Chapter 111

111.70(4)(jm)13. 13. Subsequent to the filing of a petition before the commission pursuant to subd. 1. and prior to the execution of an agreement pursuant to subd. 9., neither party may unilaterally alter any term of the wages, hours and working conditions of the members of the police department or any other matter subject to arbitration under subd. 4.

111.70 Cross-reference Cross-reference: See also ch. ERC 31, Wis. adm. code.

111.70(4)(L) (L) Strikes prohibited. Nothing contained in this subchapter constitutes a grant of the right to strike by any municipal employee or labor organization, and such strikes are hereby expressly prohibited.

111.70(4)(mb) (mb) Prohibited subjects of bargaining; general municipal employees. The municipal employer is prohibited from bargaining collectively with a collective bargaining unit containing a general municipal employee with respect to any of the following:

111.70(4)(mb)1. 1. Any factor or condition of employment except wages, which includes only total base wages and excludes any other compensation, which includes, but is not limited to, overtime, premium pay, merit pay, performance pay, supplemental compensation, pay schedules, and automatic pay progressions.

111.70(4)(mb)2. 2. Except as provided in s. 66.0506 or 118.245, whichever is applicable, any proposal that does any of the following:

111.70(4)(mb)2.a. a. If there is an increase in the consumer price index change, provides for total base wages for authorized positions in the proposed collective bargaining agreement that exceeds the total base wages for authorized positions 180 days before the expiration of the previous collective bargaining agreement by a greater percentage than the consumer price index change.

111.70(4)(mb)2.b. b. If there is a decrease or no change in the consumer price index change, provides for any change in total base wages for authorized positions in the proposed collective bargaining agreement from the total base wages for authorized positions 180 days before the expiration of the previous collective bargaining agreement.

111.70(4)(mbb) (mbb) Consumer price index change. For purposes of determining compliance with par. (mb), the commission shall provide, upon request, to a municipal employer or to any representative of a collective bargaining unit containing a general municipal employee, the consumer price index change during any 12-month period. The commission may get the information from the department of revenue.

111.70(4)(mc) (mc) Prohibited subjects of bargaining; public safety employees. The municipal employer is prohibited from bargaining collectively with a collective bargaining unit containing a public safety employee with respect to any of the following:

111.70(4)(mc)5. 5. If the collective bargaining unit contains a public safety employee who is initially employed on or after July 1, 2011, the requirement under ss. 40.05 (1) (b), 59.875, and 62.623 that the municipal employer may not pay, on behalf of that public safety employee any employee required contributions or the employee share of required contributions, and the impact of this requirement on the wages, hours, and conditions of employment of that public safety employee. If a public safety employee is initially employed by a municipal employer before July 1, 2011, this subdivision does not apply to that public safety employee if he or she is employed as a public safety employee by a successor municipal employer in the event of a combined department that is created on or after that date.

111.70(4)(mc)6. 6. Except for whether or not to provide health care coverage and the employee premium contribution, all costs and payments associated with health care coverage plans and the design and selection of health care coverage plans by the municipal employer for public safety employees, and the impact of such costs and payments and the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee. For purposes of this subdivision, “design” does not include the decision as to who is covered by a health care coverage plan selected by the municipal employer.

111.70(4)(mc)7. 7. In any municipality with a retirement system established under chapter 396, laws of 1937, any terms of such a retirement system, including, but not limited to, the contribution rates, pension benefit calculation, or factors used to calculate a pension benefit under the system, with any bargaining unit composed of public safety employees. For such a retirement system, the terms of the system, including, but not limited to, the contribution rates, pension benefit calculation, or factors used to calculate a pension benefit under the system for employees who are part of a bargaining unit composed of public safety employees, shall be the same as those in effect on December 30, 2022.

111.70(4)(mc)8. 8. In any municipality with a retirement system established under chapter 201, laws of 1937, any terms of such a retirement system, including, but not limited to, the costs, payments, contribution rates, pension benefit calculation, or design, including all impacts or effects that any changes made to the retirement system might have upon the wages, hours, or conditions of employment, with any bargaining unit composed of public safety employees or any employees treated as public safety employees under par. (bn).

