Madison Teachers, Inc. v. Madison Metropolitan School District

SUNDBY, J.

(concurring in part; dissenting in part). I concur with the majority that the circuit court properly retained jurisdiction to interpret 1993 Wis. Act 16, specifically those provisions of § 111.70, Stats., which substitute a "qualified economic offer" (QEO) for final and binding arbitration. However, I do not agree with the trial court's conclusion that the Act precludes the Madison school district from submitting a QEO to Madison Teachers, Inc. (MTI) in collective bargaining because MTI is a "mixed" bargaining unit, that is, a unit containing professionals licensed under § 115.28(7), Stats., and unlicensed employees. That interpretation is contrary to the clear legislative intent and substantially emasculates the Act.

The interpretation of the Act is a question of law and the Wisconsin Employment Relations Commission *765has no expertise which would assist a court in interpreting the Act. See Hill v. LIRC, 184 Wis. 2d 101, 109, 516 N.W.2d 441, 445-46 (Ct. App. 1994). Therefore, the circuit court properly retained jurisdiction to determine the reach of the Act. However, the court should have deferred to the commission's expertise in clarifying the composition of the bargaining unit. Here, the commission not only has expertise but it has primary jurisdiction to the exclusion of the courts, except the courts' appellate jurisdiction.

The battle between the Governor and the teachers' unions over final and binding arbitration received extensive media coverage. Plainly, it was the intention of the administration and the legislature to substitute the QEO for final and binding arbitration for teachers. The view was expressed in many quarters that spending by school districts must be controlled. The view of the administration was that excessive spending by school districts was directly related to the ability of teachers' unions to substitute virtually unreviewable decisions of unelected arbitrators for the discretion of school boards.

We start, therefore, with a clear expression of legislative intent. If we must conclude, as MTI insists, that because it is a "mixed unit," that is, it includes employees who are not teachers, it is not subject to the QEO substitute for final and binding arbitration, the legislative language must be so clear that there is no room to effect the legislative intent.

We have long cherished a tradition which accords considerable deference to the legislature's ability to say what it means. However, the written word is a poor vessel from which to pour meaning. Over fifty percent of the appeals we consider require that we construe a statute or administrative rule, many of which are *766ambiguous. I cite this statistic not in criticism of the legislature's inability to clearly express its intent, but in recognition that the legislature's "clarity" may be the court's confusion. I cannot agree with MTI that the defining statute, § 111.70(4)(cm)5s, Stats., unambiguously excludes "mixed" bargaining units from the QEO option. The statute provides in part:

"Issues subject to arbitration." In a collective bargaining unit consisting of school district professional employes, if the municipal employer submits a qualified economic offer applicable to any period beginning on or after July 1, 1993, no economic issues are subject to interest arbitration under subd. 6. for that period.

We can be sure that the legislature did not intend that twenty-three percent of the state's school districts, including its second largest, would be exempt from legislation intended to reduce school district costs. Teachers' salaries and benefits typically account for the largest part of school salary and benefit costs; in the Madison district, the percentage is ninety-seven percent. We therefore start our analysis knowing that the legislature intended to allow all school districts to substitute the QEO procedure for final and binding arbitration in school district/teacher union collective bargaining.

This is not really a case in which we must discover the legislative intent from the words of a statute. We must decide whether we may, consistent with our obligation to responsibly construe legislation, conclude that school districts and "mixed" bargaining units are subject to the QEO procedure.

I am impressed that the district's attorneys uncovered an 1893 dictionary definition of "consisting of' which supports its position. See A New English Dic*767TIONARY ON HISTORICAL PRINCIPLES, Oxford, Vol. IIC, 861, 862 (1893) ("Consisting of' can have the meaning of "to have its essential character in" or "foundation in."). I see no need to resort to a definition 102 years old; nor is it necessary to consult extrinsic sources to determine the legislature's intent. The language of the Act itself supports the legislative intent.

When I first read the Act, I feared that the legislature had dropped too many stitches to permit us to repair the fabric. See Scharping v. Johnson, 32 Wis. 2d 383, 393 n.6, 145 N.W.2d 691, 697 (1966). However, I was persuaded by the district's argument that to construe the Act to not apply to "mixed" bargaining units would lead to an absurd or unreasonable result. See State v. Moore, 167 Wis. 2d 491, 496, 481 N.W.2d 633, 635 (1992) (A court "must interpret [a statute] in such a way as to avoid an absurd or unreasonable result."). The Act applies to collective bargaining units. Section 111.70(l)(b), Stats., defines a "collective bargaining unit" to mean "a unit consisting of municipal employes who are school district professional employes or of municipal employes who are not school district professional employes that is determined by the commission to be appropriate for the purpose of collective bargaining." To be a "school district professional employe," the employee must hold a license issued by the State Superintendent of Public Instruction under § 115.28(7), Stats. Section 111.70(l)(ne). MTI includes 2062 employees licensed by DPI and 308 non-professional employees. If we interpret "consisting of' as narrowly as MTI suggests, it will have no standing under the Municipal Employment Relations Act (MERA), §§ 111.70-77, Stats., because it cannot qualify as a "collective bargaining unit."

