STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
GENERAL TEAMSTERS UNION LOCAL NO. 662,
CITY OF MARSHFIELD, WASTE WATER
TREATMENT PLANT, Respondent.
Decision No. 28973-B
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Naomi E. Soldon,
1555 North RiverCenter Drive, Suite 202, P.O. Box 12993, Milwaukee,
Wisconsin 53212, on behalf
of General Teamsters Union Local No. 662.
Ruder, Ware & Michler, S.C., by Attorney Dean R.
Dietrich, 500 Third Street, P.O. Box 8050,
Wausau, Wisconsin 54402-8050, on behalf of City of Marshfield.
ORDER AFFIRMING IN PART AND REVERSING
IN PART EXAMINER'S
FINDINGS OF FACT, CONCLUSIONS OF LAW
On November 18, 1997, Examiner Dennis P. McGilligan issued Findings of Fact,
of Law and Order with Accompanying Memorandum in the above matter wherein he
the Respondent City of Marshfield had not violated its duty to bargain in good faith with
Teamsters. He therefore dismissed the complaint.
Teamsters timely filed a petition with the Wisconsin Employment Relations
seeking review of the Examiner's decision pursuant to Secs.111.70(4)(a) and 111.07(5),
parties thereafter filed written argument in support of and opposition to the petition, the last
was received January 29, 1998.
Having considered the matter and being fully advised in the premises, the
and issues the following
Examiner Findings of Fact 1-4 are affirmed.
Examiner Finding of Fact 5 is affirmed in part and reversed in part by the
addition of the
underlined words and the deletion of the stricken through words as follows:
5. In the fall of 1995, the City's Common Council determined that a wage increase of
2.75 percent would be granted City employes for the 1996 year and that if a higher
wage increase was obtained by employes through the collective bargaining
layoffs would occur to reduce the effective cost of the wage increase to 2.75 percent.
Nicole Onder, Human Resources Specialist and the City's representative in collective
conveyed was responsible for
information to the various
bargaining units in the City of Marshfield but, at least as to the Teamsters
unit, failed to do so.
Examiner Finding of Fact 6 is affirmed and modified through the addition of
the underlined words:
Early in the bargaining process, Teamster steward and bargaining team
Mrotek told Dickrell that the City had advised the AFSCME street department
employes that layoffs would occur if the contract settlement exceeded a certain level
of wage increase.
Examiner Findings of Fact 7 - 23 are affirmed.
Examiner Conclusion of Law 1 is affirmed.
Examiner Conclusion of Law 2 is set aside.
Examiner Order is affirmed in part and reversed in part as follows:
Examiner Conclusion of Law 3 is reversed and set aside and the following Conclusion
of Law is
2. During the August 27, 1996 meeting with employes, the City of Marshfield
engaged in individual bargaining with employes represented by Teamsters and thereby
committed prohibited practices within the meaning of Secs. 111.70(3)(a)4 and 1, Stats
H. Examiner Order is affirmed in part and reversed in part as follows:
To remedy the violation of the Municipal Employment Relations Act found
in Conclusion of Law 2 in a manner which effectuates the purposes of the Act, IT IS
ORDERED that the City of Marshfield, its officers and agents, shall immediately:
Cease and desist from violating its duty to bargain under the
Employment Relations Act by bargaining with employes in the absence of
their collective bargaining representative, Teamsters Union Local No.
2. Take the following affirmative action:
Notify all of its employes represented by Teamsters
Union Local No. 662
by posting, in conspicuous places on its premises where employes are
employed, copies of the notice attached hereto and marked "Appendix
A." The notice shall be signed by an official of the City and shall be
posted immediately upon receipt of a copy of this Order and shall
remain posted for thirty (30) days thereafter. Reasonable steps shall
be taken to ensure that said notices are not altered, defaced or covered
by other material.
Notify the Wisconsin Employment Relations
Commission, in writing,
within twenty (20) days following the date of this Order, as to what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that all complaint allegations aside from the
violation found in Conclusion of Law 2 are dismissed.
