Brookfield Seeks Ruling that Employees Pay Pensions Despite Union Contracts

In a move that could impact public employees across the state, Brookfield city officials want to start deducting pension contributions and stop collecting dues from union employees before their current contracts expire, based on a provision tucked in those contracts.

The city plans to seek a ruling from the state that could strip away a commonly held belief among union members: that having a contract in place before Act 10 became law exempted those employees from the sweeping changes until their contracts expire.

Some local governments and school districts passed new contracts before the state Supreme Court ruled the collective bargaining law was in effect. Some of those new contracts required pension contributions; others did not.

"I think this has the potential to become a big issue," said Jim Zwerlein, Brookfield's human resources director. "The belief has been as long as we have a contract we don't have to worry about anything."

But Brookfield is pointing to the savings or severability clause in its union contracts. That clause is common language in most collective bargaining agreements and allows local governments to implement state and federal law changes that conflict with union contracts while keeping the rest of the contracts intact, Zwerlein said.

For years, state and federal changes have benefitted employees, for example giving them greater uses for sick leave under the Family Medical Leave Act or allowing dependents to remain insured until age 27 rather than 25, he said. The city automatically implemented those new benefits that exceeded the city-negotiated contracts because of the savings clause, Zwerlein said.

He and Brookfield's labor attorney, James Korom, believe the same situation is in play with the latest state law changes, even though this time it reduces employee benefits, shifting pension costs from government to employees and removing government responsibility to collect dues.

"This is the first time the savings clause moves in the other direction," Zwerlein said "Every other instance of this was to the benefit of employees and it was almost an annual thing."

Attorneys and local and state union officials representing Brookfield's five employee unions could not be reached Friday for comment. 

On Sunday, Timothy Hawks, an attorney representing the Brookfield firefighters association, said the interpretation was flawed and incorrect.

"It's really straightforward" that Act 10 can not be implemented until the current contracts expire, Hawks said.

"I believe the city's position is quite wrong, and we'll have to see what's necessary to make sure those contracts are enforced until they expire," he said. "It's important to keep in mind that the city entered into these agreements less than six months ago in some cases, and it would be disappointing to see the city not honor its work."

Zwerlein said the city could save about $283,000 a year if its three non-public safety unions were required to make pension contributions. Those unions contracts expire Dec. 31, 2012.

The new law says Act 10 provisions go into effect immediately, unless there is an existing bargained contract "that contains provisions inconsistent with" Act 10, Zwerlein said.

Having a savings clause means essentially that state law changes supercede the local contract, he argued.

Mayor Steve Ponto said the city is asking its unions to jointly seek a ruling on this question from the Wisconsin Employment Relations Commission. But if the unions decline, the city will petition WERC on its own, he said.

"I think it's important to have this nailed down," Ponto said. "It’s a strong point but one that our outside labor counsel feels that we are on good footing so I think it’s worth pursuing."

Driving the issue is a concern about inequitable imposition of the new changes on different groups of public employees. Act 10 exempted union police officers and firefighters and delayed imposition on any public employees with existing union contracts that didn't require pension contributions.

The state's biennial budget exempted non-union police and fire command staff but added the Act 10 rules on any police and firefighters hired after July 1.

Brookfield has two new firefighters starting next week.

The city plans to deduct pension contributions from those firefighters, Ponto said.

The mayor said it's not fair or equitable that nonunion employees, including City Hall workers and department heads not covered by a union, began having pension deductions in late August, while their union coworkers would not until 2013, and their police and fire counterparts for perhaps even longer than that.

Ponto said he has complained about the different treatment to legislators and recently to Gov. Scott Walker's director of policy and legislative affairs, Ryan Murray.

He noted that Brookfield's fire chief and his five deputy fire chiefs have agreed to even though the biennial budget exempts them from doing it.

Ponto said state cuts in local aid and property tax levy limits have squeezed city budgets. So far the city, however, has not had substantial layoffs or required furloughs. All employees should help with pension contributions, he argued.

"If there is going to be sacrifice, it should be across the board," he said.