STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
NORTHEAST WISCONSIN TECHNICAL COLLEGE
ASSOCIATION AND AIMEE VAN
NORTHEAST WISCONSIN TECHNICAL
AND WILLIAM EVANS, Respondents.
Decision No. 28909-C
Mr. Stephen Pieroni, Staff Counsel, Wisconsin Education
Association Council, P. O. Box 8003,
Madison, WI 53708-8003, joined on the brief by Ms. Joanne L.
Huston, Associate Counsel,
appearing on behalf of the Northeast Wisconsin Technical College Faculty Association and
Godfrey & Kahn, S.C., by Attorney Robert W. Burns, P.
O. Box 13067, Green Bay, WI
54307-3067, on behalf of Northeast Wisconsin Technical College and William Evans.
FINDINGS OF FACT, CONCLUSIONS OF LAW
Daniel J. Nielsen, Examiner: On March 19, 1996, Northeast Wisconsin Technical
(hereinafter referred to as the College) filed a complaint with the Wisconsin Employment
Commission asserting that Northeast Wisconsin Technical College Faculty Association
referred to as the Association) was committing a prohibited practice within the meaning of
111.70(3)(b)3 of the Municipal Employment Relations Act (MERA), by refusing to bargain
wages, hours and conditions of employment applicable to the position of Student Health
was occupied by Aimee VanGoethem. On August 19, 1996, the Association and
a complaint with the Commission, alleging that the College and William Evans, the College's
Vice-President of Human Resources, were committing prohibited practices within the
meaning of Secs.
111.70(3)(a)1 and 3, Stats., by laying off VanGoethem.
The Commission appointed Daniel J. Nielsen, an examiner on its staff, to hear both
to make and issue appropriate Findings of Fact, Conclusions of Law and Order. A hearing
scheduled for January 16 and 17, 1997. The Association amended its complaint on October
to add an allegation that the College had refused to bargain in good faith by subcontracting
VanGoethem's job, and that the subcontract interfered with her protected rights and retaliated
her for protected activity, all in violation of Secs. 111.70(3)(a)1, 3 and 4. On October 26,
Association and VanGoethem moved to take the deposition of William Evans prior to the
order to aid in their preparation. The Examiner denied the motion Dec. No. 28909-A,
11/7/96. On December 10, 1996, the College moved to consolidate the two complaints for
a motion which the Association opposed on the grounds that the College's complaint had
resolved and should be dismissed. The Commission granted the motion to consolidate,
the Examiner the decision as to whether the College's complaint should be dismissed Dec.
28954-A and 28909-B, WERC, 12/27/96.
On January 16 and 17, 1997, hearings were held in Green Bay, at which time the
provided full opportunity to present such testimony, exhibits, other evidence and arguments
relevant to the dispute. At the hearing, the Association withdrew its refusal to bargain claim.
transcript of the hearings was prepared, and was received by the Examiner on February 8,
parties submitted post-hearing briefs and reply briefs, the last of which were exchanged
Examiner on December 29, 1997.
On February 24, 1998, the Association petitioned to reopen the record to allow
over the impact of the Commission's decision in Green Lake County, Dec. No. 28792-B
12/97), a case reversing a decision by the Examiner which the Association had cited
its brief. The College agreed to the request, and supplemental briefs were submitted by
April 8, 1998.
In conjunction with its supplemental brief, the College moved to reopen the evidentiary
allow submission of additional evidence, in the form of the certified final offers of the parties
pending interest arbitration proceeding. The Association ultimately agreed to the College's
and the evidentiary
record was reopened. The final offers were submitted, and the parties submitted
over the significance of the offers, with the Association's argument being received on June
whereupon the record was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Now having considered the evidence, the arguments of the parties, the statutes and
as a whole, the Examiner makes and issues the following Findings of Fact, Conclusions of
FINDINGS OF FACT
1. Northeast Wisconsin Technical College, hereinafter referred to as the College, is
municipal employer technical and adult educational providing services to the people in and
Green Bay in northeastern Wisconsin. The College's business address is 2740 West Mason
Post Office Box 19042, Green Bay, WI 54307-9042. At all relevant times, Dr. Gerald
was the President of the College, William Evans was the Vice President for Human
Wouters was the Vice President for Student and Community Services, and Donald Baus was
President for Administration. Bonita Klika was the Registrar, and functioned as an assistant
Wouters and the direct supervisor of the Student Health office. During March, April and
1996, Prindiville was away on a sabbatical and Evans served as Acting President of the
2. Northeast Wisconsin Technical College Faculty Association, hereinafter referred
to as the
Association, is a labor organization affiliated with the Wisconsin Education Association
representing the professional employes of the College. Roy Smits is the President of the
Bill Johnson is the Association's Negotiations Chair and Rose Mastricola is the Grievance
Association's professional labor relations representative had been Dennis Muehl, Executive
Bayland United Educators ("Bayland"), 1136 North Military Avenue, Green Bay, WI
Muehl died suddenly in late October of 1995, and was replaced on an interim basis by Jim
Acting Director, and then Charles Garnier, as Interim Executive Director. Mr. Miguel Salas
ultimately hired as the new Executive Director for Bayland in March of 1996.
3. Aimee VanGoethem was employed as the College's Student Health Nurse from
of 1987 through June of 1996, when she was laid off. VanGoethem was contracted to work
hour days per year. At the time of her layoff, VanGoethem was paid $18.07 per hour, an
salary of $25,478.70.
4. From the time the position was created in 1987 until November of 1995, the
Nurse was not included in any bargaining unit, although VanGoethem actively sought
her position in the faculty bargaining unit represented by the Association. On March 31,
Association filed a petition with the Commission, seeking to clarify the
faculty bargaining unit to include the positions of Student Health Nurse and the AODA
On June 20, 1994, the College filed its own unit clarification petition, seeking to exclude
positions from the bargaining unit. Examiner Stuart Levitan held a hearing on the petitions
December 6, 1994 and January 30, 1995. At the January 30th hearing, the parties agreed to
issues other than the Student Health Nurse in abeyance. On November 6, the Commission
decision, holding that the Student Health Nurse was a professional employe within the
Sec. 111.70(1)(l), Stats., and should be included in the appropriate unit consisting of:
all certified personnel teaching at least 50% of a full teaching
schedule at Northeast Wisconsin
Technical College including classroom teachers and other related professional personnel who
employed in a professional capacity to work with students and teachers but excluding teacher
personnel teaching less than 50% of the full teaching schedule, coordinator directors,
clerical and custodial employes. Northeast Wisconsin Technical College, Dec. No. 11602-A
The parties had an informal understanding that the Commission's decision on the
Health Nurse would probably control the bargaining unit status of the AODA Specialist.
the status of the AODA Specialist was not pursued during the period of time relevant to
5. Sequence of Bargaining Over the Student Health Nurse
a. Following the Commission's decision in the unit clarification, it became apparent
parties had a major disagreement over the wages to be paid to the Student Health Nurse.
his death, Muehl advised Evans that the Association would likely propose retroactive
payment to the
nurse on the faculty pay schedule. Evans took the position that the Student Health Nurse's
should remain at $18.07 per hour. In a letter sent February 12, Charles Garnier took the
that, under the Commission's decision in City of Oak Creek, Dec. No. 27074-C (WERC,
the contract should automatically apply to VanGoethem as a matter of law, and that she
placed on the salary schedule without any bargaining. Evans made repeated efforts to reach
after this letter, and finally spoke with him on March 3. Garnier informed him that he
interested in bargaining because the contract was automatically applicable.
b. On March 19, the College filed its prohibited practice complaint alleging that the
Association was refusing to bargain in good faith through its insistence on automatically
faculty contract to VanGoethem. WEAC Staff Counsel Stephen Pieroni consulted with
the complaint, and attempted to persuade him that he was misreading Oak Creek. Garnier
in his interpretation, contending that the General Counsel of the WERC had told him the case
to the nurse's position. From Garnier's description of the conversation, Pieroni gathered that
General Counsel had merely referred him to the decision without suggesting that it applied.
