary recognition by the school board once the 12 month period following decertification runs. D. School Board s Right to Set Wages and Other Compensation Upon Decertification. If a union is decertified and there is no collective bargaining agreement in place, a school board is free to establish compensation for the employees in the former collective bargaining unit by any means it chooses, including individual negotiations, for all aspects of the employees compensation, without regard to the CPI cap. III. RIGHTS OF MUNICIPAL EMPLOYEES THAT SURVIVE ACT 10 A. Employees Continuing Rights Under Wis. Stat (2). 1. School district employees continue to have the right of self-organization, the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing (subject to the new recertification requirements), and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Municipal employees have the right to refrain from any and all such activities. 3. School districts may not interfere with, restrain, or coerce municipal employees in the exercise of their rights under Wis. Stat (2), including the right to engage in concerted activity. B. Status of Union as an Organization After Decertification. 1. A local union can continue to exist even after it has been decertified as the exclusive bargaining representative. 3

5 2. School district employees can continue to be members of the union even though the union is no longer the exclusive bargaining representative. 3. Existence of a local union with employee members does not create duty to bargain. C. Member of the Unit vs. Member of the Union and Duty of Fair Representation. Employees who are members of the collective bargaining unit are still entitled to equal representation by the union, even if they don t pay dues and are not members of the union. The bargaining representative has a duty to represent each bargaining unit member fairly in negotiations, regardless of the union membership of that bargaining unit member. This requirement has not changed under Act 10. What has changed is the scope of that duty. See below. D. Limited Scope of Duty of Fair Representation. Because the union s role in the representation of employees is limited to the bargaining of base wage increases subject to the CPI cap and the distribution of those increases, the union s duty of fair representation is also limited to that scope. For example, a union no longer has any duty of fair representation as to an employee who attempting to negotiate a resignation in lieu of discharge. As a result, a union is no longer a proper party to agreements between school districts and individual employees in a collective bargaining unit addressing such things as resignation, settlement of grievances, or anything else outside the narrow scope of bargaining allowed by Act 10. School District of La Crosse, Dec. No A (Davis, 3/14), aff d by operation of law, Dec. No B (WERC, 4/14). E. Right to Engage in Concerted Activity. 1. Employees, either as a union activity or apart from a union activity, have the right to engage in concerted activities regardless of whether there is a union that is the certified bargaining representative of the employees. 2. Concerted activity involves two or more employee working together to address any matters involving wages, hours or other terms and conditions of employment. a. Concerted activity occurs when an employee acts in good faith with or on the authority of other employees, and not solely by or on behalf of the employee himself or herself. 4

6 b. It also includes activities through which individual employees work to initiate or prepare for group action, to bring group complaints or concerns to the school district s attention. 3. Examples of Concerted Activity. a. Presentation of two or more employees viewpoints and concerns about wages and benefits, including discussions of handbook provisions (typical meet and confer topics). b. Job actions by two or more employees, such as sick outs or work slowdowns, including concerted refusals of voluntary assignments. c. Employees postings on Facebook or other social media to each other discussing complaints about a coworker s work performance may be concerted activity. 4. Case by Case Analysis of Concerted Activity Required. An employee may file a prohibited practice complaint with the WERC against a school district, alleging that the school district targeted the employee because of the employee s involvement in group conduct that relates to the terms and conditions of employment, in violation of Wis. Stat (3)(a)1. A determination of whether conduct constitutes concerted activity entitled to protection under Wis. Stat (2) requires an analysis of the facts of each case. School districts should think through situations involving adverse action against an employee who has engaged in conduct which could be construed as an effort by two or more employees to address a term or condition of employment in the workplace. F. Weingarten Rights - see Section IV.C. below. IV. DISCIPLINE, DISCHARGE AND THE STATUTORY GRIEVANCE PROCEDURE UNDER ACT 10 A. Discipline and Discharge In General - Post-Act School boards no longer have an obligation or any lawful authority to bargain with unions about the discipline or discharge of employees. 2. Standards for discipline and discharge are now established unilaterally by school boards, but may become a subject of the meet and confer process. 5

7 B. Standards for Termination. 1. At-will employment unless otherwise established. 2. Under Wisconsin law, employment at will is the rule. Absent civil service regulations or laws, or a contract or collective bargaining agreement, a municipal employee is an employee at will and has no property interest in employment. Vorwald v. School District of River Falls, 167 Wis. 2d 549, 557 (1992). 3. The adoption of language in a school district s policies, handbook, grievance procedure or individual contract creating a standard for nonrenewal and/or discharge other than at-will employment likely creates a property interest in continued employment for the employee. 4. School districts, as governmental entities, may not deprive employees of a property interest in continued employment without due process. Failure to provide due process prior to termination of such employment may give rise to a claim of a violation of constitutional rights against the school district. 5. School boards should carefully consider any language addressing standards for discharge, taking into account the impact of the contemplated language on the creation of property rights and resultant due process obligations. C. Right to Request a Representative In Meetings That May Lead to Discipline or Discharge (Weingarten Right). 1. Pre-Act 10: The WERC has held that a municipal employee who is the subject of an investigation has the right to request representation at an interview which may lead to discipline or termination of employment. This is referred to as Weingarten rights, based on the name of the U.S. Supreme Court case that established the circumstances under which such rights arise under the National Labor Relations Act. The WERC has looked to such federal case law in order to interpret the requirements under the applicable state law, Wis. Stat (2). 2. Post-Act 10: Act 10 did not make any substantive changes to the relevant portion of this law. The Weingarten right likely continues to exist. The right is probably not dependent upon whether a union is still certified as the collective bargaining representative. An employee may request that a fellow employee or a union representative attend such a meeting with the employee. The prudent course is to continue to provide this opportunity. 6