Given under our hands and seal at the City of Madison, Wisconsin this 23rd day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
NOTICE TO ALL EMPLOYES
Pursuant to an Order of the Wisconsin Employment Relations Commission, and in
effectuate the policies of the Municipal Employment Relations Act, we hereby notify our
WE WILL NOT violate our duty to bargain under the Municipal
Relations Act by bargaining with employes in the absence of their collective
bargaining representative, Teamsters Union Local No. 662.
THIS NOTICE MUST REMAIN POSTED FOR THIRTY (30) DAYS FROM THE
HEREOF AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
City of Marshfield, Waste Water Treatment Plant
MEMORANDUM ACCOMPANYING ORDER
AFFIRMING IN PART
AND REVERSING IN PART EXAMINER'S
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
In its complaint, Teamsters Local No. 662 alleges that the City of Marshfield
faith bargaining and therefore violated Sec. 111.70(3)(a)4, Stats. by negotiating a tentative
without advising Teamsters that the wage increase tentatively agreed upon would require
by then bargaining directly with employes instead of through Teamsters. Teamsters ask that
be ordered to cease and desist from such conduct and to make the laid off employes whole.
In its answer, the City of Marshfield denies having engaged in bad faith bargaining
Teamsters were aware that layoffs would occur if settlements were reached above a specified
The City asks that the complaint be dismissed.
The Examiner's Decision
The Examiner dismissed the complaint based on his conclusions that the City had not
in bad faith bargaining.
As to the alleged failure to provide relevant information to Teamsters regarding the
consequences of any wage settlement in excess of a 2.75 percent, the Examiner found that:
(1) Teamsters were generally aware of the City's position at the commencement of
all City units that any wage increase over 2.75 percent would result in employe layoffs;
never asked for this information and thus the City had no obligation to provide same; and
(3) the City
did specifically advise employes after the 3 percent wage increase tentative agreement
but before union ratification that if the 3 percent settlement was ratified, layoffs would
Turning to the alleged effort by the City to deal directly with employes while
Teamsters, the Examiner found that the City was not bargaining with employes when it
that the 3 percent tentative agreement would cause layoffs if ratified. Rather, the Examiner
determined that the City was exercising its right to truthfully communicate to employes
bargaining issues. The Examiner further concluded that although the Teamsters business
not notified of or present at the employe meeting, the employes did have Teamster
the form of the bargaining team and union stewards. The Examiner also noted that the
business agent subsequently became aware of the meeting and its content prior to the unit's
ratification vote. In addition, the Examiner rejected Teamster's contention that the City's
with employes was an effort to undermine the tentative agreement.
POSITIONS OF THE PARTIES ON
Teamsters contend the Examiner erred when he dismissed the complaint and urge
the Examiner's decision.
Looking first at the issue of the City's alleged failure to provide layoff information
bargaining, Teamsters assert there is no credible evidence in the record to support the
finding that Teamsters were generally aware that a wage settlement in excess of
2.75 percent would
produce layoffs. Teamster further argue that because they had no knowledge of the potential
layoffs, it is unreasonable to place the burden on them to ask for that information.
that the City had an affirmative duty to provide it with the layoff information and that the
failure to do so violated Sec. 111.70(3)(a) 4, Stats.
As to the City's meeting with employes prior to ratification, Teamsters argue the City
simply communicate an offer to employes but rather urged employes to reject the
3 percent tentative
agreement in favor of a 2.75 percent agreement which would not require layoffs.
this is particularly so when a 2.75 percent offer had never been made prior to the
and certainly was not part of the tentative agreement. Teamsters assert the City was
sabotage the tentative agreement.
Teamsters further urge rejection of the Examiner's view that the City was not
illegal direct dealing because union stewards and the employe members of the bargaining
present at the meeting. Teamsters argue the business representative was the employes'
and that the City illegally bargained with employes in his absence.
Given all of the foregoing, the Teamsters ask that the City be found to have violated
Sec. 111.70(3)(a)4, Stats., and that the City be ordered to cease and desist from such
to make the laid off employes whole.
The City contends the Examiner's decision correctly applied the facts
to existing law.
