AFSCME, Local Union No. 360 & 3148 v. Wisconsin Employment Relations Commission

434 N.W.2d 850, 148 Wis. 2d 392, 1988 Wisc. App. LEXIS 1122
Court of Appeals of Wisconsin·Decided December 22, 1988·No. No. 88-1048·Published·Cited by 1 cases

Opinion

EICH, J.

AFSCME, Local Union No. 360 and 3148, AFL-CIO appeals from an order affirming the decision of the Wisconsin Employment Relations Commission (WERC). The issue is whether the commission properly concluded that Sauk County did not commit a “prohibited labor practice” under the Municipal Employment Relations Act, sec. 111.70(3)(a), Stats.,1 when [394] it discontinued withholding labor union dues under “fair-share”2 and voluntary checkoff provisions during a contract hiatus. We agree with the commission’s conclusion and affirm the order.

The facts are not in dispute. Sauk County and the union had a collective bargaining agreement for 1983-84 which required the county to deduct union dues from all employees electing such a deduction (“checkoff’ deductions), and to deduct equivalent “fair-share” amounts from all other employees.

The contract expired on December 31, 1984, without a successor contract in place for the following year. The expired contract did not contain any provisions extending the dues deduction provisions beyond its expiration. On January 14,1985, the county notified the union that, in the absence of a current collective bargaining agreement, it would no longer continue the dues deductions. The union filed a complaint with WERC alleging that stopping the deductions would constitute a prohibited practice under the Act. The commission ruled against the union, and the circuit court affirmed.

While the interpretation of statutes is usually a question of law which courts will review de novo, where [395] we undertake to review the decision of an administrative agency, we give deference to the agency’s interpretation and application of the statutes it is charged to administer. This is especially true where the question involved, though one of law, is “intertwined with factual determinations or with value or policy determinations or where the agency’s interpretation and application of the law is of long standing.” West Bend Education Ass’n v. WERC, 121 Wis. 2d 1, 12, 357 N.W.2d 534, 539-40 (1984) (footnote omitted). In this case the question involved — whether the dues checkoff and fair-share provisions must be maintained by the employer during a contract hiatus — is one with which WERC has dealt in the past, and it is a subject within the area of the agency’s special competence and expertise. As a result, we will give “great weight” to the commission’s rulings and will affirm its conclusions if its view of the law is reasonable, even though an alternative view may be equally reasonable. Id. at 13-14, 357 N.W.2d at 540.

The commission’s decision recognized that the statutory duty to bargain generally requires that the parties maintain the status quo with respect to mandatory subjects of bargaining during a contract hiatus, and that fair-share and dues checkoff provisions are mandatory subjects of bargaining. It ruled, however, that because such provisions, by their nature, benefit the union itself rather than the individual employees, they do not bear any direct relation to the employer-employee relationship and are thus distinguishable from other mandatory bargaining subjects. With respect to the fair-share contributions, the commission also noted the provisions of sec. 111.70(3)(a)6, Stats., which prohibit employers from making fair-share de[396] ductions “except where there is a[n] ... agreement in effect.”

Taking the fair-share agreements first, we are satisfied that, other reasons aside, the statute controls. The commission ruled that no agreement was in effect at the time the county ceased making the deductions, and the union has not challenged that ruling. It is, therefore, the law of the case. And the statute is plain on its face: the county is barred from making the deductions where there is no agreement in effect. See Berns v. Wisconsin Employment Relations Comm., 94 Wis. 2d 214, 223, 287 N.W.2d 829, 833 (Ct. App. 1979), aff’d, 99 Wis. 2d 252, 299 N.W.2d 248 (1980) (“fair-share agreements become effective, and continue in effect by their own terms according to the parties’ agreements ...”).

As for the dues checkoff, the commission has ruled in several cases over the past decade that the Act does not require the employer to continue making dues checkoff (and fair-share) deductions during a contract hiatus. In Gateway VTAE, WERC Dec. No. 14142-A (1/77), the commission held that checkoffs were, in effect, “union security provisions,” which benefit the union as a union, rather than the individual employees, and thus do not directly affect the employer-employee relationship. The commission distinguished such provisions from those affecting wages or fringe benefits, which inure to the benefit of the employees, and which, as mandatory subjects of bargaining, could not be abridged or halted during a contract hiatus (except under certain limited conditions not applicable here). In County of Sauk, WERC Dec. No. 17657-D (2/82), the commission applied the same rationale to fair-share deductions. In a second Gateway case, Gateway VTAE, [397] WERC Dec. No. 20209-A (7/83), the commission, holding that a fair-share deduction also ceases when a new union replaces a former bargaining representative, again characterized the agreement as “a union security provision rather than a substantive provision which runs to the benefit of bargaining, union employes ....” Id. at 7. And union security provisions have been held to be “wholly dependent” upon the existence of a valid collective bargaining agreement and thus the employer may unilaterally stop honoring them once the agreement has expired. Industrial Union of Marine & Shipbuilding Wkrs. v. N.L.R.B., 320 F.2d 615, 619-20 (3rd Cir. 1963), cert. denied, 375 U.S. 984 (1964).

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AFSCME, Local Union No. 360 & 3148 v. Wisconsin Employment Relations Commission, 434 N.W.2d 850, 148 Wis. 2d 392, 1988 Wisc. App. LEXIS 1122 (Wis. Ct. App. 1988).

434 N.W.2d 850 (AFSCME, Local Union No. 360 & 3148 v. Wisconsin Employment Relations Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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