STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
WISCONSIN COUNCIL 40, AFSCME,
SEWERAGE DISTRICT, Respondent.
Decision No. 29129-A
Mr. Laurence S. Rodenstein, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO,
8033 Excelsior Drive, Suite "B", Madison, Wisconsin 53717-1903, on behalf of the
Axley Brynelson, Attorneys at Law, 2 East Mifflin Street, P.O. Box 1767, Madison,
53701-1767, by Mr. Michael J. Westcott and Ms. Leslie A.
Fiskey, on behalf of the
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
On April 1, 1997, Wisconsin Council 40, AFSCME, AFL-CIO, hereinafter the
Complainant, filed a complaint of prohibited practices with the Wisconsin Employment
Commission wherein it alleged that the Walworth County Metropolitan Sewerage District,
hereinafter the Respondent, violated Secs. 111.70(3)(a)1, 2, 3 and (3)(c), Stats. by
an employe for engaging in protected, concerted activity immediately prior to the
election among Respondent's employes. On April 16, 1997, the Respondent filed an answer
the complaint wherein it denied it had committed the prohibited practices alleged, and also
as affirmative defenses that it had no knowledge of the alleged union organizing activities of
employe, that it had legitimate, non-discriminatory business reasons for discharging the
who was a probationary employe, that Complainant has failed to state a claim under
Sec. 111.70(3)(c), Stats., and that the employe has failed to take reasonable measures
Dec. No. 29129-A
The Commission appointed David E. Shaw, a member of its staff, as Examiner to
and issue Findings of Fact, Conclusions of Law and Order in the matter. Hearing was held
the Examiner on December 2, 1997, in Elkhorn, Wisconsin. A stenographic transcript was
of the hearing and the parties filed post-hearing briefs by January 26, 1998.
Having considered the evidence and arguments of the parties, the Examiner now
and issues the following
FINDINGS OF FACT
1. The Respondent, Walworth County Metropolitan Sewerage District, is a
employer with its principal offices located at 975 West Walworth Avenue, Delavan,
53121. Respondent maintains and operates an advanced wastewater treatment facility located
Delavan, Wisconsin which collects and recycles domestic wastewater. At all times material
herein, Joseph Cannestra has been employed as Respondent's Administrator, Stephen Miller
been employed as its Chief of Operations, and Steven Scheff has been employed as its
and Maintenance Supervisor. Overall supervision of the Respondent is by a Board of
Commissioners appointed by the Walworth County Board of Supervisors. Cannestra reports
that Board of Commissioners.
2. The Complainant, Wisconsin Council 40, AFSCME, AFL-CIO, hereinafter the
Union, is a labor organization with its principal offices located at 8033 Excelsior Drive,
"B", Madison, Wisconsin 53717-1903. At all times material herein Robert Lyons has been
employed as the Union's Executive Director and Laurence Rodenstein has been employed as
Staff Representative for the Union.
3. Ray Greenlee has been employed by Respondent as an Operator since
approximately 1980. Peter Borgo has been employed by Respondent as a Laboratory
Technician/Supervisor since approximately 1984. Mark Polazzo has been employed by
Respondent as a Waste Water Operator since April of 1996.
Robert Smage was employed by Respondent as a Maintenance Mechanic from
September 16, 1996 until his termination, effective March 7, 1997. New employes
serve a one-year probationary period and Smage was still in his probationary period at the
time he was
terminated. Respondent's employes are "at will" employes.
4. In 1995, Complainant petitioned for an election among Respondent's
During that organizing campaign, Cannestra became aware that Borgo supported the
effort. Cannestra wrote letters to several employes at that time, including Borgo, which they
received two or three days prior to the election. In his letter to Borgo, Cannestra indicated
Dec. No. 29129-A
was aware Borgo supported the Union organizing effort and noted that Borgo had been
the "bearer of the flag" for the cause. Cannestra went on to list favors or privileges that the
Respondent had granted Borgo in the past and indicated that such flexibility on the
part would probably not be available if the employes unionized. The Respondent engaged in
campaign prior to the representation election to encourage its employes to vote against having
union represent them. In that representation election, a majority of the employes voted not
have union representation. There was no retaliatory action taken against Borgo or other
as a result of their attempt to organize a union.
5. On July 23, 1996, Cannestra and Scheff interviewed Smage for the position of
Maintenance Mechanic with Respondent. During that interview, Smage was given a copy of
job description for the Maintenance Mechanic position which listed as one of the
the "Ability to obtain Wisconsin Commercial Driver's License," and listed a "Commercial
Driver's License" (CDL) under "Desirable Training and Experience". Also during that
Scheff and Cannestra asked Smage questions from a prepared list, which included the
5. Do you have any experience driving trucks, farm equipment, tractors or
other heavy equipment? Do you have a CDL? Is there anything in your
driving record that could prevent you from obtaining a CDL?
In addition to these questions, Scheff also asked Smage if he had any "OUI's",
"DWI's", or any other problems in his driving record that would prevent him from obtaining
CDL. Smage responded to the effect that there was no problem in that regard. At that time,
Smage's Wisconsin driver's license had been revoked since March 15, 1996 for operating
the influence (OUI) and he was not eligible for reinstatement of his license until May 23,
Smage also did not have an "occupational" license which would have allowed him to operate
vehicle on a restricted basis. Since his driver's license was under revocation and he did not
already possess a CDL, Smage was not eligible to obtain a CDL during the period he was
Smage began work for the Respondent as a Maintenance Mechanic on September 16,
and he thereafter operated Respondent's vehicles on public highways on a routine basis as
his duties related to maintenance at the sludge sites and virus sites, and drove a
vehicle to attend a workshop in Cedarburg, Wisconsin, and also drove Scheff to Madison,
Wisconsin in a Respondent-owned vehicle to pick up a truck. At no time during his
with Respondent did Smage have either a regular driver's license or a restricted occupational
driver's license, and at no time did Smage inform anyone in Respondent's management that
did not possess a valid Wisconsin driver's license or of his driving record in Wisconsin.
applied for and received a temporary occupational driver's license on March 7, 1997 and
a "permanent" occupational driver's license on March 10, 1997.