Pieroni was able to persuade Garnier that it was not in the Association's interest to insist that
faculty contract applied to
VanGoethem as a matter of law. On April 24, Pieroni wrote to the College's attorney,
him that the Association was withdrawing its reliance on Oak Creek, that this resolved the
underlying issue in the College's complaint, and that the Association would petition for
arbitration over the wages, hours and conditions of employment for the Student Health
c. On March 13, Miguel Salas was hired as the new Executive Director of Bayland,
replaced Garnier. Salas read Oak Creek differently than did Garnier, and agreed with
withdrawing the Association's claim that it did not have to bargain.
d. On April 29, the Association's Treasurer wrote to Evans asking that the College
dues from the paychecks of VanGoethem and AODA Coordinator Strebel and remit them to
Association. After consulting with legal counsel, Evans wrote back on May 21, refusing the
Evans noted that dues deduction was a creature of the contract, and that the Association's
for application of this contractual provision without bargaining was further evidence of a
bargain in good faith.
e. On May 15, VanGoethem was given a notice of layoff.
f. On May 31, the Association filed a petition for interest arbitration over the Student
Nurse. On June 4, Evans received a bill for half of the filing fee for the Association's
was livid when he received the invoice, as he felt interest arbitration was inappropriate since,
though there had been some informal discussions about the nurse's position, no formal
sessions had yet been held. He advised the Association's representatives of his feelings.
g. On June 27, the parties met for an initial bargaining session. The Association took
position that all provisions of the existing faculty contract should be applied to the Student
Nurse. No agreements were reached in this meeting.
h. On July 30, the parties met with WERC Investigator Herman Torosian. At
2:00 p.m., Torosian told Evans that he believed the parties had reached a tentative
that the Association was assuming VanGoethem would be recalled to the Student Health
position as part of the agreement. Evans told Torosian that they could not make that
He said he was not sure he would recommend that she be recalled as part of an overall
but that in any event he had no authority to make that promise. The session then ended.
i. On August 6, Evans wrote to Torosian and Salas, summarizing what he termed the
"conceptual agreement" on the Student Health Nurse reached in mediation. His draft
included a 7.5
hour work day, 260 days per year, with 10 holidays and 20 vacation days, and an annual
$33,834. It also addressed layoff and recall rights of the position, and included a side letter
committing to scheduling the job for no more than 188 days per year through July of 1999.
asked that Salas contact either Torosian or him to discuss the letter. Salas did not respond.
j. On October 15, Evans again wrote to Torosian, noting that he had never gotten
response to his August 6th letter, other than the filing of the Association's prohibited practice
complaint. He asked for Torosian's assistance in determining where things stood and moving
k. On October 23, Salas wrote to Evans, denying that any tentative agreement had
reached, and communicating a counter-proposal. The counter-proposal agreed to a 12-month
schedule, and placed the nurse on the faculty wage schedule. The Association also proposed
rights for the nurse into vacant Nursing Instructor and Allied Health Instructor positions.
concluded by requesting additional face-to-face negotiations with the option of calling
l. On December 11, Salas and Evans had further negotiations. Evans put proposals
table dealing with the AODA Specialist in addition to the nurse. Salas disputed the
this position to the bargain, noting that it was not specifically dealt with in the unit
decision. He advised Evans that he did not want to mix the AODA position into the
over the nurse.
m. On November 24, 1997, the parties finalized their offers for interest arbitration
nurse's position. By that point, the parties had agreed to also include the AODA Specialist.
College's final offer proposed a 40 hour work week, 260 days per year, with 10.5 holidays,
sliding scale for vacation starting at 5 days and peaking at 20 days after ten years. The
was set at $36,228 as of November 8, 1995 ($17.42 per hour) and $37,404 as of August 14,
($17.98 per hour). However, the College proposed to grandfather any employe employed as
January 1, 1996, at 188 days, and to guarantee no reduction in annual income to such
Association proposed an annual salary of $39,070 as of November 6, 1995, based upon a
work day, a calendar of 213 work days, 2 inservice days and 4 professional days. The
proposal also grandfathered employes on the payroll as of January 1, 1996, and guaranteed
loss of annual income.
6. Budget Process and the Reallocation of the Student Health Nurse's Position
a. The College's annual budget process begins with submission of proposals by
An administrators' Budget Committee, comprised of Vice Presidents Wouters, Baus, and
President Prindiville meets monthly beginning in January, with Prindiville generally being
as the process nears its conclusion. The committee makes decisions in a collegial fashion,
member having a chance for input on every decision, no matter which functional area the
b. One item considered in the budget process is "new development" money. This is
devoted to changes, improvement and additions to programs. The Board gives the
guidance as to how much new money, including new development money, is available.
the Board allows the Budget Committee to work on the budget, and does not take further
the final proposal is submitted. In the 1996-97 budget year, the
guideline for new development was $200,000 plus reallocations. Reallocations are
existing services that can then be directed to new developments.
c. As of February 2, 1996, the new developments proposal to the Board was
reallocations. The reallocations proposed were a Chemistry Instructor, an Auto Body and
Instructor, an LRC Secretary and an Operations Assistant, totaling $99,602.
d. As of March 13, 1996, the new developments proposal to the Board was changed
$50,000 plus reallocations. The reallocations were changed to 1.5 Chemistry Instructors,
Instructor, a Typing Lab Aid, a Communication Skills Instructor, a Marine Drafting
the Student Health Nurse, totaling $286,700. Only the nurse's position was filled with a
employe. The report to the Board on that date noted changes in anticipated revenues from
reports -- projected state aids were flat rather than increasing, and projected federal revenues
changed from a 2% increase to a 2% decrease.
e. The savings from the reallocation of the Student Health Nurse were estimated at
This figure was arrived at using an estimate of approximately $37,000 as the cost of the job,
salary and fringes. Evans provided this estimate of savings on the assumption that the
be reduced to a part-time hourly staff position. Evans did not specifically investigate the cost
hiring a nurse on an hourly basis prior to the decision to recommend reallocation, but had
postings for the County seeking nurses at $18 per hour. By the time of the Board's hearing
proposed budget, Evans was citing a $36 per hour figure provided by the Visiting Nurse
f. Prior to the Budget Committee's decision to recommend reallocation of the nurse's
position, the College had not received any complaints about the provision of student health
None of the members of the Budget Committee spoke with VanGoethem about the manner in
services were delivered, nor were there any discussions with her about the possibility of
different schedule of hours or days. Neither were there any such discussions with Bonita
VanGoethem's direct supervisor.
7. May 15th is the date on which layoff notices must be given according to the
contract. The College's policy is not to make layoff decisions known until that date. On the
of Tuesday, May 14, Evans called Klika at her home and informed her that VanGoethem
laid off. This was the first that Klika became aware that the Student Health Nurse position
8. On the morning of Wednesday, May 15, VanGoethem was summoned to Klika's
Klika, William Evans and Association Grievance Chair Rose Mastricola were present. Evans
presented her with a notice of layoff. After the meeting, Klika and VanGoethem spoke, and
told her that she was sorry, and that she had not known of the layoff beforehand. Klika and
VanGoethem discussed possibilities for VanGoethem's continued employment, perhaps on a
basis, and VanGoethem expressed an interest in the part-time position. However, Klika told
she really did not have any idea what the District's plans were.
