What Does The Budget Repair Bill Do To Your Current Negotiations?
Many counties, school districts, cities, villages and towns across the State have been working diligently for some time trying to reach an agreement with their represented employees for a successor collective bargaining agreement. Some local governments have already ratified a new collective bargaining agreement. Under the BRB, it is clear that these agreements remain intact until expiration. Some remain far apart in terms of the respective proposals and interest arbitration seems inevitable. In those cases, the employer can withdraw from negotiations and the employment relationship is governed by the BRB’s new rules. There are many public employers, however, that fall between these two extremes. For those employers in this last category, it is important to weigh the obligation to continue negotiations in good faith against the possibility that the BRB’s flexibility in setting the economic terms of the employment relationship will be necessary to offset looming budget cuts.
Under current law, local governments have a duty to collectively bargain with municipal employees in a collective bargaining unit with regard to wages, hours and terms and conditions of employment. The term “collective bargaining” is defined as the mutual obligation of the municipal employer and the representative of the municipal employees “to meet and confer, at reasonable times, in good faith, with the intention of reaching an agreement.” See Wis. Stat. § 111.70(1)(a). The duty to bargain, however, does not compel either party to agree to a proposal or require the making of a concession. Id.
The requirement to bargain goes beyond a statutory suggestion. Specifically, it is a prohibited practice for a municipal employer to refuse to collectively bargain. See Wis. Stat. § 111.70(3)(a)4. To prevail on a prohibited practice complaint alleging a refusal to bargain, the complainant would have to establish that the totality of the conduct of the employer amounted to subjective bad faith. See Neenah Joint School District, Dec. No. 32773-C (WERC 10/10); see also Edgerton Fire Protection District, Dec. No. 30686-B (WERC, 2/05), at 25. The WERC has made it clear that there is no bright-line rule for determining if there has been a refusal to bargain. Rather, it is an incredibly subjective analysis in determining whether a party has been willing to meet at “reasonable times” and with the requisite good intentions. Id. As the WERC noted in Edgerton, supra, “‘bad faith bargaining’ is a fact-intensive, highly circumstantial claim that is relatively difficult to establish. Typically the evidence reveals a prolonged pattern of … proposals with little or no substantive response and/or a series of unsuccessful attempts to schedule a meeting.” Id. at 26.
As it relates to scheduled bargaining sessions, a union is not likely to prevail on a “refusal to bargain” charge if the employer cancels a scheduled bargaining session in anticipation of the passage of the BRB. In fact, many scheduled bargaining sessions have been mutually cancelled by local governments and union representatives while both sides try to digest the impact of the BRB. Even if a union did file a prohibited practice complaint alleging bad faith bargaining, it would have to demonstrate a prolonged pattern of refusing to bargain through a series of unsuccessful attempts to schedule a meeting. The pattern would likely have to extend for several months, not weeks. Given the streamlined legislative process for the BRB and the desire of legislators in the majority party to pass the bill as quickly as possible, the BRB will likely pass in a matter of weeks, not months. Therefore, it is unlikely there will be sufficient time prior to the passage of the BRB to establish a pattern of delay that would support an allegation of bad faith bargaining.
Of course, the local government could decide to fulfill its obligation to “meet and confer” in good faith with the intention of reaching an agreement. Any bargaining proposal at this juncture could reasonably be limited to the subject of wages. Such a proposal would be offered in good faith with the intention of reaching an agreement—an agreement that recognizes the reality of the new bargaining laws that will soon be in effect. Good faith bargaining does not require that either party agree to a proposal.
Current law does not require that a local government withdraw its previous proposals. Nor does current law require an employer give the union the opportunity to accept offers that were made by the employer in the past. Therefore, each local government will have to decide whether it wants to bargain contracts under current law—which places all matters concerning wages, hours and conditions of employment on the bargaining table—or under the BRB, which limits collective bargaining agreements to the subject of wages. If the local government chooses the latter option and awaits the changes of the BRB in the next few weeks, it can do so without violating its duty to bargain.
Supporting Tentative Agreements
Tentative agreements are not effective until ratified by both sides. Therefore, if the local government or school district board has not ratified the tentative agreement, there is no agreement. However, collective bargaining laws require each bargaining representative to support and recommend approval of a negotiated tentative agreement. While the bargaining representative has an obligation to support the agreement, the approving board should also be made aware of the changes to collective bargaining laws in the BRB so the board may make an informed decision of whether to approve the tentative agreement.
Final Offers Submitted for Interest Arbitration
For local governments who have submitted final offers and are in the middle of the interest arbitration process, the options are more limited. Interest arbitration rules allow a party to withdraw its final offer before the deadline established by the arbitrator to withdraw final offers. If both parties timely withdraw their final offers, the union may strike after giving 10 days’ written advance notice to the municipal employer and the Wisconsin Employment Relations Commission. Unless both parties withdraw their final offers, the final offer of neither party will be deemed withdrawn and the arbitrator will proceed to resolve the dispute by final and binding arbitration.
It is possible that the union will try to accept the local government’s final offer after it refuses to withdraw its own offer. It is unclear whether the statutes allow a party to accept the final offer of the other party after it has been withdrawn. The statutes only contemplate the matter will proceed to final and binding arbitration. However, an arbitrator may be sympathetic to the argument that no further proceedings are necessary if one party is accepting the position of the other party.
The backdrop to the procedural issues facing a local government involved in interest arbitration is that the BRB makes dramatic changes to collective bargaining laws once it becomes effective. If the parties were not at the arbitration stage, the local government would likely wait until the enactment of the BRB so that the only subject it would have to bargain is the subject of wages. In addition, once the budget repair bill becomes law, interest arbitration will no longer exist.
Because of the difficult legal issues that surround the withdrawal of a final offer and termination of the interest arbitration process, we recommend that the local government review all options thoroughly with legal counsel. Frankly, the BRB’s scope was never envisioned under the WERC’s rules and almost every option to be pursued has pros and cons that must be weighed.