111.77 Settlement of disputes. Municipal employers and public safety employees, as provided in sub. (8), have the duty to bargain collectively in good faith including the duty to refrain from strikes or lockouts and to comply with the following:

(1) If a contract is in effect, the duty to bargain collectively means that a party to such contract shall not terminate or modify such contract unless the party desiring such termination or modification:

(a) Serves written notice upon the other party to the contract of the proposed termination or modification 180 days prior to the expiration date thereof or, if the contract contains no expiration date, 60 days prior to the time it is proposed to make such termination or modification. This paragraph shall not apply to negotiations initiated or occurring in 1971.

(b) Offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications.

(c) Notifies the commission within 90 days after the notice provided for in par. (a) of the existence of a dispute.

(d) Continues in full force and effect without resorting to strike or lockout all terms and conditions of the existing contract for a period of 60 days after such notice is given or until the expiration date of the contract, whichever occurs later.

(e) Participates in mediation sessions by the commission or its representatives if specifically requested to do so by the commission.

(f) Participates in procedures, including binding arbitration, agreed to between the parties.

(2) If there has never been a contract in effect, the union shall notify the commission within 30 days after the first demand upon the employer of the existence of a dispute provided no agreement is reached by that time, and in such case sub. (1) (b), (e) and (f) shall apply.

(3) Where the parties have no procedures for disposition of a dispute and an impasse has been reached, either party may petition the commission to initiate compulsory, final and binding arbitration of the dispute. If in determining whether an impasse has been reached the commission finds that any of the procedures set forth in sub. (1) have not been complied with and that compliance would tend to result in a settlement, it may require such compliance as a prerequisite to ordering arbitration. If after such procedures have been complied with or the commission has determined that compliance would not be productive of a settlement and the commission determines that an impasse has been reached, it shall issue an order requiring arbitration. The commission shall in connection with the order for arbitration submit a panel of 5 arbitrators from which the parties may alternately strike names until a single name is left, who shall be appointed by the commission as arbitrator, whose expenses shall be shared equally between the parties. Arbitration proceedings under this section shall not be interrupted or terminated by reason of any prohibited practice charge filed by either party at any time.

(4) There shall be 2 alternative forms of arbitration:

(a) Form 1. The arbitrator shall have the power to determine all issues in dispute involving wages, hours and conditions of employment.

(b) Form 2. The commission shall appoint an investigator to determine the nature of the impasse. The commission's investigator shall advise the commission in writing, transmitting copies of such advice to the parties of each issue which is known to be in dispute. Such advice shall also set forth the final offer of each party as it is known to the investigator at the time that the investigation is closed. Neither party may amend its final offer thereafter, except with the written agreement of the other party. The arbitrator shall select the final offer of one of the parties and shall issue an award incorporating that offer without modification.

(5) The proceedings shall be pursuant to form 2 unless the parties shall agree prior to the hearing that form 1 shall control.

(6)

(am) In reaching a decision, the arbitrator shall give greater weight to the economic conditions in the jurisdiction of the municipal employer than the arbitrator gives to the factors under par. (bm). The arbitrator shall give an accounting of the consideration of this factor in the arbitrator's decision.

(bm) In reaching a decision, in addition to the factors under par. (am), the arbitrator shall give weight to the following factors:

1. The lawful authority of the employer.

2. Stipulations of the parties.

3. The interests and welfare of the public and the financial ability of the unit of government to meet these costs.

4. Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment of other employees performing similar services and with other employees generally:

a. In public employment in comparable communities.

b. In private employment in comparable communities.

5. The average consumer prices for goods and services, commonly known as the cost of living.

6. The overall compensation presently received by the employees, including direct wage compensation, vacation, holidays and excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.

7. Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.

8. Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between the parties, in the public service or in private employment.

(7) Proceedings, except as specifically provided in this section, shall be governed by ch. 788.

(8)

(a) This section applies to public safety employees who are supervisors employed by a county having a population of 750,000 or more. For purposes of such application, the term “municipal employee" includes such a supervisor.

(b) This section shall not apply to members of a police department employed by a 1st class city nor to any city, village or town having a population of less than 2,500.

(9) Section 111.70 (4) (c) 3., (cg), and (cm) does not apply to employments covered by this section.

History: 1971 c. 247, 307; 1973 c. 64; 1975 c. 259; 1977 c. 178; 1979 c. 32 s. 92 (15); 1989 a. 258; 1991 a. 136; 1993 a. 16; 1995 a. 27; 2011 a. 10, 32; 2017 a. 207 s. 5.

Arbitration under sub. (4) (b), which requires the arbitrator to select the final offer of one of the parties and then issue an award incorporating that offer “without modification," does not preclude restatement or alteration of the offer to comprise a proper, final arbitration award finally disposing of the controversy. Manitowoc v. Manitowoc Police Dept. 70 Wis. 2d 1006, 236 N.W.2d 231 (1975).

Under the common law an arbitrator need not render an account of the reasons for his or her award, nor is a written decision required by ch. 298 [now ch. 788], although the arbitrator must weigh the criteria suggested by sub. (6). Manitowoc v. Manitowoc Police Dept. 70 Wis. 2d 1006, 236 N.W.2d 231 (1975).

Sub. (4) (b) permits amendment of a final offer after an arbitration petition is filed but before an investigation is closed, even if the amendment includes proposals that were not negotiated before the filing of the petition. City of Sheboygan v. WERC, 125 Wis. 2d 1, 370 N.W.2d 800 (Ct. App. 1985).

The analysis under Manitowoc was inapposite in this case in which the arbitrator exceeded his authority under sub. (4) (b) by modifying the city's final offer instead of “select[ing a] final offer ... without modification." Moreover, rather than “restating" the offer to “comprise a proper, final arbitration award," the arbitrator's action produced an award that was other than a “final and definite" award required by s. 788.10 (1) (d). LaCrosse Professional Police Association v. City of LaCrosse, 212 Wis. 2d 90, 568 N.W.2d 20 (Ct. App. 1997), 96-2741.

Right to strike and compulsory arbitration: panacea or placebo? Coughlin, Rader, 58 MLR 205.