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Milwaukee District Council 48 v. Milwaukee County

Court of Appeals of Wisconsin, District I

November 7, 2017

Milwaukee District Council 48, Plaintiff-Respondent,
v.
Milwaukee County, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Milwaukee County: No. 2011CV16826 STEPHANIE ROTHSTEIN, Judge. Affirmed.

          Before Brennan, P.J., Kessler and Dugan, JJ.

          KESSLER, J.

         ¶1 Milwaukee County appeals an order granting summary judgment to Milwaukee District Council 48 (DC 48) finding that certain Milwaukee County employees, represented by DC 48, were not covered by a collective bargaining agreement (CBA) at the time Milwaukee County General Ordinance (MCGO) § 201.24(4.1) took effect, thus rendering them eligible for certain retirement benefits. We affirm.

         BACKGROUND

         ¶2 At issue in this appeal is whether certain Milwaukee County employees, represented by DC 48, were eligible to utilize full pension benefits upon retirement from the County. The material facts underlying this appeal are not in dispute. For decades, Milwaukee County has provided retirement benefits to employees pursuant to ordinance. Those employees are considered "members" of the County's Employee Retirement System (ERS). In 1993, the County adopted the ordinance commonly referred to as the "Rule of 75, " by which an "employee not covered by the terms of a collective bargaining agreement at the time his employment is terminated and who retires on or after September 1, 1993, " received a full pension if the employee's age added with his or her years of service equaled seventy-five. Later that year, the County Board agreed to a collective bargaining agreement with DC 48, in which the Rule of 75 was extended to employees represented by the union who had become ERS members prior to January 1, 1994.

         ¶3 In 2005, the County amended the ordinance to end the Rule of 75 for ERS members who were not covered by a CBA if they first entered ERS after January 1, 2006. Those covered by the union's CBA continued to receive the Rule of 75 benefit only if they had been hired prior to January 1, 1994. The last CBA between the union and the County expired on December 31, 2008. By agreement, the CBA was extended to March 31, 2009. No successor CBA between DC 48 and the County was ever reached.

         ¶4 In 2011, the Wisconsin legislature adopted Act 10. See 2011 Wis. Act 10. Act 10 took effect on June 29, 2011. As relevant to this appeal, Act 10 drastically curtailed collective bargaining by prohibiting municipal employees represented by unions from negotiating pension provisions.[1] Act 10 amended Wis . Stat . § 111.70 (2011-12)[2] by limiting the scope of bargaining between municipalities and "general municipal employees" represented by a union to the "base wage" and it limited any increase in the base wage to the increase in the consumer price index. See § 111.70. Specifically, Act 10 defined "collective bargaining" as:

[T]he performance of the mutual obligation of a municipal employer, through its officers and agents, and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement with respect to wages … for general municipal employees.

2011 Wis. Act 10 § 210 (emphasis added); Wis.Stat. § 111.70(1)(a).

         ¶5 Thereafter, on September 29, 2011, the County Board adopted an amendment to MCGO § 201.24(4.1) to extend the Rule of 75 to certain additional employees not covered by a CBA on that date:

2. (a) A member [3] who, on September 29, 2011 is employed and is not covered by the terms of a collective bargaining agreement, and whose initial membership in the retirement system under section 201.24 began prior to January 1, 2006, and who retires on and after September 1, 1993, shall be eligible for a normal pension when the age of the member when added to his years of service equals seventy-five (75)….
(b) A member who, on September 29, 2011, is employed and is covered by the terms of a collective bargaining agreement with … District Council 48 … and whose initial membership date is prior to January 1, 1994, shall be eligible for a normal pension when the age of the member when added to his years of service equals seventy-five (75)….

MCGO § 201.24(4.1)(2) (2011) (emphasis added). Thus, the County specifically gave "members" who were employed by the County the benefit of the Rule of 75 whether or not the employees were covered by CBAs, but depending on when the employee became a member of the County's retirement system.

         ¶6 Pursuant to additional changes made by Act 10, DC 48's certification as a representative of the County general employees was revoked by the Wisconsin Employment Relations Commission effective January 30, 2012.

         ¶7 Following DC 48's decertification, the County moved for declaratory judgment, and ultimately summary judgment, on the grounds that, pursuant to MCGO § 201.24(4.1), the Rule of 75 benefit was not applicable to employees represented by DC 48 on September 29, 2011, if those employees entered ERS between January 1, 1994, and December 31, 2005.[4] The County argued that the employees ...


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