The City asserts the Examiner correctly found that the Teamsters were aware of the
for layoffs and that, in any event, Teamsters could easily have asked about the implications
3 percent settlement. The City further notes that it is undisputed that prior to employe
of the 3 percent tentative agreement, the employes and ultimately the Teamster business
representative were made aware that a 3 percent wage settlement would produce layoffs. By
ratifying the 3 percent wage settlement with knowledge of the consequences, the City
Teamsters accepted the resulting layoffs as a legitimate consequence of the contract
The City argues the Examiner correctly concluded that its meeting with employes was
an effort to convey information and did not constitute bargaining directly with employes or
to sabotage the tentative agreement.
Given the foregoing, the City asks that the Examiner's decision be affirmed in its
On August 26, 1996, the City ratified a three year 1996-1998 tentative agreement it
reached with Teamsters which, among other matters, provided annual wage increases of
On August 27, 1996, following instructions from the City Administrator and the
City Council, Waste Water Treatment Plant Superintendent Dickrell told Teamsters
that if they ratified the tentative agreement, there would be unit employe layoffs but that if
tentative agreement were modified to include annual wage increases of only
2.75 percent, no layoffs
would occur. On August 28, 1996, Teamster unit employes ratified the 3 percent wage
tentative agreement. Two bargaining unit employes were subsequently laid off for one week.
The Duty To Provide Information
The duty to bargain in good faith under the Municipal Employment Relations Act
a requirement that, where appropriate, municipal employers provide the collective bargaining
representative of their employes with information which is relevant and reasonably necessary
bargaining a successor contract or administering the terms of an existing agreement.
VTAE, Dec. No. 26859-B (WERC, 8/93); Mayville School District, Dec. No. 25144-D
(WERC, 5/92); Milwaukee Board of School Directors, Dec. No. 24729-B (WERC, 9/88).
Teamsters contend the relationship between a 3 percent settlement and layoffs
had never been
communicated by the City prior to August 27, 1996 and that the City's conduct constituted
improper failure to timely provide information relevant and necessary to the bargaining over
It is undisputed that the layoff information was "relevant and reasonably necessary"
Teamsters' ability to bargain a successor agreement. What is disputed is whether the City's
as to this information violated its duty to bargain.
As a threshold defense, the City contends that it provided the information to
City asserts that both in the Fall of 1995, prior to or at the commencement of bargaining
bargaining units (including Teamsters), and specifically during a December 1995 bargaining
with Teamsters, Human Resources Specialist Nicole Onder advised Teamsters that any wage
settlement beyond 2.75 percent would require layoffs.
The Examiner generally found Onder was not a credible witness and specifically
that she did not convey the layoff information to Teamsters in December 1995. We conclude
Finding is fully supported by the record.
Nonetheless, the Examiner generally concluded that the layoff information had been
communicated to "the various bargaining units in the City of Marshfield" -presumably
Teamsters. While he found Onder to be a less than truthful witness, he apparently and
credited the portion of her testimony which indicates that she had generally communicated
information to all units. From our review of the record, we do not find the Examiner's
Finding of Fact
to be correct. We conclude that prior to August 27, 1996, the City never specifically advised
Teamsters that unit layoffs would occur if the wage settlement exceeded 2.75 percent.
We reach this conclusion for several reasons. The Examiner found, and we concur,
was not a credible witness. Thus, her testimony is not a particularly reliable basis for an
finding that the layoff information was ever conveyed by the City to Teamsters. On the
Teamsters bargaining unit members who were present at all bargaining sessions testified that
layoff information was never presented prior to the August 1996 meeting with Dickrell.
business representative Konop testified that the layoff information was never communicated
by the City. Dickrell was present at all
bargaining sessions and could not recall the layoff information ever being
communicated. There is no
written evidence that the layoff information was ever communicated to Teamsters. Finally,
interest in having Dickrell present the information on August 27, 1996 is consistent with
been no prior communication thereof.
The City's next line of defense is that Teamsters could have but did not ask for the
information and that, in the absence of a request, the City had no duty to bargain obligation
provide same. The Examiner found this argument persuasive. On review, Teamsters assert
no reason to ask for the information and that it is therefore unreasonable to hold their failure
a request against them.
