{dissenting).
¶ 51. When examining the history of collective bargaining legislation concerning teachers and schools in Wisconsin and the expressed intent of the legislature, it is clear that the purpose of this legislation has been to place the parties on equal footing, thereby promoting good faith bargaining and voluntary settlements between the parties. See Wis. Stat. § 111.70(6X1997-98). Indeed, even when voluntary settlements are not obtainable, the legislature has implemented fair, effective, speedy, and peaceful procedures to resolve impasse.
¶ 52. In some instances, however, the legislature has eliminated significant rights of teachers normally afforded to others in the collective bargaining process. One example is the legislature's elimination of the teachers' right to strike. A more recent example is 1993 Wis. Act 16 (the QEO law), which eliminated the rights of teachers to bring certain issues to interest arbitration when a valid qualified economic offer (QEO) is *395submitted. Today, the majority opinion, not the legislature, adds to the list by eliminating another significant right for teachers — the right to bargain over an established fringe benefit, teacher preparation time.
¶ 53. I agree with the well-reasoned dissent of Wisconsin Employment Relations Commissioner A. Henry Hempe from this case that it is one thing for the legislature to create this imbalance but quite another for a court to do so.1
¶ 54. In its interpretation of "fringe benefits," the majority fails to recognize the significant bargaining power granted to school districts under the QEO law and fails to interpret the statute in light of the overall purpose of collective bargaining legislation, that is, to maintain a level playing field for both labor and management. The effect of the majority opinion is further chip away at the collective bargaining rights of teachers. Indeed, if the QEO law is interpreted to permit school districts to unilaterally eliminate something as valuable to teachers as preparation time without their ability to bargain collectively on this issue, the future *396for fair collective bargaining between Wisconsin teachers and school districts is bleak. I therefore must respectfully dissent.
r — 1
¶ 55. The threshold issue in this case is whether teacher preparation time is a fringe benefit. A valid QEO must include all preexisting fringe benefits. The Dodgeland School District (District) discontinued a memorandum of understanding regarding teacher preparation time before submitting its QEO. If the guarantee of teacher preparation time is a fringe benefit, the QEO is not valid and the issue is subject to bargaining or arbitration. If it is not a fringe benefit, the QEO is valid and the issue is not subject to arbitration. Thus, the battle lines are drawn. I conclude that teacher preparation time is a fringe benefit.
¶ 56. Before defining "fringe benefit" under the statute, it is important to examine the history of municipal employee collective bargaining legislation in Wisconsin to provide necessary context to the definition.
¶ 57. In 1959, Wisconsin became one of the first states in the country to provide for collective bargaining rights to municipal employees through legislation.2 Municipal employees were granted significant rights under the new legislation, including the right to self-organize, to affiliate with labor organizations, and to negotiate with their municipal employers.3 The legislation was, however, limited: negotiations were re*397stricted to questions of wages, hours and conditions of employment, no impasse resolution procedures were provided, and no requirement to negotiate in good faith was contained in the law.4
¶ 58. In 1961, new legislation was enacted that further encouraged fair collective bargaining, ihcluding authority to the Wisconsin Employment Relations Board (which later became the Wisconsin Employment Relations Commission) to function as a mediator in disputes and to administer fact-finding procedures.5 Despite this progress, the law was still limited in its fair resolution procedures: it did not provide for compulsory binding impasse procedures and it depended on voluntary agreements between the parties.6 At the same time, employees were denied significant leverage when strikes were expressly prohibited under the law.7 In 1971, amendments were again enacted, which provided for binding interest arbitration for law enforcement officials and firefighters.8 At that time, however, arbitration was not permitted for school employees.
*398¶ 59. Fair collective bargaining in schools came to the forefront in the early 1970s due to the frequency of teacher strikes during that time. Indeed, even though illegal, strikes were the only real leverage tool for teachers if the school districts refused to bargain in good faith. The most noted teacher strike took place in Hortonville in 1974 when 95 teachers went on strike and the Hortonville School District subsequently fired and replaced all of the teachers.9 This and other strikes in large part contributed to a new political climate for change in the collective bargaining law.10
¶ 60. Reform came in 1977 with the introduction of the mediation arbitration law, which provided for compulsory final and binding interest arbitration for nearly all municipal employees not governed by the 1971 amendments.11 From the introduction of this law to the time of the enactment of the QEO law in 1993, public school teachers in Wisconsin received higher raises in salary than many of their counterparts in other states.12 This rise in teacher salaries left some with the impression that the teachers had the upper hand in collective bargaining.13 New legislative proposals were again examined.
