STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
ASSOCIATION OF MENTAL HEALTH
ROCK COUNTY and JAMES WAGMAN,
Decision No. 29219-A
Mr. John S. Williamson, Jr., Attorney at Law, 103 West
College Avenue, Suite 1203, Appleton,
Wisconsin 54911, appearing on behalf of the Association of Mental Health Specialists.
Mr. Thomas A. Schroeder, Corporation Counsel, Rock County,
51 South Main Street, Janesville,
Wisconsin 53545, appearing on behalf of Rock County.
FINDINGS OF FACT, CONCLUSIONS OF LAW
The Association of Mental Health Specialists filed a complaint with the Wisconsin
Employment Relations Commission on April 13, 1997, alleging that Rock County and James
committed prohibited practices in violation of Secs. 111.70(3)(a)1, 3, 4, 5 and 6, Stats., by
with employes' rights, by discouraging membership in the Association and by discriminating
to the hiring and terms and conditions of employment, by refusing to bargain collectively
Association, by violating the parties' agreement, and by failing to deduct union dues, all as a
of the Respondents' creation of the Human Services Worker position.
On October 17, 1997, the Commission appointed Dennis P. McGilligan, a member of
to act as Examiner and to make and issue Findings of Fact, Conclusions of Law and Order
provided in Sec. 111.07(5), Stats. On November 7, 1997, Respondents filed a
Motion to Dismiss the complaint "on the grounds that the Commission is without
of the Complainant's failure to comply with Section ERC 12.02(1), Wis. Adm. Code" which
a complaint to "be in writing upon a form provided by the commission, or a facsimile
original being signed and sworn to before any person authorized to administer oaths or
acknowledgments." On November 19, 1997, the Association of Mental Health Specialists
amended complaint on a form provided by the Commission. On November 24, 1997, the
filed a notarized copy of the amended complaint. On December 16, 1997, Respondents filed
answer to the amended complaint. Hearing on the amended complaint was held on
1997, and January 7, 1998, in Janesville, Wisconsin. At hearing on December 18, 1997,
withdrew their Motion to Dismiss the complaint because the Complainant by and large
with the form provided for by the Wisconsin Administrative Code" and because "Mr.
sign the complaint and the verification." The hearing was transcribed, and the parties
briefing schedule on March 5, 1998. Respondent Exhibit Nos. 4-6 and Jim Bryant's affidavit
received on April 16, 1998, and the record was closed at that time.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The Examiner, having considered the evidence and argument of the parties and being
advised in the premises, makes and files the following Findings of Fact, Conclusions of Law
FINDINGS OF FACT
1. Association of Mental Health Specialists, hereinafter "Complainant" or
a labor organization within the meaning of Sec. 111.70(1)(h), Stats., and maintains its offices
Krueger, Rock County Health Care Center, Highway 57, North Parker Drive, Janesville,
2. Rock County, hereinafter "Respondent County" or "County," is a municipal
within the meaning of Sec. 111.70(1)(j), Stats., and maintains its offices at the Rock County
Courthouse, 51 South Main Street, Janesville, Wisconsin 53545.
3. James Wagman, hereinafter "Respondent Wagman" or "Wagman," is a municipal
within the meaning of Sec. 111.70(1)(j), Stats., and maintains his principal office is located
Rock County Health Care Center, Highway 57, North Parker Drive, Janesville, Wisconsin
He is a Health System Services Division Manager in the Human Services Department of the
4. The Association has, at all time material herein, been the exclusive bargaining
representative for a bargaining unit at the Rock County Health Care Center which included
Psycho-Social Workers employed in the Human Services Department of the County.
5. The Association and the County were parties to a collective bargaining agreement
covered the period of January 1, 1994 through December 31, 1995. Said agreement
relevant part, the following provisions:
ARTICLE II - MANAGEMENT RIGHTS
2.01 Except as otherwise specifically provided herein, the
management of the County of Rock
and the direction of the workforce is vested exclusively in the County, including, but not
the right to hire, the right to promote, demote, the right to discipline or discharge for proper
the right to transfer or lay-off (sic) because of lack of work, discontinuance of services, or
legitimate reasons, the right to abolish and/or create positions, the right to create job
determine the composition thereof, the right to plan and schedule work, the right to make
work rules and regulations governing conduct and safety, the right to subcontract work (when
not feasible or economical for County employees to perform such work), together with the
determine the methods and processes and manner of performing work are vested exclusively
management. In exercising these functions management will not discriminate against any
because of his/her membership in the Association.
. . .
