Municipal Law Alert Special Edition, March 2011
We are publishing and distributing this Special Edition of the Bakke Norman Municipal Law Alert to discuss the Amended Budget Adjustment Bill (Bill) signed into law by Governor Walker on March 11, 2011. Ending a three-week stalemate, the Senate passed the Bill by removing certain “non-fiscal” items. The law, 2011 Wisconsin Act 10, can be viewed at: http://legis.wisconsin.gov/2011/data/acts/11Act10.pdf. While the amended version of the Bill is 138 pages long and touches on a number of areas, in this article, we focus on the provisions affecting municipal employers. In general, the Bill impacts municipal employers in two ways.
First, it limits the rights of municipal employees to collectively bargain under the Municipal Employment Relations Act (Act).
Second, it changes health and pension contributions that may be made by municipal employers on behalf of their employees.
1. LIMITATIONS ON BARGAINING.
◊ Municipal and state public employees, including school teachers and employees of the Wisconsin Technical College System, are general employees and would be subject to limited bargaining under the Bill. The Bill only preserves full collective bargaining rights for public safety employees. Generally, public safety employees include law enforcement officers and fire fighters.
◊ The Bill limits collective bargaining with general employees to the topic of wages, eliminating the ability to bargain on other conditions or employment. Further, wages only means total base wages, excluding other wage-related issues like overtime, premium pay, merit pay, performance pay, supplemental compensation, pay schedules, and automatic pay progressions. Unless approved by referendum (described below), wages are limited to increases in the consumer price index (CPI). The percentage increase is determined by comparing the proposed new total base wages for all authorized positions against the total base wages for authorized positions 180 days before the expiration of the previous collective bargaining agreement. As applied to bargaining groups with only a few members, this would seem to require a referendum for any new position.
◊ There is a new provision added to Chapter 66 which prohibits wage increases in total base wages by more than CPI. This new provision is not clearly written, so it is difficult to determine its impact. We have discussed this issue with both the League of Municipalities and the Town’s Association. After those discussions, we think the best interpretation is that it does NOT apply except to employees covered by a collective bargaining agreement. Thus, a municipality may raise its total base wages by more than the CPI for those general employees who are not members of a collective bargaining unit. This, however, still leaves open the issue of how this impacts municipalities to whom this provision is applicable when they add new employees.
◊ No collective bargaining can occur between a local governmental unit or school district and its employees, except as allowed under Act (as amended by the Bill).
◊ The Wisconsin Employment Relations Commission (WERC) must conduct an annual election to certify the representative of any collective bargaining unit that contains a general municipal employee.
◊ Collective bargaining agreements must be terminated as soon as legally possible and employees must vote to certify or decertify their representatives. Notwithstanding the dates provided above for unit certification, that vote must be held in April, 2011.
◊ Labor organization dues cannot be deducted from the earnings of a general municipal employee or supervisor.
◊ A general municipal employee may remain a member of a collective bargaining unit without having to pay labor organization dues.
◊ Fair-share and maintenance of membership agreements would not be allowed for represented general employees.
◊ The Bill repeals a number of existing provisions requiring compulsory, final and binding arbitration if negotiation and other settlement options for the bargaining process fail. The Bill also repeals WERC’s authority to adopt rules pertaining to the conduct of arbitration for general municipal employees.
◊ Existing law generally prohibited strikes by municipal employees, except in limited circumstances. The limited circumstances are repealed by the Bill.
◊ Except for the initial collective bargaining agreement between the parties and except as the parties otherwise agree, every collective bargaining agreement covering general municipal employees must be for a term of one year and may not be extended. [Note that the clause “and except as the parties otherwise agree,” which is in existing law, was intended to be stricken under the Bill.] It is unclear whether “except as the parties otherwise agree” will prevail over the new rule that only wages (not term of contract) are subject to bargaining.
◊ The Bill sets a July 1, 2011 deadline for all municipalities without a civil service system to establish either a grievance system or a civil service system. That system must contain: (1) a grievance procedure that addresses employee terminations; (2) employee discipline; and (3) workplace safety.
◊ Any grievance procedure a municipality creates must contain: (1) a written document specifying the process that a grievant and an employer must follow; (2) a hearing before an impartial hearing officer; and (3) an appeal process in which the highest level of appeal is the governing body.