STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
JERRY C. WAGNER,
WISCONSIN STATE EMPLOYEES UNION,
AFSCME COUNCIL 24, AFL-CIO,
Decision No. 29177-A
FINDINGS OF FACT,
CONCLUSION OF LAW, AND
Amedeo Greco, Hearing
Examiner: Complainant Jerry C. Wagner ("Wagner"), filed an unfair
labor practices complaint with the Wisconsin Employment Relations Commission
on July 11, 1997, alleging that Wisconsin State Employees Union, AFSCME, Council 24
24"), had committed an unfair labor practice by refusing to arbitrate his grievance and by
breaching its duty to fairly represent him.
On August 27, 1997, the Commission appointed the undersigned to issue and make
of Fact, Conclusions of Law and Order as provided for in Section 111.07(5) Stats. Council
represented by Attorney P. Scott Hassett, filed its answer and a motion to dismiss on
1997, at which time it also asked for an award of attorney's fees. Wagner by letter dated
21, 1997, objected to Attorney Hassett's participation on the ground that Attorney Hassett
the same law firm as Wagner's former private attorney, the late Richard Graylow, and that
therefore had a conflict of interest dictating his
recusal. Hassett by letter dated October 27, 1997, unilaterally withdrew from this case
replaced by attorney Nola J. Hitchcock Cross. Hearing was held in Madison, Wisconsin,
7, 1998. Both parties subsequently filed briefs and Wagner filed a reply brief that was
November 3, 1998.
Having considered the arguments and the record, I make and file the following
Fact, Conclusion of Law, and Order.
FINDINGS OF FACT
1. Wagner, whose address is P.O. Box 263, Amery, Wisconsin 54001, was
by the State of Wisconsin as a Conservation Warden from 1973 to December 10, 1993, when
2. Council 24, a labor organization, maintains its principal office at 8033
Suite "C", Madison, Wisconsin 53717. At all times material herein, Martin Beil has served
24's Executive Director, Karl Hacker has served as Council 24's Assistant Director, and
Rettke has served as a Council 24 Field Staff Representative. Throughout that time, they
on Council 24's behalf and they have served as its agents.
3. At all times material herein, Council 24 has represented for collective
purposes a bargaining unit that includes Conservation Wardens employed by the State of
("State"). Council 24 and the State have been parties to a series of collective bargaining
that provide for a grievance procedure and for final and binding arbitration.
4. Prior to his termination, Wagner received a formal written reprimand in
1990, for not properly investigating a jet-ski accident; a one-day unpaid suspension in
for not following orders; and a three-day suspension in February, 1993, for improperly
trap tag from an arrestee.
5. Wagner on his own time participated in a non-job related rifle shoot conducted
Wisconsin Conservation Warden Association in May, 1993, at which time some of his rifle
misfired. Wagner on May 19, 1993, wrote a letter of complaint to cartridge manufacturer
Olin-Winchester which, in turn, replied in a June 15, 1993, letter that offered Wagner
6. Unsatisfied, Wagner in a July 20, 1993, letter that was typed on plain
informed an Olin-Winchester customer service representative:
. . .
This letter is in response to your correspondence of June 15,
1993, regarding two misfired
cartridges I returned to you for inspection.
Though I accept your explanation for why
the shells didn't fire when snapped a second or
third time, I resent your apparent assumption that a "weak blow" from my revolver caused
As a classified police combat competitive
shooter and law enforcement officer I maintain
my gun in optimum condition at all times.
If I am on the firing line in a competition
match and experience a misfire, I as well as any
other competitor in that situation will attempt a refire as quickly as possible before
the time expires,
so I don't lose the ten points it represents.
In my case and your shells, it was 20
points and the match.
Of greater concern to me is the
consequence of having two subsequent misfires in a single
cylinder when involved in a serious, potentially life-threatening law enforcement citation.
In either case, I would not be in a position
to say, "Oops, I better take this misfire out for
Your condescending letter and a token box
of shells disappointed me and was not the type
of response I expected from a company such as yours.