ARTICLE VII - GRIEVANCE PROCEDURE
7.01 Definition. Any dispute
which may arise from an employer or Association complaint with
respect to the effect, interpretation or application of the terms and conditions of this
be subject to the following grievance procedure, unless expressly excluded from such
the terms of this Agreement.
Time limits stated herein, may be waived by
the mutual agreement of the parties. Saturdays,
Sundays and holidays are excluded in computing the time limits specified in this section as is
in which the act or acts (or omission) being grieved allegedly occurred.
7.02 A member of the Association
Grievance Committee and the aggrieved shall be permitted
to spend the necessary amount of time during their scheduled working hours in handling
under the outlined grievance procedure.
Step 1. Grievances shall be
filed within fourteen days of the occurrence leading to the grievance
or within fourteen days of such time as the aggrieved should reasonably have been expected
aware of the occurrence. An earnest effort should be made to settle the matter informally
the employee, the appropriate Association representative and the appropriate managerial
representative. If the matter is not resolved within five days the aggrieved and/or the
Association representative shall present the grievance in writing to the appropriate managerial
7.04 Step 2. If the grievance
is not satisfactorily settled in Step 1 of the grievance procedure,
it may be appealed in writing to the Nursing Home Administrator/Director of Social Services
Community Programs. The Nursing Home Administrator/Director of Social Services &
Programs will meet with the employee and his/her authorized Association representative(s)
attempt to resolve the matter. A written decision will be placed on the grievance and
returned to the
employee within ten work days from its presentation to the Nursing Home
of Social Services & Community Programs. No decision within such ten day period
shall be deemed
a denial of the grievance.
7.05 Step 3. If the grievance
is not satisfactorily settled in Step 2 of the grievance procedure,
it may be appealed in writing to the County Administrator. The County Administrator
authorized representative(s) shall meet with the employee and his/her authorized
attempt to resolve the matter. A written decision shall be placed on the grievance and
the employee within fourteen work days from its presentation to the County Administrator.
7.06 Step 4. If a satisfactory
settlement is not reached in Step 3 within fourteen days after the
County Administrator's decision the Association or the County may serve written notice upon
other that the difference of opinion or misunderstanding shall be arbitrated. Within seven
thereafter, the parties shall meet and attempt to agree upon an arbitrator. If the parties fail
upon an arbitrator within ten days following said notice of arbitration the parties shall request
Wisconsin Employment Relations Commission to submit a panel of five arbitrators. In the
parties do not agree on one of the five, the parties shall meet and alternatively strike names
panel until one name is left, such person being the arbitrator. The party having the first
strike is to
be the moving part. (sic) The decision of the arbitrator shall be final and binding upon the
The cost of arbitration shall be borne equally by
the parties, except that each party shall be responsible for the cost
of any witnesses testifying on
its behalf. Upon the mutual consent of the parties, more than one grievance may be heard
The arbitrator shall have jurisdiction and
authority only to interpret the specific provision grieved
and shall not amend, delete or modify any of the express provisions of this Agreement.
Said agreement also contained the following relevant provisions: Article I
-Recognition; Article IV -
Fair Share Agreement; Article XV - Hours of Work, Classification, Premium Pay; and
Article XVII -
6. The County by letter dated April 21, 1995, filed two petitions for election that
establish two bargaining units, with one unit consisting of all regular employes in the position
registered nurse in the County Human Services Department and the County Health Care
with the other unit consisting of all other professional employes of those two departments.
County later suggested that the Commission consider an alternative set of bargaining units
departmental lines as perhaps better meeting the purposes and intent of the Municipal
Relations Act. At the time of the petitions, the affected employes were represented by four
bargaining units, with three different unions certified as representatives.
In its April 21, 1995 cover letter to the petitions noted above, the County stated:
The basis for the Petitions stems from the County's reorganization
of certain functions under the
Department of Human Services as authorized by SB147-1993 of the Wisconsin Legislature
(Wis. Stat. 46.23(3)(b)(1) copy attached). The result of the reorganization is the merger of
former Department of Social Services with the social work functions authorized under Wis.
51.42 and the juvenile probation function.
7. The above-mentioned petitions were the subject of
proceedings which, as
detailed in Finding of Fact Nos. 18 and 20, infra, resulted in the certification of
the Association as the
bargaining representative of the aforesaid employes.
8. Wagman initially requested the creation of the Human Services Worker position
of his budget request in May or June of 1995. County Personnel Director James Bryant III
Wagman at that time that the County was authorized to create the position of Human
Worker as a legitimate exercise of management rights allowing management the right to
and/or create positions, as well as the right to create job
descriptions. Bryant also advised Wagman that the aforesaid position should be created
"Unilateral," i.e. non-represented position because of the proceedings pending before the
relating to the above petitions.