¶ 61. In 1993, the legislature amended the municipal employee relations law.14 These amendments were regarded as efforts not only to shift some bargain*399ing power to the school districts, but also to allow municipalities to control rising property taxes by controlling teacher salaries.15 The amendments attempted to achieve these goals by allowing the school districts to avoid collective bargaining if it submitted a valid QEO.
¶ 62. This history, leading up to the current QEO law, reveals the constant struggle by the legislature to maintain equal footing for labor and management to ensure fair and effective collective bargaining. We must bear this overall objective in mind in our interpretation of "fringe benefits" under the current QEO law.
¶ 63. Indeed, the QEO law created a new procedure in teacher and school collective bargaining. School districts may now avoid collective bargaining on certain issues and maintain their costs by submitting a valid QEO. A valid QEO guarantees that school districts will not be subject to any additional costs beyond the statutory increase for wages and fringe benefits. The statute ensures this by allowing the district to avoid interest arbitration on "economic issues," which are defined as "any issue that creates a new or increased financial liability upon the municipal employer. . ,"16 Clearly then, this law was designed to provide the school districts with more control over their costs and resulted in increased bargaining power for the school districts.
¶ 64. This law, however, does not provide a win-win situation for the school districts. At the same time the statute allows the districts to avoid arbitration and provide only a minimum statutory increase, they must *400maintain all fringe benefits.17 In other words, school districts are not permitted the benefit of both avoiding new costs and eliminating old costs. Indeed, in light of the advantages provided to school districts under this law and the overall objective of maintaining equal bargaining power between the parties, it makes sense to interpret "fringe benefits" under Wis. Stat. § 111.70(l)(nc)l.a.(1997-98) broadly to encompass any costs that the schools currently incur. Indeed, it makes sense to interpret this term consistent with the definition for "economic issues," that is, as any "financial liability upon the municipal employer." Such an interpretation gives full effect to the legislature's efforts to maintain a level playing field and recognizes the balance that the statutory scheme requires.
¶ 65. To this end, I would adopt the court of appeals' definition of "fringe benefits" in Brown County Attorneys Ass'n v. Brown County, 169 Wis. 2d 737, 487 N.W.2d 312 (Ct. App. 1992). The court properly identified "fringe benefits" as costs to the employer. This definition defines a "fringe benefit" as: " '[A]n employment benefit. . . granted by an employer that involves a money cost without affecting basic wage rates.'" Id. at 742-43 (citation omitted).
¶ 66. I conclude that this definition is more reasonable than the definition provided by the Wisconsin Employment Relations Commission (WERC) in this case' for several reasons.
¶ 67. First, WERC's interpretation ignores the proper balance that must be achieved between labor and management when interpreting this statute.
¶ 68. Second, WERC's definition of fringe benefits as "mandatory subjects of bargaining" fails to give *401credence to the legislature's specific word choice. The legislature specifically incorporated the phrase "fringe benefits," not "mandatory subjects of bargaining" into the statute. The legislature certainly could have used this latter phrase, as it has in other sections of the collective bargaining law. It did not. Indeed, instead of providing an actual definition for "fringe benefits," WERC essentially rewords the statute, replacing "fringe benefits" with "mandatory subjects of bargaining." The legislature could not have intended this result.
¶ 69. Third, WERC arrives at the definition of "fringe benefits" through highly circuitous and questionable reasoning. In essence, it defines fringe benefits by arriving at the conclusion first. It essentially begins its analysis with the conclusion that fringe benefits are "mandatory subjects of bargaining," and then examines prior definitions and interpretations of "fringe benefit" to determine whether they are consistent with "mandatory subjects of bargaining." WERC then determines that teacher preparation time cannot be a fringe benefit because it is a permissive subject of bargaining. This approach is particularly problematic in light of the fact that, before it even begins its effort to define "fringe benefits," WERC had already determined that teacher preparation time was a permissive subject of bargaining.
¶ 70. Collectively, these concerns lead me to the conclusion that WERC's definition is unreasonable. Accordingly, under any level of deference, I would reverse WERC's decision.
¶ 71. Having established a reasonable definition for "fringe benefit," the next question becomes whether teacher preparation time falls under this definition. I conclude that it does because it is a benefit that involves a true money cost to the employer.