111.70(4)(p) (p) Permissive subjects of collective bargaining; public safety and transit employees. A municipal employer is not required to bargain with public safety employees or transit employees 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 public safety employees or of the transit employees in a collective bargaining unit.

111.70(5) (5) Procedures. Municipal employers, jointly or individually, may employ a qualified person to discharge the duties of labor negotiator and to represent such municipal employers, jointly or individually, in conferences and negotiations under this section. In cities of the 1st, 2nd or 3rd class any member of the city council, including the mayor, who resigns therefrom may, during the term for which the member is elected, be eligible to the position of labor negotiator under this subsection, which position during said term has been created by or the selection to which is vested in such city council, and s. 66.0501 (2) shall be deemed inapplicable thereto.

111.70(7m) (7m) Injunctive relief; penalties; civil liability.

111.70(7m)(a) (a) Injunction; prohibited strike. At any time after the commencement of a strike which is prohibited under sub. (4) (L), the municipal employer or any citizen directly affected by such strike may petition the circuit court for an injunction to immediately terminate the strike. If the court determines that the strike is prohibited under sub. (4) (L), it shall issue an order immediately enjoining the strike, and in addition shall impose the penalties provided in par. (c).

111.70(7m)(c) (c) Penalties.

111.70(7m)(c)1. 1. ‘Labor organizations.’

111.70(7m)(c)1.a. a. Any labor organization that represents public safety employees or transit employees which violates sub. (4) (L) may not collect any dues under a collective bargaining agreement or under a fair-share agreement from any employee covered by either agreement for a period of one year. At the end of the period of suspension, any such agreement shall be reinstated unless the labor organization is no longer authorized to represent the public safety employees or transit employees covered by the collective bargaining agreement or fair-share agreement or the agreement is no longer in effect.

111.70(7m)(c)1.b. b. Any labor organization which violates sub. (4) (L) after an injunction has been issued shall be required to forfeit $2 per member per day, but not more than $10,000 per day. Each day of continued violation constitutes a separate offense.

111.70(7m)(c)2. 2. ‘Individuals.’ Any individual who violates sub. (4) (L) after an injunction against a strike has been issued shall be fined $10. Each day of continued violation constitutes a separate offense. After the injunction has been issued, any municipal employee who is absent from work because of purported illness is presumed to be on strike unless the illness is verified by a written report from a physician to the municipal employer. The court shall order that any fine imposed under this subdivision be paid by means of a salary deduction at a rate to be determined by the court.

111.70(7m)(c)4. 4. ‘Contempt of court.’ The penalties provided in this paragraph do not preclude the imposition by the court of any penalty for contempt provided by law.

111.70(7m)(d) (d) Compensation forfeited. No municipal employee may be paid wages or salaries by the municipal employer for the period during which he or she engages in any strike.

111.70(8) (8) Supervisory units.

111.70(8)(a) (a) This section, except sub. (4) (cg) and (cm), applies to law enforcement supervisors employed by a 1st class city. This section, except sub. (4) (cm) and (jm), applies to law enforcement supervisors employed by a county having a population of 750,000 or more. For purposes of such application, the terms “municipal employee” and “public safety employee” include such a supervisor.

111.70(8)(b) (b) This subchapter does not preclude law enforcement supervisors employed by municipal employers other than 1st class cities and counties having a population of 750,000 or more or fire fighting supervisors from organizing in separate units of supervisors for the purpose of negotiating with their municipal employers.

111.70 Cross-reference Cross-reference: See also ch. ERC 11, Wis. adm. code.

111.70(8)(c) (c) The commission shall by rule establish procedures for certification of such units of supervisors and the levels of supervisors to be included in the units. Supervisors may not be members of the same bargaining unit of which their subordinates are members. The commission may require that the representative of any supervisory unit shall be an organization that is a separate local entity from the representative of the nonsupervisory municipal employees, but such requirement does not prevent affiliation by a supervisory representative with the same parent state or national organization as the nonsupervisory municipal employee representative.

111.70(9) (9) Powers of chief of police. Nothing in s. 62.50 grants the chief of police in cities of the 1st class any authority which diminishes or in any other manner affects the rights of municipal employees who are members of a police department employed by a city of the 1st class under this section or under any collective bargaining agreement which is entered into between a city of the 1st class and a labor organization representing the members of its police department.

