*1 Petitioner-Respondent, Drummond, District School Cross-Appellant, v. Employment Commission, Relations Wisconsin Respondent-Appellant Cross-Respondent, Employee’s School District of Drummond Associa tion, Co-Appellant Cross-Respondent.† Appeals

Court of April No. 83 - 1696. on Submitted 1984. briefs 5, 1984. Decided June (Also reported 662.) in 352 N.W.2d granted. Petition † review

i *3 appellant Employment For the Wisconsin Relations Commission the cause was on submitted the of brief Follette, attorney Bronson La general, C. and D. John Niemisto, attorney general. assistant co-appellant

For cross-respondent the Dis- School Employee’s trict of Drummond Association the cause was Stoll, submitted on the briefs of Michael L. staff coun- sel, and Gordon E. McQuillen, attorney, Edu- Wisconsin cation Association Council. cross-appellant

For the School District of Drummond the cause was submitted on the briefs of Clark Clark & and Dale R. Clark of Ashland. cross-respondent

For Employment Wisconsin Re- lations Commission cause was submitted brief on the of Bronson C. Follette, attorney La general, D. and John Niemisto, attorney general. assistant respondent

For the School District of Drummond cause & was on submitted of brief Clark Clark and Dale R. Clark of Ashland. Foley, P.J.,

Before Cane, Dean and JJ. CANE, J. Employment The Wisconsin Relations (commission) Commission and the School District (association) appeal Employee’s Association Drummond judgment setting the circuit court’s aside the commis- concerning order District of Drum- sion’s School nepotism policy. (district) The commission’s mond’s bargain collectively required order the district concerning adopt its the association decision to impact employees, on termi- and the decision’s to cease nating policy any repre- employees under the by association, sented and to rehire Eldon Kravick compensate any him for he as a loss suffered result being policy. terminated under the The district cross- appeals judgment part requiring it to bar- gain employment. the effects on Kravick’s the commission had a rational basis for in- Because terpreting 111.70, Stats., require sec. collective bar- gaining concerning adopt the district’s decision to implement nepotism policy, judgment its we reverse remand cause to the trial court with directions to reinstate and affirm the commission’s order. Our unnecessary decision makes to consider the district’s cross-appeal.1 adopted “nepotism policy”

The district’s school board hiring spouse barred the district from or child of any providing board member under a contract for more $5,000 compensation. than prevented annual It also re- hiring employees upon expiration existing if contracts spouse parent their was a member of the board when adopted subsequently the resolution was became *4 adopted, member.2 At the time the resolution was Eldon Kravick earning was a school bus driver for the district reinstating We note that the commission’s order has the requiring effect of impact the district of the nepotism any employees by represented association, on including Kravick, whom the district must rehire. adopting The resolution reads: WHEREAS, general policy it is the Wisconsin of the State of public complete personal that officials shall have a disinterest contracts; public in and $5,000 year. Shirley Kraviek, a more than wife, His Shirley was a member. school board on Since remained expired, the board when contract Eldon’s Eldon was not adopted Both rehired. before and after the school board WHEREAS, pro- criminal statutes of the State of Wisconsin member, private capacity, hibit a school board in his from negotiating bidding entering or for or into a contract which participated making public official, prohibit he has in as a and participating making school board member from in the of such discretionary public capacity performing contract in his of some regard contract; function in to the and responsibilities WHEREAS, and duties of the board of educa- increasingly large degree, negoti- comprised, tion are an of ating employment entering executing and into and contracts employees; school district and increasing degree, WHEREAS, is, more diffi- it like and member, in cult for active school board and conscientious private capacity, sufficiently partici- aloof from his to remain making, public pating formation, execution of such in the and statutes; contract so as not to violate such criminal of WHEREAS, District Education of the School the Board of acutely the confi- the need to restore Drummond is aware of integrity citizenry of in dence, faith and trust of the levels, functioning governmental bodies at all manner of of by NOW, THEREFORE, the board BE IT RESOLVED into not enter will that it henceforth District of Drummond School any spouse board any or employment child contract with compensation provides an annual for if such contract member employment any contract between $5,000; excess of individual the board husband, wife, a member or child of the board and currently prior of this resolution to the date entered into completion term performed of its to the be in effect shall wife, husband, end; at an and be then terminate shall hoard, performing services any current member child of or $5,000 compensation in excess an annual at for employment arrangement an individual than pursuant other to an any person, forthwith; hereafter resign contract, shall compensation annual at an performing the district services an arrangement than other $5,000 pursuant to an in excess of parent wife, husband, or contract, whose employment individual per- board, end such shall on elected to serve hereafter husband, her immediately his when the services formance of member. parent of board wife, the office assumes

6 bar- the collective association, which was policy, the

the Eldon, dis- that the gaining representing demanded unit bargaining adopting or engage before in collective trict arguing refused, policy. The district implementing the strictly public matter of a nepotism was mandatory subject collective bar- for not a gaining. complaint with the commission filed a

