Status of Legislative Discussions Regarding Elimination of Qualified Economic Offer Language

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June 23, 2009

We are providing an update regarding the discussions over potential changes to state law impacting collective bargaining for school districts.
 
As you know, the State Senate and State Assembly are meeting this week to consider compromises to the state Budget Bills adopted by each entity to see if they can reach an amicable compromise on the state budget to present to the Governor for signature. One of the items under consideration in the compromise discussion is the elimination of the qualified economic offer (QEO) language. The Assembly proposed that this language be eliminated effective July 1, 2010, while the Senate has proposed the elimination of the language effective July 1, 2009. It is not clear which of these proposals will become part of the final draft of the state budget.
 
Under the proposed legislative changes, there are several issues that are subject to debate and interpretation, including:

Can school districts implement a QEO and would they still be required to go to interest arbitration if the QEO law is eliminated on July 1, 2010?
Will the proposed elimination of the “greatest weight” factor and the “greater weight” factor apply to interest arbitration proceedings that were commenced prior to July 1, 2010, under the current QEO law, or would such factors be eliminated for pending as well as future interest arbitration proceedings involving school districts?
Will the new legislation that allows teacher bargaining units to combine with support staff bargaining units take effect immediately and what impact will that have on interest arbitration proceedings with support staff bargaining units?

Unfortunately, the answers to these questions are not clear and may not become clear for several months. The first decision that needs to be made is whether the QEO language will be eliminated as of July 1, 2010 or July 1, 2009. If the QEO law is eliminated as of July 1, 2010, it appears that a school district could implement a QEO during the 2009-2010 school year but still would be subject to interest arbitration because the school district has the continuing obligation to negotiate with a teacher association even after it has implemented a QEO and technically, up until 90 days prior to the expiration of the 2009-2011 Labor Agreement (being April 1, 2011). Under this interpretation, a school district could implement a QEO but still be subject to a petition for interest arbitration if the law is eliminated as of July 1, 2010. We will simply have to wait and see how the language would be drafted in the compromise Budget Bill and how it would play out in interpreting the statutory language.
 
We also cannot answer how the proposed elimination of the “greatest weight” and “greater weight” factors from interest arbitration for school district bargaining units will impact the current negotiations. Arguably, the elimination of this language could impact interest arbitration proceedings with support staff associations that are ongoing right now or likely to be initiated in the next several months because support staff bargaining units are still able to use the interest arbitration law and are not subject to the QEO limitations. The wording of the proposed state budget would appear to eliminate reference to the greatest weight and greater weight factors for all school district bargaining units (being teacher and support staff bargaining units, typically). It does not appear that the elimination of this language is tied to the same timeline as the elimination of the QEO language. This will have to be reviewed further when we receive the new language from the signed Budget Bill.
 
There is also proposed legislation that would allow professional bargaining units and nonprofessional bargaining units in school districts to combine into one bargaining unit, provided the professional bargaining unit approves such combination (which is required under current Wisconsin Employment Relations Commission (WERC) decisions). It is again not clear how this language will be applied by the WERC. The current proposed language provides that “upon expiration of any collective bargaining agreement in force, the Commission shall combine into a single collective bargaining unit two or more collective bargaining units consisting of school district employees if a majority of the employees voting in each collective bargaining unit vote to combine.” It is not clear whether the school district can object to such a combination of bargaining units nor is it clear what procedure would apply to the combining of bargaining units. The WERC is currently working on proposed regulations to address this issue based upon its assumption that this legislation will be included in the compromise Budget Bill.
We are continuing to monitor these developments under the Budget Bill. We will keep you advised as to further developments as soon as they become clear.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group or the School Districts and Educational Institutions Focus Team of Ruder Ware.

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