111.70 History History: 1971 c. 124, 246, 247, 307, 336; 1973 c. 64, 65; 1977 c. 178, 186, 272, 442, 449; 1979 c. 32 s. 92 (15); 1981 c. 20, 112, 187; 1983 a. 189, 192; 1985 a. 29; 1985 a. 182 s. 57; 1985 a. 318; 1987 a. 153, 399; 1991 a. 136; 1993 a. 16, 429, 492; 1995 a. 27, 225, 289; 1997 a. 27, 237; 1999 a. 9, 65; 1999 a. 150 s. 672; 2001 a. 16; 2005 a. 253; 2007 a. 20; 2009 a. 15, 21, 28, 34, 60, 402; 2011 a. 10, 32; 2013 a. 14, 20; 2013 a. 166 ss. 30, 31, 77; 2015 a. 55; 2017 a. 207 s. 5; 2017 a. 364 s. 49; 2017 a. 365; 2023 a. 4, 12, 34.

111.70 Note NOTE: 2011 Wis. Act 10, made significant changes to this section, effective July 1, 2011.

111.70 Annotation A collective bargaining provision that releases only teacher members of a majority union from in-service days to attend, with pay, a state convention of the union is discriminatory, but the school board can deny compensation to minority union members who attend a regional convention of their union, if the board does so in good faith. Ashland Board of Education v. WERC, 52 Wis. 2d 625, 191 N.W.2d 242 (1971).

111.70 Annotation A school district may discharge teachers who engage in a strike. There is a meaningful distinction between governmental employees and nongovernmental employees. The strike ban imposed on public employees is based upon a valid classification and the legislation creating it is not an unconstitutional denial of equal protection. Hortonville Education Ass’n v. Hortonville Joint School District No. 1, 66 Wis. 2d 469, 225 N.W.2d 658 (1975).

111.70 Annotation Reversed on other grounds. 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976).

111.70 Annotation A letter sent to city employees by the mayor and council members during a representation election campaign that coercively and erroneously warned employees that all fringe benefits would cease if union representation were accepted was a prohibited labor practice under sub. (3) (a) 1.; “benign generalities” contained elsewhere in the letter were insufficient to overcome its specific threats. A second letter, which predicted a relative loss in benefits and freedom of action, cited the cost of union dues, and emphasized wage rates and fringe benefits, also constituted a prohibited labor practice. An employer may not camouflage threats under the guise of predictions, and the statements in context were intended as threats and accepted as such by the employees. WERC v. City of Evansville, 69 Wis. 2d 140, 230 N.W.2d 688 (1975).

111.70 Annotation Although employees seeking to enforce the terms of a collective bargaining agreement are bound by the remedial provisions therein, the plaintiffs were not required to exhaust contractual remedies prior to filing their action in court. Browne v. Milwaukee Board of School Directors, 69 Wis. 2d 169, 230 N.W.2d 704 (1975).

111.70 Annotation The board of education of a city school district was a proper party and had the capacity to maintain an action to enjoin a strike by district teachers. Wisconsin Rapids Joint School District No. 1 v. Wisconsin Rapids Education Ass’n, 70 Wis. 2d 292, 234 N.W.2d 289 (1975).

111.70 Annotation The fine under sub. (7) [now sub. (7m) (c) 2.] applicable to employees violating an injunction against a strike by municipal employees, to be paid by salary deduction, is inapplicable to a labor association composed of such employees. Kenosha Unified School District No. 1 v. Kenosha Education Ass’n, 70 Wis. 2d 325, 234 N.W.2d 311 (1975).

111.70 Annotation Managerial employees are those who participate in the formulation, determination, and implementation of management policy or possess effective authority to commit the employer’s resources. City of Milwaukee v. WERC, 71 Wis. 2d 709, 239 N.W.2d 63 (1976).

111.70 Annotation A Wisconsin Employment Relations Commission order under sub. (4) (d) 2. a. determining the voting unit and directing that an election be held was not reviewable under ch. 227. City of West Allis v. WERC, 72 Wis. 2d 268, 240 N.W.2d 416 (1976).