Dec. No. 29129-A
6. Early in January of 1997, a majority of Respondent's employes met with
Complainant's Executive Director, Robert Lyons, at the New Horizons Restaurant to learn
having a union might do for them and to discuss whether to attempt to organize. Lyons
their legal rights and protections with regard to organizing and many of the employes present
signed cards for the purpose of obtaining a union representation election. The persons
decided to meet again later in January at the home of Don Collins, an employe of
On January 24, 1997, Complainant filed an election petition with the Wisconsin
Employment Relations Commission requesting that the Commission conduct a representation
election among Respondent's employes.
By letter of January 27, 1997, Douglas Knudson, an Examiner on the Commission's
notified Respondent of Complainant's election petition along with a copy of said petition,
Cannestra received mid-afternoon on Tuesday, January 28, 1997. Cannestra was not aware
organizing effort on the part of Respondent's employes until he received the letter and copy
election petition from Knudson.
On January 30, 1997, approximately twelve of Respondent's employes again met with
Lyons at the home of employe Don Collins to discuss organizing a union. At that meeting,
employes discussed the issues they would like to see addressed, what having a union could
them, the impact of unionizing on work assignments, and looked at collective bargaining
agreements the Union had negotiated. The employes also decided Smage and Greenlee
the "contact persons" who Lyons could contact or who would contact Lyons.
After he received Knudson's letter, Cannestra had overheard employes discussing that
was going to be a meeting at Collins' home for the purpose of discussing organizing a union
afterward heard that there had been such a meeting. On the Monday following the meeting
Collins' home, at the regular weekly meeting, Cannestra raised the topic of the employes'
in organizing a union, made comments regarding a number of issues or concerns that had
been raised at the meeting at Collins' home and commented to the effect that he felt that the
employes did not need a union. Due to Cannestra's having commented on a number of
had been discussed at the meeting at Collins' home, at least several of the employes
Cannestra had been informed about that meeting and what was discussed.
7. Respondent's pay periods are bi-weekly and begin on a Wednesday and end on
Tuesday. Employes fill in their own time sheets, indicating their hours worked each day and
in the time sheets weekly, either at the end of the work day on Tuesday or the start of the
day on Wednesday. Miller is responsible for reviewing and approving the employes' time
and he then gives them to Cannestra who also reviews them and gives final approval for
Dec. No. 29129-A
pay purposes. Employes are permitted, with approval, to use "make up" time for
emergencies - take the time off and then make it up later, usually in the same pay period if it
possible. Employes are also permitted to use compensatory time they have accumulated to
taken later with management approval. To use paid time off, such as vacation, compensatory
time, floating holidays and make-up time, employes are required to submit leave request slips
On January 28, 1997, Smage went to Respondent's Chief of Operations, Steve
approximately 12:30 p.m. and asked if he could leave early for a family emergency and
told him that he could. Later that afternoon, Smage went to Cannestra and told him that
had given him permission to use compensatory time that afternoon and showed Cannestra his
slip sheet with "5" written in the space for "regular hours" for that date. Smage left work
on that date and called in the next day, Wednesday, January 29th, saying he was taking a
holiday for that day. Smage returned to work on Thursday, January 30, 1997.
When Miller was reviewing the employes' time sheets for the pay period (January 22
February 4) he noticed that Smage had indicated he took a "floating holiday" for January
the first day of the second week of that pay period, and had not submitted a leave request
that floating holiday. Miller took Smage's time sheets to Cannestra and asked him how he
handle it. In reviewing that matter, Miller and Cannestra discovered that the "5" for the
of regular hours worked on January 28, had been changed to an "8". Cannestra checked
Scheff to see if Smage had made any request to him to use compensatory time for that day or
arranged with him to make up the three hours from January 28 and Scheff told him that
had not done so. Smage submitted a leave request slip for January 29th on February 5,
did not make arrangements to make up the time he was off on January 28th.
8. In November of 1996, Scheff held a meeting with four employes, including
in part for the purpose of setting the goal for them to obtain their CDL in early 1997. The
was discussed in anticipation of transporting sludge in 1997. Scheff discussed this again with
these individual employes during his regular quarterly talks with employes in early January
1997. Scheff was concerned with Smage's hesitancy about taking the test for the CDL and
comment that he was having some problems renewing his driver's license. Scheff later
his concerns about Smage with Miller and Cannestra. Cannestra subsequently talked to a
representative of Respondent's liability insurance carrier, Lehn, in the latter part of February
1997. Lehn and Cannestra discussed obtaining a new list of the Respondent's employes with
driver's license numbers so the carrier could update its records. That had been done in the
by posting a sign-up sheet for employes to write in their name and driver's license number.
