DODGELAND EDUCATION ASSOCIATION, Pеtitioner-Appellant-Petitioner, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION and Dodgeland School District, Respondents-Respondents.
No. 00-0277
Supreme Court of Wisconsin
Oral argument October 2, 2001. Decided February 28, 2002.
2002 WI 22 | 639 N.W.2d 733 | 250 Wis. 2d 357
For the respondent-respondent, Wisconsin Employment Relations Commission, the cause was argued by William H. Ramsey, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
For the respondent-respondent, Dodgeland School District, there was a brief by Kirk D. Strang and Lathrop & Clark LLP, Madison, and oral argument by Kirk D. Strang.
An amicus curiae brief was filed by Jack D. Walker, Douglas E. Witte and Melli, Walker, Pease & Ruhly, S.C., Madison, and there was oral argument by Jack D. Walker, on behalf of the Wisconsin Association of School Boards.
¶ 1. N. PATRICK CROOKS, J. Dodgeland Education Association (Association) appeals from an order
¶ 2. With regard to WERC‘s decision that teacher preparation time (hereinafter prep time) is a permissive rather than a mandatory subject of bargaining, we conclude that WERC‘s decision was reasonable because it employed the “primarily related” balancing test. Affording WERC‘s decision great weight deference, we affirm WERC‘s holding because it has a rational basis. We note, however, that we would affirm WERC‘s decision under the due weight deference standard as well,
¶ 3. We also find that WERC‘s decision that an item must be a mandatory subject of bargaining in order to be a fringe benefit under
¶ 4. Finally, we affirm WERC‘s conclusions that the District submitted a valid QEO and thаt the Association cannot proceed to interest arbitration over the impact proposal. Because teacher prep time is not a fringe benefit under
I
¶ 5. Before discussing the facts of this case, we briefly review the history of
... the performance of the mutual obligation of a municipal employer ... and the representative of its municipal employes ... to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement ... with respect to wages, hours and conditions of employment....
Id.
... 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 employes in a collective bargaining unit. ...
¶ 6. This court has acknowledged that conflict over whether certain matters are subject to bargaining is inevitable because a matter involving wages, hours, and conditions of employment may also relate to public policy. Beloit Educ. Ass‘n v. WERC, 73 Wis. 2d 43, 52-53, 242 N.W.2d 231 (1976). The “primarily related” test was adopted to resolve such conflict. Id. at 54. “The question is whether a particular decision is primarily related to the wages, hours and conditions of employment of the employees, or whether it is primarily related to the formulation or management of public policy.” Unified Sch. Dist. No. 1 v. WERC, 81 Wis. 2d 89, 102, 259 N.W.2d 724 (1977). Accordingly, we have con-
If the employees’ legitimate interest in wages, hours, and conditions of employment outweighs the employer‘s concerns about the restriction on managerial prerogatives or public policy, the proposal is a mandatory subject of bargaining. In contrast, where the management and direction of the school system or the formulation of public policy predominates, the matter is not a mandatory subject of bargaining.
West Bend Educ. Ass‘n v. WERC, 121 Wis. 2d 1, 9, 357 N.W.2d 534 (1984).
¶ 7. Prior to the 1993 amendments, if the parties to a municipal employment collective bargaining agreement “are deadlocked with respect to any dispute ... over wages, hours and conditions of employment ... either party, or the partiеs jointly, may petition the commission ... to initiate compulsory, final and binding arbitration ...”
¶ 8. In 1993, the legislature amended MERA as it applies to bargaining units “consisting of school district professional employes ... ” See
Wisconsin legislature to the facts presented in this case. We take no position—for or against—the wisdom of the statutes at issue, since that determination involves, appropriately, the legislative branch of Wisconsin government, and such determination is not for this court. See Vincent v. Voight, 2000 WI 93, ¶ 52, 236 Wis. 2d 588, 614 N.W.2d 388. Furthermore, we disagree with the dissent‘s reliance on the dissenting commissioner‘s opinion, contending that WERC‘s holding that fringe benefits do not include permissive subjects of bargaining is contrary to legislative intent. See dissent at ¶ 53. We rely on the WERC majority decision that examined the legislative intent and found to the contrary.