Though I am a long-time user of
Winchester shells, this incident and the tone of your letter
have raised serious doubts in my mind as to whether I should continue my client relationship
In addition, I feel compelled to
communicate these misgivings to my comrades in law
enforcement as well as other competitive shooters via association contact and letters to
I would reconsider this action should you
be concerned enough about this problem to donate
several cases of wad-cutters or other ammunition to the Wisconsin Conservation Wardens
Association for its annual competitive shoot.
I am anxiously awaiting your reply.
Wagner signed his name "Jerry C. Wagner Wisconsin
Conservation Warden" and sent a copy of it
to Olin-Winchester's president.
7. Olin-Winchester subsequently complained to Wagner's superiors about his July
1993 letter and an investigation thereafter was conducted by the State regarding Wagner's
8. Donald L. Semman, Deputy Secretary of Wisconsin's Department of Natural
Resources, by letter dated December 2, 1993, informed Wagner:
. . .
This letter is to advise you that you are terminated in your
position as a Conservation Warden
3 with the Department of Natural Resources effective at the end of the business day on
This disciplinary action is based on the
following incidents and your behavior which violated the
Department's Work Rules (Manual Code 9121.06(1)(e) Failure to provide accurate
information whenever such information is requested by an authorized individual.) and the
Department's Code of Ethics (Manual Code 9121.1(6) Refrain from any acts or
relations which will
violate their public trust and reflect discredit on themselves or the Department.).
By virtue of experiencing two (2) misfires
at a competitive shoot, you proceeded to contact Olin-Winchester regarding their pistol
ammunition. (See attached correspondence which is incorporated
herein by reference) In your July 20, 1993 letter, you expressed dissatisfaction with their
and their offer to provide you with a "token" box of replacement shells. In addition, you
you would communicate your "misgivings" regarding Olin-Winchester's ammunition to your
"comrades in law enforcement as well as other competitive shooters via association contact
letters to special interest publications". However, you were willing to reconsider your
actions if they
would donate several cases of wad-cutters or other ammunition to the Wisconsin
Wardens Association for its annual competitive shoot. You signed the letter as Jerry C.
Wisconsin Conservation Warden.
At your pre-disciplinary hearing, you stated
that on July 22, 1993 you had shown Warden
Supervisor Dave Zeug the July 20, 1993 letter to Olin-Winchester and that said letter had not
mailed prior to Zeug's review. When asked directly by Attorney Richard Henneger if the
on the envelop to Olin-Winchester would show a date of July 22, 1993 or later, you
responded in the
affirmative. Attached is a copy of the outside of the envelope showing a postmark of July
In deciding on your discipline, I considered
your written reprimand dated October 29, 1990, your
one (1) day suspension pursuant to Bruce Braun's letter dated February 12, 1992, and your
day suspension pursuant to Bruce Braun's letter dated February 12, 1993.
You are also reminded of the availability of
the Department's Employee Assistance Program
(EAP) to assist you in resolving any personal problems. This program is voluntary and
confidential. You may contact Jeff Carroll, EAP Director in Madison, at (608) 266-2133 or
DNR Employee Assistance Coordinator.
Your classification is included in the
Security and Public Safety Bargaining Unit which is covered
by a Collective Bargaining Agreement between the State of Wisconsin and the Wisconsin
Employees Union. If you believe this action was not based on just cause, you may appeal
that agreement's grievance procedure.
. . .
9. Wagner applied for unemployment compensation benefits after his discharge
hearing was held on February 15, 1994, before Administrative Law Judge Charles Schaefer.
during said hearing was asked whether he had already mailed his aforementioned July 20,
to Olin-Winchester before he showed it to his supervisors and he replied: "At that point
it's clear now that that it was mailed." Wagner testified in this proceeding
that he was confused
about this question because, in his words, there were "two letters that went to
his original letter that was sent to a customer service representative and a copy of that letter
sent to that company's president. Wagner added here that his testimony there was "not
the standpoint I was confused." Up to the time of the instant proceeding, Wagner never told
Council 24 representatives that he was confused at his unemployment compensation hearing
his testimony there was incorrect.
10. Administrative Law Judge Schaefer ruled on February 18, 1994, that the State
properly terminated Wagner pursuant to Sec. 108.04(5), Stats., and that he therefore was not
to any unemployment compensation benefits. In doing so, he found on p. 2 of his decision:
The manufacturer complained to the employer about this letter.
