Chapter 111

subch. IV of ch. 111 SUBCHAPTER IV

MUNICIPAL EMPLOYMENT RELATIONS

Subch. IV of ch. 111 Cross-reference Cross-reference: See also chs. ERC 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19, Wis. adm. code.

111.70 111.70 Municipal employment.

111.70(1) (1) Definitions. As used in this subchapter:

111.70(1)(a) (a) “Collective bargaining” means the performance of the mutual obligation of a municipal employer, through its officers and agents, and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement, with respect to wages, hours, and conditions of employment for public safety employees or transit employees and with respect to wages for general municipal employees, and with respect to a requirement of the municipal employer for a municipal employee to perform law enforcement and fire fighting services under s. 60.553, 61.66, or 62.13 (2e), except as provided in sub. (4) (mb) and (mc) and s. 40.81 (3) and except that a municipal employer shall not meet and confer with respect to any proposal to diminish or abridge the rights guaranteed to any public safety employees under ch. 164. Collective bargaining includes the reduction of any agreement reached to a written and signed document.

111.70(1)(b) (b) “Collective bargaining unit” means a unit consisting of municipal employees that is determined by the commission under sub. (4) (d) 2. a. to be appropriate for the purpose of collective bargaining.

111.70(1)(c) (c) “Commission” means the employment relations commission.

111.70(1)(cm) (cm) “Consumer price index change” means the average annual percentage change in the consumer price index for all urban consumers, U.S. city average, as determined by the federal department of labor, for the 12 months immediately preceding the current date.

111.70(1)(d) (d) “Craft employee” means a skilled journeyman craftsman, including the skilled journeyman craftsman’s apprentices and helpers, but shall not include employees not in direct line of progression in the craft.

111.70(1)(e) (e) “Election” means a proceeding conducted by the commission in which the employees in a collective bargaining unit cast a secret ballot for collective bargaining representatives, or for any other purpose specified in this subchapter.

111.70(1)(f) (f) “Fair-share agreement” means an agreement between a municipal employer and a labor organization that represents public safety employees or transit employees under which all or any of the public safety employees or transit employees in the collective bargaining unit are required to pay their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required of all members.

111.70(1)(fm) (fm) “General municipal employee” means a municipal employee who is not a public safety employee or a transit employee.

111.70(1)(g) (g) “Labor dispute” means any controversy concerning wages, hours and conditions of employment, or concerning the representation of persons in negotiating, maintaining, changing or seeking to arrange wages, hours and conditions of employment.

111.70(1)(h) (h) “Labor organization” means any employee organization in which employees participate and which exists for the purpose, in whole or in part, of engaging in collective bargaining with municipal employers concerning grievances, labor disputes, wages, hours or conditions of employment.

111.70(1)(i) (i) “Municipal employee” means any individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial or executive employee.

111.70(1)(j) (j) “Municipal employer” means any city, county, village, town, metropolitan sewerage district, school district, long-term care district, local cultural arts district created under subch. V of ch. 229, or any other political subdivision of the state, or instrumentality of one or more political subdivisions of the state, that engages the services of an employee and includes any person acting on behalf of a municipal employer within the scope of the person’s authority, express or implied.

111.70(1)(k) (k) “Person” means one or more individuals, labor organizations, associations, corporations or legal representatives.

111.70(1)(L) (L) “Professional employee” means:

111.70(1)(L)1. 1. Any employee engaged in work:

111.70(1)(L)1.a. a. Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work;

111.70(1)(L)1.b. b. Involving the consistent exercise of discretion and judgment in its performance;

111.70(1)(L)1.c. c. Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

111.70(1)(L)1.d. d. Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher education or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical process; or

111.70(1)(L)2. 2. Any employee who:

111.70(1)(L)2.a. a. Has completed the courses of specialized intellectual instruction and study described in subd. 1. d.;

111.70(1)(L)2.b. b. Is performing related work under the supervision of a professional person to qualify to become a professional employee as defined in subd. 1.

111.70(1)(m) (m) “Prohibited practice” means any practice prohibited under this subchapter.

111.70(1)(mm) (mm) “Public safety employee” means any municipal employee who is employed in a position that, on July 1, 2011, is one of the following:

111.70(1)(mm)1. 1. Classified as a protective occupation participant under any of the following:

111.70(1)(mm)1.a. a. Section 40.02 (48) (am) 9., 10., 13., 15., or 22.

111.70(1)(mm)1.b. b. A provision that is comparable to a provision under subd. 1. a. that is in a county or city retirement system.

111.70(1)(mm)2. 2. An emergency medical service provider for emergency medical services departments.

111.70(1)(n) (n) “Referendum” means a proceeding conducted by the commission in which public safety employees or transit employees in a collective bargaining unit may cast a secret ballot on the question of authorizing a labor organization and the employer to continue a fair-share agreement.

