COUNTY OF LA CROSSE, Petitioner-Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Defendant-Respondent, WISCONSIN PROFESSIONAL POLICE ASSOCIATION, Intervenor.
No. 90-2739
Court of Appeals
Submitted on briefs March 15, 1991.—Decided June 18, 1992.
488 N.W.2d 94
Petition to review granted. Petition to review granted.
For the defendant-respondent the cause was submitted on the brief of James E. Doyle, attorney general, and David C. Rice, assistant attorney general.
Before Eich, C.J., Gartzke, P.J., and Sundby, J.
SUNDBY, J. In this appeal, we decide that whether La Crosse County shall classify its jailers as protective occupation participants in the Wisconsin Retirement System is not a mandatory subject of bargaining under
BACKGROUND
In collective bargaining with the County for a 1989-1990 contract, the Wisconsin Professional Police Association (WPPA) made the following proposal:
“Effective January 1, 1990, the County shall pay the full amount of the established employer‘s and employee‘s contribution rates of Protective Service schedule for all deputies and jailers covered by this agreement.”
To implement WPPA‘s proposal the County must classify its jailers as protective occupation participants,
Section 40.02(48)(a), Stats., defines “protective occupation participant” to “mean any participant whose
Section 40.06(1)(d), Stats., requires that each participating employer notify DETF of the names of all participating employees classified as protective occupation participants. Section 40.02(48)(am), Stats., describes the notification process as certification.1 An employee may appeal the participating employer‘s failure or refusal to classify the employee as a protective occupаtion participant to DETF and the Employe Trust Funds Board (ETFB). Section 40.06(1)(e), Stats. DETF may review any such determination by the employer on its own initiative and appeal the determination to ETFB. Section 40.06(1)(em), Stats.
On August 1, 1989, the County petitioned WERC pursuant to
STANDARD OF REVIEW
WERC acknowledges that this appeal involves the relationship between the Municipal Employment Relations Act (MERA) and ch. 40, Stats., and thus we do not give weight to WERC‘s determination. City of Brookfield v. WERC, 87 Wis. 2d 819, 826-27, 275 N.W.2d 723, 726-27 (1979). The interpretation and harmonization of ch. 40 and MERA is a judicial function. Id. at 831, 275 N.W.2d at 729 (court fulfilled “еxclusive judicial role” when it interpreted and harmonized ch. 62, Stats., and what is now
I.
DUTY TO BARGAIN
Section 111.70(1)(a), Stats., imposes on the municipal employer the duty to bargain with the representative of its employees with respect to wages, hours and conditions of employment. However, the municipal employer is generally not required to bargain on subjects reserved to management and direction of the governmental unit. Id. The County argues that the right to determine whether the principal duties of its jailers involve active law enforcement is an important management right which should be reserved to the County and the sheriff.
Section 111.70(1)(a), Stats., “necessarily рresents certain tensions and difficulties in its application.” West Bend Educ. Ass‘n v. WERC, 121 Wis. 2d 1, 8, 357 N.W.2d 534, 538 (1984). These tensions generally arise when a proposal touches simultaneously upon wages, hours and conditions of employment and upon managerial decision making or public policy. Id. To resolve a conflict, the Wisconsin Supreme Court has adopted a “primarily related” standard. Id. This standard requires a balancing of the employees’ interest in wages, hours and conditions of employment and the public employer‘s interest in management prerogatives or public policy. Id. at 9, 357 N.W.2d at 538.
However, the balancing test assumes that the proposal is one with respeсt to which each party is free to bargain. The public employer is not free to bargain with respect to a proposal which would authorize a violation of public policy or a statute. Glendale Professional Policemen‘s Ass‘n v. Glendale, 83 Wis. 2d 90, 106, 264 N.W.2d 594, 602 (1978); WERC v. Teamsters Local No. 563, 75 Wis. 2d 602, 612, 250 N.W.2d 696, 701 (1977), rev‘d on other grounds, City of Madison v. Madison Professional Police Officers Ass‘n, 144 Wis. 2d 576, 425 N.W.2d 8 (1988). The same principle logically extends to a proposal which requires the public employer to fail to perform a duty imposed upon it by statute or to perform that duty in a way contrary to the policy and purpose of the statute.
WPPA‘s proposal requires that the County neglect to perform its duty under
PARTICIPATING EMPLOYER‘S DUTY TO
DETERMINE EMPLOYEES’ STATUS
A.
WPPA contends that its proposal relates solely to the employees’ deferred level of compensation which we have held is a mandatory subject of bargaining. City of Brookfield v. WERC, 153 Wis. 2d 238, 242-43, 450 N.W.2d 495, 497 (Ct. App. 1989) (Brookfield II). WERC agrees and also relies on Brookfield II. WERC concluded: “In essence, [WPPA‘s] proposal seeks to improve the level of deferred compensation which [an] employe will be entitled to receive for providing the County with emplоyment service.”