In response, the employer
conducted an investigation during which time the employe stated that he had shown two of
supervisors the letter before mailing it on July 22, 1993. Those supervisors had not raised
to its being sent. Later, the employer obtained the envelope in which the employe's letter to
manufacturer had been sent. It was postmarked July 21, 1993, the day before he should
the letter to his supervisors. He was discharged both for having failed to provide accurate
information to the employer and also for having engaged in an act which violated public trust
reflected discredit on himself or the employer.
Manufacturers often do make a gift of
product in response to product complaints. Such gifts
are presumably to neutralize by means of generosity, the original dissatisfaction. That
would potentially prevent complaints about the product to other individuals. However, it is
up to the
manufacturer to initiate this process. The employer characterized the employe's letter as an
extortion. This is not an unreasonable characterization of the letter. Additionally, it is noted
what the employe was seeking for his association would have cost several hundred dollars on
It is true that the employe did show his
immediate supervisor and the employer's district
supervisor a copy of the letter. Neither of them told him that the letter was improper.
showed them the letter only after it had been sent. It therefore was not done with
approval. His supervisors explained that they had not paid sufficient attention to the letter to
portion of the letter referred to above. The appeal tribunal does not find that claim totally
Both supervisors may well have been improperly unconcerned about the nature of the letter.
However, since the employe did not rely on that approval in sending the letter, it cannot be
the employer condoned his actions and the absence of objection from the supervisors did not
otherwise justify the letter.
Under these circumstances, the employe's actions in writing to
an ammunition manufacturer
to state that he will broadcast complaints regarding its product unless the manufacturer
product of significant value to a warden association was clearly improper activity which
discredit on both himself and the employer. As such, it evinced a wilful, intentional and
disregard of the employer's interests and of the standards of conduct which the employer had
to expect of him.
11. Wagner unsuccessfully grieved his termination through the various steps of the
contractual grievance procedure and he asked Council 24 to appeal it to arbitration. Council
Staff Representative Rettke, who had earlier told Wagner that he had a good case, informed
by letter dated March 31, 1994, that Council 24 would arbitrate his discharge. Wagner also
by Attorney Graylow that he had a good case.
12. Council 24 subsequently tried to settle Wagner's case with the State by
a proposed Settlement Agreement with the State that provided:
. . .
Whereas the Grievant, Jerry Wagner, and the Wisconsin State
Employees Union have filed
grievances alleging violations of the Agreement between the parties as described on the
grievances, has processed the grievances through the contractual grievance procedure, and
them to arbitration, the parties hereby agree that the above-referenced cases have been settled
respects on the following basis:
1. The Union and the Grievant
agree to withdraw the appeal to arbitration of the Employer's
Case Numbers 012409, 012299, 012300, 012301 and 011441.
2. The Grievant and the Union
also agree that this settlement forever releases and discharges the
State of Wisconsin, DNR, and their present and past agents, from any liabilities, damages
causes of action related to the Grievant's employment with and separation from DNR.
3. The Grievant agrees that he
will not pursue or accept employment with DNR in the future.
4. DNR agrees to remove the
discharge notice and any other reference to the discharge from the
Grievant's personnel file.
5. DNR will pay to Mr.
Wagner a lump sum of $7,500.00 dollars subject to all normal and
customary deductions. Such payment will be made with all reasonable expendiency from the
date this agreement is signed by the parties.
6. The agreement by the
parties to this settlement shall not be construed or represented by any
of the parties as an admission of liability or wrongdoing on any of their parts. The parties
agree that this settlement is expressly and solely intended to avoid the expense, delay and
distraction that the preparation and litigation of these matters would entail for all of them.
7. The parties agree that they
will not publicize the terms of this settlement beyond a statement
that the parties have amicably settled the dispute on terms satisfactory to all the parties.
8. The parties recognize and
agree that the facts, conditions and circumstances of this case are
unique, and as such shall not, singly or in any combination, constitute a precedent for any
The Grievant has read the provisions of this
Settlement Agreement and by signing, represents that
he/she understands all its terms and has had full opportunity to consult with his/her
. . .