Cannestra posted such a sign-up sheet from February 24 to February 26, 1997 in the
Next to his name, Smage had written in Scheff's driver's license number, which also
the sign-up sheet beside Scheff's name. Cannestra sent the sign-up sheet
Dec. No. 29129-A
to Lehn, who then called Cannestra informing him that the number beside Smage's
name was the
same as Scheff's and asked Cannestra to have the employes verify their driver's license
Without saying anything about Scheff's number being by Smage's name, Cannestra took the
sign-up sheet around to the employes before work or on break time to have them verify their
license number. When Cannestra asked Smage to verify his number, Smage took out his
and then changed the number next to his name to the correct number. Cannestra asked him
the wrong number next to his name and Smage answered to the effect "It must have been
guys." Cannestra asked who that was and Smage then explained that other employes
refer to him as "Steve's brother" and took Cannestra out to his truck and showed him a
said "Steve's brother". After Cannestra left, Smage and several other employes went to the
Shop" at which time Smage told them he had made a mistake and put Scheff's driver's
number next to his own name, more or less as a joke.
Cannestra sent the corrected sign-up sheet back to Lehn who then contacted the
Department of Transportation to check Smage's driving record. Lehn subsequently sent
a summary of Smage's driving record which noted at the end that his driver's license had
revoked. Lehn later sent Cannestra a more detailed record which indicated that Smage's
license was on revocation for "OUI" at the time he started his employment with Respondent
that he did not have an occupational driver's license.
9. Near the end of the workday on Friday, March 7, 1997, Cannestra met with
Smage, Miller and Scheff. Cannestra again asked Smage about the incorrect driver's license
number next to his name on the sign-up sheet and asked him who "them guys" were. Smage
said that he must have written down his "old" driver's license number. When Cannestra said
could not be, as it was Scheff's number, Smage did not respond. Cannestra then voiced his
concerns about Smage driving the Respondent's vehicles without a license. In response,
stated that he did have a driver's license. Cannestra then informed Smage that he was being
terminated for falsifying his time sheet and his driver's license number, lying during his
in response to the questions about his ability to obtain a CDL and for driving Respondent's
vehicles on public roads without a driver's license. Cannestra also gave Smage the following
written notice of termination:
March 7, 1997
Dear Mr. Smage:
As you know, you are a probationary employee. Numerous irregularities regarding
your employment have come to my attention. After reviewing these irregularities
involving your employment, I conclude that your employment must be terminated
as of this date.
Dec. No. 29129-A
My review has revealed that you:
1. Have falsified your time sheet.
2. Provided inaccurate information during your job interview regarding your
eligibility to obtain a commercial driver's license.
3. Refused to cooperate in my review regarding the facts and circumstances
resulting in an inaccurate driver's license number for you being submitted
to our motor vehicle insurer.
The termination of your employment is effective immediately. You will be
provided information regarding your rights to continuation insurance coverage.
WALWORTH COUNTY METROPOLITAN
Joseph S. Cannestra /s/
Joseph S. Cannestra
Cannestra and Scheff then escorted Smage from Respondent's premises. Smage was
employe to be terminated since at least 1984.
10. Following the regular weekly meeting on March 10, 1997, Cannestra informed
employes present that Smage had been discharged and that there were reasons for his being
that Smage had violated his trust on three occasions; and that it had nothing to do with the
Cannestra also indicated that his lawyers had said it was not a good idea to fire Smage at a
when the employes are trying to obtain a union, but that it was up to him and he felt he had
right to fire Smage since he was still on probation. Cannestra did not state the specific
for terminating Smage.
At sometime subsequent to March 10, 1997, during break time in the breakroom,
Cannestra was asked by an employe about what was happening with Smage, and Cannestra
responded to the effect that he had been denied unemployment compensation and reiterated
his discharge did not have anything to do with the Union.
Dec. No. 29129-A
11. Prior to Smage's termination, Respondent's employes had discussions at work
regarding the union organizing effort, but did not do so following being notified of his
by Cannestra on March 10, 1997.
12. Cannestra, Miller and Scheff were not aware that Smage had been chosen as a
"contact person" for the Union organizing effort until Cannestra received a copy of the
complaint filed in this case on April 1, 1997. Greenlee subsequently stated to Cannestra that
knew Smage was not discharged because of his union activities.
13. The Respondent had legitimate non-discriminatory business reasons for
Robert Smage on March 7, 1997 and anti-union animus was not part of the basis for
decision to discharge Smage on that date.
14. Cannestra's addressing of several topics at the regular weekly staff meeting
been discussed by the employes and Lyons at Collins' home the preceding week, did not
reasonable tendency to interfere with the exercises of those employes' rights under
15. The Respondent had valid business reasons for announcing Smage's
stating that the termination had nothing to do with the Union.
Based upon the foregoing Findings of Fact, the Examiner makes the following
CONCLUSIONS OF LAW
1. The Respondent, Walworth County Metropolitan Sewerage District, its officers
agents, by discharging Robert Smage from employment, did not discriminate within the
of Sec. 111.70(3)(a)3, Stats.
2. The Respondent, Walworth County Metropolitan Sewerage District, its officers
agents, by the comments of Joseph Cannestra regarding the discharge of Robert Smage and
regarding certain topics that had been discussed at the Union's organizing meeting held on
30, 1997 did not interfere with the exercise of Respondent's employes' rights under
Sec. 111.70(2), Stats., within the meaning of Sec. 111.70(3)(a)1, Stats.
3. Joseph Cannestra, acting on behalf of Respondent Walworth County
Sewerage District, by the acts set forth in paragraphs 1 and 2, did not violate
Upon the basis of the foregoing Findings of Fact and Conclusions of Law, the
now makes and issues the following
Dec. No. 29129-A
The complaint filed in this matter is dismissed in its entirety.