Lastly, we observe that we have no extranеous evidence of a legislative intent to define “fringe benefits” in a way which would include permissive subjects of bargaining. If the legislature had intended that the quid pro quo for use of the qualified economic offer was the loss of employer control over matters primarily related to educational policy, such a significant concept would surely have found its way into the evidence of legislative history ... which is part of the record in this case.
Dodgeland Sch. Dist., Dec. No. 29490, 23 (WERC, 1/99).
a. A proposal to maintain the percentage contribution by the municipal employer to the municipal employes’ existing fringe benefit costs as determined under sub. (4)(cm)8s., and to maintain all fringe benefits provided to the municipal employes in a collective bargaining unit, as such contributions and benefits existed on the 90th day prior to expiration of any previous collective bargaining agreement between the parties, or the 90th day prior to commencement of negotiations if there is no previous collective bargaining agreement between the parties.
b. In any collective bargaining unit in which the municipal employe positions were on August 12, 1993, assigned to salary ranges with steps that determine the levels of progression within each salary range during a 12-month period, a proposal to provide for a salary increase of at least one full step for each 12-month period covered by the proposed collective bargaining agreement, beginning with the expiration date of any previous collective bargaining agreement, for each municipal employe who is eligible for a within range salary increase, unless the increased cost of providing such a salary increase, as determined under sub. (4)(cm)8s., exceeds 2.1% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit for any 12-month period covered by the proposed collective bargaining agreement plus any fringe benefit savings, or unless the increased cost required to maintain the percentage contribution by the municipal employer to the municipal employes’ existing fringe benefit costs and to maintain all fringe benefits provided to the municipal employes, as determined under sub. (4)(cm)8s., in addition to the increased cost of providing such a salary increase, exceeds 3.8% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit for any 12-month period covered by the proposed collective bargaining agreement, in which case the offer shall include provision for a salary increase for each such municipal employe in an amount at least equivalent to that portion of a step for each such 12-month period that can be funded after the increased cost in excess of
2.1% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit plus any fringe benefit savings is subtracted, or in an amount equivalent to that portion of a step for each such 12-month period that can be funded from the amount that remains, if any, after the increased cost of such maintenance exceeding 1.7% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit for each 12-month period is subtracted on a prorated basis, whichever is the lower amount.
c. A proposal to provide for an average salary increase for each 12-month period covered by the proposed collective bargaining agreement, beginning with the expiration date of any previous collective bargaining agreement, for the municipal employes in the collective bargaining unit at least equivalent to an average cost of 2.1% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit for each 12-month period covered by the proposed collective bargaining agreement plus any fringe benefit savings, beginning with the expiration date of any previous collective bargaining agreement, including that percentage required to provide for any step increase and any increase due to a promotion or the attainment of increased professional qualifications, as determined under sub. (4)(cm)8s., unless the increased cost of providing such a salary increase, as determined under sub. (4)(cm)8s., exceeds 2.1% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit for any 12-month period covered by the proposed collective bargaining agreement plus any fringe benefit savings, or unless the increased cost required to maintain the percentage contribution by the municipal employer to the municipal employes’ existing fringe benefit costs and to maintain all fringe benefits provided to the municipal employes, as determined under sub. (4)(cm)8s., in addition to the increased cost of providing such a salary increase, exceeds 3.8% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit for any 12-month period covered by the collective bargaining agreement, in which
II
¶ 9. The facts of this case are not in dispute. The Dodgeland Education Association (Association) is the collective bargaining representative of teachers employed by the Dodgeland School District (District). During the period of the 1995-1997 collective bargain-
case the offer shall include provision for a salary increase for each such period for the municipal employes covered by the agreement at least equivalent to an average of that percentage, if any, for each such period of the prorated portion of 2.1% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit plus any fringe benefit savings that remains, if any, after the increased cost of such maintenance exceeding 1.7% of the total compensation and fringe benefit costs for all municipal employes in the collective bargaining unit for each 12-month period and the cost of a salary increase of at least one full step for each municipal employe in the collective bargaining unit who is eligible for a within range salary increase for each 12-month period is subtracted from that total cost.