13. Council 24 Field Representative Rettke by letter dated September 15, 1995,
Wagner with a copy of said Settlement Agreement and asked whether it was acceptable to
14. Wagner by letter dated September 26, 1995, informed Field Staff
Rettke that he would not agree to said proposed settlement and insisted that he wanted to take
discharge to arbitration.
15. Council 24 Assistant Director Hacker personally met with Wagner and
the merits of his grievance to determine whether Council 24 should take it to arbitration. To
Hacker paid for, and obtained, a typed transcription of Wagner's aforementioned February
unemployment compensation hearing which revealed that Wagner then admitted that he had
his July 20, 1993, letter to Olin-Winchester before he showed it to his superiors. That
explained Hacker, was contrary to Wagner's earlier claim at a preliminary disciplinary
he mailed said letter after he had shown it to them. Hacker believed that Wagner's
statements on when he showed said letter to his superiors established that he had not told the
Hacker also believed based on his long experience as a Council 24 official
that arbitrators hold
law enforcement-type employes like Wagner to a higher standard of conduct than other
Hacker also concluded that Wagner's aforementioned July 20, 1993, letter violated the
of ethics. Based upon these factors, Hacker decided that Council 24 should not arbitrate
16. Hacker therefore informed Wagner by letter dated February 5, 1996:
. . .
I have reviewed, along with other members of the Wisconsin
State Employees Union staff,
your grievance(s) relating to Article 3, 4, 7, 9 and 11 denied transfer(3)/work
rules/reprimand/discharge (6 cases) which have been appealed to arbitration.
After considerable review of all these
cases, attempts were made to settle these grievances
prior to arbitration. These attempts were to no avail. This leads us to the decision of
based on the facts and circumstances surrounding these cases, we feel an arbitrator would not
in our favor and therefore we will not pursue them to arbitration.
Please be aware that you may appeal this
decision by carefully following the Council 24
Appeal Procedure, a copy of which is enclosed.
For further information regarding your
cases, please contact your field representative, Dick
Rettke, at (715) 354-3339.
. . .
17. Neither Hacker nor anyone else on Council 24's behalf ever told Wagner any
reasons as to why Council 24 would not arbitrate his grievance.
18. Wagner appealed Hacker's decision to not arbitrate his termination to Council
Executive Director Beil in a February 27, 1996, letter that stated:
. . .
On February 5, 1996, I was sent a letter by Karl Hacker, Council
24 Assistant Director, informing
me that AFSCME no longer would pursue my grievances. This information is contrary to
assurances I previously had received from Attorney Rich Graylow that my grievances, at
as my termination was concerned, were meritorious.
I am writing to appeal the decision of Mr.
Hacker pursuant to the Appeal Procedure which
accompanied his letter to me. The Appeal Procedure indicates that I am to forward to you
documents which support my appeal; however, either the Council 24 offer, my steward,
or the attorneys who have worked on my cases through their retainer with AFSCME Council
all the documents in my case. Because the letter stating that AFSCME would no longer
me did not specify the reasons for that withdrawal of representation as required by
Procedure, paragraph I am unable to add anything more by way of explanation for
Will you please consider this appeal and
notify me as to whether AFSCME will reconsider its
decision and will, in fact represent me through arbitration. I look forward to your response.
. . .
19. Beil by letter dated July 29, 1996, informed Wagner:
. . .
We have again evaluated your cases and have come to the same
conclusion as before that we
could not prevail in arbitration. Therefore, under Council 24 Appeal Procedure (copy
can pursue the discharge on your own if you sign the enclosed Waiver form. Please sign
keep one for your file and return the other to us in the enclosed self-addressed, stamped
Once we have received the Waiver, we
will notify the Department of Employment Relations
that you will be pursuing your discharge case on your own.
. . .
20. The enclosed "Waiver of Claims and Indemnification"
referenced in Beil's
aforementioned July 29, 1996, letter stated:
. . .
