City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission

231 N.W.2d 206, 69 Wis. 2d 200, 1975 Wisc. LEXIS 1521, 89 L.R.R.M. (BNA) 2929

• Court: Wisconsin Supreme Court
• Decided: June 30, 1975
• Docket: 410
• Status: Published

Opinions

Day, J.

The question on this appeal is, was it error for the circuit court to affirm the conclusion of the Wisconsin Employment Relations Commission that the school board committed a prohibited labor practice in that it “negotiated” or “bargained” with other than the exclusive bargaining representative of the teachers on matters subject to collective bargaining when it allowed a representative of a minority group of teachers to speak at a board meeting, listened to his statements and received the results of a petition circulated by that group — all concerning matters subject to collective bargaining — when this was done at a regular public meeting of the board?

The appellant City of Madison Joint School District No. 8, including the city of Madison, villages of Maple Bluff and Shorewood Hills, towns of Madison, Blooming Grove, Fitchburg and Burke (hereinafter “school district”) operates the school system of said municipalities; the appellant Board of Education of the district is an agent of the district and is charged with the possession, care, control and management of the property and affairs of the school district.

The respondent Wisconsin Employment Relations Commission (hereinafter “WERC”) is an administrative body charged with the responsibility of administering statutory policy with respect to both public and private employees.

Madison Teachers, Incorporated (hereinafter “MTI”), intervenor-respondent, is a labor organization which was, at the time of the events which give rise to this action, the exclusive majority collective bargaining representative of the teachers of the district.

The Board of Education (board) and MTI were, for the calendar year 1971, parties to a collective bargaining agreement covering wages, hours, and conditions of employment for all bargaining unit personnel, which included all teachers. The agreement terminated on December 31, 1971. Negotiations for a successor agreement began almost as soon as the previous one concluded. Thus, on January 25, 1971, MTI submitted a proposal for a new contract to take effect January 1, 1972. This proposal contained a “fair-share” provision, a contractual requirement that all teachers, including those not then members, pay full union dues, i.e., their “fair share” of the costs of collective bargaining.

Such a provision was proposed by MTI the previous year and was rejected by the board. This fair-share provision was discussed throughout the 1971 negotiations and at all times was opposed by the board. Initially, the board objected because such a provision was then illegal. There were frequent requests by the board for MTI to defer fair share for another year.

On November 11, 1971, legislation (ch. 124, Laws of 1971) became effective which allowed inclusion of a fair-share provision in municipal employee collective bargaining agreements. This is now codified as sec. 111.70 (1), Stats., and defined in sec. 111.70 (1) (h). Soon thereafter MTI submitted another fair-share proposal to conform to the new law; again it was rejected by the board.

The number of unresolved issues between the parties had been reduced to about 13 by November, 1971. Two of these were considered of overriding importance by both sides: (1) The fair-share provision, and (2) the provision for binding arbitration of nonrenewal of teacher contracts and teacher dismissals. The board had opposed both of these issues throughout the negotiations. However, in late October or early November, the chairman of the board’s negotiating team indicated, informally and unofficially, to the chairman of MTI’s negotiating team that there was “no way” arbitration for dismissals and nonrenewals would be accepted by the board, but there was a “distinct possibility” the fair-share provision could be accepted. He said two members of the board said they would approve fair share if MTI would withdraw its arbitration proposal.

On the other hand, at the WERC hearing in this case, the chairman of MTI’s negotiating team testified that the union’s bargaining strategy was to lead the board to believe that MTI’s primary interest was in fair share when in fact it was in arbitration. If this strategem were successful, MTI could at some point offer to “sacrifice” fair share for arbitration and celebrate the result.

On November 14, 1971, Ralph Reed and Albert Holm-quist, teachers employed by the district, neither of whom were members of MTI, sent a letter opposing the fair-share provision, which they considered a denial of freedom of choice, to all teachers employed by the district. The letter solicited responses and 200 were received, the majority sympathetic to their position. A meeting of some of these teachers was scheduled for December 2, 1971. Fourteen teachers attended, half of whom were MTI members. They prepared a petition and formulated plans for circulating it in the schools on December 6, 1971. The petition supported a one-year deferral of consideration of fair share. It was intended to present the results of the petition to both MTI and the board at the board’s regular public meeting on the evening of December 6, 1971. The petition was circulated in the schools, in nonworking areas on nonworking time, that day and a letter, also urging deferral of fair share, was distributed to the teachers of two schools through their school mailboxes. The principals of those two schools, agents of the board, knew of the latter activity.