¶ 10. Prep time is a period when a teacher does not have assigned teaching responsibility. WERC found that it was the general expectation and practice for teachers to use that time for preparation activities, including lesson planning, meeting with students, grading schoolwork, making phone calls to parents, maintaining student records, ordering supplies, and other activities related to teaching. Dodgeland Sch. Dist., Dec. No. 29490, 5-8 (1/99). The teacher may also use that time as a break if he or she chooses to accomplish preparation tasks at times other than prep time. Id.
¶ 11. In the spring of 1997, the parties began negotiating a successor collective bargaining agreement. The Association proposed a continuation of the prep time guarantee, as reflected in the memorandum. The District‘s proposal did not renew or continue the prep time memorandum guarantee. In a letter dated April 25, 1997, District Superintendent Terry McLeod advised teachers that although he did “understand the importance of adequate prep time and would not support action to unnecessarily reduce such a valuable resource,” the “financial picture for the District is not very bright,” and “it may be necessary for everyone to make concessions.” On December 22, 1997, McLeod
¶ 12. The District and the Association were unable to reach agreement on a 1997-1999 collective bargaining agreement. The District submitted a salary offer, intending to meet the requirements of a QEO under
¶ 15. WERC also held that prep time is not a fringe benefit. Because “fringe benefit” is not defined in MERA or elsewhere in the statutes, WERC gave the term its ordinary and accepted meaning based on dictionary definitions. WERC concluded that while prep time could be viewed as non-wage or indirect compensation, the dictionary examples and previous WERC decisions are persuasive that fringe benefits do not include permissive subjects of bargaining. The prep time memorandum, therefore, is not a fringe benefit. Consequently, WERC held that the District is not required to maintain the prep time memorandum as part of its QEO.
¶ 16. Finally, WERC concluded that the Association‘s impact proposal (asking for compensation for work overload) is an economic issue which cannot proceed to arbitration. Under
¶ 17. The Dodge County Circuit Court affirmed WERC‘s decision. The circuit court afforded the decision due weight deference because, while the determination of a fringe benefit under the QEO amendments is a relatively new issue, WERC has considerable expe-
¶ 18. The Association appealed and the court of appeals affirmed WERC‘s decision. Dodgeland Educ. Ass‘n v. WERC, 2000 WI App 260, 240 Wis. 2d 287, 623 N.W.2d 159. Applying the due weight standard of review, the court of appeals held that WERC‘s decision that the teacher prep time memorandum is not a fringe benefit is “reasonable” and “rationally based on the historical treatment of fringe benefits as mandatory subjects of bargaining.” Id. at ¶ 20. Because the Association‘s interpretation of fringe benefit was not more reasonable, WERC‘s conclusion was affirmed. Id. at ¶ 24. With regard to whether prep time is a mandatory or permissive subject of bargaining, the court of appeals applied great weight deference to WERC‘s decision. The court of appeals affirmed WERC‘s conclusion that the teacher prep time memorandum is a permissive subject of bargaining because WERC‘s decision was reasonable. Id. at ¶¶ 31-32.
¶ 19. The Association filed a petition for review, which this court granted.
III
¶ 20. As an appellate court, we review WERC‘s decision, but we benefit from the analyses by the circuit court and the court of appeals. See Racine Educ. Ass‘n v. WERC, 2000 WI App 149, ¶ 16, 238 Wis. 2d 33, 616
¶ 21. The ultimate goal of statutory interpretation is to determine the intent of the legislature. Racine Educ. Ass‘n, 2000 WI App 149, ¶ 15. We first look to the language of the statute. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 281, 548 N.W.2d 57 (1996). If the plain meaning of the statute is clear, we simply apply the clear meaning of the statute to the facts of the case. Id. If the statute is ambiguous, however, we must examine the scope, history, context, subject matter and purpose of the statute. Id. at 282. If an administrative agency has been charged with the statute‘s enforcement, we may also look to the agency‘s interpretation. Racine Educ. Ass‘n, 2000 WI App 149, ¶ 15.