9. On May 21, there was a meeting with Evans, Wouters, Salas, Rose Mastricola
members of the Association's Grievance Committee. At that meeting Wouters said he had
knowledge that the Student Health Nurse was going to be laid off, but Evans motioned him
silent, cautioning that there was the possibility of litigation. Evans then explained that the
resulted from budget deliberations. Members of the Grievance Committee asked Evans about
VanGoethem's right to claim the new part-time position, and Evans advised them that it was
half-time and thus not subject to the contract. They inquired about possible accommodations
VanGoethem, including placement in other available positions. He told them she was free to
application for any open position she was qualified to fill.
10. On May 23 and June 12, the College's Board met in public sessions to discuss
proposed budget. VanGoethem addressed the Board, as did Evans and others. After
had had her opportunity to speak on the 6th, Evans told the Board that she was in line to be
per hour, and that a visiting nurse could be hired for $36 per hour. The Board voted 4 to 3
reconsidering the inclusion of the Student Health Nurse's position on the list of reallocations.
11. Klika was not given any guidance as to how to provide services in the wake of
VanGoethem's layoff, and after the budget was given final approval in June, she started
to various nursing services to get cost figures. One of the providers she called was
Instacare, a firm
that the College had occasionally used in the past. Klika consulted with Wouters as to the
of hours that could be contracted, although not the cost per hour. Evans also cautioned her
exceed 700 hours per year. Klika then entered into a week-to-week agreement with Instacare
provide a registered nurse. The contracted nurse worked an average of 2.7 hours per day,
mornings and two afternoons per week during the summer and fall of 1996. The College
per hour for the Instacare nurse. Unlike when VanGoethem was on staff, students were
make appointments to see the Instacare nurse.
12. Starting in September of 1996, a half time position was created in the Student
Office to perform clerical and record keeping functions of the office. Many of these
previously been performed by several other clericals in and around Student Services,
had been done by VanGoethem while she was still on staff. The person assigned to this
previously been employed in a position connected with the College's outreach to Proctor
a position which was terminated. She was promised continued employment in a floater
somewhere at the Green Bay campus and was assigned to Klika's office in response to a
request for additional clerical support in that office.
13. By seeking inclusion in the faculty bargaining unit, VanGoethem was engaged in
protected, concerted activity.
14. By seeking to bargain an increase in wages, and other terms and conditions of
employment for the Student Health Nurse, the Association was engaged in protected,
15. The College was aware of VanGoethem's protected concerted activity, and was
of the Association's protected concerted activity on her behalf.
16. The College's stated reasons for reallocating the position of Student Health
off VanGoethem and replacing her with an outside nursing service -- increased flexibility and
redirection of $20,000 from her position to other new development items -- are pretextual.
actual reason for VanGoethem's layoff was hostility to and retaliation for her protected
the Association's protected activity on her behalf.
17. The layoff of VanGoethem for pretextual reasons had a reasonable tendency to
coerce and interfere with the exercise of protected rights by VanGoethem and other
18. Charles Garnier had a good faith belief that the Commission's Oak Creek
applicable to VanGoethem's position. By the conduct set forth in Finding of Fact No. 5, the
Association was not engaged in a refusal to bargain in good faith.
19. William Evans was at all times acting in his capacity as an employe and agent of
College in taking the actions described above.
On the basis of the above and foregoing Findings of Fact, the Examiner makes the
CONCLUSIONS OF LAW
1. That the Complainant/Respondent, Northeast Wisconsin Technical College, is a
employer, within the meaning of Sec. 111.70 (1)(j), MERA.
2. That the Complainant/Respondent, Northeast Wisconsin Technical College
Association, is a labor organization within the meaning of Sec. 111.70(1)(h), MERA.
3. That the Complainant, Aimee VanGoethem, is a municipal employe within the
of Sec. 111.70(1)(i), MERA.
4. That the Respondent, William Evans, is not a municipal employer, within the
Sec. 111.70 (1)(j), MERA. Evans acted solely as an agent of the Respondent, Northeast
Technical College in the events described above, and he is not properly named as a
5. That seeking the clarification of a bargaining unit is lawful, concerted activity
meaning of Sec. 111.70(2), MERA.
6. That seeking to bargain improvements in the wages, hours and condition of
for the Student Health Nurse is lawful, concerted activity within the meaning of Sec.
7. That the Respondent, Northeast Wisconsin Technical College, laid off Aimee
in retaliation for her involvement and the Association's involvement in protected concerted
and thereby discriminated against her in violation of Sec. 111.70(3)(a)3.
8. That the Respondent, Northeast Wisconsin Technical College, through its
layoff, interfered, restrained and coerced VanGoethem and other employes in the exercise of
protected rights, in violation of Sec. 111.70(3)(a)1.
9. The Respondent, Northeast Wisconsin Technical College Faculty Association, did
refuse to bargain in good faith with the Municipal Employer, and did not violate Sec.
On the basis of the above and foregoing Findings of Fact and Conclusions of Law,
Examiner makes and issues the following
1. The complaint in Case 88, No. 53540, MP-3155 is hereby dismissed in its
2. The complaint in Case 92, No. 54372, MP-3205 is hereby dismissed as to the
against Respondent William Evans personally.
3. The Respondent, Northeast Wisconsin Technical College, will cease and desist
discriminating against Aimee VanGoethem or any other employe on the basis of the efforts
Northeast Wisconsin Technical College Faculty Association to clarify the professional
bargaining unit and/or bargain on behalf of professional employes.
4. The Respondent, Northeast Wisconsin Technical College, will take the following
affirmative actions which will effectuate the purposes of the Act:
a. Immediately offer to reinstate Aimee VanGoethem to the
position of Student Health Nurse
on the terms determined by the collective bargaining agreement between the parties. If the
the contract are not known as of the date of this Order, the reinstatement is to be on the basis
terms and conditions in effect at the time of her layoff, and the contract provisions shall be
in accordance with the terms of the interest arbitrator's Award or any settlement
reached by the parties. The Respondent,
Northeast Wisconsin Technical College, is further
ordered to make VanGoethem whole for her losses from the discriminatory layoff.
b. Notify all employes, by posting in
conspicuous places in its office where employes are
employed, copies of the Notice attached hereto and marked "Appendix A." This notice shall
signed by the Respondent, and shall be posted immediately upon receipt of a copy of this
shall remain posted
for a period of thirty days thereafter.
Reasonable steps shall be taken by the Respondent to insure
that this Notice is not altered, defaced or covered by other material.
c. Notify the Wisconsin Employment
Relations Commission within twenty days following the
date of this Order of the steps taken to comply herewith.
Dated at Racine, Wisconsin, this 26th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Daniel Nielsen, Examiner Page 12
NOTICE TO ALL
NORTHEAST WISCONSIN TECHNICAL COLLEGE
Pursuant to an order of the Wisconsin Employment Relations
Commission, and in order to
effectuate the purposes of the Municipal Employment Relations Act, we hereby notify our
1. WE WILL NOT discriminate
against Aimee VanGoethem or any other employe because of
their union activities.
