STATE OF WISCONSIN
CIRCUIT COURT BRANCH 10
RACINE UNIFIED SCHOOL DISTRICT,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
Case No. 98-CV-752
[Decision No. 28614-E]
[NOTE: This document was re-keyed by WERC. Original pagination has been
The above named Petitioner, hereinafter referred to as District, filed its petition for
Judicial Review of
Administrative Agency Decision on February 4, 1998 requesting review of the January 7,
1998 Decision and Order
of the Wisconsin Employment Relations Commission, hereinafter referred to as Commission,
all pursuant to sec.
The District alleges in its Petition that the Commission erroneously interpreted
sec. 111.70, et seq., Stats.,
and acted outside of its discretionary authority with respect to remedy.
The Commission's Order of January 7, 1998 affirmed the Commission's Decision
Order of July 8,
1996, which Decision and Order adopted the Findings of Fact, Conclusions of Law and
Order of the Examiner of
June 18, 1996.
The District seeks reversal of the Commission's Order and, in the alternative, for
modification of the
Order. The Commission filed its Statement of Position and Counter-Petition on February 18,
1998 seeking a
judgment and decree confirming and enforcing its Order.
On review questions of fact are resolved by application of the "substantial evidence"
questions of law are resolved by application of deference to the Commission's interpretation
"great weight" basis, a "due weight" basis or a "de novo" basis.
Definitions of "substantial evidence" are found in Gateway City Transfer Co. v.
Public Service Comm., 253 Wis.
397, 405-407, 33 N.W.2d 134 (S.Ct. 1948), Robertson Transport Co. v. Public
Service Comm., 39 Wis.2d 653,
657-658, 159 N.W.2d 636 (S.Ct. 1968) and Princess House, Inc. v. DILHR,
111 Wis.2d 46, 53-54, 330 N.W.2d
169 (S.Ct. 1983). Of particular note is sec. 227.57(6), Stats., which provides, in part:
"The court shall, however, set aside agency action or remand the case to the agency if
it finds that the agency's
action depends on any finding of fact that is not supported by substantial evidence in the
An oft quoted definition of "substantial evidence" appears in the Princess House,
Inc. case, supra, at page 54:
"Evidence that is relevant, probative, and credible, and which is in a quantum that will
permit a reasonable fact
finder to base a conclusion upon it, is 'substantial evidence.' "
In this case the facts were virtually undisputed.
Foundational to this matter is the axiom that the District and Board of Education are
charged with certain
responsibilities and duties. In particular sec. 118.01, Stats., spells out certain of these duties
and there are other
laws which dictate what the District and Board must do, such as, Chapter 121, School
Finance. In addition to the
host of State laws there are Federal mandates as referred to in the hearing transcript such as
Disability Educational Act of 1990. Sec. 115.85., Stats., requires the District and
Board ". . .ensure
that such. . .programs and services are available. ." Both the United States and Wisconsin
Constitutions speak to public education. Violation of these State and Federal mandates may
in severe sanctions.
In this matter the Association is the Racine Educational Assistants Association which
Association includes interpreters for hearing impaired/deaf children.
The Association filed its complaint claiming violation of sec. 111.70(3), Stats., by the
District and the Board, to-wit: that the District and Board violated ". . .by unilaterally
implemented its proposal to increase the pay rates for the classification of Hearing Interpreter
during a hiatus period on the basis of necessity which the Association asserts to be untrue
pretextual." (Examiner Findings, page 1, June 18, 1996)
The last collective bargaining agreement between the District and Association expired
August 24, 1993. Though bargaining had taken place thereafter no new agreement had been
reached between the parties for any period subsequent to that date. As of the Summer of
and prior to the commencement of the 1995-1996 school year no new agreement was in
Hearing Interpreters were paid according to the Matron Assistant schedule which provided
pay range of $9.47 per hour (Assistant I) to $10.24 per hour (Assistant III).