111.70 Annotation Mandatory subjects of collective bargaining under sub. (1) (d) [now sub. (1) (a)] between teachers’ associations and school boards are: 1) those primarily related to wages, hours, and conditions of employment; and 2) the impact of the establishment of educational policies affecting wages, hours, and conditions of employment. Beloit Education Ass’n v. WERC, 73 Wis. 2d 43, 242 N.W.2d 231 (1976).

111.70 Annotation A grievance was arbitrable under the “discharge and nonrenewal” clause of a bargaining agreement when the contract offered by the board was signed by the teacher after deleting the title “probationary contract” and the board did not accept this counteroffer or offer the teacher a second contract. Joint School District No. 10 v. Jefferson Education Ass’n, 78 Wis. 2d 94, 253 N.W.2d 536 (1977).

111.70 Annotation Collective bargaining is required regarding decisions primarily related to wages, hours, and conditions of employment but is not required for decisions primarily related to the formulation or management of public policy. Unified School District No. 1 v. WERC, 81 Wis. 2d 89, 259 N.W.2d 724 (1977).

111.70 Annotation A labor contract under this section may limit the scope of the police chief’s discretion under s. 62.13 (4) (a). Glendale Professional Policemen’s Ass’n v. City of Glendale, 83 Wis. 2d 90, 264 N.W.2d 594 (1978).

111.70 Annotation In applying the doctrine of primary jurisdiction, the trial court did not abuse its discretion by transferring a case involving a prohibited practice under sub. (3) (a) 1. to the Wisconsin Employment Relations Commission after all constitutional issues had been resolved. Browne v. Milwaukee Board of School Directors, 83 Wis. 2d 316, 265 N.W.2d 559 (1978).

111.70 Annotation Under sub. (3) (a) 6., a municipal employer may deduct union dues from the paycheck of a minority union member. Milwaukee Federation of Teachers, Local No. 252 v. WERC, 83 Wis. 2d 588, 266 N.W.2d 314 (1978).

111.70 Annotation The layoff of public employees due to budget cuts was not a mandatory subject of bargaining. City of Brookfield v. WERC, 87 Wis. 2d 819, 275 N.W.2d 723 (1979).

111.70 Annotation Under sub. (3) (a) 6., the fair-share provision of a successor collective bargaining agreement was applied retroactively to a hiatus between agreements. Berns v. WERC, 94 Wis. 2d 214, 287 N.W.2d 829 (Ct. App. 1979).

111.70 Annotation Affirmed. 99 Wis. 2d 252, 299 N.W.2d 248 (1980).

111.70 Annotation Arbitrators appointed pursuant to the grievance procedure contained in a collective bargaining agreement properly held a de novo factual hearing to determine whether just cause existed for the school board to terminate a teacher. Fortney v. School District, 108 Wis. 2d 167, 321 N.W.2d 255 (1982).

111.70 Annotation Mediation-arbitration under sub. (4) (cm) is a constitutional delegation of legislative authority. Milwaukee County v. Milwaukee District Council 48, 109 Wis. 2d 14, 325 N.W.2d 350 (Ct. App. 1982).

111.70 Annotation A contract provision stating that a teacher speaking or writing as a citizen shall be free from administrative and school censorship and discipline was primarily related to employment conditions and was a mandatory subject of bargaining. Blackhawk Teachers’ Federation v. WERC, 109 Wis. 2d 415, 326 N.W.2d 247 (Ct. App. 1982).

111.70 Annotation Sub. (4) (jm) is constitutional. Brennan v. WERC, 112 Wis. 2d 38, 331 N.W.2d 667 (Ct. App. 1983).

111.70 Annotation The Wisconsin Employment Relations Commission did not abuse its discretion by finding no community of interest between professional teachers and student interns. Discussing unit fragmentation under sub. (4) (d) 2. a. Arrowhead United Teachers Organization v. WERC, 116 Wis. 2d 580, 342 N.W.2d 709 (1984).

111.70 Annotation A school board’s anti-nepotism policy was a mandatory subject of bargaining. School District v. WERC, 121 Wis. 2d 126, 358 N.W.2d 285 (1984).

111.70 Annotation Because school supervisors are not subject to this section, a fair-share deduction from the paychecks of nonunion supervisors was not authorized. Perry v. Milwaukee Board of School Directors, 131 Wis. 2d 380, 388 N.W.2d 638 (Ct. App. 1986).