2. WE WILL offer immediate reinstatement to Aimee
VanGoethem to her position as Student
Health Nurse, and will make her whole for her losses by virtue of her layoff in May of
3. WE WILL NOT interfere with the rights of municipal
employes to engage in protected
concerted activity, including the use of the unit clarification, collective bargaining and
arbitration processes, or with the employes' rights to refrain from engaging in such activity.
NORTHEAST WISCONSIN TECHNICAL
THIS NOTICE MUST BE POSTED FOR THIRTY (30) DAYS FROM THE DATE
AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
NORTHEAST WISCONSIN TECHNICAL COLLEGE
FINDINGS OF FACT, CONCLUSIONS OF LAW
ARGUMENTS OF THE PARTIES
A. The Arguments of the Association and
1. The Association's
The Association takes the position that the College is guilty of both interference and
discrimination, in that it eliminated Ms. VanGoethem's position in retaliation for the
efforts to negotiate higher wages after she was added to the bargaining unit. Ms.
aggressively sought to have her position added to the bargaining unit, and the Association
in having the job clarified into the unit. The Association thereafter proposed to have her
appropriately on the existing salary schedule as a matter of law, relying on the Commission's
in City of Oak Creek, Dec. No. 27074-C (WERC, 5/25/93). The College took the position
the Association's proposal would cost it an additional $20,000 per year. Rather than seeking
ameliorate any cost impacts through good faith bargaining, the College retaliated against
VanGoethem for the Association's protected activity in making a bargaining proposal.
While the College claimed that the decision to replace VanGoethem with a
based upon neutral budgetary and service considerations, the record evidence shows
Examiner must conclude that it was motivated by illegal hostility when he considers that:
The elimination of VanGoethem's job was initiated by the College's
Budget Committee, but none
of the members of that committee were able to give a straight answer when asked who first
suggested the move.
David Wouters, the Vice President for Student and Community
Services, claims to have started
off the budgetary process seeking an increase of 10 days in VanGoethem's contract to expand
nurse coverage during summer and evening sessions, and for outlying campuses, and further
claims that this led to a discussion of other ways to provide this service. On
he contradicted his testimony about seeking an additional ten days for VanGoethem.
he never mentioned this goal of expanded coverage to the subcontractor the College
hired, and the total number of coverage hours was actually cut in half under the subcontract.
Evans said that the committee sought to save money through this
subcontract, but the fact is that
the subcontractor was paid $45 per hour, or $31,500 annually, as compared to
$18.07 for VanGoethem, a total of $25,500 annually. Moreover, a secretary whose
assignment was phased out was assigned to a 50% position with the nurse's office, doing
previously performed by VanGoethem, at a cost of $9.75 per hour.
Evans admitted that the members of the Budget Committee discussed
and analyzed the costs of
the Association's bargaining proposal for the Student Health Nurse when deciding it would
better to subcontract the work.
The decision to eliminate VanGoethem's position took place
immediately after Evans received
Garnier's February 12th letter demanding that the contract be applied to her as a matter of
Before that letter was received, there was no proposal to eliminate her job in any of the draft
budget recommendations. No member of the Budget Committee could explain why the
Health Nurse suddenly became an issue in February, when the budget process had been
since December, other than to cite a cut in new development funds from $200,000 in the
draft to $50,000. However, no member of the Committee could explain what new
projects were driving the need for the $20,000. There was $17,000 available for new
developments even without this subcontract, and no one on the committee could explain what
was ultimately spent on.
The Association cites the Examiner's decision in Green Lake County, Dec. No.
(Nielsen, 4/11/97), noting that the Examiner found in that case that hostility to the unit
process, and to the potential for having to pay higher wages as a result of the process, could
illegal motive for a subsequent layoff, even where the person laid off had not played an
in the protected activity. Here the College's hostility was directed at the Association's
bargain or arbitrate a substantial increase in wages for VanGoethem's position after it
clarified her job into the bargaining unit.
Immediately after the Association took the position that VanGoethem should be
placed on the existing salary schedule, at a cost the College thought to be at least $20,000.00
year, her job suddenly became an issue in the Budget Committee. The Committee allegedly
to save money and expand services by hiring a contractor which provided half the service at
of $6,500 more per year, plus the cost of a newly assigned clerical. This is absurd, and
establishes that the budget and service concerns cited by the College are merely a pretext for
retaliation and discrimination.
As there is no valid business justification for the layoff and the subcontract, and since
were aimed at punishing Ms. VanGoethem and the Association for seeking to bargain a
wage for her position, the Examiner should also conclude that the College is guilty of
Given the close connection between protected activity and the elimination of this job, the
action obviously has a reasonable tendency to interfere with, restrain and coerce Ms.
and other employes in the exercise of their Sec. 2 rights. In remedy for these violations, the
Association seeks reinstatement of Ms. VanGoethem to the position of Student Health Nurse
retroactive to the date of her layoff, and an Order making her whole for her losses since that
2. The College's Complaint
The Association takes the position that the College has failed to prove any refusal to
in good faith. Garnier's initial position was that bargaining was not legally required, and
Student Health Nurse position was automatically covered by the existing terms of the
bargaining agreement. He based this position on the Commission's decision in Oak Creek,
discussion with the General Counsel of the WERC. Oak Creek is an unusual decision, and it
be that Garnier's interpretation of it was wrong, but there is absolutely no evidence that his
was taken in bad faith.
The Association points out that it formally withdrew its reliance on Oak Creek by a
to the College's counsel on April 24, 1996, and offered to proceed to interest arbitration on
dispute. The parties participated in mediation sessions with a Commission investigator and
took the dispute to interest arbitration. It is worth noting that the Association changed the
of its proposal during the mediation sessions, even though no overall agreement was reached.
summary, the Association initially stood on a plausible reading of its legal rights, then agreed
College's insistence on an exchange of proposals across the table, made proposals, and
position. Nothing in any of this shows bad faith. Accordingly the College's complaint
B. The Arguments of the College
1. The College's Complaint
The College takes the position that the Association was clearly guilty of a refusal to
in good faith. William Evans tried continuously from November of 1995 onward to engage
collective bargaining over the wages, hours and working conditions of the newly accreted
Health Nurse position. The Association adamantly refused, first taking the position that no
bargaining was necessary because VanGoethem was automatically covered by the contract,
supposedly backed off this position. However, it immediately filed for interest arbitration,
the fact that no negotiations had yet taken place. This intransigence and refusal to address
is symptomatic of bad faith and should result in a finding by the examiner that the
2. The Association's
The College takes the position that the Association has utterly failed to
prove any violation
of MERA. Granting that the position of Student Health Nurse was eliminated and that this
was then filled by a subcontractor, and understanding that Ms. VanGoethem did not agree
decision, the College notes that it has the right to manage its resources, including the right to
the manner in which it delivers services and to lay off employes. The only limitations on the
manage the College are those specifically imposed by contract and by statute. The contract
prohibit the decision to subcontract this function, and neither is there any statutory
The decision to eliminate the nurse's job was made in the normal course of business,
accordance with the normal procedures for making budgetary choices. The Budget
reviewed its options, and the nurse's job was an attractive candidate for restructuring because
no role in generating enrollments and is a service that lends itself to purchasing from outside
The possibility had been discussed in prior years, but this year it was more seriously
because the money available for new development had been slashed from $200,000 to
reallocations were needed. It was raised by someone on the Committee during budget
and was discussed generally, without any one Committee member taking the lead in the
The discussion focused on the services provided, not on VanGoethem. The final decision to
for these services was unanimous. VanGoethem was then notified of the recommendation,
given two chances to make her case to the College's Board in public meetings, through her
statements and those of supporting witnesses. At no time in these meetings was there any
by VanGoethem or the Association that the recommendation had anything to do with the
of her job to the bargaining unit. In fact, as late as September of 1996, VanGoethem wrote
Faculty Association newsletter that "I was laid off because of budgetary cuts and
services (not any reflection on my job performance)."