By December 6, 1971, negotiations between the board and MTI had reached an impasse. For the board’s regular public meeting that evening MTI had arranged to have pickets present and 300-400 teachers in attendance at the auditorium. MTI’s representative John Mathews knew in advance that Messrs. Reed and Holmquist intended to present the results of their petition and speak to the board against fair share. He encountered Mr. Holmquist and Mr. Reed in the auditorium before the meeting was to begin and tried to talk them out of presenting the petition or speaking to the board.

Soon thereafter, Mr. Mathews met a member of the board, Mr. Yelinek, outside. He informed Mr. Yelinek of what Messrs. Reed and Holmquist intended to do that evening and also showed him underlined portions of the Board of School Directors of Milwaukee v. WERC (1969), 42 Wis. 2d 637, 168 N. W. 2d 92. Mr. Yelinek responded that he “would take care of it.”

Mr. Mathews met Messrs. Reed and Holmquist again, soon after talking with Mr. Yelinek. He again tried, unsuccessfully, to talk them out of presenting the petition and speaking to the board, telling them that the negotiations were delicate and urging them to refrain “or we were going to lose the whole ball game.”

At the board meeting, a portion of time was devoted to public appearances. Mr. Holmquist completed a registration form stating that he wished to speak during this period. He did not say on this form what he wished to speak about. Several individuals spoke during this time and then the president of MTI rose and spoke. At the conclusion of his remarks he presented to the board a statement signed by 1300 to 1400 teachers, declaring “We, the undersigned wish the parties to resume negotiations and reach agreement as quickly as possible.”

Immediately following this speaker, Mr. Holmquist was allowed to speak. He said:

“My name is Albert Holmquist. I reside at 5626 Crest-wood Place. I am another teacher. I represent an informal committee of 72 teachers in 49 schools. I would like to inform the Madison Board of Education, as I already have the Madison Teachers, Incorporated, about the results of an informational survey regarding one of the thirteen or so items now on the conference table and one of the main items that will certainly be included in some form in the new package.”

He then read the petition:

“To: Mádison Board of Education, Madison Teachers, Incorporated. We the undersigned ask that the fair-share proposal (agency shop) being negotiated by Madison Teachers, Incorporated and the Madison Board of Education be deferred this year. We propose the following: (1) The fair-share concept being negotiated be thoroughly studied by an impartial committee composed of representatives from all concerned groups. (2) The findings of this study be made public. (3) This impartial committee will ballot (written) all persons affected by the contract agreement for their opinion on the fair-share proposal. (4) The results of this written ballot be made public.”

He added:

"We feel this study necessary because neither the board’s negotiators who have placed entirely too much emphasis on this one point nor Madison Teachers, Inc., which speaks euphemistically about the (whole package) and therefore is not issue specific . . . Neither has properly addressed the serious issue of fair-share and agency shop. We find much confusion in the proposal as it stands and even more on the part of teachers’ interpretations of it.

“For evidence, 417 teachers from the 31 schools which represents 53% of the total number of these faculties of these schools . . . who have called in to this hour have signed the petition on the first day it was taken into their schools. Due to this confusion, we wish to take no stand on the proposal itself, but ask only that all alternatives be presented clearly to all teachers and more importantly to the general public to whom we are all responsible. We ask simply for communication, not confrontation.”

When he finished, the board president asked Mr. Holmquist whether he intended to communicate the petitions to the board. Mr. Holmquist replied that he did; the petitions, however, were never presented to the board. There was no other exchange between Mr. Holmquist and any member of the board.

After the public meeting, the board went into executive session and considered the unresolved collective bargaining issues, since a negotiation session had been scheduled for the following day, December 7, 1971. The board adopted the following resolution:

“ Tt was moved and seconded to accept the total package as presented including arbitration for dismissal of non-probationary teachers and not including agency shop; if the MTI does not accept this as a total package, the offer of arbitration is withdrawn.’ ” (Emphasis, the board’s.)

At the next day’s negotiations,- the board’s representatives opened the meeting with the above-quoted resolution and said, “. . . This is the deal.” After some discussion, MTI conceded and tentative agreement was reached. The final agreement was signed December 14, 1971, with no fair-share provision, but with the arbitration provision.

In January, 1972, MTI filed a complaint with WERC alleging that the board committed a prohibited labor practice when it listened to Mr. Holmquist at its public meeting; this was said to constitute prohibited negotiating with other than the official, exclusive collective bargaining representative, MTI. The board denied the charge. A hearing was held on February 28, 1972. On September 13, 1972, WERC concluded that the board had committed the alleged prohibited labor practices and ordered the board to cease and desist from the same.

