STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
RACINE EDUCATION ASSOCIATION,
RACINE UNIFIED SCHOOL DISTRICT, Respondent.
Decision No. 29074-C
Weber & Cafferty, S.C., by Attorney Robert K. Weber,
2932 Northwestern Avenue, Racine,
Wisconsin 53404, appearing on behalf of the Racine Education Association.
Mr. Frank L. Johnson, Attorney at Law and Director of
Employee Relations, Racine Unified
School District, 2220 Northwestern Avenue, Racine, Wisconsin, 53404, appearing on behalf
Racine Unified School District.
ORDER AFFIRMING EXAMINER'S FINDINGS OF
CONCLUSIONS OF LAW AND
On April 30, 1998, Examiner Marshall L. Gratz issued Findings of Fact, Conclusions
and Order with Accompanying Memorandum in the above matter wherein he concluded that
Respondent Racine Unified School District had not committed prohibited practices within the
meaning of Secs. 111.70(3)(a) 1 or 3, Stats. He therefore dismissed the complaint.
Complainant Racine Education Association timely filed a petition with the Wisconsin
Employment Relations Commission seeking review of the Examiner's decision pursuant to
111.07(5) and 111.70(4)(a), Stats. The parties thereafter filed written argument in support of
opposition to the petition, the last of which was received June 24, 1998.
Having considered the matter and being fully advised in the premises, the
and issues the following
The Examiner's Findings of Fact, Conclusions of Law and Order are affirmed.
Given under our hands and seal at the City of Madison, Wisconsin this 23rd day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
A. Henry Hempe, Commissioner
Paul A. Hahn,
Racine Unified School District
ORDER AFFIRMING EXAMINER'S
FINDINGS OF FACT, CONCLUSIONS OF LAW
In its complaint, as amended, Complainant asserts Respondent violated Secs.
1 and 3, Stats., by limiting employe access to Respondent's telephone and fax machines.
denies that its conduct violated the Municipal Employment Relations Act.
The Examiner found no violation of Secs. 111.70(3)(a)1 or 3, Stats. He reasoned:
The questions in this case are whether the District has
its rights to allocate use of
its telephone and fax resources in ways that either discriminate in whole or in part on
employe's rights protected by MERA or that otherwise unlawfully interfere with employes'
of those rights.
violation of Section 111.70(3)(a)3, Stats.
111.70(3)(a)3, Stats., provides that it is a prohibited practice for a municipal employer
individually or in concert with others ""[t]o encourage or discourage a membership in any
organization by discrimination in regard to hiring, tenure, or any other terms or conditions of
employment." To establish that the District has engaged in discrimination in violation of
111.70(3)(a)3, the Association must prove each of the following factors: (1) that employes
engaged in protected, concerted activity; (2) that the employer was aware of such activity;
the employer was hostile to such activity and (4) that the employer's complained of conduct
motivated at least in part by such hostility. Muskego-Norway v. WERB, 35 Wis. 2d 540
and e.g., Cedar Grove-Belgium School District, Dec. No. 25849-B (WERC, 5/91). The
Association bears the burden of proving each of those elements by a clear and satisfactory
preponderance of the evidence. Sec. 111.07(3), Stats. elements.
The Examiner has concluded that the
Association has not met that burden.
The evidence establishes that beginning in
March of 1996 the District has attempted in various
ways to limit use of its telephone and fax equipment to calls
that are related to District business broadly
defined. The evidence further establishes that the
District has done so to keep its limited telephone lines available for District business calls
reduce the amount of work time spent by employes on calls unrelated to District business.
District's efforts in those respects have been undertaken in the context of a lengthy
its relationship with the Association, the evidence does not establish by the requisite clear
satisfactory preponderance standard that the District's actions were motivated, in whole or in
by hostility toward employes' (sic)engaged in
activities protected by MERA.
The District's efforts in those respects
appear to have begun when the Board's Business and
Facilities Management Committee reviewed the contents of a prototype for the next annual
directory. According to meeting minutes, Board and Committee member Dennis Kornwolf
"that stronger language prohibiting the personal use of the District telephones should be
added to the
directory." (ex. 7). The record establishes that the concerns prompting that suggestion and
Committee and Board's ultimate adoption of Croft Policy 3316 were to keep its limited
lines available for District business calls and emergencies and to avoid wasting time or abuse
telephone system through personal conversations. (tr. 67-68).
The June, 1996 telephone call that
prompted the (sic) Board Member Kornwolf to cause a
District Administrator to require the teacher involved to apologize for it or be disciplined
a call from the teacher during work hours to the (sic) Kornwolf to express concerns about a
elimination or relocation of an existing District program in which that teacher was involved.
The call was neither to nor about the Association. During the course of that call, Kornwolf
concern that the teacher involved was placing the call during work time. (ex. 15).
