STATE OF WISCONSIN
WISCONSIN EMPLOYMENT RELATIONS
COMMISSION, MILWAUKEE COUNTY,
LOCAL 882, MILWAUKEE DISTRICT
COUNCIL 48, AFSCME, AFL-CIO,
Case No. 98-CV-7223
[Decision No. 28525-D]
[NOTE: This document was re-keyed by WERC. Original pagination has been
DECISION AND ORDER
AFFIRMING THE DECISION OF THE
WISCONSIN EMPLOYMENT RELATIONS
Petitioner Douglas Hafer seeks review of a decision of the
Wisconsin Employment Relations
Commission that it lacked jurisdiction to examine the merits of the petitioner's claims against
County and the respondent union. While Hafer asks that the court set aside that decision, he
requests a remand to WERC in order that he might submit additional evidence. For reasons
below, the request to submit additional evidence is denied and the decision of WERC is
The petitioner's briefs and the underlying record in this case make reference to a
of grievances. Some are referred to as group grievances, some as grievances. Some are
referred to by a
grievance number, some by date, some by subject matter, and some just as grievances. In
the actual grievance document is in
the record, although most are not. Mr. Hafer apparently had something to do with the
filing of all or most
of the referenced grievances, but that is not always clear. Nevertheless, given the nature of
Commission's ruling in this matter, it does not appear to be essential to understand precisely
grievance or grievances are being referred to at any particular point, and the essential factual
can be summarized as follows.
In 1973 petitioner took a laborer test and was placed on an eligibility list which was
determine who would be hired by Milwaukee County for the position of "laborer." The list
the petitioner's complaint is the list as updated in 1977, and this will be referred to as the
although it is referred to in the record in a number of different ways. From 1974 until May
worked for Milwaukee County as a seasonal employee. During this time petitioner was
purposes of collective bargaining by the respondent union, Local 882, Milwaukee
District Council 48,
On an undisclosed date, "group grievances" were filed with the county claiming that
was illegally using emergency appointees instead of people who were on the 1977 eligibility
Examiner's Decision, at 2, par.4. These grievances are refereed to as
"Grievances 03708, 04127, et.
al," but the parties do not indicate that the grievance documents are a part of the record. By
agreement dated March 19, 1984, the county and the union settled these grievances.
Complainant's Exh. #2. In 1991, something called a "Collateral Agreement" was
reached between the
county and the union, apparently arising out of the reorganization of the County Parks
which makes reference to the use of the "1977 Laborers list." Hearing,
Complainant's Exh. #3. In
her findings of fact, the examiner identifies three specific grievances which were filed and
between 1993 and 1996 and which reflect or relate to allegations by the petitioner that these
agreements were not followed. Examiner's Decision, at 6-7.
On May 9, 1995, petitioner filed a complaint with WERC, contending that the 1984
agreements were not followed with respect to his subsequent employment with the County,
unfair or prohibited practices by both Milwaukee County and the union. A hearing was held
11, 1997 and in a written decision dated May 29, 1998, Examiner Coleen Burns found that
WERC did not
have jurisdiction over the petitioner's complaint against the county because the petitioner had
that the union violated §111.70(3)(b)1 by failing to fairly represent him. In a written
decision dated August
14, 1998 the Commission affirmed the Examiner's decision.
Standard of Review
The issue of whether a union has breached its duty to fairly represent an employee
question of fact. Coleman v. Outboard Marine Corp., 92 Wis. 2d 565, 575
(1979). Under Chapter 227,
a review of agency findings of fact is quite limited in scope, and factual findings must be
reasonably based on substantial evidence in the record. See § 227.57(6) and
Princess House, Inc v.
DILHR, 111 Wis. 2d 46, 54-55 (1983). This "substantial evidence" test is not the
same as preponderance
of the evidence, but inquires whether, taking into account all the evidence in the record,
could arrive at the same conclusion. Madison Gas & Elec. Co. v. Public
Service Comm'n of Wisconsin,
109 Wis. 2d 127, 325 N.W.2d 339, 342 (1982).
A reviewing court may not "second-guess" the weight the agency places upon the
may only pass on the reasonableness of the agency's findings. Copland v. Dept. of
Taxation, 16 Wis. 2d
543, 555, 114 N.W.2d 858, 863 (1962). The agency's decision must be sustained even if an
and equally reasonable view of the evidence exists. Wisconsin Dept. of Revenue v.