111.70(1)(ne) (ne) “School district employee” means a municipal employee who is employed to perform services for a school district.

111.70(1)(nm) (nm) “Strike” includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer.

111.70(1)(o) (o) “Supervisor” means:

111.70(1)(o)1. 1. As to other than municipal and county fire fighters, any individual who has authority, in the interest of the municipal employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

111.70(1)(o)2. 2. As to fire fighters employed by municipalities with more than one fire station, the term “supervisor” shall include all officers above the rank of the highest ranking officer at each single station. In municipalities where there is but one fire station, the term “supervisor” shall include only the chief and the officer in rank immediately below the chief. No other fire fighter shall be included under the term “supervisor” for the purposes of this subchapter.

111.70(1)(p) (p) “Transit employee” means a municipal employee who is determined to be a transit employee under sub. (4) (bm).

111.70(1p) (1p) County employees in a county with a population of 750,000 or more. With respect to municipal employees who are employed by a county with a population of 750,000 or more, the county executive is responsible for the municipal employer functions under this subchapter.

111.70(2) (2) Rights of municipal employees. Municipal employees have the right of self-organization, and the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. Municipal employees have the right to refrain from any and all such activities. A general municipal employee has the right to refrain from paying dues while remaining a member of a collective bargaining unit. A public safety employee or a transit employee, however, may be required to pay dues in the manner provided in a fair-share agreement; a fair-share agreement covering a public safety employee or a transit employee must contain a provision requiring the municipal employer to deduct the amount of dues as certified by the labor organization from the earnings of the employee affected by the fair-share agreement and to pay the amount deducted to the labor organization. A fair-share agreement covering a public safety employee or transit employee is subject to the right of the municipal employer or a labor organization to petition the commission to conduct a referendum. Such petition must be supported by proof that at least 30 percent of the employees in the collective bargaining unit desire that the fair-share agreement be terminated. Upon so finding, the commission shall conduct a referendum. If the continuation of the agreement is not supported by at least the majority of the eligible employees, it shall terminate. The commission shall declare any fair-share agreement suspended upon such conditions and for such time as the commission decides whenever it finds that the labor organization involved has refused on the basis of race, color, sexual orientation, creed, or sex to receive as a member any public safety employee or transit employee of the municipal employer in the bargaining unit involved, and such agreement is subject to this duty of the commission. Any of the parties to such agreement or any public safety employee or transit employee covered by the agreement may come before the commission, as provided in s. 111.07, and ask the performance of this duty.

111.70 Cross-reference Cross-reference: See also ch. ERC 15, Wis. adm. code.

111.70(3) (3) Prohibited practices and their prevention.

111.70(3)(a) (a) It is a prohibited practice for a municipal employer individually or in concert with others:

111.70(3)(a)1. 1. To interfere with, restrain or coerce municipal employees in the exercise of their rights guaranteed in sub. (2).

111.70(3)(a)2. 2. To initiate, create, dominate or interfere with the formation or administration of any labor organization or contribute financial support to it, but the municipal employer is not prohibited from reimbursing its employees at their prevailing wage rate for the time spent conferring with the employees, officers or agents.

111.70(3)(a)3. 3. To encourage or discourage a membership in any labor organization by discrimination in regard to hiring, tenure, or other terms or conditions of employment; but the prohibition shall not apply to a fair-share agreement that covers public safety employees or transit employees.

111.70(3)(a)4. 4. To refuse to bargain collectively with a representative of a majority of its employees in an appropriate collective bargaining unit. Such refusal includes action by the employer to issue or seek to obtain contracts, including those provided for by statute, with individuals in the collective bargaining unit while collective bargaining, mediation, or fact-finding concerning the terms and conditions of a new collective bargaining agreement is in progress, unless such individual contracts contain express language providing that the contract is subject to amendment by a subsequent collective bargaining agreement. Where the employer has a good faith doubt as to whether a labor organization claiming the support of a majority of its employees in an appropriate bargaining unit does in fact have that support, it may file with the commission a petition requesting an election to that claim. An employer shall not be deemed to have refused to bargain until an election has been held and the results thereof certified to the employer by the commission. The violation shall include, though not be limited thereby, to the refusal to execute a collective bargaining agreement previously agreed upon.

111.70(3)(a)5. 5. To violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting public safety employees or transit employees, including an agreement to arbitrate questions arising as to the meaning or application of the terms of a collective bargaining agreement or to accept the terms of such arbitration award, where previously the parties have agreed to accept such award as final and binding upon them or to violate any collective bargaining agreement affecting general municipal employees, that was previously agreed upon by the parties with respect to wages.