The District's enactment Croft Policy
3316, then, has not been shown to have been motivated
in whole or in part by a purpose of discouraging employes from communicating with the
or by District hostility toward the Association or toward employe activities on the
With regard to the Association's claim that
Croft Policy 3316 was enacted in retaliation for
the Association's October 24, 1996 filing of the instant complaint, the Examiner has
the Association has not proven that claim by the requisite clear and satisfactory
preponderance of the
evidence. While the Board's Legislative and Policy Committee's decision to recommend
adoption of what became Croft Policy 3316 occurred on December 9, 1996, the minutes of
meeting indicate that the Board had previously directed the administration to draft a policy on
subject (ex. 4, attachment F); however, the record does not establish whether that initial
occurred before or after the Association filed the instant complaint. In any event, the
interest and actions in tightening its telephone and fax policies
predated (and led to) the Association's filing
of the instant complaint. The creation of a formal
Board Policy on the subject where none had previously existed is consistent with that
District interest and those pre-complaint District actions.
Finally, because the District's efforts to
seek reimbursement for personal long distance calls
made by employes is consistent with the District's long-standing practice in that regard, there
basis on which to conclude that the District engaged in those efforts in retaliation for the
processing of the instant complaint.
Therefore, upon consideration of the
record as a whole, no Sec. 111.70(3)(a)3, Stats.
discrimination has been proven.
interference violation of Section 111.70(3)(a)1, Stats.
Section 111.70(3)(a)1, Stats., makes it a
prohibited practice for a municipal employer "[t]o
interfere with, restrain or coerce municipal employes in the exercise of their rights
guaranteed in sub.
(2)." Under Section 111.70(2), Stats., the rights protected by Sec. 111. 70(3)(a)1, Stats.,
among others, "the right of self-organization, and the right to form, join or assist labor
to bargain collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid or protection.
. . ."
The Association correctly asserts that
violations of Sec. 111.70(3)(a)1, Stats., occur when
employer conduct has a reasonable tendency to interfere with, restrain or coerce employes in
exercise of their Sec. 111.70(2) rights. WERC v. Evansville, 69 Wis. 2d 140 (1975). If
evaluating the conduct in question under all the circumstances, it is concluded that the
a reasonable tendency to interfere with the exercise of Sec. 111.70(2) rights, a violation will
even if the employer did not intend to interfere and even if the employe(s) did not feel
coerced or was
not in fact deterred from exercising Sec. 111.70(2) rights. Beaver Dam Unified School
Dec. No. 20283-B (WERC, 5/84); City of Brookfield, Dec. No. 20691-A (WERC, 2/84);
County, Dec. No. 12593-B (WERC, 1/77). However, exceptions to that general rule have
recognized by the Commission in prior cases. For example, in recognition of the employer's
speech rights and of the general benefits of "uninhibited" and "robust" debate in labor
employer remarks which inaccurately or critically portray the employe's labor organization
may well have a reasonable tendency to "restrain" employes from exercising the Sec.
of supporting their labor organization generally are not violative of Sec. 111.70(3)(a)1,
the remarks contain implicit or express threats or promises of benefit. Ashwaubenon Joint
District No. 1, Dec. No. 14474-A (WERC, 10/77); Janesville Board of Education, Dec. No.
8791 (WERC, 3/69). See
generally, Milwaukee Board of School
Directors, Dec. No. 27867-B (WERC 5/95) and
Cedar Grove-Belgium School District, Dec. No. 25849-B (WERC, 5/91).
In addition, and of particular significance
to this case, it is also well established that employer
conduct which may well have a reasonable tendency to interfere with employe exercise of
111.70(2) rights will generally not be found violative of Sec. 111.70(3)(a)1, Stats., if the
had a valid business reason for its actions. E.g., Brown County, Dec. No. 28158-F
12/96); City of Oconto, Dec. No. 28650-A (Crowley, 10/96), aff'd by operation of law, -B
(11/96); Milwaukee Board of School Directors, Dec. No. 27867-B (WERC, 5/95);
Board of School Directors, Dec. No. 27484-A (Burns, 7/93), aff'd by operation of law, -
B (WERC, 7/93); City of Milwaukee, Dec. No. 26728-A (Levitan, 11/91), aff'd on
-D (WERC, 9/92); Cedar Grove-Belgium School District, Dec. No. 25849-B (WERC, 5/91);
City of Brookfield, Dec. No. 20691-A (WERC 2/84); see generally, Waukesha County, Dec.
No. 14662-A (Gratz, 1/78) at 22-23, aff'd -B (WERC, 3/78) (". . . some municipal
actions that, in the broadest and most literal senses of the terms, "interfere with" or
municipal employes' exercise of Sec. 111.70(2) rights have been held not to violate Sec.
111.70(3)(a)1. [citations omitted] Rather, the traditional mode of analyzing whether a
those quoted terms as used in the applicable statute has occurred has involved balancing of
interests at stake of the affected municipal employes and of the municipal employer to
whether, under the circumstances, application of the protections of the interference and
prohibitions would serve the underlying purposes of the act. [citations omitted]. Id. at
Kenosha Board of Education, Dec. No. 6986-C (WERC, 2/66) (In relation to a claim of
interference, "[r]ules established by a municipal employer in effectuation of its public
regulate, on a non-discriminatory basis, the activities of its employes and their
representatives on the
employer's time and premises, and which may arguably limit the rights and protected
employes, as established in Section 111.70, Wisconsin Statutes, shall be presumed valid.
said rules constitute . . . prohibited practices, will depend on the facts in each case. The
rights of the
employes and their representatives must be balanced with the obligation and duties of the
employer. Those challenging such rules must establish that they were adopted for the
purpose of .