The undersigned grievant, having been discharged by the State
of Wisconsin, and having filed
a written request for ownership of the grievance pertaining to said discharge with the
director of AFSCME Council 24, Wisconsin State Employees Union, hereby waives any
against Council 24, known or unknown, growing out of Council 24's representation of
this matter thus far.
In accepting ownership of this grievance
from Council 24, from this day forward, grievant
further agrees to indemnity [sic] and hold Council 24 harmless in any and all future claims or
proceedings relating to this grievance.
. . .
21. After consulting with his personal attorney Gordon E. McQuillen, Wagner
Waiver of Claims and Indemnification form on August 7, 1996, and McQuillen by letter
9, 1996, forwarded it to Council 24 Executive Director Beil.
22. Accompanied by Attorney McQuillen, Wagner participated in an arbitration
proceeding before Arbitrator Jay E. Grenig who, in a decision dated July 5, 1997,
Wagner's termination and converted it to a three-day suspension based upon his finding that
had violated "the public trust". Arbitrator Grenig therefore reinstated Wagner to his former
made him whole for his lost wages and benefits. In doing so, Arbitrator Grenig found that
had shown his original aforementioned July 20, 1993, letter to Olin-Winchester to one of his
before he mailed it on July 20, 1993, and that a friend of Wagner's mailed a copy of said
letter to the
president of Olin-Winchester in an envelope postmarked July 21, 1993. Arbitrator Grenig
on this issue:
From the evidence it cannot be concluded that the Grievant was
giving inaccurate information
when he said at the pre-disciplinary interview that he believed the letter he showed to his
was postmarked July 22. The Employer has failed to prove that the Grievant violated the
failing to provide accurate and complete information whenever such information is requested
23. Council 24's decision not to arbitrate Wagner's termination followed Council
investigation of his grievance which included the testimony Wagner gave at his
compensation hearing that was contrary to the testimony he gave at his arbitration hearing
Arbitrator Grenig where he said he showed his supervisors a copy of his July 20, 1993, letter
to Olin-Winchester before he mailed it. Council 24 also made that decision after it appointed
grievance representative to assist Wagner; after it preserved Wagner's right to arbitrate his
after it had negotiated a proposed $7,000 settlement on his behalf; and after Hacker met with
which is something that Hacker normally does not do when he determines whether a
be advanced to arbitration. Council 24's decision not to arbitrate Wagner's grievance was
legitimate business reasons that centered on Wagner's truthfulness and his contradictory
to whether he mailed his July 20, 1993, letter to Olin-Winchester before or after he showed
it to his
superiors. Said decision was not arbitrary, or made in bad faith, or based on any
Upon the basis of the aforementioned Findings of Fact, I hereby make and issue the
CONCLUSION OF LAW
Wisconsin State Employees Union, AFSCME, Council 24, AFL-CIO, did not
refuse to fairly represent Jerry C. Wagner in violation of Sections 111.82 or 111.84 of the
Employment Labor Relations Act when it refused to submit his termination to arbitration.
Upon the basis of the aforementioned Findings of Fact and Conclusion of Law, I
and make the following
IT IS ORDERED that the complaint allegations be, and they thereby are, dismissed in
IT IS FURTHER ORDERED that Jerry C. Wagner pay all of the legal fees and costs
have been incurred, and may be incurred, by Council 24 in defending itself in this action.
Dated at Madison, Wisconsin this 28th day of December, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Amedeo Greco, Examiner
WISCONSIN STATE EMPLOYEES UNION,
AFSCME, COUNCIL 24, AFL-CIO
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSION OF LAW, AND
POSITIONS OF THE PARTIES
Wagner asserts that Council 24 "wrote off my case three years ago without even
the matter very thoroughly"; that Council 24 "did nothing to help me"; and that he spent
of my own money to get my job back." He also claims that he never executed a voluntary
his right to sue Council 24 because, "I was forced to sign the Union's waiver or my
gone" and that Council 24 "left me with the choice of being represented by the Union and
my case arbitrated or not being represented by the Union and arbitration." As a remedy, he
Council 24 be ordered to pay the legal fees and costs he incurred when he was forced to
discharge without Council 24's help. Wagner also maintains that his complaint against
is not frivolous and that, as a result, no legal fees should be imposed against him under
814.025(3), Stats., or Section 809.25(3), Stats., or under such cases as Onalaska School
District, et. al., Dec. No. 28243-A (WERC, 1995); Wisconsin Dells, Dec. No. 25997-C
(WERC, 1990); Madison Metropolitan School District, Dec. No. 16471-D, (WERC, 5/81),
aff'd in pertinent part, Madison Teachers, Inc., v. Wisconsin Employment
Commission, 115 Wis. 2d. 623 (Ct.App., 1983).