Dated at Madison, Wisconsin, this 21st day of April, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
David E. Shaw /s/
David E. Shaw, Examiner
Dec. No. 29129-A
WALWORTH COUNTY (METROPOLITAN SEWERAGE
MEMORANDUM ACCOMPANYING FINDINGS OF
CONCLUSIONS OF LAW AND
The Union filed a complaint with the Commission alleging that the Respondent
Sec. 111.70(3)(a)3, and derivatively, 1, Stats., by discharging its employe, Robert Smage, at
in part, because of its animosity towards his having engaged in protected, concerted
violated Sec. 111.70(3)(a)1, Stats., by interfering with its employes' rights under MERA by
Administrator, Joseph Cannestra, making comments at a weekly staff meeting about topics
had been discussed at a Union organizing meeting, and by his telling Respondent's employes
at least two occasions that the discharge of Smage had nothing to do with the Union, and that
Cannestra's actions on behalf of Respondent also violated Sec. 111.70(3)(c), Stats.
The Respondent filed an answer to the Union's complaint wherein it denied that it
committed any prohibited practices by discharging Smage or by the comments he made to its
employes by Cannestra, and alleged as affirmative defenses that it had no knowledge of
alleged union organizing activities, that it had legitimate non-discriminatory business reasons
discharging Smage, who was a probationary employe, that the complaint fails to state a claim
under Sec. 111.70(3)(c), Stats., and that Smage has failed to take reasonable measures to
POSITIONS OF THE
With regard to the alleged violation of Sec. 111.70(3)(a)3, Stats., the Union notes
there is a four-part test that must be satisfied to establish such a violation in this case:
1. Smage was engaged in protected activities; and
2. Respondent was aware of those activities; and
3. Respondent was hostile to those activities; and
4. Respondent's conduct was motivated in whole or in part, by hostility
toward the protected activity.
Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.B., 35 Wis. 2d 540 (1967); Department
Employment Relations (DER) v. W.E.R.C., 122 Wis. 2d 132 (1985). Whether or not the
Dec. No. 29129-A
employer has legitimate grounds for its actions, if one of the motivating factors for the
the employe's protected, concerted activity, the discharge cannot be upheld.
supra; DER, supra; and LaCrosse County (Hillview Nursing Home), Dec. No. 14704-B
Evidence of hostility and illegal motivation may be inferred from statements or from
circumstances. Town of Mercer, Dec. No. 14783-A (Greco, 3/77). Under the Court's
in Muskego-Norway, supra, the Commission may draw inferences regarding union animus
established facts which logically support such inferences. The Court noted in that case that
Commission (then Board) placed considerable weight on the timing of the dismissal. 35 Wis.
at 563-564. In DER, supra, the Commission noted the difficulty faced in proving union
as the motivation for the employer's actions and the need to rely in part upon inferences that
reasonably be drawn from facts or testimony."
The Union asserts several inferences can be drawn from the testimony of employes
Greenlee, Borgo and Polazzo regarding Cannestra's statements about the motivation behind
Smage's dismissal. Cannestra made his statements on March 10, 1997, the first working day
following Smage's dismissal on March 7th, at the end of a weekly staff meeting at which all
the employes were present. Those statements contained two "very problematic elements":
(1) Cannestra fired Smage even though his lawyers did not think it was a good
time, nor did they believe it was a good idea.
(2) Cannestra disclaimed any connection between his decision to discharge
Smage and Smage's union activity.
The last statement was also repeated by Cannestra later at an assembly of employes.
asserts that it may be inferred from Cannestra's repeated denials that he believed that others
interpret his actions as being the result of Smage's union activity.
With regard to the first two elements of the four-part test, Smage was generally
by employes as being one of two Union contact persons and was designated as such at the
organizing meeting held at employe Collins' home. Testimony showed that Cannestra knew
of the details of that meeting. It is also reasonable to infer that if he knew of Borgo's role in
Union's previous organizing campaign, he knew of Smage's and Greenlee's role in this
drive. Cannestra's disavowal of union animus as a motive in terminating Smage further
demonstrates his knowledge of Smage's union activity.
Cannestra's hostility can be illustrated by his action in the Union's first organizing
as well as by his actions in the current drive. In the first drive, Cannestra composed a
letter to Borgo as the "bearer of the flag" for the Union prior to the first election. That
Dec. No. 29129-A
letter is "replete with unstated threats" of withdrawing privileges if the Union won and
with cajole and implied threats." Cannestra's hostility is amplified in the letter's attachment
Borgo's salary history and a very broad questionnaire designed to discourage union
The purpose to be inferred from all of this was to make Borgo think twice about his future
Respondent as a result of his role as the Union contact person.
Cannestra's intent regarding his statements to employes after the meeting at Collins'
was similar to his intent regarding his actions toward Borgo. He wanted to make it clear to
employes that he knew exactly what had taken place at the organizing meeting at Collins'
in order to discourage union activity by letting them know they could not organize in
No other inference can be reasonably drawn as to why he would publicly describe issues
at the meeting the following day, but that he wanted to make his knowledge of the meeting
known. His comments had the desired effect of interfering with the organizing campaign, as
is no record of any subsequent Union meeting between the meeting at Collins' and the
The fourth element of the test, i.e., motive, is often the most difficult to prove.
Union animus may be inferred from Cannestra's stated animus toward Union organizing, the
evidence is his repeated denials that Smage's termination was not due to Union activity. The
Union questions why Cannestra would tell the employes the reasons he fired Smage and that
nothing to do with his Union activity, and why he would discuss the termination of any
in front of all of the employes. The Union asserts that the Respondent's witness, Polazzo,
testified that few employes believed Cannestra and felt what he really meant was that he fired
Smage because of his union activity.
The Union further questions why Cannestra would "brag" to the employes that he
Smage even though his attorneys indicated the timing was bad and that the action was not a
idea, unless his statements were designed to intimidate and coerce employes into giving up
organizing drive - to let them know he can fire them for Union activity even if his lawyers
The Union concludes that it has satisfied the four-part test necessary to prove a
of Sec. 111.70(3)(a)3, Stats.