Although the Association attempted to show that the student health services were not
extensive or as good after VanGoethem was laid off, this is irrelevant. The level and the
services is not the Association's concern, nor is it a matter within the jurisdiction of the
Even if a decision is shown in hindsight to have been ill-considered or poorly implemented,
it is not
a prohibited practice for an employer to be mistaken. The only issue before the Examiner is
the decision-making process itself was free of illegal animus, and the record in this case
The College argues that the Association has failed to show an essential element of its
that the decision to lay off VanGoethem was motivated, even in part, by hostility to protected
The Association named Evans as a Respondent in its complaint, and claimed that he was the
mastermind behind the elimination of the Student Health Nurse. That is refuted by the
the other Budget Committee members, who could not remember who raised the issue but
no one in particular pushed for the change. The allegations that Evans was hostile to
or out to get her is simply that -- an unsupported allegation.
Finally, the College points out that, even if Evans or other administrators were
hostile to VanGoethem, the actual decision to lay her off was made by the College Board,
after it had
heard arguments against the cuts by VanGoethem, the Association and others. Thus the
decision maker in this case was wholly free of discriminatory intent, and acted in full
the pluses and minuses associated with the reorganization of the student health services
the decision was completely within the legitimate rights of management, and since there is no
evidence of any hostility or discriminatory motive on the part of the administration that
the change in services or the Board that ultimately made the decision, the Association's
must be dismissed in its entirety.
C. The Responsive Arguments of the
Association and Aimee VanGoethem
The Association asserts that the College's claim of a legitimate, non-discriminatory
impossible to sustain on this record. The suggestion that the College acted to save $20,000
its $48 million budget is inconsistent with the fact that its decision ended up costing it
more money to deliver substantially less service. Its claim that it needed to free up funds for
development is inconsistent with the fact that it could not explain where the already available
development money was spent. The only possible conclusion from this record is that the
acted from fear that it would have to pay VanGoethem significantly higher wages under the
Association's proposal for folding her into the contract. The College was hostile to that
headed it off by eliminating her job.
The Association urges rejection of the College's expansive claim that the exercise of
management rights cannot be reviewed by the WERC, noting that this completely ignores the
regarding discrimination. Likewise, the College's attempt to hide behind the fact that the
the ultimate decision maker must be rejected. The vice presidents who made up the budget
committee are the agents of the College, and it is held responsible for their illegal acts.
Association characterizes the College's claim that VanGoethem and the Association did not
discrimination until well after the fact as being cynical and ironic. The record shows that the
Association was seeking information relative to the layoff decision as early as May of 1996,
the College stonewalled those requests.
D. The Responsive Arguments of the
The College rejects the Association's conspiracy theories, noting that the
is filled with conclusory statements as to intent, but no proof to provide a basis for those
Boiled down to its essentials, the Association is arguing that because the layoff followed the
clarification decision, it was caused by the unit clarification decision. It is clear and settled
a coincidence of timing may be cited to support a finding of hostility, but must be evaluated
of all the evidence. Unlike the Examiner's decision in Green Lake County, in this case all
evidence shows that it was purely a coincidence of timing, not some illegal motive, that
linked the unit
clarification and the layoff. The subject of subcontracting these services had been discussed
and this was the year that pressures on the new development budget finally made it an
E. The Supplemental Arguments of the
The Association extensively cited the Examiner's decision in Green Lake County, a
involving a sudden change in plans for reorganizing a County department immediately after
officials discovered the incumbent program coordinator, an employe named Lund, had been
from a non-professionals bargaining unit to a professionals bargaining unit through the unit
clarification process. The Examiner determined that the change in plans, and subsequent
Lund, was an act of retaliation for the Union's success in the unit
clarification. After the conclusion of the briefing schedule in this case, the
Commission issued its decision in Green Lake County, Dec. No. 28792-B (WERC,
12/18/97), reversing in part the
Examiner's decision. The Association sought leave to submit supplemental arguments. The
acquiesced, and both parties argued the significance of the Commission's decision.
The Association asserts that the Commission's decision in Green Lake County was
upon a highly unusual reinterpretation of the record of that case, and that it should therefore
construed very narrowly. The Commission did not address the Examiner's conclusion that
no plausible explanation other than hostility for the County's decision to lay off Lund instead
forward with the plan it had already devised for reorganizing her department and retaining
her in the
job, nor did the Commission explain this change in position came in the middle of a meeting
the only change in circumstances was that her supervisor learned for the first time that she
moved to the professionals bargaining unit. Neither did the Commission explain why Lund,
far more experienced in the functions of the remaining job, was not retained as originally
a far less experienced employe. Given these and other defects in the Commission's
the record, the Association urges that the precedential effect of the decision be limited to the
of Green Lake County itself.
The Association also argues that, even if the Commission's decision in Green Lake
is correct and entitled to full precedential value, the facts of that case and the facts of this
distinguishable in several important respects. The Commission found that the County's
lay off Lund was motivated by proven funding shortfalls and declining service needs, and
supervisors acted in good faith. The Association notes that the United States Supreme Court
in NLRB v. Great Dane Trailers Inc., 38 U.S. 26, 87 SCt 1792 (1967), that even inherently
destructive conduct could be excused if there was persuasive evidence that the conduct was
motivated by legitimate business considerations. In this case, the College faced no financial
difficulties, and the only service concern was a desire to expand nurse coverage. Thus it is
possible to find that there were legitimate business reasons for replacing the Student Health
with a subcontractor who charged more and provided less service.
The Commission found in Green Lake County that hostility to the outcome of a
process was not illegal, but that hostility to employe participation in the process or to the
itself was illegal. In this case, the College was clearly hostile to the bargaining and interest
process, since it did not know the outcome of the process when it laid off Ms. VanGoethem.
it completely cut off any opportunity to have the reasonableness of the Association's
position tested in the interest arbitration process.
The Association refers the Examiner to the decision of the Michigan Employment
Commission in AFSCME v. Ecorse Public Schools, 5 Michigan Public Employee Reports
¶23083 (WERC, 10/7/92), in which the MERC held, under a statute
virtually identical to MERA, that taking action adverse to an employe's interests in
response to an
effort to bargain higher wages, absent any financial or operational justification for the action,
constitutes prima facie evidence of interference.
F. The Supplemental Arguments of the College
The College notes that the Association's arguments were constructed
almost exclusively on
an analysis of the Examiner's decision in Green Lake County and that its case must fall with
decision. The Commission properly clarified the fact that hostility to the outcome of a
process is not itself discrimination. It is hostility to the process, or retaliation for using the
that is prohibited. Here, the record shows that the College had no hostility whatsoever to the
clarification process involving the Student Health Nurse, and in fact conceded that the
suitable for inclusion in an appropriate bargaining unit. The only issue raised by the College
to the unit clarification was whether the faculty unit was an appropriate unit for this position.
mere fact that the College exercised its legal rights and made arguments before the
cannot now be held to show that it was hostile to the process.