The board petitioned the Dane county circuit court for review under ch. 227, Stats. MTI intervened. On October 2, 1973, the court entered its written decision affirming the WERC conclusion and order. Judgment affirming WERC and dismissing the petition for review was entered October 17, 1973. The board appeals from that judgment.

The basic question on the appeal is: Did the board commit an unfair labor practice under the fact situation outlined above? In addition, other questions have been raised on issues of constitutionality and statutory construction.

It could be argued that as a matter of policy the board should hear not only the majority union, but any minority union groups or ad hoc committee representatives to thereby get a cross-section of all views and ascertain what all employees think of the various issues subject to collective bargaining. Under such an argument the board and its bargaining representatives should listen to and exchange ideas with all these various groups and factions within a collective bargaining unit. But that is not how collective bargaining is to be carried out under our law.

This court has held that the majority organization in a particular labor bargaining unit is, under the Municipal Employment Relations Act (MERA), sec. 111.70, Stats.,' not only the bargaining representative for the members of that majority organization, but is the exclusive bargaining representative of all the employees, members or nonmembers, of the bargaining unit. Board of School Directors of Milwaukee v. WERC, supra, at 645-647. Accord, Board of Education v. WERC (1971), 52 Wis. 2d 625, 191 N. W. 2d 242. The statute also states that it is a prohibited labor practice for a municipal employer to refuse to bargain collectively with this exclusive majority representative. Sec. 111.70 (3) (a) 4. Further, it is a prohibited labor practice for the municipal employer “To interfere with, restrain or coerce municipal employes in the exercise of their rights . . .” sec. 111.70 (3) (a) 1, one of which is the right “. . . to bargain collectively through representatives of their own choosing . . .” sec. 111.70 (2). In this case, WERC concluded that the board, in allowing Mr. Holmquist to speak and in listening to his statement and his oral presentation of the results of his petition, had committed prohibited labor practices in violation of sec. 111.70 (3) (a) 1 and 4, in that it had violated its duty to bargain in good faith with MTI and had interfered with the rights of employees represented by MTI to bargain collectively through representatives of their own choosing. On this basis, WERC ordered, inter alia, that the board:

“1. Shall immediately cease and desist from permitting employes, other than representatives of Madison Teachers, Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining between it and Madison Teachers, Inc.”

The WERC decision was affirmed by the circuit court.

The basic question here is whether or not the activities of the board at its public meeting constituted bargaining. The board of education in its brief concedes that bargaining by a minority group of employees with the board is prohibited by our law. In its brief the board states:

“. . . It may well be because of the public interest in stable labor relations permissible to restrict the rights of a minority group or individual teacher to negotiate with their employer. However, we submit to prevent an employee from providing information to his employer orally is beyond the scope of permissible restriction of the Constitutional rights of public employees to speak and petition their government. . . .

“The Board of Education does not contest the assertion that it has an obligation to bargain exclusively with the majority representative of its employees or that a ‘fair-share’ agreement is a matter of mandatory bargaining.”

The United States¹ and Wisconsin² Constitutions protect the rights of individuals to speak and to petition their federal and state governments. But it is well established that these freedoms are not absolute.³ To the extent that the WERC and circuit court decisions in this case infringe upon the freedom to speak and to petition the federal and state governments, they are within the limits imposed on the restriction of those rights by United States Supreme Court decisions and the decisions of this court. What is required to overcome the constitutional proscriptions on abridgement of these rights has been variously described as “. . . a clear and present danger that [the speech] will bring about the substantive evils that [the legislature] has a right to prevent,” Schenck v. United States (1919), 249 U. S. 47, 52, 39 Sup. Ct. 247, 63 L. Ed. 470, or “. . . grave and immediate danger to interests which the State may lawfully protect,” Board of Education v. Barnette (1943), 319 U. S. 624, 639, 63 Sup. Ct. 1178, 87 L. Ed. 1628. Somewhat more recently the court has refined this language into a balancing test:

“ ‘In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ ” Dennis v. United States (1951), 341 U. S. 494, 510, 71 Sup. Ct. 857, 95 L. Ed. 1137.