¶ 22. Whether WERC properly interpreted
First, if the administrative agency‘s experience, technical competence, and specialized knowledge aid the agency in its interpretation and application of the statute, the agency determination is entitled to “great weight.” The second level of review provides that if the agency decision is “very nearly” one of first impression it is entitled to “due weight” or “great bearing.” The lowest level of review, the de novo standard, is applied whеre it is clear from the lack of agency precedent that the case is one of first impression for the agency and the agency lacks special expertise or experience in determining the question presented.
Id. at 290-91 (citations omitted). Because this case involves two principal issues, although interrelated, and because the parties dispute what standard of review is to be applied for both, we review each issue in turn.
IV
¶ 23. We first turn to whether WERC correctly decided that teacher prep time is a permissive subject of bargaining. The Association contends that the teacher prep time memorandum is a mandatory subject of bargaining because it is analogous to employee break time and is primarily related to wages, hours, and conditions of employment.
¶ 24. The parties dispute what level of deference we should afford WERC‘s decision. The Association
¶ 25. The District and WERC argue that we should afford WERC‘s decision great weight deference because the decision meets all four factors to be afforded great weight deference:
1) the agency was charged by the legislature with the duty of administering the statute; 2) the interpretation of the agency is one of long-standing; 3) the agency employed its specialized knowledge or expertise in forming the interpretation; and 4) the agency‘s interpretation will provide consistency and uniformity in the application of the statute.
MCI Telecomm. Corp. v. State, 209 Wis. 2d 310, 318, 562 N.W.2d 594 (1997). Specifically, the District and WERC contend: (1) WERC is charged by the legislature with the duty of administering
¶ 26. We agree that the great weight standard is appropriate. The first factor is clearly met as the legislature has charged WERC with the duty of administering
¶ 27. The only difference between WERC‘s decision here and WERC‘s decisions in Oak Creek, Milwaukee Board, and Racine Unified, is that this case also involves questions regarding the QEO amendments. However, the QEO amendments did not change WERC‘s long-standing interpretation of what is a permissive or mandatory subject of bargaining. The distinction between permissive and mandatory subjects of bargaining remains the same. WERC‘s previous decisions that teacher prep time is a permissive subject of bargaining, therefore, establish a long-standing interpretation.
¶ 28. WERC‘s decision also meets the third and fourth factors, affording the decision great weight deference. In West Bend Education Association v. WERC, 121 Wis. 2d 1, 14, 357 N.W.2d 534 (1984), this court recognized WERC‘s creation of the “primarily related” balancing test and acknowledged WERC‘s expertise in determining the bargaining nature of proposals. “WERC, in contrast to the courts, has special competence in the area of collective bargaining and has developed significant experience in deciding cases involving the issue of mandatory bargaining.” West Bend, 121 Wis. 2d at 13 (footnotes omitted). Finally, WERC‘s decision is afforded great weight deference under the fourth factor because, since the Oak Creek decision in 1974, WERC has uniformly and consistently interpreted teacher prep time as a permissive subject of bargaining. See Racine Unified Sch. Dist., Dec. No. 16598 (WERC, 3/98); Milwaukee Bd. of Sch. Dir., Dec. No. 20093-A (WERC, 2/83).
¶ 30. Applying the great weight standard, we will affirm WERC‘s conclusion that teacher prep time is a permissive subject of bargaining if “the agency‘s view of the law is reasonable even though an alternative view is also reasonable.” West Bend, 121 Wis. 2d at 13-14. We will uphold WERC‘s conclusion if it has “any rational
¶ 31. In order to determine if teacher prep time is primarily related to educational policy or primarily related to wages, hours, and conditions of employment, WERC examined the record and used the balancing test. Relying on testimony of District Superintendent McLeod, WERC found that the educational policy im-
[W]e are satisfied that the amount of preparation time provided to teachers during the workday directly impacts on fundamental educational policy issues such as: (1) how many and what types of classes can be offered to students; (2) how will existing school buildings be used; and (3) how should the student day be structured. Balanced against this impact on educational policy choices is the impact on employe[e] hours and conditions of employment generated by the reality that: (1) if teachers do not receive preparation time during the scheduled work day, the various tasks typically accomplished during preparation time . . . will need to [be] performed at times outside the scheduled work day; and (2) to the extent preparation time can legitimately be used as paid break time, reduced preparation time reduces break time.