111.70 Annotation A provision in a union’s constitution requiring a local to forfeit its treasury upon a vote of disaffiliation was void as against public policy. Wells v. Waukesha Marine Bank, 135 Wis. 2d 519, 401 N.W.2d 18 (Ct. App. 1986).

111.70 Annotation The three-year limitation under former sub. (3) (a) 4., 1987 stats., on the term of agreements does not limit the scope of deferred compensation proposals. City of Brookfield v. WERC, 153 Wis. 2d 238, 450 N.W.2d 495 (Ct. App. 1989).

111.70 Annotation The interest arbitration provisions in former sub. (4) (cm) 6., 1989 stats., apply during the negotiation of wages, hours, and conditions of employment for positions newly accreted to a bargaining unit. Wausau School District Maintenance Union v. WERC, 157 Wis. 2d 315, 459 N.W.2d 861 (Ct. App 1990).

111.70 Annotation A county’s decision to sell a health care center was not a mandatory subject of bargaining. Local 2236, AFSCME, AFL-CIO v. WERC, 157 Wis. 2d 708, 461 N.W.2d 286 (Ct. App. 1990).

111.70 Annotation Whether a subject is a mandatory, permissive, or prohibited subject of bargaining, including finding a particular contract provision constitutionally prohibited, is for the determination of the Wisconsin Employment Relations Commission. Milwaukee Board of School Directors v. WERC, 163 Wis. 2d 739, 472 N.W.2d 553 (Ct. App. 1991).

111.70 Annotation “Arbitration decision” in former sub. (3) (a) 7., 1989 stats., encompasses all items incorporated into a resultant collective bargaining agreement, including those not in dispute. The failure to implement an “arbitration decision” arises when an employer fails to incorporate specific terms of the award into the resultant agreement or to give retroactive effect to economic items in a retroactive contract. Sauk County v. WERC, 165 Wis. 2d 406, 477 N.W.2d 267 (1991).

111.70 Annotation Whether payments under an arbitration award are due from the entry of the award depends on the overall circumstances. Kenosha Fire Fighters, Local Union No. 414 v. City of Kenosha, 168 Wis. 2d 658, 484 N.W.2d 152 (1992).

111.70 Annotation A sheriff’s assignment of a deputy to an undercover drug investigation falls within the constitutionally protected powers of the sheriff and could not be limited by a collective bargaining agreement. Manitowoc County v. Local 986B, 168 Wis. 2d 819, 484 N.W.2d 534 (1992). See also Washington County v. Deputy Sheriff’s Ass’n, 192 Wis. 2d 728, 531 N.W.2d 468 (Ct. App. 1995).

111.70 Annotation The constitutional requirements of a union’s collection of agency fees under a fair-share agreement include: 1) an adequate explanation of the basis of the fee; 2) a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker; and 3) an escrow for the amounts reasonably in dispute. Browne v. WERC, 169 Wis. 2d 79, 485 N.W.2d 376 (1992).

111.70 Annotation To be chargeable to nonunion, public sector employees under a fair share agreement, union activities must: 1) be germane to collective bargaining activity; 2) be justified by the government’s vital policy interest in labor peace and avoiding “free riders;” and 3) not significantly add to the burdening of free speech that is inherent in an agency or union shop. Browne v. WERC, 169 Wis. 2d 79, 485 N.W.2d 376 (1992).

111.70 Annotation No bright-line test exists for determining whether a register in probate, probate register, or probate commissioner is subject to this section and eligible for union membership. Factors to be considered include budget and administrative duties assigned to that person. Manitowoc County v. Local 986A, 170 Wis. 2d 692, 489 N.W.2d 722 (Ct. App. 1992). See also Iowa County v. Iowa County Courthouse, 166 Wis. 2d 614, 480 N.W.2d 499 (1992).

111.70 Annotation When a collective bargaining agreement could cover a dispute and there is no provision that specifically excludes the dispute, the agreement’s grievance and arbitration provisions apply. Racine Education Ass’n v. Racine Unified School District, 176 Wis. 2d 273, 500 N.W.2d 379 (Ct. App. 1993).