Council 24 maintains that Wagner waived his right to sue Council 24 when he signed
Waiver of Claims and Indemnification referenced in Finding of Fact No. 20, supra; that it,
in fact, did
not breach its duty to fairly represent Wagner; and that "Council 24 is entitled to an award
attorney's fees in this case based on our need to defend against Wagner's frivolous, waived
There certainly is superficial merit to Wagner's claim that Council 24 breached its
fairly represent him by not taking his termination to arbitration since: (1), Council 24
initially told him
his grievance had merit; (2), his private attorney, Richard Graylow, told him he had a good
Council 24 ultimately told him that it would not appeal his grievance to arbitration because it
winnable; and (4), Arbitrator Grenig subsequently ruled in Wagner's favor and overturned
termination in favor of a three-day suspension.
Nevertheless, there are two major problems with his claim.
The first centers on what information was available to Council 24 representatives
were investigating Wagner's grievance to determine whether Council 24 would appeal his
to arbitration. Said information is crucial because the legality of Council 24's actions in not
arbitrating Wagner's termination must be judged by what it knew at that time and what
Wagner provided and not on what other, undisclosed facts subsequently emerged
Council 24 Assistant Director Hacker explained that he fully investigated Wagner's
and that he ultimately decided not to appeal it to arbitration because as related in
Finding of Fact
No. 15 above - he believed that Wagner had not been truthful when he first claimed during
investigation that he showed his July 20, 1993, letter referenced in Finding of Fact No. 6,
his superiors before he mailed it to Olin-Winchester and when he subsequently
stated at his February
15, 1993, unemployment compensation hearing that he showed them said letter
after he mailed it.
The question of when the letter was mailed is crucial because the State
decided to terminate
Wagner in part because of what it believed were Wagner's false representations relating to
mailed said letter and because Arbitrator Grenig found there were two letters, i.e. the
original and a
copy, and that Wagner had told the truth when he said during the State's investigation that he
one of them only after his superiors saw it. Wagner explained here that he gave
a contrary answer
at his unemployment compensation hearing because he was "confused". He further claims in
brief, "It's clear from the evidence at the arbitration I wasn't paying much attention [at the
unemployment compensation hearing] to the dates because I wasn't doing anything wrong"
"The [correct] information was sniffed out by my attorney" at the arbitration hearing.
His "confusion" however, along with his attorney's "sniffing", were never
Hacker either before or after he decided whether to appeal Wagner's termination to
Hacker thus reasonably believed -- after he personally reviewed Wagner's own testimony at
unemployment compensation hearing -- that Wagner had not been truthful in relating when he
his July 20, 1993, letter to his superiors and that Wagner's lack of truthfulness would cause
arbitrator to rule against him. I credit Hacker's testimony that that is why he and Council 24
not to arbitrate Wagner's termination grievance.
Council 24's decision at that time to not arbitrate his termination thus was based on
considerations and was neither arbitrary nor based on any discriminatory or bad faith
See Flippo v. Northern Indiana Public Service Corp., 141 F 3d. 744, 748
(7th Cir., 1988);
Crider v. Spectrolite Consortium, Inc., 130 F. 3d. 1238, 1243 (7th Cir.,
1997); Air Lines Pilots
Ass'n v. O'Neill, 499 U.S. 65, 78 (1991); Garcia v. Zenith Electronics Corp., 58 F. 3d
1176 (7th Cir., 1995). See, too, Marquez v. Screen Actors Guild, Inc.,
159 LRRM 2641,
(1998), wherein the United States Supreme Court recently reiterated that unions have very
discretion in representing their members by stating:
That our holding in Beck did not alter the standard for finding
conduct "arbitrary" is
confirmed by our decision in Air Line Pilots. In that case, decided three years after Beck,
specifically considered the appropriate standard for evaluating conduct under the "arbitrary"
of the duty of fair representation. We held that under the "arbitrary" prong, a union's
the duty of fair representation "only if [the union's conduct] can be fairly characterized as so
outside a 'wide range of reasonableness' that it is wholly 'irrational' or 'arbitrary'. 499 U.S.