The association prohibited practices with- alleging the committed district Stats., Municipal meaning 111.70, of the of sec. in (MERA). The commission Employment Act Relations findings concluded appointed made an examiner who prohibited practice within a that the district committed refusing meaning (a)43 by 111.70(3) to bar- of sec. gain nepotism policy, adopt and that the decision to practice prohibited within committed district refusing meaning 111.70(3) by (a)54 to rehire of sec. to Eldon Kravick. The examiner ordered the bargain concerning adoption with the association implementation policy, pend- to rehire Kravick ing bargaining, compensate Kra- the outcome of and to vick The district for his loss due to the termination. appealed commission, to which its exam- affirmed review, sought judicial iner’s The district decision. 111.70(3) part (a)4, Stats., provides it is a Section in prohibited practice municipal employer to to refuse collectively representative employees. majority its with a of a bargaining 111.70(1) (d), Stats., as: Section defines collective performance obligation municipal em- “the of the mutual employes, ployer representatives to meet . . of its . and the respect good faith, times, to in and confer at reasonable employment wages, the intention . with hours and conditions of . . however, duty 'bargain, reaching agreement an .... require party agree proposal compel to a does not either making of a concession . . . .” part 111.70(3) (a) 5, Stats., provides is a Section any municipal employer practice violate prohibited for a upon by agreed agreement previously collective with, employ wages, parties respect hours, and conditions employees. affecting municipal ment *6 order, re- court set the commission’s the circuit aside quiring only bargain the of its the district to effects employment. on Eldon Kravick’s

STANDARD OF REVIEW legislature designates an When the administrative agency apply particular agency’s statute, inter- pretation great reviewing weight entitled is interpretation court defer ir- must to the unless it is Organization rational. Arrowhead Teachers v. United Employment Commission, Wisconsin Relations 116 Wis. 580, 593, 709, (1984). 2d 342 716 The rational N.W.2d applies only agency’s interpreta- basis standard when the uniform, tion substantially a long-continued, reflects unchallenged practice position. question If is one impression, agency’s interpretation first en- is only weight. titled Id. 594, due at 342 716. N.W.2d question impression depends Whether the one of first agency not on previously whether the has dealt with specific type involved, of situation rather but on whether agency gen- developed expertise through has similar eral application determinations about of MERA. See id. interpretation

The commission’s sec. must 111.70 be supported if it by any affirmed can be rational basis. Arrowhead, In interpretation the commission’s involved professional whether student interns and shared teachers community place of interest sufficient in them the bargaining same 111.70(4) under unit (d)2.a, sec. Stats. supreme The court noted the commission never had question respect decided pro- to students and fessionals, applied but the rational basis be- standard community cause the concept of interest reflected a longstanding practice determining ap- commission propriate bargaining Arrowhead, units under MERA. case, 116 at Wis. 2d 716. In N.W.2d at this previously although decided not the commission has nepotism adoption of a and enforcement whether bargaining, mandatory subject has for collective ais many years ap gained experience over substantial concept plying “primary to determine relation” employer’s proposals are contract whether an actions or bargain mandatory subjects permissive for collective Teachers’ ing Blackhawk Federation under MERA. See 415, 423, 247, 252 WERC, v. 326 N.W.2d 2dWis. rulings 1982). interpret (Ct. App. commission’s ing MERA scope of under con collective uniform, unchallenged longstanding, prac stitute a *7 Id. tice. argues Arrowhead not control

The district that does Arrowhead the standard of review this case because “questions fact,” law and involved and because disagree. 111.70(4) (d). limited to was sec. We supreme applied court in Arrowhead the rational basis steps step standard at two in the review. The first was interpretation of the review commission’s statute, question step a law. re- The second was the departure prac- prior view of the commission’s from its tice, question depended specific that on the facts the Arrowhead, commission relied on. See at 116 2dWis. 594-96, presented 342 at N.W.2d 716-17. are not We departure previous practice,5 with a from commission only interpretation specif- with its of a statute. That the necessary ic facts in Arrowhead were to review the com- departure prior practice mission’s from not affect does analysis reviewing set forth in Arrowhead interpretation addition, commission’s In of a statute. argument The district’s the commission deviated from prior practice “primarily applying its related” test is Enlarged without merit. The of Law commission’s Conclusions plainly adopted by nepotism policy stated that “the Board primarily wages, employ . . . relates to hours and conditions of ment . . . .” nothing support we find the district’s claim agen- reviewing forth in set Arrowhead for an standard cy’s statutory interpretations is limited to 111.70 sec. (4) (d) apply and would not to other MERA determina- analysis The standard of review in Arrowhead tions. supports previous apply our Blackhawk decision in the rational basis standard inter- to the commission’s pretations subjects bargaining of whether of collective mandatory permissive. are THE