As of August 17, 1995, a couple of weeks before the Fall semester was to
District needed seven (7)
interpreters and had two (2). In her letter of August 24, 1995, Keri A. Paulson,
Relations Supervisor, correctly writes: ". . ., with the start of the new school year, this
will be at a crisis stage." (Exhibit 2) In his letter of August 29, 1995, James J. Ennis,
Director, takes no issue with characterizing the situation as an "emergency". (Exhibit 6)
The only reasonable conclusion to be drawn from the undisputed facts is that the
mandated to provide hearing interpreter services and could not do so as of the
the 1995-1996 Fall semester. Under penalty of law the District was compelled to act. A
with far reaching consequences to the students affected existed and the District faced liability
consequences if it did not act.
The District suggests that the Commission erred in that "The Examiner and
erroneously determined that the District did not face a necessity." (District's Brief, page 2)
is not accurate because the Commission's Decision does not necessarily take issue with the
"crisis" and the Commission (adopting the Examiner's Findings, Conclusions and Order and
issuing its own Memorandum on rehearing) does not directly dispute that such a crisis
District action existed.
There is not a scintilla of credible evidence in the record to contradict a conclusion that
existed "necessity" as of the commencement of the Fall, 1995 semester which required the
While it is true that a search of the transcript will
disclose that Mr. Ennis opined that no necessity existed, necessity in the context of the
not defined and if he was expressing his opinion with regard to the "crisis" then such opinion
no weight or evidence value as it has no factual underpinnings and obviously cannot be a
upon which any finding or conclusion can be based.
Focusing on September 20, 1995 the Commission reasoned that the District did not
"necessity" to act at that time by unilaterally raising Interpreter wages because ". . .the
could have obtained Hearing Interpreter services from an outside contractor." (Commission
Memorandum, Background, page 4) The Commission later explained: "We reach this
because the record upon which our decision was based contains persuasive evidence that: (1)
outside Interpreter services were available;. . ."
The testimonial record consists of 136 pages and the testimony of eight (8) witnesses.
numbers 1, James Ennis, 2, Susan Henken, 3, Jill Zelechowski, 4, Stephanie Eide, 5, Laura
Collins, 7, Shelley Kritek and, 8, Keri Paulson did not testify that "outside Interpreter
were available". Witness number 6, Mary Jane Hernandez, testified specifically that
Interpreter services" were not available.
There were 33 exhibits received. A single exhibit containing a single paragraph is the
evidence" deemed by the Commission to be "in a quantum that will permit a reasonable fact
to base a conclusion upon it." The memo
from May Jane Hernandez to Superintendent Armstrong dated September 5, 1995
reads, in part:
" * Until such time as Interpreter are hired, the vacancies will be filled by SEWCIL
$30.00 per hour."
The only reasonable interpretation of this statement is that the writer of the memo
take a certain action.
The Commission concluded that this intent to act was the same as the ability to fulfill
Such conclusion can only be arrived at by (a) speculating that SEWCIL Interpreters were, in
available and (b) totally disregarding the credible evidence that they were not available. The
Commission's interpretation of the statement is erroneous and so is its conclusion as
its Memorandum. When the Commission implicitly found that "outside Interpreter services
available" it erred because there is no substantial evidence that such conclusion is correct.
The ultimate conclusion reached by the Commission is that there was a violation by the
Impasse has been used in the same context as stalemate. Wisconsin Tel. Co. v.
Wisconsin E. R.
Board, 253 Wis. 584, 587, 34 N.W.2d 844. Where not otherwise defined, words are
ordinary meaning. Impasse is defined as "A situation in which no progress can be made; a
deadlock or stalemate". The American Heritage College Dictionary, Third Edition.
It is stated by the Examiner in his June 18, 1986 Memorandum that: "It is well settled
a valid defense, a
unilateral change in the status quo wages, hours or conditions
of employment during a contractual
hiatus is a per se violation of the employer's duty to bargain under
the Municipal Employment
Relations Act." Page 28.