The Association's initial brief repeatedly identified an unwillingness to pay the salary
sought by the Association as "the precipitating activity which prompted the Respondent's
to lay off Ms. VanGoethem..." and stated that, "In this case, the Respondent's attitude was
to that of the employer in Green Lake County in that both employers wanted to avoid paying
employe the higher salary contained in the professional employe's collective bargaining
The Association has conceded that, even under its own theory, it was the result
of the bargaining
and/or interest arbitration process, not use of the process or the process itself, that motivated
College's decision. It cannot now disavow those statements simply because the Commission
corrected the Examiner's error. Thus, in accordance with the Commission's decision in
County, the instant complaint must be dismissed.
Finally, the College strenuously objects to the Association's attempt to make new
beyond the scope of the Green Lake County decision in what was intended to be a limited
supplemental argument. The decisions of the United States Supreme Court in Great Dane
Trailers Inc. and the Michigan Employment Relations Commission in Ecorse Public Schools
have nothing to do with Commission's decision in Green Lake County, and any arguments
on these decisions should be disregarded.
I. Association's Complaint - Sec.
111.70(3)(a)3 - Discrimination
The Association alleges that the decision to eliminate VanGoethem's job was
the Association's effort to have her included in the bargaining unit and to raise her wages.
In order to succeed on a claim of unlawful discrimination, a complainant must show by
a clear and
satisfactory preponderance of the evidence that:
(1) the employe has engaged in protected,
(2) the employer was aware of such
(3) the employer was hostile to such activity; and
(4) the employer's complained of conduct
was motivated at least in part by such hostility.
C.S.J.S.D. No. 9 v. WERB, 35 Wis.2d 540, 151 N.W.2d 617 (1967), hereinafter referred
to as "Muskego-Norway"; Cooperative Education Service Agency #4, et al., Dec. No.
12/77), aff'd, Dec. No. 13100-G (WERC, 5/79), hereinafter "CESA #4".
There is no question that Ms. VanGoethem was engaged in protected activity when
sought inclusion in the faculty bargaining unit, nor that the Association's efforts to include
her in the
unit, have her covered by the contract, and bargain higher wages for her were all protected
Neither is there any dispute over the College's knowledge of all of these activities. The
the Examiner are whether the College was hostile to these activities and whether the decision
off VanGoethem was motivated in whole or in part by that hostility. Central to those
whether the proffered reasons for the layoff decision are pretextual.
In Town of Mercer, Dec. No. 14783-A (Greco, 3/77), the Examiner stated that:
. . . it is well established that the search for
motive at times is very difficult, since oftentimes,
direct evidence is not available. For, as noted in a leading case on this subject, Shattuck
Mining Corp. v. N.L.R.B. 362 F 2d. 466, 470 (9 Cir., 1966):
Actual motive, a state of mind being the
question, it is seldom that direct evidence will be
available that is not also self-serving. In such cases the self-serving declaration is not
trier of fact may infer motive from the total circumstances proved. Otherwise, no person
unlawful motive who took the stand and testified to a lawful motive could be brought to
In this case, there is little overt evidence of hostility. 2/ Certainly the College and
Association had a variety of conflicts over the Student Health Nurse position, including
its inclusion in the bargaining unit, a bitter argument over whether the position would
be covered by the contract and difficult negotiations over the compensation package. None
standing alone, proves hostility. The overall environment may have been tense, but taken in
every action by the College was within its legal rights and in the case of the argument over
Creek decision, it appears that the College had the legal high ground. If there is to be a
hostility and improper motive, it must flow from reasonable inferences drawn from the
2/ Wouters testified on
cross-examination that he had no "formal" knowledge of hostility by Evans to
VanGoethem and her efforts to be included in the bargaining unit, but knew of rumors that
there was tension
between the two. The Examiner notes this testimony, but does not find it sufficient to prove
hostility by Evans.
A very large part of the Association's case depends upon a finding that the College's
reasons for deciding to lay off VanGoethem and subcontract her work are pretextual. A
pretext may itself be proof of illegal motive. 3/ Certainly the timing is
quite suspicious. The Student
Health Nurse's job was clarified into the bargaining unit in November of 1995. On February
budget report to the Board did not list it as among the positions to be reallocated. On
Garnier formally advised Evans that the Association sought automatic contract coverage of
position, and three weeks later the job appeared on the list of positions to be reallocated.
alone does not generally prove pretext, but it may be persuasive evidence when combined
3/ "...where, as here,
the respondent's stated motives for discharge are discredited, it may be inferred that the
true motive for discharge is an unlawful one which respondent seeks to disguise." Heartland
256 NLRB 940, 107 LRRM 1321 (1981). See also CESA #4, supra; Town of Mercer,
supra; City of Medford
Electric Utility, Dec. No. 28440-D (Nielsen, 5/29/97), Aff'd City of Medford Electric
Utility, Dec. No.
28440-E (WERC, 10/9/97); Lemon Drop Inn, 269 NLRB 1007, 116 LRRM 1443
In this case, the College's officials deny that the layoff of VanGoethem and the
of health services had anything to do with the unit clarification or the Association's
position. Wouters said the reorganization was based on a desire for greater flexibility in the
of health services, including coverage at other campuses, on nights and during the summer.
and Baus cited the need to save $20,000 through reallocation of this position when the
development money was reduced by $150,000.
Wouters never asked VanGoethem about working a different schedule, and never
any service complaints, concerns or limitations with her. Neither did he have any such
with Klika. Wouters testified that he believed targeted hours by a
subcontractor would provide better, more focused service, but as of the hearing he had
whether the contracted nurse has been asked to work nights and in fact has never seen the
for the contracted nurse. Neither Wouters nor anyone else was able to explain how the
figure of 700
hours per year related to the College's plans for improved flexibility. Wouters expressed the
that VanGoethem could not be scheduled differently because he thought she had an individual
contract, although he did not know if she really had such a contract, what the terms of the
might be or whether the contract could be amended or renegotiated. Wouters was, on the
evasive and unconvincing in his explanations, and the Examiner does not credit his
Evans estimated that the Student Health Nurse cost approximately $37,000, and that
could be saved by making this an hourly, part-time position. Thereafter, he explained to the
that it would be 700 hours per year. However, it appears that no one ever investigated what
cost to hire a nurse before this decision was made, aside from Evans' testimony that he
could get one for $22 per hour because he had seen County job postings come through his
$18 per hour. 4/ More to the point, no one gave Klika guidance as to how much she should
on an hourly basis to hire a nurse. Evans merely stressed that it had to be less than half
is the threshold for representation by the Association. No consideration was given to hiring
VanGoethem for the part-time position, even though all concede that she was a satisfactory
she had told Klika she might be interested in the job. The Instacare nurse costs the College
for 700 hours per year, or approximately $5,500 less than it cost them in wages and benefits
employ VanGoethem for 1,410 hours per year. Put another way, the College now pays at
of the former hourly cost for nursing services.
4/ Evans conceded on
cross examination that by the time he briefed the Board on the recommended
reallocation, he was probably using a $36.00 per hour figure supplied by the Visiting Nurse
The various vice-presidents explained the layoff decision in terms of wanting to
way in which these services were delivered, and a pressing need to save at least $20,000 so
money could be redirected to new development. Before the decision was made, no one
the problems might have been in health services delivery, nor did anyone actually investigate
these problems, whatever they might have been, could be addressed by the existing structure.
the decision was made, no one made any effort to insure that the subcontractor was actually
delivering services in some materially different way, other than ensuring that she worked less
half-time. Likewise, after VanGoethem was laid off, the College made no effort whatsoever
out whether any money was actually being saved, much less the urgently needed $20,000.