With regard to the alleged violation of Sec. 111.70(3)(a)1, Stats., the Union asserts
a violation occurs when employer conduct has a reasonable tendency to interfere with,
coerce employes in the exercise of their rights under Sec. 111.70(2), Stats., and that a
will be found even if the employer did not intend to interfere. Cedar Grove-Belgium Area
School District, Dec. No. 25849-B (WERC, 3/91).
Dec. No. 29129-A
The testimony of Polazzo confirms that Cannestra's statements and his firing of
a chilling effect on the exercise of the employe's rights to organize a union. Polazzo
after Smage was fired, employes no longer discussed the union at work and that at meetings
off-premises, employes expressed concern that they might be fired like Smage. Since
called as Respondent's witness, his testimony should be fully credited. It may be inferred
that testimony that the message Cannestra wished to send employes by firing Smage was
received by those employes.
Another example of statements that had a chilling effect on protected activity was
Cannestra's recitation of the issues discussed at the meeting at Collins' home. Greenlee
that Cannestra also stated that the employes did not need a union regarding those issues.
The Union asserts that Cannestra's testimony was contradicted on the pertinent points
three credible witnesses and their contemporaneous statements and that his testimony was not
credible. Cannestra's actions toward Smage were calculated to have a chilling effect on the
Last, the Union asserts that Cannestra's acting as an agent for Respondent in firing
and his "reckless disregard" for the legal advice he received in this matter constitutes a
of Sec. 111.70(3)(c), Stats.
The Respondent first asserts that the Union has failed to prove a violation of
Sec. 111.70(3)(a)3, Stats. First, there is no evidence to support a claim that
Cannestra, or any
other supervisor, was aware of Smage's alleged union activities prior to his discharge.
the extent of Smage's involvement in organizing a union is questionable. Greenlee testified
Smage was not identified as a principal union organizer at the meeting at Collins', but rather,
and Greenlee were mentioned as "contact persons". Borgo also testified that Smage and
were not identified as principal organizers, but as persons Lyons could contact to keep
open. Thus, the Union has not even demonstrated Smage was engaged in any protected,
activity. As to Cannestra's knowledge of Smage's involvement in the Union, no witness
that Cannestra had knowledge that Smage was involved in any of the organizing prior to his
discharge. Greenlee testified that he never identified Smage to Cannestra in that manner
the discharge. Polazzo admitted he had no evidence that would lead him to believe
any knowledge of Smage's having been identified as a contact person or organizer for the
and that he did not know if such was "common knowledge" among other employes or among
management personnel. Polazzo could not recall discussions among employes about who was
heading the organizing drive, nor of any case of statements made in discussions between
getting back to Cannestra. There is no evidence that Smage's organizing activities were so
visible so as to make it plausible to conclude his activity was
Dec. No. 29129-A
common knowledge. There is also no evidence that either Scheff or Miller had
to Smage's discharge that he had been identified as a union organizer or contact person.
consistent with Scheff's testimony that he did not learn of Smage's alleged involvement in the
Union's organizing until about a month after his discharge.
The Union cannot rely on Cannestra's discussion with employes at the first weekly
in February of 1997 to prove his awareness, as that meeting was the first following
receipt of the copy of the January 27, 1997, election petition he received from the
Naturally, Cannestra wished to speak to the employes about the petition. The Union's
that Cannestra was aware of Smage's activities based upon an alleged verbatim repeat of
said at Collins' home, is based upon "vague, non-specific 'impressions' and 'beliefs'
by fact." While Greenlee testified he and Borgo had the "impression", and Borgo testified
"believed" that Cannestra was aware of what took place at Collins', they could not cite
statements from Cannestra to support their belief. Borgo testified he noted the similarities in
topics of discussion at the two meetings, but could not identify a single specific
topic that had been
discussed at Collins' and by Cannestra. As there is no evidence that Cannestra was aware of
Smage's alleged involvement in organizing a union, his decision to discharge Smage could
have been based, even in part, on hostility toward those activities.
Next, the Respondent asserts the Union has failed to establish that Cannestra bore
toward the Union in general or toward Smage specifically. There is no evidence in the
any derogatory comments regarding the Union or referencing Smage's alleged involvement
the Union. Cannestra's statement of his opinion that the employes are better off without a
is merely the exercise of an employer's right of free speech and is not sufficient to establish
animus. Ashwaubenon School District No. 1, Dec. No. 14774-A (WERC, 10/77); Village
of Necedah, Dec. No. 28652-B (Greco, 8/96) aff'd by operation of law, Dec.
The Union's submission of campaign material provided to employes in the first
organizational drive two years earlier is both irrelevant and insufficient to establish animus.
conceded the letter sent to him was merely designed to persuade employes they do not need a
union. Further, even though Cannestra learned of Borgo's union activity in the first
drive, no retaliatory action was taken against him. Similarly, in the present organizing drive,
action has been taken against Greenlee or Collins even though Cannestra may have been
aware of their union organizing involvement since Smage's discharge. The difference
them and Smage is that the latter engaged in misconduct.