111.70(3)(a)6. 6. To deduct labor organization dues from the earnings of a public safety employee or a transit employee, unless the municipal employer has been presented with an individual order therefor, signed by the employee personally, and terminable by at least the end of any year of its life or earlier by the public safety employee or transit employee giving at least 30 days’ written notice of such termination to the municipal employer and to the representative organization, except when a fair-share agreement is in effect.

111.70(3)(a)7m. 7m. To refuse or otherwise fail to implement an arbitration decision lawfully made under sub. (4) (cg).

111.70(3)(a)8. 8. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any grievance arbitration agreement in the expired collective bargaining agreement.

111.70(3)(a)9. 9. If the collective bargaining unit contains a public safety employee or transit employee, after a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any fair-share agreement in the expired collective bargaining agreement.

111.70(3)(b) (b) It is a prohibited practice for a municipal employee, individually or in concert with others:

111.70(3)(b)1. 1. To coerce or intimidate a municipal employee in the enjoyment of the employee’s legal rights, including those guaranteed in sub. (2).

111.70(3)(b)2. 2. To coerce, intimidate or induce any officer or agent of a municipal employer to interfere with any of its employees in the enjoyment of their legal rights, including those guaranteed in sub. (2), or to engage in any practice with regard to its employees which would constitute a prohibited practice if undertaken by the officer or agent on the officer’s or agent’s own initiative.

111.70(3)(b)3. 3. To refuse to bargain collectively with the duly authorized officer or agent of a municipal employer, provided it is the recognized or certified exclusive collective bargaining representative of employees in an appropriate collective bargaining unit. Such refusal to bargain shall include, but not be limited to, the refusal to execute a collective bargaining agreement previously agreed upon.

111.70(3)(b)4. 4. To violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employees, including an agreement to arbitrate questions arising as to the meaning or application of the terms of a collective bargaining agreement or to accept the terms of such arbitration award, where previously the parties have agreed to accept such awards as final and binding upon them.

111.70(3)(b)5. 5. To coerce or intimidate an independent contractor, supervisor, confidential, managerial or executive employee, officer or agent of the municipal employer, to induce the person to become a member of the labor organization of which employees are members.

111.70(3)(b)6m. 6m. To refuse or otherwise fail to implement an arbitration decision lawfully made under sub. (4) (cg).

111.70(3)(b)7. 7. After a collective bargaining agreement expires and before another collective bargaining agreement takes effect, to fail to follow any grievance arbitration agreement in the expired collective bargaining agreement.

111.70(3)(c) (c) It is a prohibited practice for any person to do or cause to be done on behalf of or in the interest of municipal employers or municipal employees, or in connection with or to influence the outcome of any controversy as to employment relations, any act prohibited by par. (a) or (b).

111.70(3)(d) (d) The duty to bargain does not compel either party to agree to a proposal or require the making of a concession.

111.70 Cross-reference Cross-reference: See also ch. ERC 12, Wis. adm. code.

111.70(3g) (3g) Wage deduction prohibition. A municipal employer may not deduct labor organization dues from the earnings of a general municipal employee or supervisor.

111.70(4) (4) Powers of the commission. The commission shall conduct any election under this subsection by secret ballot and shall adhere to the following provisions relating to bargaining in municipal employment in addition to other powers and duties provided in this subchapter:

111.70(4)(a) (a) Prevention of prohibited practices. Section 111.07 shall govern procedure in all cases involving prohibited practices under this subchapter except that wherever the term “unfair labor practices” appears in s. 111.07 the term “prohibited practices” shall be substituted.

111.70(4)(b) (b) Failure to bargain. Whenever a dispute arises between a municipal employer and a union of its employees concerning the duty to bargain on any subject, the dispute shall be resolved by the commission on petition for a declaratory ruling. The decision of the commission shall be issued within 15 days of submission and shall have the effect of an order issued under s. 111.07. The filing of a petition under this paragraph shall not prevent the inclusion of the same allegations in a complaint involving prohibited practices in which it is alleged that the failure to bargain on the subjects of the declaratory ruling is part of a series of acts or pattern of conduct prohibited by this subchapter.

111.70 Cross-reference Cross-reference: See also chs. ERC 18 and 19, Wis. adm. code.

111.70(4)(bm) (bm) Transit employee determination. The commission shall determine that any municipal employee is a transit employee if the commission determines that the municipal employer who employs the municipal employee would lose federal funding under 49 USC 5333 (b) if the municipal employee is not a transit employee.

111.70(4)(bn) (bn) Public safety employee determination regarding county jailers.

111.70(4)(bn)1. 1. Except as provided under subd. 2., a county jailer, as defined in s. 40.02 (48) (b) 5., is a general municipal employee.