111.70 Annotation A union request that the county make pension contributions for jailers equal in amount to those for its protective occupation participants (POPS) under former s. 40.02 (48), 1991 stats., did not require reclassification of the jailers as POPS, was allowed under s. 40.05 (2) (g) 1., and was a mandatory subject of bargaining under sub. (1) (a). County of La Crosse v. WERC, 180 Wis. 2d 100, 508 N.W.2d 9 (1993).

111.70 Annotation A school board’s unilateral change in rules governing the use of sick leave after the expiration of a collective bargaining agreement changed the status quo and was impermissible. A “zipper” clause in the expired agreement providing that the agreement superseded all previous agreements did not prevent the examination of past practice in determining the status quo. St. Croix Falls School District v. WERC, 186 Wis. 2d 671, 522 N.W.2d 507 (Ct. App. 1994).

111.70 Annotation The status quo to be maintained during negotiations is dynamic. When history shows changes in compensation upon employee attainment of specified experience levels, the employer is required to continue the practice during negotiations. Jefferson County v. WERC, 187 Wis. 2d 646, 523 N.W.2d 172 (Ct. App. 1994).

111.70 Annotation A proposal to make the suspension of a police officer subject to arbitration, rather than review under s. 62.13, is not a mandatory subject of bargaining and is in irreconcilable conflict with s. 62.13. City of Janesville v. WERC, 193 Wis. 2d 492, 535 N.W.2d 34 (Ct. App. 1995).

111.70 Annotation The sheriff’s power to appoint, dismiss, or demote a deputy is not constitutionally protected and may be limited by a collective bargaining agreement not in conflict with the statutes. Heitkemper v. Wirsing, 194 Wis. 2d 182, 533 N.W.2d 770 (1995). See also Brown County Sheriff’s Department v. Brown County Sheriff’s Department Non-Supervisory Employees Ass’n, 194 Wis. 2d 266, 533 N.W.2d 766 (1995).

111.70 Annotation Sub. (4) (d) deals with the rights of an employee or minority group of employees to participate in collective bargaining, and not with the rights of an employee to proceed directly against an employer for a breach of the collective bargaining agreement. Gray v. Marinette County, 200 Wis. 2d 426, 546 N.W.2d 553 (Ct. App. 1996), 95-1906.

111.70 Annotation A school board’s implementation of year-round school programs was primarily related to educational policy, not hours and wages, and was not a mandatory subject of bargaining. Racine Education Ass’n v. WERC, 214 Wis. 2d 353, 571 N.W.2d 887 (Ct. App. 1997), 97-0306.

111.70 Annotation The negotiation for wages, hours, and terms of employment for a position created during the term of a collective bargaining agreement, which will apply to the new position, is a new agreement for that position within former sub. (4) (cm) 6., 1995 stats., subject to arbitration. Local 60 v. WERC, 217 Wis. 2d 602, 579 N.W.2d 59 (Ct. App. 1997), 97-1877.

111.70 Annotation If an employee agrees to waive any federal statutory right, that is an agreement between the employee and the employer and is not a collective bargaining agreement. As such, it is not a violation of a collective bargaining agreement for an employee to refuse to sign such a waiver in a settlement, and the Wisconsin Employment Relations Commission cannot order the employee to sign the agreement. Thomsen v. WERC, 2000 WI App 90, 234 Wis. 2d 494, 610 N.W.2d 155, 99-1730.

111.70 Annotation The existence of a qualified economic offer (QEO) under sub. (1) (nc) is fundamentally distinct from the QEO’s implementation and numerical calculations. A QEO is made when an employer submits an offer to maintain fringe benefits and minimum salary increases consistent with sub. (1) (nc). Once a QEO is made, any issues concerning the calculation of fringe benefit costs and salaries may still be addressed but will not render a QEO invalid. Racine Education Ass’n v. WERC, 2000 WI App 149, 238 Wis. 2d 33, 616 N.W.2d 504, 99-0765.

111.70 Annotation It was reasonable to conclude that an employee of a school district with access to computer files containing information regarding collective bargaining but who had never been directed to open or read those files and who was trusted not to read those files was not a confidential employee under sub. (1) (i). Mineral Point Unified School District v. WERC, 2002 WI App 48, 251 Wis. 2d 325, 641 N.W.2d 701, 01-1247.