The District restates this as ". . .a per se rule prohibiting unilateral implementation
reaching impasse is not a reasonable interpretation of the statute." (District Brief, page 17)
The Commissions emphasis is on the phrases "during a contractual hiatus" and
valid defense". The District's emphasis is on "impasse". Essentially the District says
implementation can occur at impasse and impasse occurred in this matter. The threshold
for the District is whether there was impasse.
The District in its Brief writes: "Despite repeated attempts to reach an agreement
Association, the District was unable to do so and determined that it had a "necessity" to
implement. . ." Page 2. The District suggests that sec. 111.70(4) (cm), Stats., does not
implementation on impasse. District's Reply Brief, pages 9-10.
On impasse: The District's first written proposal is set forth in the Paulson letter of
August 24, 1995. (Examiner Finding number 12.) Of significance it refers to "these
meaning, of course, the hearing interpreters. The Association's response came on August
1995 in the Ennis letter and states, in part: "Hearing Interpreters and all
assistants will settle together and there is no justification for the Board to act for one
assistants and not all." (Examiner Finding number 13.) Obviously, there was disagreement
the group to be covered. However, this hurdle was apparently successfully negotiated on
August 29, 1995. Following this meeting the District and Association exchanged
proposals in the
following sequence: District proposal August 30; Association proposal September 5; District
proposal September 5. (Examiner Finding numbers 15 and 16.) Based on an informal
made by the Association's Director made after the District's proposal of September 5 was
communicated to him the District without anything further declared impasse on September
(Hearing transcript pages 97-98. Examiner's Finding number 18 and 19) The record does
reflect any contact between the parties after the remark and before the September 15 letter.
other words the District did nothing to verify the Associations formal response to its last
proposal. If the District was somehow relying on past history in interpreting Mr. Ennis's
there is no evidence of such reliance or history.
In order to meet its needs and the necessity of the situation the District interviewed and
hearing interpreters. In the words of Jill Zelechowski, a hearing interpreter who had been
employed by the District since September, 1995: "My instructor from where I went to
through the interpreter program had called me during the summer, August, I believe,
´95, and had
said there was a sign language
interpreter job open in Racine, full benefits -- well, not full benefits. Full time,
hour. ..." (Transcript page 34) It is obvious that the her wage was not a negotiated
one and a
reasonable conclusion is that a de facto wage increase was put in place by the District at the
employee interview stage. This conclusion is not compatible with an impasse.
It is undisputed that the parties had reached an agreement proximate to and before the
commencement of the Fall, 1995 semester with regard to the "group" being the hearing
interpreters and a wage rate increase. Referring to a conversation on August 3, 1995 with
Ennis, Keri Paulson stated: "We had a dialogue about it. He indicated he knew there was a
problem and the problem was wages. He told me that he had a lot of discussions on this
with Jetha Pinkson Lawson, the assistant superintendent of human resources and Shelley
Geiselman Kritek, the woman who was the previous witness. And he had said it was okey,
he had reached an agreement with Jetha Pinkston Lawson, and it would be going to the
And he said we don't have to take it through the contract. You can have Jetha take it to the
board and have an agreement. ..." (Transcript page 93). For reasons unexplained in the
and in spite of the fact that the parties had reached an agreement, the agreement was
not the subject of further discussions or negotiations and left unanswered is the rhetorical
of how an impasse can be reached when the terms of an informal agreement acceptable to
sides are not further discussed.
The District points out that the Commission/Examiner never made a finding of
This is correct. The Commission's position in this regard is explained in the June 18, 1996
Discussion by the Examiner: ". . ., the Commission has held that impasse is not a basis on
implementation can occur except during the term of a contract and not during a hiatus which
the situation in the instant case." Page 29. Therefore, no impasse finding was made though
is evidence in the record from which such a finding in this regard, one way or another, could
made. It is not this court's function to make findings or conclusions. Acknowledging such,
would appear from the record reviewed that there was "substantial evidence" that there was
impasse as of September 15, 1995.