Country Club, 123 Wis. 2d 239, 242-
43, 365 N.W.2d 916, 918 (Ct. App. 1985). If two conflicting views are each
supported by substantial
evidence, the court is not at liberty to overrule the agency and make its own choice.
Department of Natural Resources, 100 Wis. 2d 234, 250, 301 N.W.2d 437,
cert. denied, 454 U.S. 883
The Court's Decision
1. Petitioner's Request To Present Additional
In the very last paragraph of his brief, petitioner abruptly suggests that "this matter is
subject of a remand pursuant to Wis. Stats. § 227.56. This statute allows a party to
seek leave to present
additional evidence before the agency, and provides as follows:
If before the date set for trial, application is made to the circuit court for
leave to present additional evidence on the issues in the case, and it is
shown to the satisfaction of the court that the additional evidence is
material and that there were good reasons for failure to present it in the
proceedings before the agency, the court may order that the additional
evidence be taken before the agency upon such terms as the court may
deem proper. . .
Petitioner's request is deficient in many respects. First, he has not shown that there
was good reason for
not presenting this information at the hearing. Secondly, he has not shown that the
information is material.
Petitioner did not specifically move for such a remand, despite the court's suggestion
motion would be appropriate. See the court's letter to counsel dated April 30, 1999. More
importantly, at no point does petitioner specify the evidence he wishes to present.
evidence is described in the appended affidavit of the petitioner, which suggests that certain
persons would be able to testify that petitioner filed grievances at various times, but it is
discern whether and how such grievances relate to the various grievances already referred to
record, although the grievances referred to in
paragraphs 2 and 3 of the affidavit appear to be the same or similar to those discussed
by the examiner.
Examiner's Decision, at 6-7.1 In addition, the mere fact
that a grievance was filed or requested does not
show how the union failed to meet its obligations with respect to that grievance.
2. Petitioner's Request That the Commission's Decision Be Set
While the factual history of grievances seems quite complicated, the essence of the
decision is quite simple. The Commission first held that it would have jurisdiction over the
complaint only if a certain showing could be made:
. . . the Examiner correctly held that she should not exercise the
Commission's jurisdictionto evaluate the merits of theclaim
against the Respondent County unless Complainant could establish that
his failure to use th contractual procedure was caused by Respondent
Local 882's failure to fairly represent him. Manke v. WERC, 66 Wis.
2d 524 (1975). [emphasis in original]
Commission's Decision, at 4. Petitioner does not challenge the
Commission's application of Manke or
otherwise contest the Commission's application of the law. Secondly, the Commission held
petitioner had not made the necessary showing:
There is no persuasive evidence that during the one-year period prior to
the filing of the May 9, 1995 complaint, Respondent Local 882 failed
to fairly represent Complainant as to any rights he believed he had
under the Settlement Agreements.
In support of its conclusion in this regard, the Commission noted that petitioner did
his contractual right to file grievances raising this issue with the county and further that the
union did not
and could not have prevented him from doing so. The
1 Two partially legible grievance forms are attached to the
but the petitioner states in the
affidavit that neither was "the one I needed."
Commission noted that petitioner's claim that the union advised him to file a complaint
with WERC was
not persuasive evidence showing that the union failed to fairly represented him concerning
his claim that
the county breached the 1984 and 1991 settlements. The Commission found that the union
petitioner as to a number of grievances related to the use of the 1997 list. I find that there is
evidence to support the Commission's conclusions as to this issue of fact. Other than to
suggest that there
is evidence which was not in the record, petitioner has offered no basis on which to reach a
Conclusion and Order
Because the petitioner has not shown that additional evidence is available which is
has not provided good reason why the proffered evidence was not presented at the hearing,
to supplement the record before the agency is denied. Substantial and credible evidence
exists in the
record to support the findings and conclusions of the Commission and, therefore, it is
ordered that the
decision of the Commission is affirmed.
Dated at Milwaukee, Wisconsin, this 2nd day of December, 1999.
BY THE COURT:
Circuit Court Judge