REVIEW OF COMMISSION’S DETERMINATION correctly The commission concluded that secs. 111.70 (1) (d) 111.70(3) made the district’s decision adopt implement nepotism policy mandatory col- lective subject pri- because the decision was marily wages, related to hours, and conditions of em- ployment. proposal primarily A wages, hours, related to working subject conditions a mandatory of bar- gaining, proposal while a relates to educational management permissive school . subject is a concerning duty bargain. which the district has no Blackhawk, 109 Wis. 2d at at 252. N.W.2d *8 though we, reviewing Even might court, as a interpret apply or differently a statute from the in commission case, this we must defer to the if commission a rational basis Although exists for its nepotism conclusion. the public policy involved considerations, commis- the sion’s determination primarily that it was to related employment conditions of had a rational basis. The commission reasonably could policy’s conclude that the direct employment effect on outweighed conditions the policy’s furthering effect in public policy the district’s It considerations. is difficult to measure to what extent policy’s objectives avoiding the conflicts of interest and restoring citizen govern- confidence and trust in by prohibition spouse are furthered its on the or

ment (but parent sibling) or not the of a school board child by being employed member the district. On the other hand, job security, policy’s the the effect on condition employment, employee spouse of a or district whose parent board is will serve on school is direct severe. reject argument that

We its decision to district’s adopt implement nepotism policy prohib- awas subject bargaining. ited of collective Section did 946.13 require adopt nepotism policy, not district nothing 120.12(1), Stats., is in there that section or sec. precludes adop- from district implementation nepotism policy. tion and of its These requir- statutes are not conflict with sec. 111.70’s municipal bargain employer ment that respect employment. conditions of

PROPRIETY OF THE ORDER COMMISSION’S The commission’s remedial order should be reinstated Having in full. adoption determined that and im- plementation nepotism policy district’s awas mandatory subject bargaining, of collective the commis- sion concluded the district’s failure to was prohibited practice 111.70(3) (a) under sec. its employment termination Kravick’s without cause prohibited practice was a 111.70(3) (a) under sec. 5. remedy To the situation, the commission ordered bargain, position to restore Kravick to his pending compensate bargaining, and to Kravick for his resulting wrongful loss from the termination. The rem- edy is powers. within the commission’s See 111.70 secs. (a), (4) 111.07(4), empowered Stats. The commission is parties to order to cease and desist or to take affirmative action the commission necessary believes proper

11 policies of relations statute. the the labor effectuate 158-59, 140, City Evansville, 2d v. 69 See WERC Wis. & (1975) ; Drivers 688, 699 General 30 N.W.2d 2 Helpers WERC, 242, Union, 662 v. 21 2d Local Wis. (1963). 251, 124 N.W.2d argues district order The also the commission’s policy’s requires requiring bargain impact only the it to bargain impact Kravick, it to the actual on because he only employee is the affected at this time. commis- duty bargain sion in its stated memorandum the to concerning regardless any impact present im- “exists pact upon any bargaining employe,” current unit duty potential impact triggers bargain. the the to agree with the commission. We employer’s proposal impact

Both effect proposal wages, hours, employee’s of that on the employment subjects bargaining. conditions are for Blackhawk, See 429-30, 2d at 326 N.W.2d at Wis. 255; 111.70(1) bargaining former, sec. In (d), Stats. parties proposal confer about whether should adopted say. be it and what should In latter, they applying manner discuss the adopted exercising Blackhawk, the function involved. 429-30, 109 Wis. 2d at at 255. N.W.2d case, adopting specific nepotism In this policy, after concerning required bargain policy’s to application employees generally. would It be anoma- require things lous the district about such would, as example, whether allow Kravick to parttime employment switch to pay take a cut to and/or allowing avoid policy, termination under the dif- while employee spouse ferent treatment of an whose is elected to the school Applying board two months later. nepotism policy employees a manner such would likely disputes create contrary future labor and would be policies to the 111.70(6), of MERA. See sec. Stats.

By Judgment reversed cause remanded Court. — appellant. Costs to with directions. (dissenting).

FOLEY, judg- I would affirm P.J. I think of rational for commis- ment. can no basis policy nepotism sion’s that the school board’s conclusion employment. primarily related I to conditions join concluding therefore the circuit court only impact policy. school board had of the gave supportable The commission no reasons for its support conclusion. I find no for the commission’s claim any change employ- that results in a termination of mandatorily bargainable. ment is I also find rational no comparison nepotism basis for the commission’s of a residency requirement. to a public employment, nepotism taxpayer In can diminish respect and confidence. It can create also conflicts among problems employees. interest and morale See Whateley Education, 826, v. Leonia Board 358 A.2d (N.J. 1976). residency requirement Ch. A is not con taxpayer cerned respect or confidence or conflicts of residency interest. The mere fact that the effect of a re quirement nepotism may be the same as to employees one more does not make them same for purposes. all nepotism policy, In the case of the under lying purpose policy, effect, of the rather than its must control. persons properly responsible deciding whether nepotism policy is needed are the school board mem-

bers, who place public. are accountable to the The proper to make meeting, the decision is at the school board where open. discussion is The commission’s decision would improperly instead special group, allow a interest at the privacy bargaining table, of the to act as the exclusive representative public. See District School Unified WERC, No. 1 v. 89, 99-100, 2dWis. 259 N.W.2d (1977). 730-31