9. It was the County's intent at that time to negotiate with the appropriate collective
bargaining representative for the appropriate unit concerning wages, hours and conditions of
employment at such time as the aforementioned election proceedings were completed. The
felt at the time that assigning the position of Human Services Worker to any one of the three
involved in said election proceeding could, and likely would, further protract the
proceedings, as well
as bring allegations of "favoritism."
10. Wagman testified that he had a number of reasons for recommending creation of
Human Services Worker positions which included the following. One, the County had
filling a vacant Recreational Therapist position so the County obtained a waiver from the
allowed it not to fill said position. Some of the Recreational Therapist duties were then
the new position. Two, the responsibility of leading patient groups in craft activities was
assigned to Psychiatric Technicians while Nursing Assistants filled out financial forms on
The County thought that professional social workers would have a problem performing these
of non-professional duties. Consequently, the County decided there was a need for a position
would fit somewhere between the traditional Psychiatric Technician position and that of the
professional social worker. Three, the County did not think that the duties in question at the
psychiatric hospital (fifth floor of Health Care Center) needed to be performed by
workers. The County arrived at this decision, in part, based on the new State certification
requirements which prohibited the title of "social worker" unless that person was certified as
worker under Chapter 457. Based on the foregoing, and other factors, the County decided
could provide better services for the hospital's patients by creating the aforesaid position.
11. After Wagman proposed creating the Human Services Worker position, there
discussion regarding the matter first within the Human Services Department and then before
Human Services Committee. As part of the budget process, a position description was
for the Human Services Worker and funding to create 1.2 FTE positions of the Human
Worker was generated by the elimination of two Psychiatric Technician positions represented
AFSCME Local No. 1258. Said Union, which represents certain non-professional employes
Health Care Center, was notified of the elimination of the aforesaid positions and the
creation of the
Human Services Worker position. However, the Association was not informed of same.
12. Both the Human Services Board and the County Board of Supervisors held
hearings which included the proposal to eliminate the aforesaid positions and create the new
Services Worker position. The County Board of Supervisors approved the 1996 budget on
November 14, 1995, which included the creation of two (.6 FTE) positions in the
Human Services Worker.
13. Thereafter, a Resolution to create the classification of Human Services Worker
introduced to the County Board of Supervisors by the Human Services Committee and the
Board Staff Committee. Attached to this Resolution was a copy of the position description
Human Services Worker. This Resolution was approved by the County Board of Supervisors
second meeting in January of 1996. Prior to this approval, there was an agenda published
public meeting by the County Board of Supervisors.
14. On January 30, 1996, a posting for County employes only was posted indicating
Human Services Worker position was vacant. The posting contained relevant job information
including hours of work, rates of pay, number of positions and minimum requirements
the position. The posting deadline was February 5, 1996. The posting was sent to all unions
County including the Association for posting on their bulletin boards or in appropriate places.
15. The County on or about March 8, 1996, hired Maggie O'Brien-Kern and
Tremain as .6 Human Services Workers. Said employes were previously employed by the
as Psychiatric Technicians, but they did not occupy the two positions that were eliminated as
of the creation of the Human Services Worker position. O'Brien-Kern's position went to .8
the next budget in order to provide for better services and coverage. Before O'Brien-Kern
Tremain took the positions, Wagman informed them that these were unilateral or non-Union
but that there was a good possibility that the positions would end up as a union position since
the positions in the hospital (Health Care Center) were Union positions. Later, at the time of
election, they had some questions for Wagman regarding their eligibility to vote and
them "to the union as it was inappropriate questions for myself."
16. The Human Services Workers' hours have remained the same since the positions
created. One works 8:00 a.m. to 4:30 p.m., and the other one works 11:30 a.m. to 8:00
two shifts are alternated between Human Services Workers and an Activity Therapy
people working every day, except weekends, when only one works. They have to work
weekend. Wagman unilaterally established the hours and conditions of employment for these
employes. When said employes work on weekends, they do not receive premium pay. Nor
receive shift differential. They do not work in excess of their FTE equivalency.
17. Human Services Workers do some of the duties previously performed by the
Therapist although this is a minor portion of their job. When the Human Services Worker
weekends, they prepare certain financial information; they do some utilization review work
involves contacting insurance companies about payment; and they lead some patient groups in
activities including crafts, and issues dealing with mental illness and patients' symptoms.
perform certain "legwork" type duties for Social Workers, including getting information from
on a patient so a Social Worker can follow up with a complete psychosocial evaluation. On
weekends they may obtain more of this information and file certain information when
admitted or discharged.