Dec. No. 29129-A
Respondent also asserts that the Union has presented no evidence that Cannestra's
for discharging Smage were pretextual or that his decision was based upon hostility toward
Smage's alleged union activities. In determining motive, it is appropriate to consider the
showing that Smage was discharged for legitimate reasons. D.E.R., 122 Wis. 2d at 142;
Muskego-Norway, supra. An employer is not required to demonstrate just cause for its
rather the focus is whether the Union has met its burden of proving Smage was fired for
activities. Even if just cause was required, Respondent has easily met that standard based
the record. The record evidence regarding the reasons for Smage's discharge is
Smage did not dispute the testimony of Respondent's witnesses regarding the circumstances
gave rise to the decision to fire him. Thus, an adverse inference is appropriately drawn
the Union on that basis. Coney v. Milwaukee & S.T. Corp., 8 Wis. 2d 520, 527
undisputed testimony establishes that Cannestra's reasons for discharging Smage were not
pretextual, rather they were consistent with legitimate employer expectations of employe
Smage first lied in his interview regarding his driving record and his ability to obtain a CDL.
subsequently falsified his time sheet for January 28, 1997, and lied to Cannestra about having
received approval to use compensatory time from Miller. Smage later provided false
regarding his driver's license number and then lied to Cannestra about how the incorrect
was placed next to his name. Further, Smage's job duties required him to drive
vehicles on public roadways, and the fact that he did so without a driver's license placed the
Respondent at significant risk for liability.
Regardless of the number of Smage's duties that would require a CDL, the eligibility
obtain a CDL is a qualification of his job and that requirement is communicated to all
for the Maintenance Mechanic position. More importantly, Smage was not fired for not
a CDL, but for lying about his eligibility to obtain a CDL, falsifying his driver's license
and for continuing to drive Respondent's vehicles without a license. Further, Smage was a
probationary employe during all of this time and there was no evidence that Smage was
differently than any other of Respondent's employes who engaged in similar misconduct.
Cannestra's decision to fire Smage was based upon legitimate business reasons, and not upon
hostility toward the Union, and it cannot reasonably be concluded otherwise based upon the
While the timing of Smage's termination may be probative, it is not dispositive.
County, Dec. No. 28494-A (Jones, 1/96) aff'd by operation of law, Dec. No. 28494-B
2/96). In this case, Cannestra made the decision to discharge Smage after learning that
had been driving Respondent's vehicles without a driver's license and combining that with
Smage's having lied and falsified records. Absent any evidence of hostility, the timing of
Smage's discharge cannot be used to establish discrimination.
Dec. No. 29129-A
With regard to alleged interference, Respondent asserts that the test is not whether an
employe made comments critical of the employes' collective bargaining representative, but
whether such statements expressed or implied threats of reprisal or promises of benefits.
Janesville School District, Dec. No. 8791-A (WERC, 3/69). Even employer conduct that
would have a reasonable tendency to interfere will not be found to violate Sec.
Stats., if the employer has valid reasons for its actions. School District of Ripon, Dec.
No. 27665-A (McLaughlin, 1/94) aff'd by operation of law, Dec. No. 27665-B
Respondent had valid reasons for terminating Smage and none of its conduct contained any
or promise. Cannestra's reassurance that the termination had nothing to do with the Union
an attempt by Cannestra to provide employes with the truth about the termination and to
any false rumors relating to the Union or that Cannestra had a hostile intent toward the
Polazzo testified that rumors about Smage's termination started before Cannestra spoke to the
employes on March 10th and Borgo admitted that a termination during a union organizing
would concern employes and could cause them to think that the organizing activity had
to do with it. The attempt to characterize Cannestra's comments on March 10th as a "formal
meeting" regarding Smage's termination is misguided. That discussion took place
after the regular
weekly meeting. Borgo also admitted that he had no basis of comparison as to whether such
out of character for Cannestra, as he could not recall any other employe being terminated in
twelve years with Respondent.
Cannestra's statement that Smage had been denied unemployment compensation
was in response to an employe's question and not at a meeting, as the Union alleged. There
no testimony to support the allegation in the complaint that Cannestra's tone was
Also, the argument that the notations in the written statements of Borgo, Greenlee and
that they did not want the statements shared with Cannestra shows they were afraid of him,
unconvincing. Greenlee admitted that Cannestra's opinion the employes were better off
a union was not the reason he did not want his statement shared with his employer. Borgo's
concern about protecting confidentiality is questionable, since he knew from prior experience
Cannestra would not retaliate. The Union has failed to prove that Respondent did not have
business reasons for its conduct or that its conduct had a reasonable tendency to interfere
employes' exercise of their rights under Sec. 111.70(2), Stats.
With regard to the alleged violation of Sec. 111.70(3)(a)2, Stats., Respondent asserts
there is no evidence that Respondent's conduct interfered with in any manner, or threatened
independence of the Union so as to turn it into a proponent of Respondent's interests rather
of the employes'. Thus, no violation may be found in that regard.
As to remedy if a violation is found, the Respondent asserts that demands for
relief and reinstatement must be denied. In dual motive cases, the examiner must consider
legitimate reasons that contributed to the employer's decision to terminate the employe.
Dec. No. 29129-A
supra. It would be inappropriate to reinstate a probationary employe who engaged in
as Smage has and subjected his employer to substantial potential liability.
Sec. 111.70(3)(a)3, Stats., makes it a prohibited practice for a municipal employer:
3. To encourage or discourage a membership in any labor organization
by discrimination in regard to hiring, tenure, or other terms or conditions of
employment; but the prohibition shall not apply to a fair-share agreement.
It is well established that in order to establish a violation of Sec. 111.70(3)(a)3,
must be proved by a clear and satisfactory preponderance of the evidence that the municipal
employe was engaged in protected, concerted activity; that the municipal employer's agents
aware of that activity; that the municipal employer, or its agents, were hostile towards that
activity; and that the municipal employer's actions toward the municipal employe were
at least in part, by its hostility toward the municipal employe's protected, concerted activity.
Employment Relations Department v. WERC, 122 Wis. 2d 132 (1985).