The Examiner noted at the hearing that it is not a prohibited practice to make a bad
and the College cites this remark several times in its brief. However, when a sophisticated
operation such as NWTC, whose vice-presidents have many years of experience in budgeting
administration, sets out to improve services and save a substantial
amount of money and ends up simply reducing service hours by 50% and paying
nearly the same
amount for those reduced services, it is incumbent on them to explain how the decision could
gone so far wrong or risk the conclusion that the stated reasons are merely a pretext for
goal. Here the Administration's utter indifference to whether it actually achieved the alleged
improvements or cost savings makes it impossible to find that these were the true reasons for
reallocation. Instead, the timing of events and the lack of any plausible relationship between
stated goals and ends actually realized lead the Examiner to conclude that proffered reasons
pretextual. The remaining question is: A pretext for what?
B. Hostility to Use of a Protected Process vs.
Hostility to the Results of the Process
The Association largely conformed its arguments in the initial round of briefing to the
Examiner's decision in Green Lake County, Dec. No. 28792-A (Nielsen, 4/11/97), wherein
concluded that the employer had laid off an employe in retaliation for a union's success in
position from a non-professional employes bargaining unit to a professional unit. Thus the
Association asserted that the layoff in this case was due to hostility to the possibility of
having to pay
higher wages to VanGoethem as a result of her movement to the faculty bargaining unit and
Association's hard line stand in bargaining. However, after the initial briefing schedule was
completed, the Commission issued its decision on review, Green Lake County, Dec. No.
(WERC, 12/18/97), wherein it reversed the Examiner. Supplemental arguments were
addressing the significance of the Commission's decision. The Association argued that the
Commission's decision should be narrowly construed and that this case was distinguishable
Green Lake County. The College took the position that the Commission correctly decided
matter and that the Association was bound to its original arguments.
In Green Lake County, the Commission distinguished between adverse employment
decisions motivated by hostility to protected activity and those motivated by hostility to the
of protected activity. Where an action is retaliation for engaging in a protected activity, such
as a unit
clarification proceeding or the process of collective bargaining, it is interference and
within the meaning of Secs. 111.70(3)(a)1 and 3, MERA. Where, on the other hand, the
action is a response to the results of a protected process -- an increase in wages resulting
collective bargaining, for example -- it is not necessarily interference or discrimination.
may be in the latter case that the result of the protected process triggers a valid business or
policy concern on the part of the employer. The mere fact that the result giving rise to the
concern flows from a protected process does not mean that the employer is prevented from
responding. This has been and is settled law in Wisconsin. 5/
5/ See, for example,
City of Medford Electric Utility, supra; City of Beloit, Dec. No. 27779-B (WERC,
9/26/94); Price County, Dec. No. 24505-A (Gratz, 4/88).
Having observed that there is a distinction between retaliating for using a protected
and responding to the results of the process, it also bears noting that the line between the two
always easy to draw. However, if the distinction is to have any meaning at all, an employer
to have taken an adverse employment action in response to the results of a protected process
at a minimum persuade the Commission that it had a good faith belief that the results of the
were known or could be predicted with some reasonable degree of certainty when it acted,
explain why these results logically led to the action taken. Otherwise, if hostility to results
process can be based on what might possibly result from a process, no matter how remote
possibility, the distinction drawn by the Commission completely vanishes. 6/ In Green Lake
County, the Commission concluded, contrary to the Examiner, that the County had a good
belief that the movement of the employe from the non-professional bargaining unit to the
employes bargaining unit would inevitably lead to a wage rate in excess of what it could
the Commission's view, the subsequent decision to retain a non-professional employe and lay
professional employe was a good faith, if possibly misguided, response to the results of the
6/ It is always possible
to construct a scenario in which the results of a process might be bad: A petition
for unit clarification might mean that the position becomes represented, which could lead to
where the union might make excessive demands, and an arbitrator might accept the Union's
final offer on other
grounds or by mistake, and that could lead to budget problems. This chain of speculation
would not justify a claim
that eliminating the person's job when the petition for unit clarification was filed was a
response to the results of
In determining whether the motivating hostility in this case was to the Association's
use of the unit clarification and bargaining processes, or to the results of those processes, the
Examiner begins by noting that he is not bound to the interpretations of the record argued by
parties in their briefs. The fact that the Association attempted to structure its initial
track the Examiner's decision in Green Lake County rather than anticipating the
decision does not preclude a fresh analysis of the factual record to determine whether the
the Commission's definition of hostility to the use of the process. Likewise, the fact that the
never claimed that it was hostile to the results of the clarification or bargaining processes,
made the layoff decision on the basis of factors completely unrelated to the representational
of the Student Health Nurse, does not prevent the Examiner from considering this possible
A complaint case is not an arbitration case, and the application of MERA is not controlled by
theories of the parties in the same way that the interpretation of a bilateral contract may be.
the Examiner does not assume the role of an advocate, making the case for one party or the
it is his duty to analyze the record before him in light of the law and draw the appropriate
no matter how the parties themselves may have characterized the evidence in their written
In this case, if the College were hostile to the results of moving the nurse into the
or bargaining over her salary, it has to have been because the cost of her services would
increased. However, the bargaining process was nowhere near completion when the decision
VanGoethem to the reallocations list was made, and an experienced professional such as
not reasonably have believed that simply because the Association proposed a huge increase
job it would inevitably succeed in obtaining such an increase. There is no evidence in this
case -- as
there was in Green County -- that an increase in the nurse's salary, even a substantial
would have impaired the College's ability to maintain existing services within its $48 million
budget. Neither is there evidence that a substantial increase would have priced VanGoethem
the existing market for nurses at technical colleges. Thus if there was hostility to the results
bargaining process, it was hostility to results that were not yet known and could not be
whose overall negative effect could not be quantified.
In concluding that the College did not act out of hostility to the results of the unit
or bargaining process, the Examiner is influenced by the fact that the outcome of the layoff
inconsistent with a concern about cost. The College ultimately paid $45 per hour for a
once cost it $18 per hour. Under the very implausible Oak Creek theory advanced by
Garnier -- a
theory ultimately rejected by everyone, including Garnier -- directly placing the nurse on the
schedule would have cost an extra $14 per hour. Even counting roll-ups on the salary and
benefits, and completely ignoring the costs of the clerical employe assigned to the health
the layoff, keeping VanGoethem was a far cheaper proposition for each hour of service. If
differential in hours is factored in and all fringes are counted, 700 hours of the subcontracted
time cost the College 85% of what it spent for 1,410 hours of VanGoethem's time.
The record evidence does not allow for a reasonable inference that the College acted
concern over the results of VanGoethem's or the Association's use of protected processes.
course of action elected by the College instead demonstrates a lack of concern over the cost
nursing services, so long as those services were provided at less than the half-time threshold
membership in the bargaining unit. Accordingly, the Examiner concludes that the cost and
explanations offered by the College are not the true reasons for the layoff decision, and that
instead motivated by hostility to the use of the unit clarification and bargaining processes.
of those processes is protected activity, 7/ and retaliation against employes
for such activity is a
prohibited practice. 8/
7/ "Protected activity is
... a shorthand reference to those lawful and concerted acts identified and enforced
by the MERA." City of LaCrosse, Dec. No. 17084-D (WERC, 10/83)
8/ Green Lake County,
Dec. No. 28792-B (WERC, 12/18/97); Brown County, Dec. Nos. 2815-F, 28159-F
(WERC, 12/96), aff'd Cir. Ct. Brown County 9/97; Kewaunee County, Dec. No. 21624-B
Winnebago County, Dec. No. 16930-A (Davis, 8/79), aff'd by operation of law, Dec. No.