*402¶ 72. Teacher preparation time is time during the academic day that the teachers spend to prepare for their lessons. The teachers negotiate this time so that they may prepare during the academic day and spend less time preparing outside the academic day, which is time that is uncompensated. Thus, there is a real value for teachers in this preparation time and a real cost to employers because the teachers would likely require increased pay for additional student contact time. Indeed, the District recognized as much in this case by offering additional compensation to the teachers for any teacher that was willing to work during their preparation time.
¶ 73. To equate teacher preparation time with break time ignores the practical significance of it to teachers. Teachers must be prepared to conduct their lessons eveiy day and provide quality education to our children. A full day of lessons without any preparation time during the day results not only in a lower wage rate for teachers because additional uncompensated hours are required outside of the classroom, but also in lower quality of education for our children. Thus, preparation time is a "fringe benefit." Accordingly, I conclude that the District failed to submit a valid QEO.
I — I H-H
¶ 74. I also disagree with the majority's conclusion that WERC's decision must be affirmed based on the definition of "fringe benefits" as "mandatory subjects of bargaining." In its decision, WERC concluded that teacher preparation time is not primarily related to wages, hours, and conditions of employment. The "primarily related" test is applied on a case-by-case basis, which weighs the competing interests of the public, employee, and the employer in determining "whether a *403proposed subject for bargaining should be characterized as mandatory." West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 9, 357 N.W.2d 534 (1984). Applying this test, I conclude that teacher preparation time is primarily related to wages, hours, and conditions of employment, and accordingly a mandatory subject of bargaining.
¶ 75. Under any level of deference, I would not affirm WERC's decision in this respect because I find its analysis incomplete and unreasonable. In its determination, WERC relied in part on Oak Creek-Franklin Joint City Sch. Dist. No. 1, Dec. No. 11827-D (WERC, 9/74). In Oak Creek-Franklin, WERC reviewed a proposal put forth by the Oak Creek Education Association concerning the teachers' load, which included (1) a required number of hours with students, (2) a required number of classes for each teacher to teach and a number of required preparations for these classes, and (3) guaranteed preparation periods per day. See Dodgeland Sch. Dist. v. Dodgeland Educ. Ass'n, Dec. No. 29490 (WERC, 1/99), 18-19 (discussing Oak Creek-Franklin). WERC concluded that this proposal from the Oak Creek Education Association concerned permissive subjects of bargaining, stating that "[s]uch decisions directly articulate the District's determination of how quality education may be attained and whether to pursue the same." See id. at 19. The circuit court reviewed this Oak Creek-Franklin decision from WERC and affirmed, stating:
We recognize that the subjects of the proposal here may have a significant effect on teacher's total workload. But one could also look at the proposals from another perspective: The Association's proposals relate to the allocation of a teacher's work day. The allocation of the time and energies of its teachers is a consequence of basic educational policy decisions on the *404part of the District. It is not without reason to conclude that those decisions significantly affect the quality of education offered in the District.
See id. (emphasis added).
¶ 76. I certainly agree with the conclusions reached in Oak-Creek Franklin that any decision by school districts concerning the allocation of a teacher's time and energies significantly affects the quality of education. But that only begins the inquiry. It is difficult to imagine any significant decision made by a school district as not affecting the quality of education. Even wages can affect the quality of education. Thus, Oak-Creek Franklin's analysis was incomplete, and WERC should not have relied on it in this case.
¶ 77. There can be no question that teacher preparation time directly and clearly impacts the hours and conditions of employment of employees.18 It is *405negotiated not because it affects the quality of education but because it directly impacts the hours of teaching. The only real question is whether and for how long it will be compensated. The teachers bargain for it in order to avoid preparation time outside the academic day that is not compensated. Indeed, this does not take into consideration the numerous hours teachers spend volunteering for different school-related activities, including lunch supervision, after-school clubs, parent-teacher conferences, and many other activities. As a result, teacher preparation time must be considered a mandatory subject of bargaining.
¶ 78. In addition, in this case, although WERC argued that teacher workload also impacts on other educational policy issues — including (1) the types of classes offered to students, (2) building use, and (3) student schedules — it never conducted any real balancing of the interests in this case nor provided any real reasons why the interests in school management outweigh the interests of teachers in maintaining their negotiated hours and working conditions. Dodgeland Sch. Dist., Dec. No. 29490 at 20. WERC merely concluded:
Here, based on the record before us, we conclude that when the preparation time memorandum's impact *406on educational policy is balanced against the impact on teachers' hours and conditions of employment, the memorandum is primarily related to educational policy and thus is a permissive subject of bargaining.