111.70(4)(bn)2. 2. A county that treats a county jailer as a public safety employee on January 1, 2024, shall continue to treat any person it employs as a county jailer as a public safety employee except that, if the county raises a question concerning the appropriateness of including county jailers in a collective bargaining unit that includes public safety employees, no person it employs as a county jailer may be treated as a public safety employee.

111.70(4)(c) (c) Methods for peaceful settlement of disputes; public safety employees.

111.70(4)(c)1. 1. ‘Mediation.’ The commission may function as a mediator in labor disputes involving a collective bargaining unit containing a public safety employee. Such mediation may be carried on by a person designated to act by the commission upon request of one or both of the parties or upon initiation of the commission. The function of the mediator is to encourage voluntary settlement by the parties but no mediator has the power of compulsion.

111.70 Cross-reference Cross-reference: See also ch. ERC 13, Wis. adm. code.

111.70(4)(c)2. 2. ‘Arbitration.’ Parties to a dispute pertaining to the meaning or application of the terms of a written collective bargaining agreement involving a collective bargaining unit containing a public safety employee may agree in writing to have the commission or any other appropriate agency serve as arbitrator or may designate any other competent, impartial and disinterested person to so serve.

111.70 Cross-reference Cross-reference: See also ch. ERC 16, Wis. adm. code.

111.70(4)(c)3. 3. ‘Fact-finding.’ Unless s. 111.77 applies, if a dispute involving a collective bargaining unit containing a public safety employee has not been settled after a reasonable period of negotiation and after the settlement procedures, if any, established by the parties have been exhausted, and the parties are deadlocked with respect to any dispute between them arising in the collective bargaining process, either party, or the parties jointly, may petition the commission, in writing, to initiate fact-finding, and to make recommendations to resolve the deadlock, as follows:

111.70(4)(c)3.a. a. Upon receipt of the petition to initiate fact-finding, the commission shall make an investigation with or without a formal hearing, to determine whether a deadlock in fact exists. After its investigation the commission shall certify the results thereof. If the commission decides that fact-finding should be initiated, it shall appoint a qualified, disinterested person or 3-member panel, when jointly requested by the parties, to function as a fact finder.

111.70(4)(c)3.b. b. The fact finder appointed under subd. 3. a. may establish dates and place of hearings which shall be where feasible, and shall conduct the hearings pursuant to rules established by the commission. Upon request, the commission shall issue subpoenas for hearings conducted by the fact finder. The fact finder may administer oaths. Upon completion of the hearing, the fact finder shall make written findings of fact and recommendations for solution of the dispute and shall cause the same to be served on the parties and the commission. Cost of fact-finding proceedings shall be divided equally between the parties. At the time the fact finder submits a statement of his or her costs to the parties, the fact finder shall submit a copy of the statement to the commission at its Madison office.

111.70(4)(c)3.c. c. Nothing in this subdivision prohibits any fact finder appointed under subd. 3. a. from endeavoring to mediate the dispute, in which the fact finder is involved, at any time prior to the issuance of the fact finder’s recommendations.

111.70(4)(c)3.d. d. Within 30 days of the receipt of the fact finder’s recommendations under subd. 3. b., or within the time mutually agreed upon by the parties, each party shall give notice to the other party, in writing as to its acceptance or rejection, in whole or in part, of the fact finder’s recommendations and transmit a copy of the notice to the commission at its Madison office.

111.70 Cross-reference Cross-reference: See also chs. ERC 14 and 40, Wis. adm. code.

111.70(4)(cg) (cg) Methods for peaceful settlement of disputes; transit employees.

111.70(4)(cg)1. 1. ‘Notice of commencement of contract negotiations.’ To advise the commission of the commencement of contract negotiations involving a collective bargaining unit containing transit employees, whenever either party requests the other to reopen negotiations under a binding collective bargaining agreement, or the parties otherwise commence negotiations if no collective bargaining agreement exists, the party requesting negotiations shall immediately notify the commission in writing. Upon failure of the requesting party to provide notice, the other party may provide notice to the commission. The notice shall specify the expiration date of the existing collective bargaining agreement, if any, and shall provide any additional information the commission may require on a form provided by the commission.

111.70(4)(cg)2. 2. ‘Presentation of initial proposals; open meetings.’ The meetings between parties to a collective bargaining agreement or proposed collective bargaining agreement under this subchapter that involve a collective bargaining unit containing a transit employee and that are held to present initial bargaining proposals, along with supporting rationale, are open to the public. Each party shall submit its initial bargaining proposals to the other party in writing. Failure to comply with this subdivision does not invalidate a collective bargaining agreement under this subchapter.

111.70(4)(cg)3. 3. ‘Mediation.’ The commission or its designee shall function as mediator in labor disputes involving transit employees upon request of one or both of the parties, or upon initiation of the commission. The function of the mediator is to encourage voluntary settlement by the parties. No mediator has the power of compulsion.