Dec. No. 29490 at 20. Based on this analysis, we arrive at the same conclusion as the court of appeals: “[T]he commission engaged in a proper balancing of the impacts of teacher preparation time on educational policy, as opposed to its impact on teachers’ hours and conditions of employment, and reached a rationally-based conclusion that the former outweighed the latter.” Dodgeland Educ. Ass‘n, 240 Wis. 2d 287, ¶ 32. Accordingly, we affirm WERC‘s decision that teacher prep time is a permissive subject of bargaining.
V
¶ 32. We next examine whether WERC correctly decided that teacher prep time is not a “fringe benefit” under
¶ 33. In contrast, the District and WERC argue that WERC‘s decision that prep time is not a fringe benefit is entitled to great weight deference. The District and WERC contend that, in this instance, WERC‘s decision meets all four factors to be afforded great weight deference. See MCI Telecomm. Corp., 209 Wis. 2d at 318. The District and WERC argue that WERC meets the first factor because the legislature has clearly charged WERC with applying and enforcing the
¶ 35. We are satisfied that WERC‘s decision meets three of the four factors. Clearly, WERC was charged with the duty of administering
¶ 36. Under the due weight standard, “a court need not defer to an agency‘s interpretation which, while reasonable, is not the interpretation which the court considers best and most reasonable.” Harnischfeger, 196 Wis. 2d at 660 n.4. Due weight deference breaks the tie between competing reasonable conclusions in favor of the agency‘s decision. UFE Inc., 201 Wis. 2d at 287. We will “not overturn a reasonable
¶ 37. We first look at WERC‘s decision to determine if it is reasonable and if it furthers the purpose of
¶ 38. After 1993 Wis. Act 16, the District must make a valid QEO to avoid interest arbitration of “economic issues.” See
¶ 39. We find that WERC‘s interpretation of fringe benefits is reasonable because it is based on the ordinary and accepted meaning. Since the term “fringe benefits” is not defined in
¶ 40. WERC‘s interpretation of fringe benefits is also reasonable because permissive subjects of bargaining have never been deemed fringe benefits in Wisconsin courts. WERC reviewed numerous instances wherein Wisconsin courts used the term “fringe benefit,” and in all instances the fringe benefit was a mandatory subject of bargaining.12 WERC also noted that in previous WERC decisions interpreting
¶ 41. In addition to being reasonable, WERC‘s interpretation of fringe benefits furthers the purpose of
¶ 42. In order to apply the due weight standard, we now look to the Association‘s interpretation of fringe benefits to determine if it is reasonable. The Association argues that the term “fringe benefits” under Wis.
¶ 43. The Association also takes the position that its interpretation of fringe benefits is more reasonable than WERC‘s decision, because WERC‘s limitation of fringe benefits to mandatory subjects of bargaining was unreasonable and beyond its authority. The Association contends that when enacting the QEO amendments, the legislature‘s failure to specify that fringe benefits only include mandatory subjects of bargaining, demonstrates fringe benefits should not be so restricted. The Association argues that its interpretation of fringe benefits is more reasonable because many matters primarily related to educational policy—and which are permissive subjects of bargaining—also have a benefit to teachers and a money cost to the District—and would be a fringe benefit. Accordingly, the Association con-
¶ 44. The Association further argues that its interpretation of fringe benefits is reasonable because the QEO amendments were intended only to give the District a choice. The District can live with the status quo on all current fringe benefits and avoid interest arbitration on all economic issues, or it can propose changes and engage in traditional bargaining. The Association contends that the QEO amendments were not intended to limit fringe benefits to mandatory subjects of bargaining, essentially allowing a District to submit a QEO but refuse to maintain fringe benefits that are permissive subjects of bargaining.
¶ 45. We find the Association‘s interpretation of fringe benefits in
¶ 46. Applying the due weight standard of review, however, we do not find the Association‘s interpretation more reasonable than WERC‘s interpretation.14 By en-
VI
¶ 47. In sum, we affirm WERC‘s decision on all issues. We first affirm WERC‘s decision that teacher prep time is a permissive subject of bargaining. Based
¶ 48. We also reviewed WERC‘s decision that teacher prep time is not a fringe benefit under
¶ 49. Finally, we also affirm WERC‘s conclusions on two additional issues: (1) that the District submitted a valid QEO under
By the Court.—The decision of the court of appeals is affirmed.
