Board of Education v. Wisconsin Employment Relations Commission

Wilkie, J.

{concurring in part; dissenting in part). I agree with the majority opinion holding that the clause in the contract allowing only members of the WFT to attend state conventions is discriminatory and therefore void. It is my opinion, however, that once such discrimination has been found, the WERC possesses substantial powers to grant remedial relief and for this reason had the authority to provide in its order that the Ashland school board pay the minority union employees for the days they attended their convention. This would achieve substantial equity as between all teachers whether they are members of the majority union or of the minority union. The WERC is given substantial powers to remedy situations where prohibited practices have taken place.

*643Sec. 111.70 (4) (a), Stats., provides:

“(4) Powers op the commission. The commission shall be governed by the following provisions relating to bargaining in municipal employment:
“(a) Prevention of prohibited practices. Section 111.07 shall govern procedure in all cases involving prohibited practices under this subchapter.”

Sec. 111.07 (4), Stats., provides:

“. . . Final orders may dismiss the charges or require the person complained of to cease and desist from the unfair labor practices found to have been committed, . . . and require him to take such affirmative action, including reinstatement of employes with or without pay, as the commission deems proper. . . .”

1 conclude that the WERC had the power to order the board of education to reimburse the AEA members for their loss of pay due to their attendance at the regional AEA convention.

The majority opinion deals at some length with the effect of changes in wording of the statutes in 1967. I do not think such analysis is necessary to the decision of this case. Even if we assume that days taken off for regional conventions are not “school days” within the meaning of sec. 115.01 (10), Stats., and that the school board has discretion in granting days off for conventions, this does not assist us in reaching a result in the present case. Here there has been illegal discrimination against members of the minority union — the majority opinion admits this. To me the question is: What can be done to redress this wrong? This is the question not considered by the majority.

In Wisconsin Employment Relations Board v. Gateway Glass Co.1 and General Drivers & Helpers Union v. Wisconsin Employment Relations Board 2 this court specifically recognized the labor board’s power to order the *644employer to pay money to designated employees. By virtue of sec. 111.70 (4) (a), Stats., the WERC’s power in municipal employee cases is the same as in those involving private employees. In the present case the order requiring the school board to pay the minority union employees was within the scope of the WERC’s power and was proper under the circumstances. I would affirm the exercise of that power.

As noted by the majority, the circuit court exceeded its jurisdiction in going beyond the issues decided by the WERC. I would, therefore, concur as to the majority’s reversal of the circuit court’s judgment to the extent it exceeds the WERC’s order.

(1953), 265 Wis. 114, 60 N. W. 2d 768.

(1963), 21 Wis. 2d 242, 249, 124 N. W. 2d 123.