C. The Good Faith of the College
The College argues that any improper motive the administrators may
have had in
recommending the layoff of VanGoethem is cleansed by the fact that the ultimate decision
by the College's Board, and there is no evidence of hostility or bad motive by the members
Board. This argument ignores the realities of the decision making process as between
administrators and part-time citizen boards. Such boards are policy and oversight bodies,
customarily and appropriately give great deference to the recommendations of the
employ to manage the operation:
If that recommendation was motivated in part by anti-union
animus, the fact that it was the Board
rather than the managers who ultimately acted does not remove the taint of the illegal
Boards customarily accord deference to the judgment of staff in technical areas. Green Lake
County, Dec. No. 28792-A.
"However, as correctly found by the Examiner, if agents of
Respondent ... were hostile toward
use of the unit clarification process, and that hostility was at least a partial basis for
layoff of Lund, Respondent violated Secs. 111.70(3)(a)1 and 3, Stats... Green Lake County,
Attempting to construct a firewall between those who have the authority to effectively
recommend actions and those who ratify the recommendations would render all but the
of discrimination immune from review. The Muskego-Norway standard prohibits acts which
motivated "in part" by anti-union animus, and where the initiation of the adverse employment
was so motivated, the fact that this motive was concealed from those who subsequently and
forseeably approved the act does not remove the illegal taint.
II. Association's Complaint - Sec.
111.70(3)(a)1 - Interference
The Association alleges that the elimination of VanGoethem's job on the heels of her
in the unit and in the midst of efforts to bargain on her behalf must necessarily chill other
exercise of their protected rights, regardless of the College's subjective intent in taking these
While a persuasive argument might be made along these lines, the Examiner finds it
engage in a Cedar Grove style interference analysis. 9/ The Examiner has concluded that the
College is guilty of discrimination under Sec. 111.70(3)(a)2, and it necessarily follows that
been a derivative violation of Sec. (3)(a)1.
9/ Cedar Grove-Belgium
Area School District, Dec. No. 25849-B (WERC, 5/91).
III. College's Complaint - Sec. 111.70(3)(b)3 - Refusal to
The College alleges that the Association engaged in a refusal to bargain in good faith
insisting on automatic application of the contract to VanGoethem, and then petitioning for
arbitration without first engaging in face-to-face bargaining sessions. The College also notes
Association refused to moved from its initial position that the entire contract must be applied
A claim of bad faith bargaining must be evaluated on the totality of the
of Madison, Dec. No. 17300-C (WERC, 7/83). The College's complaint has essentially two
aspects. First, it cites Garnier's letter of February 12 taking the position that the
Creek decision should cause the nurse's position to automatically be covered by the contract
bargaining. After Pieroni wrote to the College's attorney on April 24, withdrawing the
reliance on Oak Creek, the Association sought interest arbitration before any direct
place, and continued to assert that the contract should apply in toto to the
With respect to Garnier's reliance on Oak Creek, the question is whether his reading
decision was so palpably wrong that he knew or should have know that it did not apply and
obligated to bargain with Evans over the nurse. In Oak Creek, the Commission decided that
City had not committed a prohibited practice by implementing its bargaining proposals
newly created position in the Police Department prior to interest arbitration, because interest
arbitration was not available for the position. The Commission noted that this was a newly
job, not an existing position which had been clarified into the unit, and therefore the wages,
working conditions for the job did not constitute a "new agreement" subject to interest
Instead, the contract was held to be immediately applicable to the position, notwithstanding
acknowledged need to bargain a wage rate for the new classification and deal with other
to the job.
There is no question that Garnier was wrong about the scope of the Oak Creek
At the same time, the record does not allow me to find that he knew he was wrong when he
position. There are two primary factors leading to this conclusion. The first is the
WEAC Staff Counsel Stephen Pieroni that he discussed the decision with Garnier, and had to
to persuade him that it was not applicable to VanGoethem's situation. This indicates that
not simply adopting a bargaining posture for Evans' benefit, but sincerely believed his
was correct. The second factor in my conclusion is that there was no discernible advantage
Garnier or the Association in taking the position that Oak Creek applied, once it became
Evans disagreed. The Association could not better VanGoethem's wages, hours or
employment simply by asserting Oak Creek's applicability. The only way to advance their
would be litigation before the Commission or the courts, where they would almost surely
Unless Garnier honestly believed that the faculty contract applied to VanGoethem as a matter
is citation of Oak Creek was self-defeating. 10/ Accordingly, I
conclude that the Association was
proceeding in good faith when it took the erroneous position that it was not required to
the College over VanGoethem's wages, hours and conditions of employment.
10/ Given the change in
position announced in Pieroni's April 24 letter, it is not necessary to determine
whether Garnier would have violated Sec. 111.70(3)(b)3 if he had persisted in his Oak Creek
argument after his
own lawyer told him he was wrong.
After Pieroni advised the College's attorney that the Association would bargain over
nurse's job, the Association promptly filed an interest arbitration petition and continued to
position that the entire faculty contract should be applied to VanGoethem. While Evans was
frustrated and upset about the petition, he agreed to meet with the Commission investigator.
the investigation, the Association's bargainers indicated through Investigator Torosian that
would enter into a tentative agreement if VanGoethem was recalled. The terms of the
agreement were substantially different than those that the Association had insisted on before
mediation. This conceptual agreement was reached just over three months after the
agreed to bargain. It unraveled, apparently because the College could not assure the
VanGoethem would be recalled to the nurse's job as part of the deal.
It is not difficult to understand Evans' anger at what he viewed as the Association's
recalcitrant and unreasonable posture in the early months of these negotiations, nor his
dealing with a faculty team he regarded as inexperienced. His frustration was heightened by
30th filing of a petition for interest arbitration. The filing of an interest arbitration petition
first engaging in face-to-face bargaining is not an action that is generally conducive to
negotiations. However, premature filing of a petition is not in and of itself a refusal to
Augusta School District, Dec. No. 28857-A (Shaw, 2/4/94), and I note that substantial
movement was made by both sides at the July 30th mediation session, even though on a
basis. Given that the parties were attempting to negotiate the terms and conditions of
for a position in which the incumbent had just been laid off, and that the layoff decision itself
predictably became a central focus for the Association, I cannot conclude that the
approach to bargaining evinced an unwillingness to reach agreement. It may have evinced an
unwillingness to reach agreement on terms that were not acceptable, but that is not a
As set forth above, the Examiner has concluded that the proffered reasons for the
Aimee VanGoethem were pretextual, and that the College took its action as retaliation against
VanGoethem and the Association for protected activities. It thereby violated both Secs.
111.70(3)(a)1 and 3, Stats. In order to effectuate the purposes of the Act, it is necessary to
VanGoethem to her position and make her whole for any losses suffered by reason of the
amount due her will ultimately be determined by the collective bargaining agreement. As of
of the record, the contract had not been resolved. Pending the
outcome of the collective bargaining and interest arbitration process, VanGoethem is
entitled to back
pay and benefits on the basis of her compensation package as of the date of the layoff. This
is subject to her duty to mitigate damages. Owing to the high profile of this dispute, and the
effect of the discriminatory layoff, effectuating the purposes of the Act also requires the
a notice to employes.
Dated at Racine, Wisconsin, this 26th day of August, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Daniel Nielsen, Examiner