¶ 51. WILLIAM A. BABLITCH, J. (dissenting). When examining the history of collective bargaining legislation concerning teachers and schools in Wisconsin and the expressed intent of the legislature, it is clear that the purpose of this legislation has been to place the parties on equal footing, thereby promoting good faith bargaining and voluntary settlements between the parties. See
¶ 52. In some instances, however, the legislature has eliminated significant rights of teachers normally afforded to others in the collective bargaining process. One example is the legislature‘s elimination of the teachers’ right to strike. A more recent example is 1993 Wis. Act 16 (the QEO law), which eliminated the rights of teachers to bring certain issues to interest arbitration when a valid qualified economic offer (QEO) is
¶ 53. I agree with the well-reasoned dissent of Wisconsin Employment Relations Commissioner A. Henry Hempe from this case that it is one thing for the legislature to create this imbalance but quite another for a court to do so.1
¶ 54. In its interpretation of “fringe benefits,” the majority fails to recognize the significant bargaining power granted to school districts under the QEO law and fails to interpret the statute in light of the overall purpose of collective bargaining legislation, that is, to maintain a level playing field for both labor and management. The effect of the majority opinion is further chip away at the collective bargaining rights of teachers. Indeed, if the QEO law is interpreted to permit school districts to unilaterally eliminate something as valuable to teachers as preparation time without their ability to bargain collectively on this issue, the future
I
¶ 55. The threshold issue in this case is whether teacher preparation time is a fringe benefit. A valid QEO must include all preexisting fringe benefits. The Dodgeland School District (District) discontinued a memorandum of understanding regarding teacher preparation time before submitting its QEO. If the guarantee of teacher preparation time is a fringe benefit, the QEO is not valid and the issue is subject to bargaining or arbitration. If it is not a fringe benefit, the QEO is valid and the issue is not subject to arbitration. Thus, the battle lines are drawn. I conclude that teacher preparation time is a fringe benefit.
¶ 56. Before defining “fringe benefit” under the statute, it is important to examine the history of municipal employee collective bargaining legislation in Wisconsin to provide necessary context to the definition.
¶ 57. In 1959, Wisconsin became one of the first states in the country to provide for collective bargaining rights to municipal employees through legislation.2 Municipal employees were granted significant rights under the new legislation, including the right to self-organize, to affiliate with labor organizations, and to negotiate with their municipal employers.3 The legislation was, however, limited: negotiations were re-
¶ 58. In 1961, new legislation was enacted that further encouraged fair collective bargaining, including authority to the Wisconsin Employment Relations Board (which later became the Wisconsin Employment Relations Commission) to function as a mediator in disputes and to administer fact-finding procedures.5 Despite this progress, the law was still limited in its fair resolution procedures: it did not provide for compulsory binding impasse procedures and it depended on voluntary agreements between the parties.6 At the same time, employees were denied significant leverage when strikes were expressly prohibited under the law.7 In 1971, amendments were again enacted, which provided for binding interest arbitration for law enforcement officials and firefighters.8 At that time, however, arbitration was not permitted for school employees.
¶ 60. Reform came in 1977 with the introduction of the mediation arbitration law, which provided for compulsory final and binding interest arbitration for nearly all municipal employees not governed by the 1971 amendments.11 From the introduction of this law to the time of the enactment of the QEO law in 1993, public school teachers in Wisconsin received higher raises in salary than many of their counterparts in other states.12 This rise in teacher salaries left some with the impression that the teachers had the upper hand in collective bargaining.13 New legislative proposals were again examined.
¶ 61. In 1993, the legislature amended the municipal employee relations law.14 These amendments were regarded as efforts not only to shift some bargain
¶ 62. This history, leading up to the current QEO law, reveals the constant struggle by the legislature to maintain equal footing for labor and management to ensure fair and effective collective bargaining. We must bear this overall objective in mind in our interpretation of “fringe benefits” under the current QEO law.