8 3. Employers must provide employees with enough information to make an informed decision about requesting representation. In a case decided under Wis. Stat (2) post-act 10, an Administrative Law Judge for the WERC held that the employer and the employee share responsibility in the proper implementation of an employee s Weingarten rights. The case involved an employee who was called into a meeting with a member of the administrative team. The administrative team member knew the meeting was going to end in a fiveday suspension for the employee. After the meeting started, the employer said that no union steward was available, but that the employee could have another union member present. The employer never indicated to the employee that the meeting might result in discipline, and the employee never requested representation. The union filed a prohibited practice complaint under Wis. Stat (2) over the manner in which the meeting was scheduled, resulting in the employee having no fair opportunity to request representation. It is the employee s responsibility to request union representation when it would be reasonable to believe the meeting could end in discipline; the right to representation arises only in situations where the employee makes such a request. But for the employee to know if it would be reasonable to believe an interview could lead to discipline, the employer must act reasonably and provide an accurate representation of the upcoming meeting. The employer's responsibility involves more than honoring a request for union representation; it must make sure the employee can make an informed decision about representation. The employer cannot deceive or conceal information, preventing the employee from making an informed decision about representation. An employee who has no reason to believe that a meeting is a pre-disciplinary investigative interview cannot be held to the [Weingarten] requirement to formally request union representation. School District of Cudahy, WERC Dec. No A (Levitan, 8/12). 4. A union is not obligated to provide representation for an employee at a disciplinary meeting. A union has no duty of fair representation to an employee with regard to disciplinary matters, and is therefore free to refuse to accompany an employee who is not a union member to a disciplinary meeting. An employee is free to ask any coworker to accompany the employee to a disciplinary meeting. D. Statutory Grievance Procedure. 1. Requirement under Act 10 to adopt grievance procedure or civil service system. Wis. Stat (1m). Under Act 10, each school district is required to establish a civil service system or grievance procedure to address employee terminations, 7

9 employee discipline and workplace safety. The system or procedure must specify the process that the grievant and the school district must follow, and provide for a hearing before an impartial hearing officer and the opportunity to appeal the decision to the school board. 2. School Board is the final decision maker under Act 10 grievance procedure. 3. Court cases interpreting terms of the statutory grievance procedure. a. Termination is given its ordinary meaning by Wisconsin Court of Appeals. A county grievance procedure adopted pursuant to Act 10 which was applicable to employee terminations, employee discipline, and workplace safety excluded terminations that were based on lack of qualification or an appropriate license. Accordingly, a county employee was denied the opportunity to grieve her termination which was based upon her failure to have a driver s license following her conviction for OWI. She sued alleging that her termination, and terminations such as hers, were intended to be covered by the statutory grievance procedure. The Wisconsin Court of Appeals agreed after consulting The American Heritage College Dictionary. Although recognizing that the term termination may be subject to various meanings and that its scope will require further definition, the Court held that under the facts of this case, the dismissal of the county worker fell within the scope of the grievance procedure mandated by Act 10. Dodge County Professional Employees, et al. v Dodge County, App No AP-535 (Ct. App. 2013). b. Some nonrenewals may likely be terminations. School districts have taken various positions as to whether the definition of termination under the Act 10 grievance procedure provisions included nonrenewals. One county circuit court has issued a decision shedding some additional light on this issue. Teachers from the Howard Suamico School District brought a lawsuit in Brown County Circuit Court, arguing that the provision in an individual contract excluding nonrenewals from a district s grievance procedure was a violation of Act 10. The Brown County Circuit Court, guided by the Court of Appeals decision discussed above, reviewed the dictionary definition of discipline and concluded discipline encompasses punishment. The court then concluded that, because some nonrenewals may constitute punishment (e.g., those based on poor performance), nonrenewals could not categorically be excluded from the grievance procedure. The court did not consider whether nonrenewals are also terminations. The court s opinion suggests 8