111.70 Annotation It was reasonable for the Wisconsin Employment Relations Commission to conclude: 1) sub. (4) (d) 2. a. addresses all determinations of appropriate bargaining units and is not limited to the initial certification of a bargaining unit; and 2) if craft employees in an existing craft and non-craft bargaining unit file a severance petition and if the craft employees at issue have never voted among themselves for inclusion in the mixed unit, the craft employees are entitled to a separate vote on the issue. City of Marshfield v. WERC, 2002 WI App 68, 252 Wis. 2d 656, 643 N.W.2d 122, 01-0855.

111.70 Annotation Under the facts of the case, the Wisconsin Employment Relations Commission did not err in ruling that the school board could not bar teachers posting in certain areas of their classrooms signs that stated “Fair Contract NOW!” and “Do the Right Thing!” produced by the teacher’s union in support of its contact negotiations with the school, as such action constituted “lawful concerted activity” within the protection of sub. (2) and not political advocacy. Milwaukee Board of School Directors v. WERC, 2008 WI App 125, 313 Wis. 2d 525, 758 N.W.2d 814, 07-0840.

111.70 Annotation The ban under sub. (4) (mc) 6. on bargaining the “impact of the design and selection of the health care coverage plans on the wages, hours, and conditions of employment of the public safety employee” applies to both “indirect” consequences and to the “direct” impact of the plans on employee’s finances, such as: 1) the deductible amount; 2) maximum-out-of-pocket expense; 3) co-pays; and 4) prescription costs. Milwaukee Police Ass’n v. City of Milwaukee, 2013 WI App 70, 348 Wis. 2d 168, 833 N.W.2d 179, 12-1928.

111.70 Annotation The change in state law by 2011 Wis. Act 10 had no effect on the existing collective bargaining agreement in this case or the arbitrator’s ability to order a remedy for a violation committed during the agreement’s term. The plain language of Act 10 delayed its effectiveness with respect to individual school employees and school districts until after the expiration of their existing collective bargaining agreements, and the state constitution prohibits state laws that substantially impair existing contracts. School District v. Kewaskum Education Ass’n, 2013 WI App 136, 351 Wis. 2d 527, 840 N.W.2d 719, 13-0220.

111.70 Annotation Sub. (4) (mc) 6. does not prohibit bargaining for public safety employees on the subject of the allocation of responsibility between employees and employers to pay deductibles required under a health care coverage plan. Wisconsin Professional Police Ass’n v. WERC, 2013 WI App 145, 352 Wis. 2d 218, 841 N.W.2d 839, 12-2701.

111.70 Annotation The initial applicability provisions of 2011 Wis. Acts 10 and 32 applicable to the treatments of this section by those acts contain no clear expression of the intention to retroactively upend the settled expectations of collective bargaining agreements (CBAs) that were negotiated and agreed upon months before those acts took effect, but which had not taken effect. To the contrary, the acts disclaim any such intention by exempting employees “covered by” already-existing CBAs until after those CBAs end or are modified. Local 321, International Ass’n of Fire Fighters v. City of Racine, 2013 WI App 149, 352 Wis. 2d 163, 841 N.W.2d 830, 13-0290.

111.70 Annotation Subs. (1) (f), (3g), (4) (d) 3., and (4) (mb) and the third sentence of sub. (2) do not violate the plaintiffs’ associational rights. No matter the limitations or burdens a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The restrictions attached to the statutory scheme of collective bargaining are irrelevant in regards to freedom of association because no condition is being placed on the decision to participate. If a general employee participates in collective bargaining under 2011 Wis. Act 10’s statutory framework, that general employee has not relinquished a constitutional right. They have only acquired a benefit to which they were never constitutionally entitled. Madison Teachers, Inc. v. Walker, 2014 WI 99, 358 Wis. 2d 1, 851 N.W.2d 337, 12-2067.

111.70 Annotation When the Wisconsin Employment Relations Commission (WERC) had received detailed and specific complaints of past coercion in other certification elections, a WERC employee lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighed the public interest in favor of openness of public records. The public interest in certification elections that are free from intimidation and coercion is evidenced by the requirement that those elections be conducted by secret ballot and free from prohibited practices. The public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in this case. Madison Teachers, Inc. v. Scott, 2018 WI 11, 379 Wis. 2d 439, 906 N.W.2d 436, 16-2214.