WPPA Wins Appeal for Protective Status Jailers

In a landmark ruling, the WPPA has won its appeal of a decision by the Wisconsin Employment Relations Commission (WERC) over the issue of whether protective status county jailers constitute “public safety employees” with collective bargaining rights under new laws enacted in 2011. These laws eviscerated the rights of most public employees to bargain over wages, benefits, and working conditions. The WPPA was the first labor organization in the state to challenge county employers on this issue, and this successful decision is a tremendous victory for many of the dedicated men and women who serve their communities in county jail facilities. Due to the WPPA’s efforts alone, protective status county jailers must now be recognized as members of the public safety community, where they rightfully belong.

For many years, nearly half of the counties in the state have classified their jailers as “protective occupant participants” for purposes of the Wisconsin Retirement System (WRS). This classification, which cannot be bargained and is almost entirely within a county’s discretion, certifies that these employees primarily perform law enforcement functions. The protective status designation generally recognizes the dangerous work environments in which these employees must operate, allows them to retire at an earlier age, and provides them with duty disability benefits in the event they are injured in the line of duty.

Amidst the many collective bargaining law changes that went into effect in 2011 was a provision that exempted “public safety employees.” As this provision applies to county jailers, the law requires that they must be both a protective occupation participant and a “deputy sheriff.” Wisconsin’s statutory definition of “deputy sheriff,” which has remained the same for many years and was not impacted by the collective bargaining law changes, generally includes any employee of a sheriff’s office that is primarily engaged in active law enforcement duties.

Despite certifying that its jailers primarily performed law enforcement duties as protective occupation participants for many years, Douglas County boldly refused to bargain with them in 2011, claiming that the jailers did not meet the new “public safety employee” definition and therefore had lost their bargaining rights as did most other general municipal employees. Regrettably, the WERC agreed, and the WPPA immediately appealed the state agency’s decision.

On October 10th, 2012, Dane County Circuit Court Judge Richard Niess ruled that the WERC was wrong. In reversing the WERC decision, Judge Niess concluded that the very nature of the jailers’ classification as protective occupation participants, which requires the active involvement in law enforcement, meets the statutory definition of deputy sheriffs. In addition, Judge Niess held that the law does not require a deputy sheriff be sworn or certified by the Law Enforcement Standards Board (LESB). As such, Judge Niess concluded that since the jailers met the definition of deputy sheriff, they also constituted “public safety employees” with full collective bargaining rights.

WPPA Staff Attorney Roger Palek has been the chief advocate in this litigation, with the assistance of the Douglas County Jailers Association leadership, WPPA representatives Al Bitz and Gary Gravesen, and WPPA Executive Director Jim Palmer.

Because the Douglas County decision overturned the decision a statewide agency, it now applies to every county in the state. The holding of Judge Niess is consistent with another recent WPPA victory won before Marquette County Circuit Court Judge Richard Wright, who made a similar holding on the same issue. Though the Marquette County case was filed after the Douglas County litigation began, the WPPA prosecuted this action in circuit court, as opposed to going to the WERC. The Marquette County ruling applies only that county, has proceeded more quickly, and Marquette County has appealed its loss to the WPPA to the Wisconsin Court of Appeals. Until the appeal of the Marquette County case is completed or a stay is issued to suspend the Douglas County ruling pending that decision’s appeal, counties must negotiate with their protective status jailers. In the event a county refuses to do so, the WPPA will enforce that legal obligation through whatever means at its disposal.

Wisconsin’s new collective bargaining laws have provided its public employers with a tremendous amount of power, all at the expense of the rights of their employees. Despite this, there are some county employers have been going out of their way to push the bounds of these new laws and take even more than that which was contemplated when the new anti-union laws were initially proposed. The WPPA is here to fight for you, its members, and for your ability to support your loved ones and your communities. We continue to successfully demonstrate our commitment to you and your service, and our ability to otherwise stand strong and lead the way.

For more information about this case or any other in which the WPPA is fighting for you, please contact Jim Palmer at palmer@wppa.com.

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