Previously, Psychiatric Technicians did this type of legwork for Social Workers. They
also fill in for
crisis intervention. Finally, they also perform duties that are performed by Psychiatric Social
when they are absent or assist them in their job duties.
18. On February 25, 1997, the Commission issued a decision which included
Findings of Fact,
Conclusions of Law and Direction of Elections in response to the petitions filed by the
in Finding of Fact No. 6. The Commission directed that an election by secret ballot be
under its direction within 45 days from the date of the Direction among employes of the
the following bargaining units:
1. All regular full-time and regular part-time professional
employes of the Rock County Human
Services Department excluding managerial, confidential and supervisory employes;
2. All regular full-time and regular part-time professional
employes of the Rock County Health
Care Center excluding managerial, confidential and supervisory employes
The Commission further provided in its
As to bargaining unit 1, the purpose of the
election shall be to determine whether a majority
of the employes who vote in said election desire to be represented by Association of Mental
Specialists, International Association of Machinists Lodge 1266, or Teamsters Local Union
for the purposes of collective bargaining with Rock County with respect to wages, hours and
conditions of employment or desire no representation.
As to bargaining unit 2, the purpose of the
election shall be to determine whether a majority
of the employes who vote in said election desire to be represented by Association of Mental
Specialists for the purposes of collective bargaining with Rock County with respect to wages,
and conditions of employment or desire no representation.
19. By letter dated March 19, 1997, from County Personnel
Director James Bryant III to
Douglas V. Knudson, Coordinator of Elections for the Commission, the County provided a
list of the
employes involved in the elections as requested. On page 4 of the aforesaid communication
indication from the County that Human Service Workers Roseanne Tremain and Margaret
O'Brien-Kern at the Health Care Center, Fifth Floor, were eligible to vote in said elections.
20. By letter dated June 6, 1997, from the Commission to Eugene Dumas, Assistant
Corporation Counsel for the County, John S. Williamson, Jr., Attorney at Law, representing
Association, and Marianne Goldstein Robbins, the Commission enclosed a copy of the Order
Dismissing Objections to Conduct of Election and Certification of Representative issued by
Commission in the aforesaid election proceeding. In said decision, the Commission certified
Association as the exclusive collective bargaining representative of the professional employes
and social workers) in the County Human Services Department.
21. On or about June 28, 1997, the County made the initial dues deductions for
dues from the salaries of Roseanne Tremain and Margaret O'Brien-Kern, the two Human
22. Association representatives Judy Schultz and Ron Krueger testified that they first
of the creation of the two Human Services Worker positions during bargaining for a
agreement between the Association and the County which occurred in June of 1997. In July
the County made a wage proposal on behalf of the Human Services Worker position; the
revised this proposal in September, 1997. At all times material herein, the County has
included the Human Services Worker position in the County's wage proposal although
always at the
lowest wage rate. The Association has always taken the position during this collective
they would not negotiate over the aforesaid position as long as the County continued to have
unilaterally created positions in existence. At all times material herein, the Association's
proposals did not contain a proposal with respect to the wage rate for the Human Services
23. At all times material herein, the County has taken the position that the
was the appropriate place for the parties to resolve their difference over the Human Services
position and the wage rate paid said position. At all time material herein, the Association
to bargain over the same because of the Association's position that the position had been
created and because the instant prohibited practice complaint had been filed to address the
24. The actions of the Respondents with respect to the newly created position of
Services Worker were not done with an intent to inflict economic damage on the Association,
motivated by union animus or hostility toward the Association.
Based upon the foregoing Findings of Fact, the Examiner makes the following
CONCLUSIONS OF LAW
1. Respondents, by their actions in creating and filling the Human Services Worker
did not refuse to bargain collectively with the Association, and thus the Respondents did not
prohibited practices within the meaning of Sec. 111.70(3)(a)4, Stats., or derivatively, Sec.
2. Inasmuch as the 1994-1995 collective bargaining agreement between the
the County provides for final and binding arbitration of disputes over alleged violations of
agreement, the Commission will not assert jurisdiction over the Association's allegation that
Respondents violated the 1994-1995 agreement by the actions complained of and thereby
prohibited practices within the meaning of Secs. 111.70(3)(a)5 or 1, Stats.
3. Respondents' actions, as complained of herein, were not motivated in whole or in
hostility toward the exercise of Complainant's protected rights, and therefore, Respondents
committed any prohibited practices within the meaning of Sec. 111.70(3)(a)3, or derivatively
4. Respondents have not interfered with, restrained or coerced the Complainant in
exercise of its rights under Sec. 111.70(2), Stats., and therefore, have not committed an
prohibited practice under Sec. 111.70(3)(a)1, Stats.