¶ 63. Indeed, the QEO law created a new procedure in teacher and school collective bargaining. School districts may now avoid collective bargaining on certain issues and maintain their costs by submitting a valid QEO. A valid QEO guarantees that school districts will not be subject to any additional costs beyond the statutory increase for wages and fringe benefits. The statute ensures this by allowing the district to avoid interest arbitration on “economic issues,” which are defined as “any issue that creates a new or increased financial liability upon the municipal employer...”16 Clearly then, this law was designed to provide the school districts with more control over their costs and resulted in increased bargaining power for the school districts.
¶ 64. This law, however, does not provide a win-win situation for the school districts. At the same time the statute allows the districts to avoid arbitration and provide only a minimum statutory increase, they must
¶ 65. To this end, I would adopt the court of appeals’ definition of “fringe benefits” in Brown County Attorneys Ass‘n v. Brown County, 169 Wis. 2d 737, 487 N.W.2d 312 (Ct. App. 1992). The court properly identified “fringe benefits” as costs to the employer. This definition defines a “fringe benefit” as: “‘[A]n employment benefit ... granted by an employer that involves a money cost without affecting basic wage rates.‘” Id. at 742-43 (citation omitted).
¶ 66. I conclude that this definition is more reasonable than the definition provided by the Wisconsin Employment Relations Commission (WERC) in this case for several reasons.
¶ 67. First, WERC‘s interpretation ignores the proper balance that must be achieved between labor and management when interpreting this statute.
¶ 68. Second, WERC‘s definition of fringe benefits as “mandatory subjects of bargaining” fails to give
¶ 69. Third, WERC arrives at the definition of “fringe benefits” through highly circuitous and questionable reasoning. In essence, it defines fringe benefits by arriving at the conclusion first. It essentially begins its analysis with the conclusion that fringe benefits are “mandatory subjects of bargaining,” and then examines prior definitions and interpretations of “fringe benefit” to determine whether they are consistent with “mandatory subjects of bargaining.” WERC then determines that teacher preparation time cannot be a fringe benefit because it is a permissive subject of bargaining. This approach is particularly problematic in light of the fact that, before it even begins its effort to define “fringe benefits,” WERC had already determined that teacher preparation time was a permissive subject of bargaining.
¶ 70. Collectively, these concerns lead me to the conclusion that WERC‘s definition is unreasonable. Accordingly, under any level of deference, I would reverse WERC‘s decision.
¶ 71. Having established a reasonable definition for “fringe benefit,” the next question becomes whether teacher preparation time falls under this definition. I conclude that it does because it is a benefit that involves a true money cost to the employer.
¶ 73. To equate teacher preparation time with break time ignores the practical significance of it to teachers. Teachers must be prepared to conduct their lessons every day and provide quality education to our children. A full day of lessons without any preparation time during the day results not only in a lower wage rate for teachers because additional uncompensated hours are required outside of the classroom, but also in lower quality of education for our children. Thus, preparation time is a “fringe benefit.” Accordingly, I conclude that the District failed to submit a valid QEO.
II
¶ 74. I also disagree with the majority‘s conclusion that WERC‘s decision must be affirmed based on the definition of “fringe benefits” as “mandatory subjects of bargaining.” In its decision, WERC concluded that teacher preparation time is not primarily related to wages, hours, and conditions of employment. The “primarily related” test is applied on a case-by-case basis, which weighs the competing interests of the public, employee, and the employer in determining “whether a
¶ 75. Under any level of deference, I would not affirm WERC‘s decision in this respect because I find its analysis incomplete and unreasonable. In its determination, WERC relied in part on Oak Creek-Franklin Joint City Sch. Dist. No. 1, Dec. No. 11827-D (WERC, 9/74). In Oak Creek-Franklin, WERC reviewed a proposal put forth by the Oak Creek Education Association concerning the teachers’ load, which included (1) a required number of hours with students, (2) a required number of classes for each teacher to teach and a number of required preparations for these classes, and (3) guaranteed preparation periods per day. See Dodgeland Sch. Dist. v. Dodgeland Educ. Ass‘n, Dec. No. 29490 (WERC, 1/99), 18-19 (discussing Oak Creek-Franklin). WERC concluded that this proposal from the Oak Creek Education Association concerned permissive subjects of bargaining, stating that “[s]uch decisions directly articulate the District‘s determination of how quality education may be attained and whether to pursue the same.” See Id. at 19. The circuit court reviewed this Oak Creek-Franklin decision from WERC and affirmed, stating:
We recognize that the subjects of the proposal here may have a significant effect on teacher‘s total workload. But one could also look at the proposals from another perspective: The Association‘s proposals relate to the allocation of a teacher‘s work day. The allocation of the time and energies of its teachers is a consequence of basic educational policy decisions on the
part of the District. It is not without reason to conclude that those decisions significantly affect the quality of education offered in the District.