Brookfield II is inapposite. In that case, the union sought to bargain on its proposal that the city provide group health benefits to employees who retired during the term of the collective bargaining agreement. The city was free to bargain on the union‘s proposal unconstrained by statute. Here,
We conclude that the duty imposed on the County to determine the status of participating employees in the Wisconsin retirement system is part of the legislative plan to ensure the integrity of the public employe trust
In 1964, the Retirement Research Council (RRC)4 noted that “[o]ne of the most troublesome problem areas in the development of a sound retirement program for public employes in Wisconsin centers around the benefit program[s] for employes in what are commonly referred to as the protective occupations.” RRC Staff Report No. 10 at 1 (1964). RRC noted that since coverage of protective occupation employees in 1948, the legislature had often been successfully petitioned to add additional employment categоries within the special retirement benefit programs. Id. at 1-2. RRC stated: “The requests of additional groups for inclusion in such programs have multiplied in recent years, posing a serious problem for the legislature in attempting to maintain some sem-
In 1967, the legislature lowered the normal retirement age and years-of-service requirement for protective occupation participants in the Wisconsin retirement fund. Chapter 355, Laws of 1967. “Protective occupation participant” was redefined in section 2 of the law. The Joint Survey Committee on Retirement Systems (JSCRS)5 recommended this legislation as “in the best public interest.” Appendix to 1967 S.B. 415, Report by Joint Survey Committee on Retirement Systems, at 94.
The JSCRS report to the legislature incorporated a portion of RRC‘s study of the retirement age and years-of-service pattern for protective occupation employees in the retirement systems of other states. RRC concluded that “[a]n individual whose principal duties do not consist of 51% or more of his work time being devoted to active law enforcement or active fire suppression would not be eligible for protective occupation membershiр.” Id. at 93. RRC stated that “[i]t is assumed that an individual‘s duties, under the protective occupation philosophy, would subject him to periods of great mental and physical stress as well as possible personal injury or perhaps even death,” and that “[t]hese employes must be able to undergo great mental and physical strain on occasion.” Id. at 93-94.
It is evident that RRC and JSCRS considered that the status of protective occupation participant would be limited to a narrow class of employees meeting stringent
What has changed is the degree of state control over the determination by the municipal employer that an employee is a protective occupation participant.6 In the 1989 executive budget bill, 1989 S.B. 31, sec. 815e, the governor recommended amendments to
The budget bill retained
The “greater study and development” recommended by JSCRS includes study of the apрropriate classification of county jailers. Because of questions received by DETF regarding the retirement employment category of jailers, DETF surveyed the counties in 1985, asking for information as to their jailers. Memorandum from Blair Testin, RRC/JSCRS Director of Retirement Research, to Members of the Ad Hoc Committee on 40.658 Benefits (May 14, 1986) (concerning local jailer classification). The survey revealed that thirty-four counties classified jailers as protective occupation participants, while twenty-nine classified them as general employees. Id. The memorandum stated:
The DETF Board has reviewed appeals from jailers who are classified аs general employees, and
the [DETF] has deemed that they do not meet the requirement[s] for protective designation under present statutes. The DETF Board felt that the legislature should investigate their arguments further, and consider whether statutory changes were appropriate.
Id. (emphasis in original).
The memorandum further stated: “If the legislature mandated all jailers to be classified as protectives, such action would ignore the local differences in job requirements.” Id. In the memorandum, the Director of Retirement Research outlined alternatives that the Ad Hoc Committee could consider: do nothing; amend the definition of protective occupation participants to include jailers; expand the eligibility definition for benefits under sec. 40.65, Stats., to include any positions designated by the employer by unilateral action or collective bargaining; or amend the law to permit the employer to designate positions to be covered under the protective program even if they were not law enforcement or fire prevention service, if the positions otherwise would meet the requirements of frequent exposure to danger or peril and a requirement for high physical conditioning. Id. at 2. The Director of Retirement Research stated that the latter approach would allow employers to bargain on the protective designation. Id.
The Ad Hoc Committee considered the RRC staff memo at its meeting of May 14, 1986. Minutes, May 14, 1986 meeting of 40.65 Ad Hoc Committee of the Retirement Research Committee (RRC files). According to a June 29, 1988 memorandum by the RRC/JSCRS Director of Retirement Research to RRC members, the Ad Hoc Committee determined that there was no need to mandate all local jailers as protectives. The memorandum stated: “The Committee noted that the existing employer designation process allows county employers to
WERC notes that 1989 S.B. 352 specifically would have added county jailers to the list of employees deemed to be protective occupation participants, but the bill failed to pass. See 1989 S.B. 352, amending
In the 1991-92 legislative session a renewed effort was made to include county jailers in the positions listed in
Public employee retirement systems are unique in that legislative adjunct agencies oversee the systems and suggest and pass on legislation affecting the systems. The RRC “provid[es] a continuous review and study of the retirement benefits afforded by the state and . . . allocate[s] adequate study to the complexities of modern retirement programs.”
Here, RRC outlined to the Ad Hoc Committee on 40.65 Benefits alternative courses of legislative action. The Ad Hoc Committee determined that there was no need to mandate local jailers as protective occupation participants. The JSCRS did not recommend legislation which would have included county jailers in the enumeration of “protective occupation participant[s]” under
B.