5. Respondents, by deducting Union dues for the persons in the Human Services
position immediately upon notification from the Commission of the results of the election,
commit a prohibited practice within the meaning of Sec. 111.70(3)(a)6, Stats.
Upon the basis of the above and foregoing Findings of Fact and Conclusions of Law,
Examiner makes and issues the following
IT IS ORDERED that the complaint be, and the same hereby is, dismissed.
Dated at Madison, Wisconsin, this 28th day of May, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dennis P. McGilligan, Examiner
ROCK COUNTY (HEALTH CARE CENTER)
FINDINGS OF FACT, CONCLUSIONS OF LAW
POSITIONS OF THE PARTIES
Complainant primarily argues that Respondents violated their duty to bargain by
Human Services Worker position without first bargaining with the Association over its
and working conditions. Complainant also argues that by such action Respondents interfered
employe rights guaranteed by Sec. 111.70(2), Stats., including their right to union
Complainant further argues that Respondents discouraged the incumbents in said positions
membership in the Association and discriminated against them in regard to their hiring and
conditions of employment. In addition, Complainant maintains that Respondents' actions
the agreement. Finally, Complainant argues that the Respondents failed to deduct union dues
violation of the agreement and the Municipal Employment Relations Act. Complainant cites
federal cases and articles in support thereof.
For a remedy, Complainant seeks an order restoring the status quo ante
(require that the
County have the positions' professional duties performed and paid according to the contract's
and reassign the positions' non-professional duties to non-professional employes) in order to
meaningful bargaining, to level the playing field in bargaining, to prevent repetition of
deprives employes of the protection of a bargaining representative regarding such items as
weekend work hours and to promote the policies of the Municipal Employment Relations
Complainant claims that the Commission has the authority to order such a remedy citing
Paper Products Corporation v. Labor Board, 379 US 203, 97 lrrm 2489 (1997) and Unified
school district no. 1 of racine county v. werc, 259 NW2d 724, 97 lrrm 2489 (1977) in
Also, Complainant requests certain make whole remedies.
Respondents initially argue that they did not "deliberately" conceal the creation of the
Services Worker position from the Association or the Commission. Respondents add that the
has a management right to create the position as it did, and that there were well thought-out
and administrative reasons for creating and filling the position.
Respondents next argue that the County has been willing to bargain with the
all times material herein with respect to wages, hours and working conditions for said
that the Association has refused to negotiate concerning the Human Services Worker
Respondents also reject any allegation that they interfered with the protected rights of
employes within the meaning of Sec. 111.70(3)(a)1, Stats. In this regard, Respondents point
the employes filling the disputed positions were not encouraged to be hostile to the
told their positions might be represented in the future; and directed to follow up with any
to the Association. Likewise, Respondents deny allegations that they violated Sec.
Stats., because there is no evidence that they acted in a discriminatory manner or that their
were in part motivated by hostility toward the Association.
In addition, Respondents argue that they did not violate the parties' agreement by
and claim that the contractual grievance/arbitration procedure is the proper forum to resolve
kinds of disputes.
Finally, Respondents point out that the County, upon notification from the
Commission of the
results of the election, immediately began deducting union dues for the persons in the Human
Worker position and, therefore, there is no violation of Sec. 111.70(3)(a)6, Stats.
Based on all of the foregoing, Respondents request that the complaint be denied and
Refusal to Bargain
Section 111.70(3)(a)4, Stats., requires Respondents to bargain collectively with the
Association. The Association's main argument is that the County violated this statutory
when it made unilateral changes in the wages, hours and working conditions of the Human
Worker position. The Association also claims that Wagman's unilateral dealing with the
in said position are per se violations of the duty to bargain in good faith.
As pointed out by Respondents, however, Sec. 111.70(3)(a)4, Stats., provides:
An employer shall not be deemed to have refused to bargain until
an election has been held and
the results certified to the employer by the Commission.
The record indicates that the County was involved in proceedings before the
Commission relative to
its petitions for election at the time the aforesaid position was created. Following the
certification as the bargaining representative for a bargaining unit which included the
County attempted to bargain the wages, hours and working conditions for the position. The
has continued to be willing to bargain the wages, hours and working conditions for the
all times material herein. The Association, however, refused to bargain over same.
The Association argues that it should not be forced to bargain wages, hours and
conditions for the aforesaid position until the County abolishes the position, and restores the
quo. Otherwise, according to the Association, the County enjoys an unfair advantage
The problem with this approach, as pointed out by Respondents, is that Section 2.01
parties' collective bargaining agreement gives the County the right to abolish and/or create
as well as the right to create job descriptions. In addition, the Commission has held that the
to establish or abolish positions need not be bargained where such a decision primarily
policy and organization structure determinations. Racine Unified School District, Dec. No.