(quoting Ford Motor Co. v. Huffman, supra, at 338). This "wide range
of reasonableness" gives
the union room to make discretionary decisions and choices even if those judgments are
wrong. In Air Line Pilots, for example, the union had negotiated a settlement
agreement with the
employer, which in retrospect proved to be a bad deal for the employees. The fact that the
not negotiated the best agreement for its workers, however, was insufficient to support a
the union's conduct was arbitrary. 499 U.S., at 78-81. A union's conduct can be classified
arbitrary only when it is irrational, when it is without a rational basis or explanation.
Here, for the reasons stated above, Council 24's actions in not
taking Wagner's grievance to
arbitration were based upon a "rational basis" and a valid explanation and they thus fell
"wide range of reasonableness" permitted under Ford Motor Co. v. Huffman, 345 U.S. 330
(1953), and reiterated in Marquez, supra. See also Vaca v. Sipes, 386 U.S.
171, 191 (1967),
which upheld a union's wide discretion in determining whether to advance a grievance to
by stating: "We do not agree that the individual employee has an absolute right to have his
taken to arbitration. . ."
There is a second problem with Wagner's complaint: he signed the Waiver of Claims
Indemnification referenced in Finding of Fact No. 20 above which stated,
inter alia, that he: "hereby
waives any claims against Council 24, known or unknown, growing out of Council 24's
representation of grievant in this matter thus far."
Wagner certainly understood by signing said form that he could not sue Council 24
failure to arbitrate his termination. Indeed, Wagner even consulted Attorney McQuillen, a
experienced and able attorney, before he signed it and before Attorney McQuillen on his
forwarded it to Council 24. Wagner therefore fully understood its legal ramifications.
Wagner nevertheless claimed at the hearing that said waiver is invalid because, in his
"That waiver in and of itself was coerced and not voluntary. Therefore it's not valid." He
argues in his reply brief that he had no choice but to sign it, as that was the only way he
arbitrate to get his job back.
The waiver at that time gave Wagner something of value; i.e. Council 24's
willingness to let
Wagner arbitrate his termination on his own. Thus, Hacker testified that Council 24 owns
grievance procedure and that, as a result, employes do not have the right to arbitrate their
on their own unless Council 24 lets them. In securing Council 24's permission to arbitrate,
therefore received a valuable quid in exchange for his
quo, i.e. his signed waiver. That is why Council
24 makes a good point when it states:
. . .This was not without cost to the Council. Releasing
ownership of a grievance always presents
risks for the Council. It allows a grievant to make arguments which the Union may not
wish to make for purposes of consistency and strategy. Few unions are willing to take such
It is true that Wagner felt pressure to sign said waiver, but that is true in almost all
situations in which
individuals and parties agree to settle for less than they really want, but more than they might
otherwise obtain if they plow ahead with their case and are ultimately rebuffed. That is why
to a settlement sometimes are unhappy over the very settlement terms they have agreed to.
Moreover, adoption of Wagner's claim would leave open the possibility that other
or parties might also try to get out of their waiver or settlement agreements on the ground
too, like Wagner, were coerced into signing them. Absent extraordinary circumstances, such
must be rejected lest they, too, disrupt and/or destroy the stability that comes with such
However, even assuming arguendo, that his waiver
should be disregarded and that Wagner,
in fact, had the legal right to arbitrate his grievance without Council 24's permission,
complaint still must be dismissed because, for the reasons stated above, Council 24 did not
its duty to fairly represent him when it refused to arbitrate his termination based upon the
it had at that time and Wagner's own "confused" testimony at his unemployment
Left, then, is the second question of whether Wagner must now pay Council 24's
expenses and costs in defending itself against his complaint after he agreed in his signed
Claims and Indemnification to "indemnity [sic] and hold Council 24 harmless in any and all
claims or proceedings relating to his grievance."