The Commission's position in this matter is based on 1984 decisions in City of
No. 19822-C (WERC, 11/84) and Green County, Dec. No. 20308-B (WERC,
Commission's interpretation here is given "great weight" deference because all four elements
present. Accordingly, the matter of "necessity" is reexamined based on the second reason
to-wit: "When we review the existing record, we conclude that at least as of September 20,
there was no necessity for the implementation of a new higher wage schedule for District
Interpreters. We reach this conclusion because the record upon which our decision was
contains persuasive evidence that: . . .; and (2) the District was not in any immediate danger
losing existing Interpreters."
(Commission, Discussion, page 6, January 7, 1998) This statement is, of course,
premised on the
District bearing the burden of proof and persuasion on this point. Is there "persuasive
that "the District was not in immediate danger of losing existing Interpreters"? Nothing in
record directly established the pro or con of this conclusion. The Commission's inference
apparently drawn is that because none of the witnesses testified unequivocally that they were
leaving as of September 20th and because there were no written resignations then there was
"immediate danger". While such inference is not one that this court would draw given the
circumstances surrounding the promise of a $12.50 per hour wage vs. the wage actually
paid as of that date, it cannot be held that the inference drawn by the Commission is totally
unsupportable in the record.
The Commission rejected the District's defense of "necessity". The reasons given
The first reason given was based on a finding for which there was no substantial evidence.
cannot be said of the second reason and therefore that portion of the Findings, Conclusion
Order of the Commission/Examiner which concluded a District violation of sec. 111.70(3)
Stats., is affirmed.
The Commissions Order provided for restoration of the status
quo ante which would require
recoupment of wage paid to the hearing interpreters. Such approach is novel, unique and
rationale or reasonable explanation. The only explanation offered is that restoration of the
quo is the standard
remedy in cases where the status quo is improperly changed.
(Commission, Discussion, page 6,
January 7, 1998) The Commission did not exercise its discretion but acted in an arbitrary
relying on a platitude rather than addressing this matter. The test is whether the affirmative
ordered " . . . is considered by the board reasonably necessary to 'effectuate the policies' of
act." WERC v. Evansville, 69 Wis.2d 140, 158-159, 230 N.W.2d 688 (S.Ct.
is not synonymous with decision-making. Rather, the term contemplates a process of
This process must depend on facts that are of record or that are reasonably derived by
from the record and a conclusion based on a logical rationale founded upon proper legal
standards." McCleary v. State, 49 Wis.2d 263, 277, 182 N.W.2d 512 (S.Ct.
1971) In its Brief
the Commission argues, page 15, that the ". . .order that the District recover the wage
unquestionably a reasonable remedy in a case such as this where the effect of the unlawful
by the employer has changed the status quo." Such statement begs the question
of why it is
reasonable to punish the beneficiaries of the employer's unlawful action since indeed
of past wages paid and spent is punitive, has no reasonable relationship to deterring the
from violating in the future, actually confers a benefit on the offending party by restoring
to it and will directly cause labor disharmony and discord, will likely cause termination of
employment and will cause the affected employees distraction from their employment duties
host of on-going problems with
the Internal Revenue Service, the Wisconsin Department of Revenue and the Social
Administration. The status quo ante order places the onus on the innocent
parties who in good
faith believed they would be performing valuable services for fair pay. Rather than
labor peace and effectuate the purposes of the Act the Order does exactly the opposite and
thought out. That part of the order requiring the District to restore the status quo
ante is hereby
set aside and modified to restoration of the status quo prospectively.
Dated this 16 day of November, 1998.
BY THE COURT
Richard J. Kreul /s/
Richard J. Kreul
Circuit Court Judge