*768MTI recognizes that it would be catastrophic to construe "collective bargaining unit" to exclude any "mixed" unit consisting of school district professional employees and "others." It argues:

The logical extension of such a drastic statutory change would lead to chaos. For example, if a mixed unit were not covered by MERA, the employees in the unit would have no statutory dispute resolution procedures available. Wis. Stat. § 111.70(4)(L), which prohibits strikes, would no longer prevent such a mixed unit from striking.

Worse, a mixed unit would have no standing to insist that the municipal employer bargain with it.

MTI asks us to weave the necessary language into § 111.70(l)(b), Stats., to make "mixed" bargaining units subject to MERA in other respects but does not want us to repair § 111.70(4)(cm)5s so that the QEO option is available where a unit contains other employees as well as teachers. I conclude that when the whole of the fabric from the legislative loom is considered, no judicial weaving is necessary. Section 111.70(4)(cm)5s provides in part: "In such a collective bargaining unit ['consisting of school district professional employes'], economic issues concerning the wages, hours or conditions of employment of the professional school district employes in the unit for any period prior to July 1, 1993, are subject to interest arbitration under subd. 6. for that period." (Emphasis added.) Prior to July 1, 1993, "the unit" included teachers and other district employees. MTI apparently contends that after July 1, 1993, "consisting of school district professional employes" assumed a new meaning, which now requires unit "purity." This is an unreasonable construction.

*769The "economic issues" which may be addressed in a QEO, § 111.70(l)(dm), Stats., "shift premium pay," "lead worker pay," and "hazardous duty pay," suggest that employees other than teachers may be subject to a QEO. These "issues" are not customarily bargained with teachers.

While I agree that the circuit court had competence to construe 1993 Wis. Act 16,1 do not agree that the court had competence to restrain the district from petitioning the commission for unit clarification. Here the commission clearly has expertise and primary resort should be the rule. The courts have only appellate jurisdiction to review orders of the commission clarifying collective bargaining units.

The district, of course, wished to eliminate any question as to its authority to submit a QEO to the union. The trial court concluded that, by its act, the district bargained in bad faith and committed a prohibited practice. I consider it impossible for a municipal employer or a collective bargaining unit to commit a prohibited practice when that practice is specifically permitted by MERA. I am unable to identify any provision of § 111.70(3), Stats., which makes it a prohibited practice for a municipal employer to petition the commission to clarify the bargaining unit.

Section 111.70(l)(b), Stats., defines a "collective bargaining unit" to mean a unit "determined by the commission to be appropriate for the purpose of collective bargaining." Section 111.70(4) enumerates the powers of the commission. Paragraph (d)2.a provides in part: "The commission shall determine the appropriate bargaining unit for the purpose of collective bargaining ...." Subdivision 5 provides in part:

Questions as to representation may be raised by petition of the municipal employer or any munic*770ipal employe or any representative thereof. Where it appears by the petition that a situation exists requiring prompt action so as to prevent or terminate an emergency, the commission shall act upon the petition forthwith.

The district acted properly in asking for the assistance of the commission. It considered that it was necessary to obtain "clarification" to prevent an emergency.

The entire philosophy of the Municipal Employment Relations Act is to achieve "industrial" peace in municipal employment. Section 111.70(6), Stats., provides in part: "If [collective bargaining] procedures fail, the parties should have available to them a fair, speedy, effective and, above all, peaceful procedure for settlement as provided in this subchapter." While not specifically applicable to municipal employment, § 111.01(2), Stats., is instructive. That statute provides in part: "Industrial peace, regular and adequate income for the employe, and uninterrupted production of goods and services are promotive of all of these interests [the public, the employe, and the employer]." "Clarification" of bargaining units is an important implementation of peace in municipal collective bargaining. Clarification avoids bargaining units whose members have incompatible interests. The commission has as much experience in defining and clarifying bargaining units as almost any other aspect of municipal collective bargaining. When we tread that ground without the commission's input, our footing cannot be secure.

When the Act is considered in its entirety we need not rewrite it; it authorizes school districts to offer QEO's to bargaining units containing teachers and other district employees. However, the Act should be "repaired" to eliminate the obvious ambiguities. Per*771haps the Council created to study the performance of the Act may accomplish this before the Act "sunsets" July 1,1996.