Id. The majority simply adopts this reasoning as "proper balancing." Majority op. at ¶ 31. I would not.
¶ 79. For the reasons stated above, I respectfully dissent.
¶ 80. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.In relevant part, Commissioner Hempe stated:
Moreover, as demonstrated by this case, excluding fringe benefits that are permissive subjects of bargaining from the purview of Sec. 111.70(l)[(nc)]l.a., Stats., is simply unfair. Under apparent color of law the teachers are peremptorily stripped of their previous legal right to arbitrate the economic impact of the loss of their benefit without any compensatory recourse. For this to be done by the Legislature is one matter. But for it to he done in the course of a quasi-judicial review in the absence of a legislative mandate to do so is quite another, and in this instance in total disharmony with apparent legislative efforts to create a balanced quid pro quo.
Dodgeland Sch. Dist. v. Dodgeland Educ. Ass'n, Dec. No. 29490 (WERC, 1/99), 29 (Hempe, dissenting).
Chapter 509, Laws of 1959.
Charles C. Mulcahy & Gary M. Ruesch, Wisconsin's Municipal Labor Law: A Need for Change, 64 Marq. L. Rev. 103, 107 (1980) (citing Wis. Stat. § 111.70(2X1969)).
Id.
Chapter 663, Laws of 1961; Mulcahy & Ruesch, supra, at 107-08 (citing Wis. Stat. § 111.70(4)(b),(f)(1961)).
Id. at 108.
Wis. Stat. § 111.70(4)(L)(1961). Mulcahy and Ruesch also observed the following:
The right of a union to strike is a necessary component to balance the relationship between municipal employers and public employee unions. Absent this right, unions are without the leverage which traditionally has been available to their private sector counterparts. As a result of this denial, the public sector collective bargaining process remained unbalanced until public employee unions resorted to illegal strikes.
Mulcahy & Ruesch, supra, at 121.
Chapters 124, 246, 247, 307, and 336, Laws of 1971.
Mulcahy & Ruesch, supra, at 104, n.4.
Id at 106.
Chapter 178, Laws of 1977.
Lawrence Sussman, Teachers Gain Under State's Arbitration Law, Milwaukee J., Nov. 26, 1992, at B3.
Jeff Mayers, Budget Seeks to Cap Teachers, Wis. St. J., Feb. 3, 1993, at D3.
1993 Wis. Act 16.
Richard E Jones, Governor Seeks Tax Relief on Arbitration, Mandates, Milwaukee J., Feb. 3, 1993, at 1.
Wis. Stat. § 111.70(l)(dm),(4)(cm)5s.(1997-98).
Wis. Stat. § 111.70(l)(nc)l.a.(1997-98).
This conclusion is supported by a number of jurisdictions: Nat'l Educ. Ass'n-Kansas City v. Unified Sch. Dist. No. 500, Wyandotte County, 608 P.2d 415, 418 (Kan. 1980) (holding that a proposal for a seven and one-half hour work day including 30 minutes daily teacher preparation time without assigned duties during such period reasonably fell within the category of "hours and amounts of work" and therefore was mandatorily negotiable); Foley Educ. Ass'n v. Indep. Sch Dist. No. 51, 353 N.W.2d 917, 921 (Minn. 1984) (court held that school district's decision to reduce teacher preparation time was a mandatory negotiable subject because such a decision increases student contact time and may lengthen teachers' hours of employment); Clark County Sch. Dist. v. Local Gov't Employee Mgmt. Relations Bd., 530 P.2d 114, 116-17, 119 (Nev. 1975) (court upheld determination by agency as reasonable that teacher preparation time significantly related to wages, hours, and working conditions and was therefore negotiable); Red Bank Bd. of Educ. v. Warrington, 351 A.2d 778, 784 (N.J. 1976) (court held that decision by school board to require teachers to *405teach during a previously unassigned and free period was a decision that directly concerned the teachers' work load and thus clearly affected the terms and conditions of their employment). Compare Kenai Peninsula Borough Sch. Dist. v. Kenai Peninsula Educ. Ass'n, 572 P.2d 416, 423 (Alaska 1977) (court held that elementary school teachers' request for planning period during the academic portion of the day presented a policy question because, even though a mere request for planning time might be negotiable, this question presented an additional complication, that is, whether elementary school children were old enough to be taught by different people throughout the day).