We are also persuaded to our conclusion that the determination by the County of the status of jailers is not a mandatory subject of collective bargaining by compаring the provisions of MERA and the State Employment Labor Relations Act (SELRA). Under SELRA, a collective bargaining agreement between a state agency and its employees supersedes conflicting statutory provisions as to wages, hours, fringe benefits, and conditions of employment.9 MERA does not contain a comparable provision. In Glendale Professional Policemen‘s Ass‘n, the court noted that determining the scope of the municipal employer‘s duty to bargain under
C.
We are further persuaded to our conclusion by the fact that when the legislature has wished to permit the employer to classify an employee as a protective occupation participant without requiring that the employer determine that the principal duties of the participant involve active law enforcement or active fire suppression or prevention, it has done so by specific legislation.
In the May 14, 1986 memorandum the RRC/JSCRS Director of Retirement Research advised the Committee that one alternative as to local jailers was to amend the Wisconsin retirement system law and
It is evident that the classification of local jailers is highly controversial. It is also evident that the legislature and the proponents of protective occupation participant status for local jailers consider legislative action to be required before their status may become a mandatory subject of bargaining.
D.
An employee who believes that hе or she has been improperly classified as a general employee is not without remedy. The employee may appeal that determination to DETF and ETFB.
Where a statute sets forth a procedure for review of an administrative decision, such remedy is exclusive, unless the remedy is inadequate. Nodell Inv. Corp. v. Glendale, 78 Wis. 2d 416, 422, 254 N.W.2d 310, 314 (1977). This requirement is sometimes termed the exhaustion of remedies doctrine and sometimes the primary jurisdiction doctrine. Here, the exhaustion of rem-
The premise of the exhaustion rule is that the administrative remedy: (1) is available to the party on his or her initiative, (2) is relatively rapid, and (3) will protect the party‘s claim of right. Nodell, 78 Wis. 2d at 424, 254 N.W.2d at 315. WPPA has not shown that the appeal procedure under
The exhaustion rule is a doctrine of judicial restraint which the legislature and the courts have evolved in drawing the boundary line between administrative and judicial spheres of activity. Castelaz v. Milwaukee, 94 Wis. 2d 513, 532, 289 N.W.2d 259, 268 (1980) (quoting Nodell, 78 Wis. 2d at 424, 254 N.W.2d at 315). However, the principle which underpins the doctrine supports equally the proposition that collective bargaining should not supplant the administrative remedy provided by
In Village of Thiensville, we extended the exhaustion doctrine to competing administrative agencies. We stated that the spirit of the doctrine is served by allowing the agency with the expertise and experience to retain the right of first review. Village of Thiensville, 130 Wis. 2d at 282, 386 N.W.2d at 522. We conclude that the goals of the exhaustion/рrimary jurisdiction principle—agency expertise and fact-finding facility—are best served by requiring that an employee who wishes to contest the employer‘s failure or refusal to classify the employee as a protective occupation participant appeal that determination to DETF and ETFB. It violates these goals to substitute for the administrative and judicial processes the collective bargaining process, where the decision as to whether a participating employee shall be classified as a protective occupation participant may be made by an arbitrator lacking the expertise and experience of DETF or ETFB.
III.
EFFECT OF ENUMERATION OF DEPUTY SHERIFFS IN SECTION 40.02(48)(am), STATS.
We next consider WERC‘s conclusion that the County‘s role in classifying jailers as protective occupation participants is “ministerial.” WERC concluded that jailers could be classified as protective occupation participants simply by being employed in one of the capacities listed in
The listing of “deputy sheriff” in
IV.
DECISION
For the foregoing reasons, we conclude that the classification of county jailers under
By the Court.—Order reversed.
The county‘s argument, and the majority‘s decision, appear to give controlling weight to language in
Section 40.02(48)(a), Stats., does, as the majority points out, state that the term “[p]rotective occupation participant” means any [employee] whose principal duties are determined by the . . . employer . . . to involve active law enforcement . . . [and] require frequent exposure to a high degree of danger or peril and . . . require a high degree of physical conditioning.” But that does not end the matter.
The following subsection, sub. (am), goes on to state that the term “[p]rotective occupation participant” also “includes any [employee] . . . who is a . . . deputy sheriff . . . .” And a succeeding subsection, sub. (b)3, states that a “deputy sheriff” is any employee of a sheriff‘s office
There is no question that a jailer is a deputy sheriff and that jailers’ duties are not of the “non-law enforcement” type just mentioned. It follows, I believe, that they are protective occupation participants within the meaning of
Notes
- An employe may appeal a determination under par. (d), including a determination that the employe is not a participating employe, to the department by filing a written appeal with the department . . . . The department shall investigate the appeal and mail a report of its determination to the employe and the participating employer or state agency.
- Either the employe or the participating employer . . . may appeal the department‘s determination under subd. 1 to the board by filing a timely appeal with the department. If an appeal is not filed as required under this subdivision, the determination from which an appeal is permitted is final.