This question has been answered by this court and the United States Supreme Court in the field of labor negotiations. In Board of School Directors of Milwaukee v. WERC, supra, this court recognized the right of the certified majority union to exclusive negotiating rights with the employer. Accord, Board of Education v. WERC (1971), 52 Wis. 2d 625, 633, 191 N. W. 2d 242. The principle of exclusivity, by definition, forbids certain individuals from speaking certain things in certain contexts; the first amendment rights of those persons are, to that extent, thereby infringed. But the gravity of that evil was considered outweighed by the necessity to avoid the dangers attendant upon relative chaos in labor management relations.

“The federal labor laws seek to promote industrial peace and the improvement of wages and working conditions by fostering a system of employee organization and collective bargaining. . . . The collective bargaining system as encouraged by Congress and administered by the_ NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit.” Vaca v. Sipes (1967), 386 U. S. 171, 182, 87 Sup. Ct. 903, 17 L. Ed. 2d 842; cf., Medo Corp. v. Labor Board (1944), 321 U. S. 678, 684, 64 Sup. Ct. 830, 88 L. Ed. 1007; accord, Texaco, Inc. v. NLRB (7th Cir. 1971), 436 Fed. 2d 520, 524.

The question of whether speech in the form of bargaining or negotiating for a labor agreement can be constitutionally restricted to representatives of the majority bargaining unit has been answered in the affirmative. None of the parties to this action disputes that. Now the question is whether the activity herein complained of by MTI, and subsequently proscribed by WERC, qualifies as bargaining and can, therefore, be restricted under the rule of Board of School Directors of Milwaukee v. WERC, supra. In that case, Mr. Justice Hanley speaking for a majority of this court defined “negotiating” as follows, page 652:

“Quite obviously, the determination of this issue turns on the interpretation given to ‘negotiating.’

“ ‘Negotiate’ is defined in Webster’s New International Dictionary (3ded.) as:

“ ‘. . . 1: to communicate or confer with another so as to arrive at the settlement of some matter: meet with another so as to arrive through discussion at some kind of agreement or compromise about something: come to terms esp. in state matters by meetings and discussions ....’”

In that case, the school board and the majority union were in the midst of negotiations on a new contract. At a public meeting of one of the committees of the school board, a representative of the minority union rose to speak on a matter which was a subject of negotiations. He was denied the right to speak. WERC considered this denial a prohibited practice. The circuit court reversed the WERC decision and was affirmed by this court; this court finding, in effect, that allowing the minority representative to speak on that subject would have constituted prohibited negotiating or bargaining with him. This court had to determine the interpretation to be given to “negotiating” and relied on the definition cited above. This court placed emphasis on the statutory requirement that no final action should be taken on such negotiated matters until they are made public and discussed in an open public meeting.⁴ The court said that such . . open meeting is the necessary and final step in the ‘negotiation’ process between the school board and the majority teachers’ union.” Board of School Directors of Milwaukee v. WERC, supra, at page 653. Thus, it seems the court considered the school board committee meeting in that case to be a part of the “negotiation process.” With the impasse that had been reached in the negotiations in the case before us with the majority union, with several members present at the board meeting, with its pickets present, and its representatives addressing the board on subjects of the collective bargaining negotiations, that meeting certainly was part of the negotiation process. The board relies heavily on the statement made by this court in that case, in which this court said (p. 652):

“If this case involved solely the giving of a position statement at an ordinary meeting of a public body, we would have some difficulty in labeling the conduct ‘negotiating.’ ”

What was said in the case before us goes beyond the mere giving of a “position statement” because here the statement went to the very heart of the negotiations.

As the trial court in this case pointed out in its analysis of the facts:

“In November, 1971,' a Mr. Holmquist and a Mr. Reed, both of whom are teachers employed by the school board and both of whom are not members of MTI, drafted a letter addressed to ‘Dear Fellow Madisonian Educator.’ Such letter, headed ‘E.C. — O.L.O.G.Y.,’ meaning ‘Educator’s Choice — Obligatory Leadership Or Governance by You,’ asked the addressee to ‘Save Freedom of Choice’ and stated that ‘A Closed Shop (agency shop) Removes This Freedom.’ The bottom portion of such letter was in the form of a ballot allowing the addressee to express his opposition to ‘agency shop.’ Said letter was mailed on November 14, 1971, to all teachers in the Madison Public School system by Holmquist and Reed. Approximately two hundred replies to such letter were received, the majority of which were favorable to their position on fair share. . . .

“Mr. Holmquist appeared at the board meeting held on December 6, 1971, and he was permitted to speak to the board. . . .