25283-B (WERC, 5/89); Milwaukee Board of School Directors, Dec. No. 20093-A (WERC,
2/83); Oak Creek-Franklin School District, Dec. No. 11827-D (WERC, 9/74). As noted in
Finding of Fact No. 10, the County's decision to create the Human Services Worker position
primarily related to policy and organization structure determinations. In particular, the
notes the County's determination that the new position could better meet its needs to provide
necessary services to the psychiatric hospital's patients. Therefore, the Examiner finds that
County did not have a duty to bargain with the Association over the elimination of two
technician positions and the creation of two Human Services Worker positions. Since the
did not have a duty to bargain as noted above, it did not have an obligation to abolish the
Services Worker position prior to bargaining with the Association over the wages, hours and
conditions for said position.
The Association also argues that Respondents introduced no evidence to explain why
not know that the disputed positions were part of the existing Association unit. However, as
above, at the time the position was created the County was involved in an election
the Commission. These proceedings were protracted. Therefore, the County had a
concern, in the opinion of the Examiner, that if the positions were assigned to any one union,
be accused of favoritism and attempting to unduly influence the pending Commission election
proceedings. Respondents point out that the County had already been accused of such
before when it attempted to fill a CHIPS Case Manager position. Rock County, Dec. No.
(Jones, 1/96) Order Denying Motion to Intervene and Dismissing Petition for Review, Dec.
No. 29494-B (WERC, 11/96) In addition, the Examiner notes that since an election was
County certainly had a good faith question as to who the appropriate bargaining
The Association argues, however, that the County should have known that the
within the aforesaid unit because all professionals in the psychiatric hospital (Health Care
were in the then-existing Association unit and the professional tasks the employes were
those previously performed by the Recreational Therapist or the Crisis Intervention Workers.
However, the Association offered no persuasive evidence or argument that the County acted
improperly by creating these positions as unrepresented positions. If the Association felt
positions should have been in the unit, it could have filed for a unit clarification. In
Association did not establish that the duties assigned to the new position from positions
unit were professional in nature. Nor did the Association establish that the new position is
duties that require the person performing them to meet the statutory definition of a
employe. Acceptance of the Association's position noted above would require a finding, not
supported by the record, that all of the duties performed by the aforesaid unit positions had
professional in nature. Based on same, and all of the foregoing, as well as the fact that the
position performs duties that were previously performed by the non-professional Psychiatric
Technician position, the Examiner rejects the above argument of the Association.
The Association further argues that it could not take any action to enforce its rights
the Human Services Worker position because it was not notified of the creation of same.
off for the Human Services Workers was the deletion of two Psychiatric Technician positions
represented by AFSCME. AFSCME was notified of that fact. In addition, as noted above,
positions were created as non-union. Based on the foregoing, the Examiner does not believe
County had any obligation to inform the Association of the creation of the Human Services
In any event, the disputed positions were created as part of the County's budgetary
with public hearings and notification. The positions were also included by the County on the
employes eligible to vote in the aforesaid election. The Examiner is of the opinion that
based on same
the Association knew or should have known of the positions' existence prior to June of 1997.
on all of the foregoing, the Examiner also rejects the above argument of the Association.
In addition, the Association argues that Wagman's unilateral dealings with the
per se violations of the duty to bargain in good faith. However, as noted above,
the Association did
not prove that the County failed to bargain in good faith with respect to the creation and
filling of the
Human Services Worker position. Since the County did not violate the duty to bargain in
as alleged, it follows that for the same conduct Wagman did not violate said duty. Nor did
Association offer any other persuasive evidence or argument in support of this allegation.
Finally, the Examiner believes that the record supports a finding that the Association
want to bargain with the County over the wages, hours and working conditions for the
Services Worker position except on its own terms. The law and the record facts, however,
support such an approach.
Based on all of the above, the Examiner finds that by their conduct Respondents did
violate their duty to bargain as provided in Sec. 111.70(3)(a)4, Stats., or derivatively Sec.
The complaint also alleges a violation of Sec. 111.70(3)(a)5, Stats., and presumably a
derivative violation of Sec. 111.70(3)(a)1, Stats. Section 111.70(3)(a)5, Stats., makes it a
practice for a municipal employer:
5. To violate any collective bargaining agreement previously
agreed upon by the parties with
respect to wages, hours and conditions of employment affecting municipal employes,
agreement to arbitrate questions arising as to the meaning or application of the terms of a
bargaining agreement. . . .
The County argues that the parties' contractual grievance/arbitration procedure is the
forum to resolve these disputes. The Association offers no rebuttal argument. For the
discussed below, the Examiner agrees with the County's position.