10 that an Act 10 grievance procedure could exclude from its scope nonrenewals based upon non-disciplinary reasons, such as nonrenewals for reductions in staff. Schneider, et al. v. Board of Education of the Howard Suamico School District, Case No. 13- CV-397, Brown County Circuit Court (January 22, 2014). c. School boards may wish to review grievance procedure definitions and coverage in light of Dodge County and Howard Suamico. E. Coordination Needed Between Employee Handbooks, Board Policies, Individual Contracts and Educator Effectiveness Procedures. 1. Language addressing: a. performance improvement plans. b. layoff criteria. c. terminations. d. nonrenewals. 2. Coordination needed between Educator Effectiveness timelines and nonrenewal timelines. V. UNION DUES DEDUCTIONS AND FAIR SHARE PAYMENTS A. Dues Deduction and Fair Share Prohibited. Act 10 prohibits school districts from deducting union dues from employee paychecks, either by agreement with a union or in response to an individual member s request for voluntary withholding of dues, regardless of whether the union is the certified bargaining representative. Wis. Stat (3g). Act 10 also removed any authorization for school districts to enter into fair share agreements covering school employees. B. Duty of Fair Representation. An employee who chooses not to pay union dues to a union that is the certified bargaining representative of the employee s collective bargaining unit has the right to be fairly represented by the union regardless of the employee s lack of membership in the union. 9

11 VI. OPEN MEETINGS ISSUES RELATED TO SETTING WAGES, BENEFITS AND EMPLOYMENT POLICIES A. Collective Bargaining and Open Meetings Law. Under Wisconsin s open meetings law, a school board or subunit of a school board that is meeting for the purpose of collective bargaining is not considered a governmental body and therefore does not have to comply with the open meetings law. Therefore, most collective bargaining sessions are lawfully conducted without posting the meeting or observing the requirements of the Open Meetings law. Some districts choose to post the meetings, and meet in closed session. B. Complying With the Open Meetings Law Outside of Collective Bargaining. Without the specific statutory exception for collective bargaining, school boards must be mindful of compliance with the open meetings law. Meetings to discuss handbooks, compensation, and benefits for a group of employees as a matter of policy will most likely be subject to the open meetings law, even when the employees participate in some form. 1. Is the group that is meeting a governmental body? Whether a meeting to discuss handbooks, compensation schedules, insurance or any other matter previously within the scope of collective bargaining is a meeting of a governmental body subject to the requirements of the Open Meetings law will depend primarily upon how the group was established. Generally, if the Board created the group or committee or authorized or ratified the creation of the group or committee that is meeting to address such things, the group or committee will be considered a subunit of the Board, and therefore required to comply with the Open Meetings law. 2. The fact that a group does not contain any elected officials is not determinative of whether a group is subject to the Open Meetings law. 3. A school board must generally meet in open session to discuss the adoption of policies that relate to a group of employees, such as a handbook, or a compensation model. 4. Discussions about an individual s compensation and benefits may still be a proper subject of a closed session, under Wis. Stat (1)(c) and/or (e). VII. CONCLUSION/QUESTIONS 10

12 FAQ posted on WERC website at: Answers To Frequently Asked Questions About The Annual Certification Elections Being Conducted November 5-November 25, 2014 Who is conducting these elections? The Wisconsin Employment Relations Commission (WERC) has the legal responsibility to conduct the elections. Who is the WERC? The WERC is the neutral State agency responsible for administering Wisconsin s collective bargaining laws. Does the WERC have experience conducting elections? WERC has been conducting elections since the late 1930s. Why is the WERC using the American Arbitration Association (AAA) as part of the election process? The WERC will be conducting hundreds of elections with thousands of voters all within very tight time frames. Because WERC is a small agency with many other responsibilities aside from conducting elections, it needed the help of another neutral organization. Who is the AAA? The American Arbitration Association is a nationally renowned neutral private organization with many years of experience conducting elections for unions and employers-including by telephonic and online balloting. Why am I voting by telephone or online? Telephone and online voting is easy, secure and cost effective. How will I cast my ballot by telephone or online? Call (toll free), or log on to anytime between noon Wednesday November 5 and noon Tuesday November 25, After providing information that will allow the computer to verify that you are an eligible voter (the first four letters of your last name and the last four digits of your social security number), you will be asked the following question: Do you want to continue to be represented by (the name of your current union) for the purpose of collective bargaining?

13 You will then be instructed on how to vote yes or no and asked to confirm your choice. After you confirm your choice, your vote will be electronically cast. You must confirm your choice for your vote to be cast. To view a graphical outline and script of the telephone voting process [click here]. To view a graphical outline of the online voting process [click here]. What if my last name has fewer than four letters? Provide your last name and you will be able to vote. Will anyone know how I voted? No. Your vote will be electronically recorded and no one (including AAA and WERC) will know how you voted. If I don t vote, is that the same as voting no? Yes. How long do I have to vote? 20 calendar days from the start of the voting period. To view a flowchart of the annual certification process, [click here]. Can I change my vote after it is cast? No. What if I have trouble using the voting system? Call during the hours of 10:00 am to 6:00 pm Monday-Friday. When will the election results be known? Within a day or two of the end of the 20 day balloting period. To view a flowchart of the annual certification process, [click here]. Other Questions? Send them to Peter Davis at peterg.davis@wisconsin.gov 2