The first part of the above test is satisfied by Smage's involvement in the Union's
organizing drive as one of the "contact persons" with whom the Union's organizer, Lyons,
As to the second part of the test, the Union relies on Cannestra's comments at the
staff meeting on the Monday following the organizing meeting at Collins' home to establish
he was aware Smage and Greenlee had been selected as the "contact persons" for the Union
meeting. The testimony in that regard is that Cannestra made comments regarding a number
issues or topics that had been discussed at the meeting, giving employes the impression that
knew all that had gone on at the meeting. Both Cannestra and Scheff denied knowing prior
their decision to terminate Smage that he was a "contact person" for the Union. The meeting
Collins' was on Thursday, January 30, 1997 and Cannestra had received the letter from
and a copy of the Union's election petition on Tuesday, January 28th. Cannestra was aware
the organizing effort prior to the meeting at Collins' and he admitted overhearing employes
about an upcoming meeting and afterward hearing there had been a meeting at Collins'. In
for Cannestra to comment on topics that had been discussed at that meeting it was not
for him to have known what had been discussed at the meeting. There are only so many
or concerns that cause employes to consider organizing a union to represent them and these
parties had gone through a union election campaign less than two years before.
Dec. No. 29129-A
Comments by Cannestra regarding insurance, wages, etc., are as easily explained by
prior experience with the Union's first organizing campaign as they are by his having been
informed of the contents of the meeting by some unidentified informant. The evidence is at
inconclusive on this point.
Assuming arguendo, that the Union has established that Cannestra
was aware of Smage's
having been selected as one of the Union "contact persons", the Union must establish animus
toward such activity on Cannestra's part, and that such animus was part of the basis for the
decision to terminate Smage. With regard to animus, the Union correctly notes that animus
be inferred from facts established in the record. In this case, the Union relies upon
efforts in the first representation election campaign, especially his letter to Borgo, as well as
statements at the weekly meeting following the meeting at Collins' home and his statements
Smage's discharge had nothing to do with the Union. While Cannestra's letter to Borgo, as
as other campaign materials that were distributed by Respondent in the 1995 representation
election campaign, indicated an effort to dissuade Respondent's employes from voting for
representation, such does not by necessity establish animus toward the employes' engaging in
protected, concerted activity. State of Wisconsin, Dec. No. 18397-A (Davis, 4/82), aff'd
v. WERC, 122 Wis. 2d 132 (1985). A municipal employer has the right to convey the
of its management that both it and its employes are better off without having a union
employes, as long as in doing so that communication does not contain threats of reprisal or
promises of benefit for engaging in protected activity or for refraining from doing so.
Ashwaubenon School District No. 1, Dec. No. 14774-A (WERC, 10/77); Western
Wisconsin Technical Institute, Dec. No. 12355-B (WERC, 8/74). Similarly, there is no
evidence that Cannestra's comments about topics discussed at the January 30th meeting were
than permissible expressions of his opinion that the employes did not need a union to
them. Both Greenlee and Borgo testified that is what they understood Cannestra to be
The Union contends that Cannestra's statement that Smage's discharge had nothing to
with the Union is, on its face, evidence of animus toward the Union or toward protected,
concerted activity on the part of Respondent's employes. The Examiner does not agree.
statements must be considered in the context of the particular circumstances. Cannestra
that he informed the employes that Smage had been terminated for good cause and that it had
nothing to do with the Union in order to dispel any rumors as to why Smage was fired. The
evidence indicates that if Smage was not the first employe ever terminated by Respondent, he
the only employe who had been terminated in the last twelve years, according to Borgo's
testimony. (Tr. 56). That Cannestra would feel compelled to inform the rest of the
Smage had been terminated in order to explain his absence was reasonable, as was the need
explain that it was not related to the Union's organizing effort, given the fact that the Union
the employes were engaged in such an effort at the time. It is also noted that, contrary to
Union's contention, the evidence indicates that Cannestra's March 10th announcement was
Dec. No. 29129-A
the only occasion on which he purposefully made such an announcement at a regular
meeting of the employes. Neither Greenlee nor Borgo could recall a second meeting at
Cannestra made such a comment (Tr. 23, 46), and Polazzo testified that Cannestra later
Smage had been denied unemployment compensation benefits and that his firing was not
to or caused by the Union in response to a question from an employe during break time in
lunchroom (Tr. 192, 194). Thus, Cannestra's testimony as to why he announced Smage's
termination is credited. It is concluded that there simply is not sufficient evidence in the
to establish animus on the part of Cannestra, Scheff or Miller.
Last, as to Respondent's motives for terminating Smage's employment, the Union
cites Cannestra's statements that the termination was not related to the Union, his statement
he fired Smage even though his lawyers had felt it was not a good time to do so, and his
a meeting to announce Smage's termination to the assembled employes. Again, as to the
10th announcement by Cannestra, the evidence indicates that if Smage was not the first
fired by Respondent, he was the first in a long time. The felt need on Cannestra's part to
the employes of the termination on the next workday when all are assembled, i.e., the end of
regular weekly meeting on Monday, March 10th, is reasonable and not on its face indicative
a malevolent intent. Why Cannestra shared with the employes that his lawyers felt it was not
good idea to fire Smage, but had left the decision up to him, is unclear. While that
as the Union asserts, problematic, it is not sufficient in the context of this case to establish
as a factor in the decision to terminate Smage.