Generally, the Commission will not exercise its jurisdiction to determine the merits of
of contract allegations in violation of Sec. 111.70(3)(a)5, Stats., where the parties' collective
bargaining agreement provides a grievance procedure with final and binding arbitration.
County, Dec. No. 28494-A (Jones, 1/96); Joint School District No. 1, City of Green Bay, et
al., Dec. No. 16753-A, B (WERC, 12/79); Board of School Directors of Milwaukee, Dec.
15825-B (WERC, 6/79); Oostburg Joint School District, Dec. No. 11196-A, B (WERC,
The rationale for this is to give full effect to the parties' agreed-upon procedures for
disputes arising under their contract. City of Madison, Dec. No. 28864-A, p. 17 (Crowley,
aff'd Examiner's findings of fact, Modified Examiner's Conclusion of Law and Affirmed
Examiner's Order, Dec. No. 28864-B (WERC, 10/97). A grievance arbitration procedure is
presumed to constitute a grievant's exclusive remedy unless the parties to the agreement have
language which provides it is not. Mahnke v. werc, 66 Wis.2d 524, 529, 225 N.W.2d 617,
(1975). Here, the parties' collective bargaining agreement provides for final and binding
and contains no express language that it is not the exclusive remedy. It is undisputed that no
grievances were filed in this matter. Thus, it must be concluded that the Association has
exhaust the contractual grievance procedures.
While the Commission recognizes certain exceptions to this general policy, no such
exists here. See Wonder Rest Corp., 275 Wis. 273 (1957) - the employe alleges
denial of fair representation; Allis Chalmers Mfg. Co., Dec. No. 8227 (WERB, 10/67)
- the parties
have waived the arbitration provision; and Mews Ready Mix Corp., 29 Wis.2d 44 (1965) - a
ignores and rejects the arbitration provisions in the contract.. The Association offered no
reason for not filing a grievance in the matter and pursing a resolution of the dispute to
The County has specifically stated that the arbitral forum is the proper place to resolve any
contractual disputes and has not raised any arbitrability objections regarding same.
The parties have a contract which contains a grievance procedure which culminates in
and binding arbitration. The parties have agreed to have an arbitrator determine whether
been a violation of the contract. This agreement must be given effect and as noted above, no
exceptions apply. It is therefore the arbitrator that should decide the merits of the
claim. This is the parties' exclusive remedy and the Examiner will not assert the
jurisdiction to determine whether or not Respondents violated the parties' contract. Thus, the
violation of Sec. 111.70(3)(a)5, Stats., as well as the derivative violation of Sec.
Stats., are dismissed in their entirety.
Discrimination and Interference
Complainant further asks that the Examiner find that Respondents violated Sec.
and 3, Stats.
Section 111.70(3)(a)3, Stats., makes it a prohibited practice for a municipal employer
"encourage or discourage a membership in any labor organization by discrimination in regard
to . .
. tenure or other terms or conditions of employment." To prove a violation of this section
Complainant must, by a clear and satisfactory preponderance of the evidence, establish that:
1. Complainant was engaged in protected activities; and
2. Respondents were aware of those
3. Respondents were hostile to those
4. Respondents' conduct was motivated, in
whole or in part, by hostility toward the protected
1/ The "in-part" test was
applied by the Wisconsin Supreme Court to MERA cases in
Muskego-Norway C.S.J.S.D. No. 9 v. WERB, 35 Wis.2d 540 (1967) and is discussed at
in Employment Relations Dept. v. WERC, 122 Wis.2d 132 (1985).
It is undisputed that Complainant engages in protected activities when it represents
bargains for unit employes and that Respondents are aware of those activities. The evidence
establish that Respondents were hostile to Complainant's protected activities. Complainant
burden of proving by a clear and satisfactory preponderance of the evidence that there was
hostility. The evidence failed to show that Wagman created the "Human Service Worker"
to encourage the persons he placed in them to be hostile to the Association. Nor does the
indicate that Wagman took any other action relative to the aforesaid position out of hostility
the Association. There is no evidence of any animosity on the part of Wagman or the
Complainant's protected activity. Therefore, it must be concluded that there is simply no
to support a finding of hostility toward Complainant's protected activity. Since there is no
that Wagman was hostile to Complainant's protected activity, the County, by "condoning and
defending Respondent Wagman's conduct" noted above, did not act out of hostility toward
Complainant's protected activity as alleged by Complainant.
