Behind the Economic BRB Facade
There are significant changes in the Budget Repair Bill (BRB) that go beyond what has been discussed with regard to health insurance and retirement contributions. These changes go to the very heart of the status and employment rights of public employees in the state and have far reaching consequences for local government employers.
Here are some thoughts for local government employers to consider as they digest the changes in the Bill:
➢ Conditions Of Employment And The Death Of The Just Cause Standard. Under current law, municipal employers must bargain over mandatory subjects such as wages, hours and other terms and conditions of employment. Under the BRB, the only subject left to bargain over is base wages. In fact, the Bill makes it a prohibited subject of bargaining for a municipal employer to bargain any factor or condition of employment except total base wages (this excludes all other compensation such as overtime, pay schedules and supplemental compensation). The limitation on bargaining opens the door to local government employers to treat all employees (with the exception of those excepted from the BRB) as at-will. The just cause standard for discipline and accompanying concepts of progressive discipline will be eliminated from collective bargaining agreements. Local governments will have the freedom to discipline and terminate employees for any reason or no reason at all provided that the discipline does not violate any other laws (provided local ordinances and personnel policies do not otherwise impose a just cause standard or impose progressive discipline). Local governments will be also free to unilaterally impose conditions of employment such as starting time, schedule, hours of work, etc., without the shackles of collective bargaining agreements and without fear of being met with grievances and prohibited practice complaints.
➢ Senior Employees Beware. Most collective bargaining agreements give seniority rights to union employees which forces municipal employers to layoff the least senior employees. Similarly, municipal employers may have to award open positions to the most senior qualified employees. The BRB eliminates the inclusion of seniority provisions in collective bargaining agreements, allowing employers to hire and lay off employees at their discretion.
➢ Privatizing The Public Sector. Many collective bargaining agreements limit the ability of municipal employers to contract out for work that is currently being performed by union employees. Municipal employers will now be able to contract out for work performed by union members without facing a grievance or prohibited practice complaint.
➢ No More Job Auctions. Job bidding is a common feature in collective bargaining agreements. Usually, municipal employers must post a vacant position and allow union employees to bid and fill the position before the employer can fill the position with someone outside of the union. Employers will be able to fill vacant positions at their own discretion without first offering the position to a union employee and without regard to seniority between union members.
➢ More Hours, Less Hours. Unions typically argue that the hours of work in the collective bargaining agreement are guaranteed hours of work. The BRB would allow municipal employers to reduce the hours of work at its discretion. Likewise, employers would have greater freedom to schedule employees for overtime without worrying about having to pay enhanced overtime compensation beyond the time and one-half required under the Fair Standards Labor Act (FLSA). Similarly, call-time and on-call features prevalent in collective bargaining agreements will no longer be negotiated.
➢ More Work Days. Generous paid time off benefits for vacation, sick leave, holidays and personal days are common place in union contracts. Once bargained away, it is very difficult for local government employers to eliminate these benefits. This often results in senior employees accumulating large amounts of paid time off which employees may roll over and ultimately be paid for depending upon the language in a collective bargaining agreement. The Bill provides employers with discretion to reduce and/or eliminate paid time off and potentially avoid paying out paid time off when an employee leaves employment or retires. Employers will need to consult their labor counsel with respect to whether employees will have any argument that they have a vested right to paid time off under any other ordinances or employee policies.
If you have questions concerning the status of the BRB as it moves through the Legislature, please contact the Wisconsin Counties Association at (608) 663-7188 or John Reinemann. If you have questions related to what the BRB means to your Municipality, County or School District please consult with your attorney or contact Andrew T. Phillips or Daniel J. Borowski.