COURT OF APPEALS DECISION
DATED AND RELEASED JANUARY 31, 1995
STATE OF WISCONSIN
IN COURT OF APPEALS
JEROME FILBRANDT PLUMBING AND HEATING, INC.,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
PLUMBERS AND PIPE FITTERS, LOCAL 557,
Decision No. 27045-D
APPEAL from a judgment of the circuit court for Langlade County: JAMES P.
Before Cane, P.J., LaRocque and Myse, JJ.
PER CURIAM. The Wisconsin Employment Relations Commission and Plumbers and
Pipe Fitters Local
557 appeal a judgment overturning WERC's decision that Filbrandt refused to bargain with
the union in
good faith. Because substantial evidence supports WERC's finding that the delays in
primarily due to the unavailability of Filbrandt's negotiators and there is a rational basis for
conclusion that Filbrandt violated the employer's duty to bargain in good faith, we reverse
court's judgment and reinstate the WERC decision.
The court must affirm the Commission's findings of fact if they are supported by
See Sec. 227.20(6), Stats. Substantial evidence is not equated with a
preponderance of evidence. Where
there are two conflicting views that might be sustained by substantial evidence, it is for the
to determine which view of the evidence it wishes to accept. Robertson
Transp. Co. v. PSC, 39 Wis.2d
653, 658, 159 N.W.2d 636, 638 (1968). The weight and credibility of the evidence are
matters for the
agency, not the reviewing court, to evaluate. Bucyrus-Erie Co. v.
DILHR, 90 Wis.2d 408, 418, 280
N.W.2d 142, 146 (1979).
Substantial evidence supports the Commission's finding that delays in negotiations after
1990, were primarily due to the unavailability of Filbrandt's negotiators. Filbrandt's son and
daughter-in-law made up the company's negotiating team. Their busy work and personal
schedules made it impossible
to hold regular meetings. As a result, the parties only met for negotiation nine times in one
the union was responsible for some of the failure to meet due to illness, vacations and
specific days, the evidence supports the Commission's finding that the primary reason for the
meet was the persistent unavailability of Filbrandt's negotiators.
The record shows a rational basis for the WERC holding that Filbrandt's conduct
violated the employer's
duty to bargain in good faith. Because the Commission has substantial experience in this
area, the courts
must accord its legal conclusions "great-weight." See
West Bend Educ. Ass'n v. WERC, 121 Wis.2d 1,
12, 357 N.W.2d 534, 540 (1984). When reviewing a claim that a party has failed to bargain
in good faith,
the Commission must apply the "totality of conduct" or "totality of the circumstances" test.
v. Schwab Foods Mfg., 858 F.2d 1285, 1292 (7th Cir. 1988).
The record contains sufficient evidence to establish that Filbrandt violated its duty of
negotiating in good
faith. The law does not accept a party's excuse that he was too busy to negotiate.
See, e.g., Interstate
Paper Supply Co., Inc., 251 NLRB 1423, 1425 (1980). Collective
bargaining obligations include a duty
to make expeditious and prompt arrangements for meeting and conferring.
Quality Motels of Colorado,
189 NLRB 332, 337 (1971). The small size of the company does not relieve it of the duty to
available for collective bargaining. See Brooks v.
NLRB, 348 U.S. 96, 104 (1954).
Filbrandt contends that the Commission did not apply the "totality of conduct" standard
because it focused
only on the company's unavailability and ignored the delays caused by the union and the
acquiescence in the schedule. While these factors are a part of the totality of circumstances
they do not
compel a decision favorable to Filbrandt. In addition to the delays caused by the
Filbrandt's negotiators, the Commission reasonably considered the nonproductive nature of
that occurred due to Filbrandt's focusing on matters as minor as spelling errors. The
also reasonably consider the fact that Filbrandt's only substantive proposal would have been
offering $2 per hour less than the prevailing rate for a journeyman plumber. While Filbrandt
benign explanations for these matters, there was sufficient evidence to support the
conclusion that Filbrandt acted in bad faith, effectively stalling the negotiations until he could
file a petition
to decertify the union.
By the Court.--Judgment reversed.
This opinion will not be published. See Rule 809.23(1)(b)5, Stats.