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POMMER: Law spurs discipline problems

By Matt Pommer

As usual, the devil is in the details. Thats especially true for local officials in the wake of the new state law effectively emasculating public employee unions.

Many school districts and municipal units of government still have labor contracts, nearly all of which have final and binding arbitration by an independent examiner. But that approach to handling discipline cases will disappear as the labor contracts expire.

Under the new law school districts and municipal governments must create discipline procedures, but there is no final and binding provision that could keep discipline issues out of the courts.

Included in the discipline procedure is a hearing before an “impartial” examiner. But that examiner will be paid by the employer, and such “impartial” examiners aren’t likely to keep the jobs if they too often opt to for the worker’s side.

The ruling of the hearing examiner can be appealed to the elected body, be it the village or town board or a school board.

“It is likely that the new law addresses all forms of progressive discipline, which includes oral reprimands, suspensions, written reprimands, suspensions without pay and terminations,” said Nancy Pirkey, an attorney who represents municipal employers on labor law.

She suggested the Legislature be urged to create exemptions from grievance coverage including workforce reductions, demotions, job transfers, and end of employment for a temporary, contract or part-time employee.

Pirkey said the new law applied to all local government employees and did not carve out any exemption for seasonal, temporary or part-time employees. Most of them have not enjoyed procedure protections in the past.

Even high-ranking appointed officials who now serve at “the pleasure” of the elected boards are covered by the new law. They will be entitled to the full range of procedures spelled out for other employees.

The law requires local governments to retain or create systems which address the issues of discipline, discharge and work place safety. Larger units of government already might have civil service systems in place, but there will be a lot of work out there for smaller units of government to meet the requirements of the new law.

Public safety workers such as police and firefighters are exempt from the new statute because under Gov. Scott Walker’s law allows them to continue to have collective bargaining on all issues.

But ending the impartial arbitration system likely will increase firing or layoff cases that end up in federal courts under allegations of age, race, religion, or sexual orientation. The possibility of multiple damages and attorney fee awards could invite that approach. A federal jury might see the situation differently than the hearing examiner hired by local government.

The messy details in the Walker law are a result of rushing to enact it. Normally sweeping changes in state law would first be examined by a legislative study. In this case the details probably will end up being reviewed in the fall by the Legislature.

That would be after this summer’s recall elections.

Matt Pommer worked as a reporter in Madison for 35 years. He comments on state political and policy issues.

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