. . interfering with the lawful organizational activity of the employes involved . . . ". Id. at
Applying the foregoing decisional
standards to the facts of the instant case, the Examiner has
concluded that the Association has not met its burden of proof by a clear and satisfactory
preponderance of the evidence as regards an independent interference violation of Sec.
For the reasons advanced by the
Association, the District policies at issue in this case appear
reasonably likely to cause some teachers not to engage in some communications with the
office which would constitute protected activities within the meaning of Sec. 111.70(2),
However, as noted above, the analysis of whether the District has therefore unlawfully
employes' exercise of those rights in violation of Sec. 111.70(3)(a)1, Stats., does not end
The District asserts that its policies in the
1996-97 directory and in Croft Policy 3316 were
implemented to keep the District's limited telephone and fax equipment and telephone lines
for calls involving District business and emergencies, and to reduce the amount of work time
by employes on calls unrelated to District business. While there are gray areas between calls
involving District business and those that are personal, it is nonetheless clear that the
on their face and as interpreted and applied to date, directly relate to the business reasons
District claims the policies were developed to serve. The policies are also facially
in that, as written, they apply to all represented and non-represented personnel. While the
policies as written and as interpreted to date would prohibit employe use of District telephone
resources for those MERA-protected activities that do not involve District business, the
its witness Keri Paulson have acknowledged that the policies permit the use of those District
telephone resources for the wide range of MERA-protected activities that do involve District
business. (tr. 59-60, 79-81).
Limiting the use of the District's telephone
and fax resources to District business and
emergencies and minimizing the amount of work time spent by employes on calls unrelated
business are valid business reasons for the District's policies at issue in this case. Especially
light of the evidence that it has been difficult at times to get through to the telephones
District business calls (tr. 47, 48 and 63) and for teachers to find a phone with which to
on District business (tr. 39-41, 47 and 48). The fact that the enactment of Croft Policy 3316
made the District's policy enforceable through the same disciplinary consequences as would
from the violation of other District policies does not detract from the validity of the District's
reasons for adopting the instant policies.
The facts, that most secondary school
teachers have pay phones available to them at their
buildings whereas most elementary teachers do not, also do not constitute a persuasive basis
to conclude that the instant District's policies constitute unlawful interference within the
MERA. The only authority cited by the Association on that point was Milwaukee Board of
School Directors, Dec. No. 20811-A (Crowley 1/84). In that case the union complained that
the employer was refusing to provide bargaining unit employes with a complaint procedure
broad a scope as that available to non-bargaining unit employes. In the instant case, the
to be applicable to non-represented and
represented employes alike, making the instant situation
materially distinguishable from that involved in the case cited by the Association. The
availability of a pay phone alternative for contacting the Association without using the
equipment and phone lines is merely an incidental consequence of the District's lawful
and implementation of the instant policies.
For reasons noted in the earlier discussion
of the Association's discrimination claim, the
Examiner has found that the Association has not shown by the requisite clear and satisfactory
preponderance of the evidence that the District has implemented the instant policies (or
reimbursements) in order to discourage employes from engaging in MERA-protected
On the foregoing bases, the Examiner has
concluded that no independent interference
prohibited practice within the meaning of Sec. 111.70(3)(a)1, Stats., has been proven in this
POSITIONS OF THE PARTIES ON
Complainant argues that the Examiner erred when he concluded that Respondent's
did not violate Secs. 111.70(3)(a)1 or 3, Stats. Complainant asserts the Examiner correctly
applicable law but failed to correctly apply that law to the facts of the case.
When Respondent's conduct is viewed in the context of the parties' poor collective
relationship, Complainant contends it should be inferred that Respondent acted, at least in
of hostility toward the Complainant's efforts to represent employe interests. Even without
of animus, Complainant asserts a violation of Sec. 111.70(3)(a)3, Stats., is warranted
Respondent's conduct was inherently destructive of employe rights to engage in activity
by the Municipal Employment Relations Act.
Complainant argues that Respondent's restrictions on phone and fax usage clearly
reasonable tendency to make employes less likely to engage in activity protected by Sec.
Stats. and thus violate Sec. 111.70(3)(a)1, Stats. Complainant contends Respondent's
justification for the restriction is pretextual.
Given all of the foregoing, Complainant asks that the Examiner be reversed.
Respondent urges affirmance of the Examiner's decision.
Respondent contends that the Complainant had failed to prove that Respondent's
anything other than a continuation of Respondent's long standing practice of restricting
personal use of telephones and fax. Given Complainant's failure, dismissal of the complaint
We have carefully reviewed the record and conclude that it fully supports the
decision. The Examiner correctly applied the law to the facts and we find his decision to be
reasoned. Because we have extensively quoted from his decision earlier herein, we deem no
comment to be warranted. We affirm.
Dated at Madison, Wisconsin this 23rd day of July, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
A. Henry Hempe, Commissioner
Paul A. Hahn, Commissioner