Where a union has no reason to know that it should ask for certain relevant and
necessary information, there may be circumstances in which the employer's failure to
information violates the duty to bargain in good faith. In such circumstances, a union's
failure to ask
for the information is not a valid defense. Here, from our review of the record as a whole,
satisfied the Teamsters knew or should have known that there was a potential linkage in
between certain wage settlement levels and possible layoffs. Under such circumstances, it is
reasonable to expect Teamsters to have asked the City whether layoffs were a potential
the Teamsters unit. Given the Teamsters' failure to ask for the information, we find that the
failure to provide the information prior to August 27, 1996 did not violate the duty to
We base our conclusion that Teamsters knew or should have known enough to ask
question based primarily on unrebutted testimony from Dickrell. He testified that he had a
conversation "when negotiations began" which was initiated by Teamster steward and
team member Mrotek during which Mrotek told Dickrell that the City had advised the "street
department employes" that layoffs would occur if the contract settlement exceeded a certain
wage increase. Mrotek's knowledge of the City's position with another City employe unit
Teamsters in the position of knowing enough to ask the City whether the same wage/layoff
relationship was operative for the Teamster unit. The Examiner found that Teamsters'
representative Konop was also generally aware from a conversation with an AFSCME
of the City's bargaining position that layoffs would occur if the wage settlement exceeded a
level. While such an inference can be drawn from Konop's testimony, this inference is less
compelling and thus we do not rely on it in any significant way when reaching our
what Teamsters knew or should have known. We do note, however, that it seems quite
Mrotek would have shared his knowledge of "the street department employes'" layoff issue
Konop. Secondarily, we note that the publicly available minutes of the June 27, 1995
Marshfield Common Council clearly reflect the fiscal budgetary pressures the City was under
approached bargaining with its various unions.
Given all of the foregoing, we conclude that the City's failure to provide the
the layoff information prior to August 27, 1996 did not violate the City's duty to
bargain in good
The August 27, 1996 Meeting
There remains the question of whether the City engaged in illegal individual
dealing when Dickrell met with employes on August 27, 1996. The Examiner
concluded that no
violation of the duty to bargain occurred at this meeting because Dickrell was simply
information to the employes regarding the City's bargaining position and because the
members of the Teamsters bargaining team were present. We conclude otherwise.
We think it clear that Dickrell did more than provide information to the employes
the layoffs which would occur if the 3 percent tentative agreement were ratified by the
next day. He went on to indicate that if the parties were to agree to a 2.75 percent
layoffs would occur. Through this conduct, Dickrell in effect made a bargaining proposal
the employes in the absence of their chosen representative, Teamster business representative
Through this conduct, the City violated its duty to bargain with the representative of the
Therefore, we have reversed the Examiner's conclusion to the contrary. (1)
By way of remedy, Teamsters ask that the City be ordered to cease and desist from
the duty to bargain and that the employes laid off be made whole. We have ordered the City
and desist from violating its duty to bargain and to post notices to employes advising them of
City's commitment to bargain in good faith. However, we have not ordered the City to
make the laid
off employes whole. In our view, such relief is not appropriate where, as here, the
to ratify the 3 percent tentative agreement knowing that the ratified wage settlement
Dated at the City of Madison, Wisconsin this 23rd day of March, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
1. To the extent the Teamsters argue that Dickrell's
comments to employes also constitute an illegal
effort to sabotage the existing tentative agreement, we disagree. Dickrell's remarks were a
intentioned but ill advised effort by the City to make sure that employes approached
their eyes wide open while also opening the door slightly to the possibility of a last minute
2.75 percent settlement even though the City had already ratified the 3 percent
deal. In any event,
having already determined that Dickrell's remarks violated Secs. 111.70(3)(a)4 and 1,
an alternative theory of the case, we deem it appropriate to simply set aside Examiner
Law 2. However, we think it important to note that we strongly disagree with the
expressed view that the parties had not reached a tentative agreement/meeting of the minds
included a 3 percent increase. The absence of discussion about the potential for
layoffs did not affect
the viability of the tentative agreement.