While finding animus as a motive in an employment action may be based upon
that can be reasonably drawn from the record evidence, evidence that the employe was
for valid business reasons tends to weaken such an inference. As the Wisconsin Supreme
explained in its decision in Employment Relations Department:
The employee must show that the employer was motivated, at least in part, by
anti-union hostility. Therefore, proof that the employee was discharged for legitimate
reasons is relevant in determining the employer's motive. The WERC in this case
"As the key element of proof involves the motivation of [the
employer] and as, absent an admission, motive cannot be
definitively demonstrated given the impossibility of placing oneself
inside the mind of the decisionmaker, [the employee] must of
necessity rely in part upon the inferences which can reasonably be
drawn from facts or testimony. On the other hand, it is worth
noting that [the employer] need not demonstrate 'just cause' for its
action. However, to the extent that [the employer] can establish
reasons for its action which do not relate to hostility toward an
Dec. No. 29129-A
employe's protected concerted activity, it weakens the strength of
the inferences which [the employee] asks the [WERC] to draw."
(122 Wis.2d at 142-143)
In this case, the Respondent overwhelmingly proved that it had legitimate business
for terminating Smage immediately. The uncontroverted evidence in the record is that
during his employment interview about his driving record and ability to obtain a Commercial
Driver's License (CDL), falsified his time sheet for January 28, 1997, falsified his driver's
number in order to avoid discovery of his driving record and lied to Cannestra about doing
drove Respondent's vehicles on public roads without possessing a valid driver's license of
kind. It would only have been when Cannestra learned of Smage's driving record that
would have realized that Smage had lied in his interview and had been driving on the job
a license. The evidence establishes that it was when Cannestra learned these facts, albeit
checking with Respondent's attorneys, that he moved quickly to terminate Smage's
There is no evidence that any employes had been permitted to engage in such misconduct in
past without similar discipline.
Simply stated, based on the record as a whole, Cannestra's statement that he acted in
face of his lawyer's advice that it was not a good time to fire someone, is not sufficient basis
drawing an inference that Cannestra's decision to terminate Smage was motivated, at least in
by animus toward Smage's having engaged in protected concerted activity. That being the
it is concluded that the Respondent did not violate Sec. 111.70(3)(a)3, Stats., when it
The Union also alleges that Cannestra's comments to the Respondent's employes at
weekly staff meeting regarding topics discussed at the January 30th meeting at Collins'
statements regarding the termination of Smage, as well as that termination, were intended to
and did have, a chilling effect on the employes' exercising of their rights under
Stats., so as to constitute interference in violation of Sec. 111.70(3)(a)1, Stats. In this
Union cites the testimony of Polazzo that prior to Smage's termination employes discussed
Union organizing effort at work, but no longer did so after Cannestra's statements to the
on March 10th following Smage's termination.
Sec. 111.70(3)(a)1, Stats., makes it a prohibited practice for municipal employes
1. To interfere with, restrain or coerce municipal employes in the
exercise of their rights guaranteed in sub. (2).
Dec. No. 29129-A
In determining whether that provision of MERA has been violated, the Commission
the following standard:
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 the exercise
of their Sec. 111.70(2) rights. . .If after evaluating the conduct in question under
all the circumstances, it is concluded that the conduct had a reasonable tendency
to interfere with the exercise of Sec. 111.70(2) rights, a violation will be found
even if the employer did not intend to interfere . . .(E)mployer conduct which may
have a reasonable tendency to interfere with employe exercise of Sec. 111.70(2)
rights will not be found violative of Sec. 111.70(3)(a)1, Stats. if the employer has
valid reasons for its actions.
Cedar Grove-Belgium Area School District, Dec. No. 25849-B (WERC, 5/91), at
As stated above, while Cannestra was aware of the Union's organizing effort, via
Knudson's letter and copy of the Union's election petition, and had heard there was to be a
meeting in that regard at Collins', there is nothing in the record regarding the substance of
comments beyond testimony that Cannestra mentioned some of the same topics that had been
discussed at the meeting at Collins' and gave his opinion that such matters could be resolved
without the need for a union. While Greenlee and Borgo testified they felt Cannestra knew
had taken place at Collins', they offered no basis for their belief beyond his having addressed
similar topics as those discussed by the employes at Collins' and they could not specify what
topics were. There has been no showing that those comments contained a threat of reprisal
promise of benefit regarding the employes engaging in protected concerted activity. It may
the employes' fears or suspicions in this regard were more due to their surprise that
aware of the Union's organizing effort, than to the substance of what he had to say.
As to Cannestra's statements to the employes on March 10th regarding Smage being
terminated, the reasonableness of Cannestra's informing the employes of Smage's
as well as his perceived need to explain it was not related to the Union, have previously been
discussed. It must again be noted, however, that the fact that such a "meeting" to inform
employes of a termination had not been held before this is explained by the fact that Smage's
termination was the first in at least twelve years; i.e., as long as Borgo had been employed at
Respondent. Therefore, it has been concluded that the Respondent had valid business
its decision to terminate Smage immediately, and that given the uniqueness of an employe
termination at the Respondent, and the fact that a Union organizing effort was under way at
time, it was reasonable for Cannestra to attempt to make clear that Smage's termination was
related to that effort. Thus, despite any chilling effect of Smage's
Dec. No. 29129-A
termination and the announcement of same, no violation of Sec. 111.70(3)(a)1, Stats.,
(3)(c) and (3)(a)2
The Union has also alleged that Cannestra violated Sec. 111.70(3)(c), Stats., by
committing prohibited practices on behalf of the Respondent. There having been no finding
Cannestra's actions and statements constituted a prohibited practice under Sec. 111.70(3)(a),
Stats., there can be no finding of a violation under Sec. 111.70(3)(c) on his part.
In its complaint the Union also alleged a violation of Sec. 111.70(3)(a)2, Stats., but
presented no evidence or argument to support such a finding and, thus, none has been made
Dated at Madison, Wisconsin, this 21st day of April, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
David E. Shaw /s/
David E. Shaw, Examiner