STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN EX REL. MATTHEW J. MUSGRAVE,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
LOCAL 2492-A, AMERICAN FEDERATION OF STATE, COUNTY AND
EMPLOYEES (AFSCME), AFL-CIO,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
MATTHEW J. MUSGRAVE,
Decision Nos.25757-C and 25908-C
APPEAL from a judgment and an order of the circuit court for Marquette county:
A. BRADY, Judge. Affirmed.
Before Eich, C.J., Sundby and Brown, JJ.
PER CURIAM. Mathew J. Musgrave appeals from an order in which the Marquette
Circuit Court affirmed in part and reversed in part an order of the Wisconsin Employment
Relations Commission (commission). The trial court affirmed the commission's order
Musgrave's action against his employer, the Marathon County Department of Social
However, it reversed the commission's order refusing to dismiss Musgrave's complaint
his union and union officials for violating their duty of fair representation. We affirm.
Two cases have been consolidated in this appeal. Both have been extensively litigated.
complete facts have been set out at length by various adjudicators below (1) and need not be
repeated here. The following summary suffices for the purpose of this opinion.
Mathew J. Musgrave was employed as a social worker by the Marathon County
Social Services. Between September 1985 and March 1988, Musgrave's union, AFSCME
2492-A, filed several grievances against his employer alleging the impropriety of various
unfavorable determinations. However, Musgrave was not pleased with the union's handling
In April 1988, Musgrave filed another grievance (April grievance) based on his
reprimand for an alleged threat Musgrave made against another employee. The union
unsuccessfully attempted settlement, and thereafter, informed Musgrave that it would not
his grievance any further. Musgrave challenged the union's determination before AFSCME's
national judicial panel, which ruled against him.
In October 1988, his employer suspended Musgrave without pay for poor job
Thereafter, he filed another grievance (October grievance). The union represented Musgrave
an initial grievance meeting with his employer.
However, after the employer denied the grievance at the first stage, the union refused
Musgrave's October grievance further.
Not pleased with his employer or his union, Musgrave filed two separate complaints
commission. The first alleged that his employer had discriminated against him for union
activities. The second alleged that the union and other AFSCME entities and individuals
their duty to him of fair representation under sec. 111.70(3)(b)1, Stats., for various reasons,
including the union's refusal to process the April and October grievances.
The cases were consolidated. After extensive motions, a two-day hearing occurred
examiner. He dismissed both complaints. Thereafter, Musgrave appealed to the full
See secs. 111.07(5) and 111.70(4)(a), Stats.
The commission affirmed the examiner's dismissal of the complaint against the
employer and also
affirmed the examiner's dismissal of the complaints against various AFSCME entities and
individuals. However, the commission reversed the examiner's dismissal of the complaint
the union. The commission determined that the union's executive board permitted "hostility"
toward Musgrave to influence its decision not to pursue his various grievances.
The commission did not consult with the examiner (2) as required by Hamilton v. DILHR,
Wis.2d 611, 621, 288 N.W.2d 857, 861-62 (1980) (In reversing the examiner an agency
"(1) consult of record with the examiner ... and (2) include in a memorandum opinion an
explanation for its disagreement with the examiner. "). Also, when it made its
the commission did not have certain portions of the record before it, a matter which later
known when the commission had to request the union's help in filling gaps in its record to be
before the circuit court. Musgrave appealed to the circuit court under ch. 227, Stats. The
The circuit court determined that substantial evidence in the record supported the
determination affirming the examiner's dismissal of the employer. The court overturned that
portion of the commission's order which reversed the examiner's dismissal of the complaint
against the union. The court reasoned that the commission erred because it failed to consult
the examiner, and because certain parts of the record were not before it.
The scope of appellate review is identical to that given to the circuit court under sec.
Stats. (formerly sec. 227.20, Stats.). Gilbert v. Medical Examining
Bd., 119 Wis.2d 168, 194,
349 N.W.2d 68, 79-80 (1984). Thus, we may not substitute our judgment for the
in a contested case as to the weight of the evidence on any disputed finding of fact.
must set aside or remand the action if the commission's findings of fact are "not supported
substantial evidence in the record." Section 227.57(6), Stats. Further, we must remand if
correctness of the action has been "impaired by a material error in procedure or a failure to
prescribed procedure." Section 227.57(4), Stats.
We conclude that the commission's action was impaired by a material error in
it failed to consult with the examiner before reversing him. As set forth in Hamilton,
commission is bound to consult with the examiner. Failure to do so is a "material error" and
"failure to follow prescribed procedure." Section 227.57(4), Stats. Therefore, we conclude
the trial court correctly reversed the commission's order refusing to dismiss Musgrave's
against the union. (3)
With respect to the commission's determination that the examiner acted correctly in
the complaint against the employer, we conclude that the trial court correctly affirmed the
commission. There is substantial evidence that the employer dismissed Musgrave because of
Musgrave's poor work performance, rather than for his union activities. The examiner, the
commission, and the circuit court an agree that the employer found fault with Musgrave's
before Musgrave began the union activities which, he alleges, led to his discharge.
By the Court. Judgment and order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
1. In addition to hundreds of pages of hearing
transcripts, the record contains a twelve-page
determination by the examiner, a fifty-seven page order by the commission (consisting of a
nineteen-page order and a thirty-eight page memorandum), as well as a fourteen-page
the trial court.
2. In its brief before the trial court, the commission
conceded that it failed to consult with the
3. In its brief before this court, the commission
implicitly concedes its own error by failing
to argue that the trial court acted improperly in reinstating the examiner's dismissal of the