In this connection, Wagner rightfully points out that legal fees ordinarily are not
unless an action is frivolous under either Section 814.025(3), Stats., Section 809.25(3),
under such Commission cases as Onalaska School District, supra, Wisconsin Dells, supra,
or Madison Metropolitan School District, supra.
However, while that is the general rule, the Commission majority in
School District, supra, carved out a narrow exception by ruling that
attorney's fees and costs can be imposed when "the parties have agreed. . ." The
recently addressed this issue in Department of Employment Relations (UW Hospital and
Clinics) and Council 24, WSEU, Local 1942, AFSCME, AFL-CIO, Decision No. 29093-B
(11/98), when it ruled that it normally lacks general statutory authority to award attorney's
costs to responding parties in complaint proceedings. However, the Commission in that case
overturn its earlier decision in Madison, supra, wherein it stated that it would
award attorney's fees
and costs if the parties have agreed that they can be imposed. To the contrary, the
expressly quoted this part of Madison, supra, without stating that it was being
Here, the parties have done just that via the aforementioned Waiver of Claims and
Indemnification form that Wagner signed. Said waiver is aimed at preventing an employe
his/her cake in the form of getting Council 24's approval to personally arbitrate his/her
and then trying to eat it too by turning around and suing Council 24 after he/she has finished
arbitration proceeding. That is why there is merit to Council 24's claim: "Fairness requires
Wagner be accountable for his actions. He cannot accept the fruits of his waiver without
While Wagner is not an attorney, he can hardly plead ignorance as to what this
language means since: (1), the language is so clear; (2), he has never expressed any
confusion as to
what it means; and (3), he signed it after he consulted with Attorney McQuillen. To
plain terms of his waiver under these considerations would in effect mean that any other
should be disregarded only because one side is unhappy with it.
That would not be sound labor policy because it is of the utmost importance that
in labor disputes trust each other when they deal with the myriad of issues arising in the
labor-management context, including those issues involving an employe's relationship with
as unions and employes interact with each other regarding almost every conceivable
issue, including those relating to whether a union will arbitrate an employe's grievance.
Unions thus must be able to trust that the employes they represent will adhere to any
or settlement agreement they sign, just as they must be able to trust employers who sign
or settlement agreements. For absent that trust and enforcement of whatever terms are
a union may be reluctant to enter into any future agreements with employes relating to
can appeal their discharges to arbitration. Hence, if the waiver here is not enforced, that
will be a
clear signal to all unions that any similar kinds of waivers are no longer worth the paper they
It also would signal something else: substantial expansion of an employe's right to
or her union over alleged breaches of the duty of fair representation. As matters stand
employes can, and do, sue their unions over almost every conceivable alleged breach of this
That is why, some say, many unions today look over their shoulders to see if a duty
of fair representation charge is forthcoming whenever they refuse to advance a
to arbitration and why grievances sometimes are advanced to arbitration even though unions
they are without merit and even though the United States Supreme Court has ruled in such
Vaca v. Sipes, supra, that unions have very wide latitude in determining
whether to arbitrate
There is very little that unions can do in the face of such baseless complaints except
properly investigating the merits of all grievances; (2), relying on lawful, non-discriminatory
in determining why certain grievances should not be arbitrated; and (3), obtaining the kind of
waiver found here. Little, apparently, can be done to filter out baseless complaints even
after a union
has properly investigated a grievance and even after a union has decided not to arbitrate a
because of lawful considerations. However, something can be done when an employe has
kind of waiver found here because - unless they contravene some clearly-stated public policy
is not the case here - it is the function of this agency to enforce agreements that have been
agreed to, a point expressly acknowledged by the Commission in Madison,
supra, when it ruled that
legal fees and costs can be imposed if the parties have so agreed.
Wagner thus must be held to the terms of the Waiver of Claims and Indemnification
Hence, he must reimburse Council 24 for whatever legal fees and costs it has accrued, or
in defending itself in this action.
Dated at Madison, Wisconsin this 28th day of December, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Amedeo Greco, Examiner