See Id. (emphasis added).
¶ 76. I certainly agree with the conclusions reached in Oak Creek-Franklin that any decision by school districts concerning the allocation of a teacher‘s time and energies significantly affects the quality of education. But that only begins the inquiry. It is difficult to imagine any significant decision made by a school district as not affecting the quality of education. Even wages can affect the quality of education. Thus, Oak Creek-Franklin‘s analysis was incomplete, and WERC should not have relied on it in this case.
¶ 77. There can be no question that teacher preparation time directly and clearly impacts the hours and conditions of employment of employees.18 It is
¶ 78. In addition, in this case, although WERC argued that teacher workload also impacts on other educational policy issues—including (1) the types of classes offered to students, (2) building use, and (3) student schedules—it never conducted any real balancing of the interests in this case nor provided any real reasons why the interests in school management outweigh the interests of teachers in maintaining their negotiated hours and working conditions. Dodgeland Sch. Dist., Dec. No. 29490 at 20. WERC merely concluded:
Here, based on the record before us, we conclude that when the preparation time memorandum‘s impact
on educational policy is balanced against the impact on teachers’ hours and conditions of employment, the memorandum is primarily related to educational policy and thus is a permissive subject of bargaining.
Id. The majority simply adopts this reasoning as “proper balancing.” Majority op. at ¶ 31. I would not.
¶ 79. For the reasons stated above, I respectfully dissent.
¶ 80. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
Notes
Dodgeland Sch. Dist. v. Dodgeland Educ. Ass‘n, Dec. No. 29490 (WERC, 1/99), 29 (Hempe, dissenting).Moreover, as demonstrated by this case, excluding fringe benefits that are permissive subjects of bargaining from the purview of
Sec. 111.70(1)[(nc)]1.a., Stats. , is simply unfair. Under apparent color of law the teachers are peremptorily stripped of their previous legal right to arbitrate the economic impact of the loss of their benefit without any compensatory recourse. For this to be done by the Legislature is one matter. But for it to be done in the course of a quasi-judicial review in the absence of a legislative mandate to do so is quite another, and in this instance in total disharmony with apparent legislative efforts to create a balanced quid pro quo.
(nc) 1. “Qualified economic offer” means an offer made to a labor organization by a municipal employer that includes all of the following, except as provided in subd. 2.:
Id.(dm) “Economic issue” means any issue that creates a new or increased financial liability upon the municipal employer, including salaries, overtime pay, sick leave, payments in lieu of sick leave usage, vacations, clothing allowances in excess of the actual cost of clothing, length-of-service credit, continuing education credit, shift premium pay, longevity pay, extra duty pay, performance bonuses, health insurance, life insurance, vacation pay, holiday pay, lead worker pay, temporary assignment pay, retirement contributions, severance or other separation pay, hazardous duty pay, certification or license payment, job security provisions, limitations on layoffs and contracting or subcontracting of work that would otherwise be performed by municipal employes in the collective bargaining unit with which there is a labor dispute.
Chapter 663, Laws of 1961; Mulcahy & Ruesch, supra, at 107-08 (citingMulcahy & Ruesch, supra, at 121.The right of a union to strike is a necessary component to balance the relationship between municipal employers and public employee unions. Absent this right, unions are without the leverage which traditionally has been available to their private sector counterparts. As a result of this denial, the public sector collective bargaining process remained unbalanced until public employee unions resorted to illegal strikes.