Even if there were hostility, Respondents' conduct would have to be motivated by
hostility. Motive is difficult to determine as usually there is no direct evidence so it must be
determined from the total circumstances proved. Here, despite the Complainant's elaborate
regarding Respondents' misconduct as noted above, the Examiner finds that based on the
circumstances, the evidence simply fails to show that Respondents' actions were motivated by
hostility. Thus, the allegation of Sec. 111.70(3)(a)3, Stats., violations have been dismissed.
The Complainant has alleged a violation of Sec. 111.70(3)(a)1, Stats. Inasmuch as
no Sec. 111.70(3)(a)3, Stats., violation, there is no derivative Sec. 111.70(3)(a)1, Stats.,
As far as an independent violation, Sec. 111.70(3)(a)1, Stats., makes it a prohibited
for a municipal employer:
1. To interfere with, restrain or coerce municipal employes
the exercise of their rights
guaranteed in sub. (2).
Section 111.70(2), Stats., describes the rights protected by
111.70(3)(a)1, Stats., as
(2) RIGHTS OF MUNICIPAL EMPLOYES. Municipal
employes shall have the right of
self-organization, and the right to form, join or assist labor organizations, to bargain
through representatives of their own choosing, and to engage in lawful, concerted activities
purpose of collective bargaining or other mutual aid or protection . . .
Violations of Sec. 111.70(3)(a)1, Stats., occur when employer conduct has a
tendency to interfere with, restrain or coerce employes in the exercise of their Sec. 111.70(2)
WERC v. Evansville, 69 Wis.2d 140 (1995). If after evaluating the conduct in question
the circumstances, it is concluded that the conduct had a reasonable tendency to interfere
exercise of Sec. 111.70(2) rights, a violation will be found even if the employer did not
interfere and even if the employe(s) did not feel coerced or was not in fact deterred from
Sec. 111.70(2) rights. Beaver Dam Unified School District, Dec. No. 20283-B (WERC,
City of Brookfield, Dec. No. 20691-A (WERC, 2/84); Juneau County, Dec. No. 12593-B
Employer conduct which may well have a reasonable tendency to interfere with
exercise of Sec. 111.70(2) rights will not be found violative of Sec. 111.70(3)(a)1, Stats., if
employer had valid business reasons for its actions. Blackhawk Technical College, Dec. No.
28846-A (Crowley, 5/97) aff'd Dec. No. 28846-D (WERC, 12/97). Here, based on all of
foregoing, the Examiner finds no conduct by Respondents that would have a reasonable
interfere with employe exercise of Sec. 111.70(2) rights. However, assuming
arguendo that there
is such conduct, the Examiner finds that the Respondents had valid business reasons for its
In this regard, the Examiner points out that valid budgetary, programmatic and policy
for Respondents' actions. In particular, the County attempted, without success, to fill the
of recreational therapist. Thereafter, the County obtained a waiver from the State to have
position because it was unable to fill the position and subsequently assigned some of the
the recreational therapist had performed to the Human Services Worker position. In
to the creation of the Human Services Worker position, the County had the job of leading
groups assigned to Psychiatric Technicians. The County also had Nursing Assistants filling
financial forms on patients. Since the County was unable to fill the Recreational Therapist
the County "saw a need for a position that would fit somewhere between the traditional psych
position and that of the professional social worker" to perform the aforesaid functions. (Tr.
The County then decided that it could better provide this service by deleting two Psychiatric
Technician positions and using that funding to create a lesser FTE Human Services Worker.
In deciding to create this new position, the County also came to the conclusion that it
necessary to have an employe with the certification of social worker to perform the functions
question. Another factor in arriving at this course of action was the advent of certification
workers, i.e. anyone calling themselves a social worker needed that certification. The
to comply with State requirements in this area.
Based on the foregoing and the record as a whole, the Examiner is persuaded that the
took the aforesaid actions in order to better serve its human services customers.
Based on all of the above, the Examiner finds that the evidence failed to prove any
of Sec. 111.70(3)(a)1, Stats., and, therefore, that charge has also been dismissed.
Alleged Violation of Sec. 111.70(3)(a)6, Stats.
The Association also argues that Respondents violated Sec. 111.70(3)(a)6, Stats., by
to deduct Union dues upon the creation and filling of the aforesaid positions. However, the
Association offered no additional evidence or argument, except as discussed above, in
support of this
claim. In addition, the record is clear that the County, upon notification from the
Commission of the
results of the election, immediately began deducting dues for the persons in the position of
Services Worker. Based on the foregoing, the Examiner finds that there has been no
violation of Sec.
Based on all of the foregoing, and the record as a whole, the Examiner finds that the
allegations of prohibited practices by Complainant are without merit, and the Examiner has
the complaint in its entirety.
Dated at Madison, Wisconsin, this 28th day of May, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dennis P. McGilligan, Examiner