“Even though Holmquist’s statement superficially appears to be merely a ‘position statement,’ the court deems from the total circumstances that it constituted ‘negotiating.’ The court in Board of School Directors, swpra, at page 653 stated:

“ ‘On the other hand, if the minority union representative is permitted to influence the decision of the school board by his argument, then he is truly “negotiating.” ’

“In the case at bar, Holmquist in fact desired to have the fair-share proposal deleted from the agreement. . .

We agree with the trial court that this was in fact negotiating and one need only read the Holmquist statement to see that the “information” that was being imparted was a request that the whole fair-share issue be deferred along with a counter proposal as to how the issue should be handled for possible future consideration. It also criticized MTI’s handling of the negotiations in this respect.

The statement given by Mr. Holmquist was more than a mere statement of a position; it was an argument for it. Furthermore, though Mr. Holmquist was not speaking for a minority union, as in the case of Board of School Directors of Milwaukee, it is obvious he was speaking for an ad hoc group which was opposed to including a fair-share agreement in any contract being negotiated at that time.

The board also argues that the WERC order must be invalidated because it is vague; it fails to provide adequate guidelines for compliance with its terms. The WERC order directs the board to cease and desist from permitting employees, other than the representatives of MTI, from appearing and speaking at meetings of the board on matters subject to collective bargaining. Matters subject to collective bargaining, as opposed to subjects reserved to management, are defined as “wages, hours and conditions of employment.” Sec. 111.70 (1) (d), Stats. The board argues that “conditions of employment” is constitutionally vague and, thus, the order must be voided.

The board, however, has no standing to raise the question. It has conceded in its brief and at oral argument that the matter spoken of by Mr. Holmquist before the board was a subject of collective bargaining. Thus, whatever the vagaries of the WERC order as it may or may not affect others, it is both a plain fact and conceded by the board that there is no vagueness in that order as it affects the board’s conduct here.

“. . . even if the outermost boundaries of [the prohibition] may be imprecise, any such uncertainty has little relevance here, where appellants’ conduct falls squarely within the ‘hard core’ of the . . . proscriptions . . . .” Broadrick v. Oklahoma (1973), 413 U. S. 601, 608, 93 Sup. Ct. 2908, 37 L. Ed. 2d 830. Accord, Paulos v. Breier (7th Cir. 1974), 507 Fed. 2d 1383, 1387, 1388; Driscoll v. Schmidt (D. C. Wis. 1973), 354 Fed. Supp. 1225, 1229.

The law is clear that “ [o] ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy (1974), 417 U. S. 733, 756, 94 Sup. Ct. 2547, 41 L. Ed. 2d 439. The board has no standing to raise the vagueness claim.

Furthermore, “wages, hours and conditions of employ ment”"is the phrase commonly used to describe what are subjects of collective bargaining. It is used in the NLRA, 29 U. S. Code, secs. 152 (9) and 159 (a). Certainly, “ [w] ords inevitably contain germs of uncertainty. . . .” Broadrick v. Oklahoma, supra, at page 608, but the test to avoid unconstitutional vagueness does not require crystal clarity:

“There might be quibbles about the meaning of [certain language] ; but there are limitations in the English language with respect to being both specific and manage-ably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.” Civil Service Commission v. Letter Carriers (1973), 413 U. S. 548, 577-579, 93 Sup. Ct. 2880, 37 L. Ed. 2d 796. See also: Weber v. State (1973), 59 Wis. 2d 371, 382, 208 N. W. 2d 396.

We conclude the order of the Wisconsin Employment Relations Commission of September 13, 1972, is not vague.

By the Court. — Judgment affirmed.

1 The first and fourteenth amendments to the United States Constitution, in pertinent part, are:

“ARTICLE I.

“Congress shall make no law . . . abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

“Article XIV.

“. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

2 The Wisconsin Constitution provides, in pertinent part, in art. I, secs. 3 and 4:

“Free speech; libel. Section 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech . . . .”

“Right to assemble and petition. Section 4. The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.”

3 State v. Becker (1971), 61 Wis. 2d 659, 664, 188 N. W. 2d 449; State ex rel. Gall v. Wittig (1969), 42 Wis. 2d 595, 606, 167 N. W. 2d 577; State v. Zwicker (1969), 41 Wis. 2d 497, 509, 510, 164 N. W. 2d 512; State v. Givens (1965), 28 Wis. 2d 109, 118, 135 N. W. 2d 780.

4 “ . . the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental affairs and the transaction of governmental business.’” Sec. 14.90 (1), Stats. 1967, renumbered as sec. 66.77 (1), Stats. 1973. See: Board of School Directors of Milwaukee v. WERC, supra, at page 650.