STATE OF WISCONSIN
IN COURT OF APPEALS
Wisconsin Employment Relations
Town of Madison,
[Decision No. 28647-E]
[NOTE: This document was re-keyed by WERC. Original pagination has been
APPEAL and CROSS-APPEAL from an order of the circuit court for Dane
ROBERT DECHAMBEAU, Judge. Reversed and cause remanded
Before Eich, Vergeront and Deininger, JJ
¶1 VERGERONT, J. This appeal concerns the relationship between certain
the Wisconsin Municipal Employment Relations Act (MERA)--Wis. Stat.
§§ 111.70-111.77 (1997-98)1--and the federal statutory
rights of individual employees. The Town of Madison filed a
complaint with the Wisconsin Employment Relations Commission (WERC) alleging that a
employee refused to sign a Memorandum of Understanding drafted by the Town's attorney
mediation session on a grievance concerning the employee's discharge. The employee,
Thomsen, the Town's attorney, and a representative of the Wisconsin Professional Police
(WPPA), the exclusive bargaining representative for Thomsen's collective bargaining unit,
present at the mediation session. WERC concluded that Thomsen's refusal to sign the
of Understanding constituted a violation of a "collective bargaining agreement previously
upon" under § 111.70(3)(b)4 and ordered him to sign the Memorandum. The trial
court affirmed that
order, with the modification that the waiver of claims provision in the Memorandum did not
a waiver of Thomsen's right to pursue a claim under 42 U.S.C. § 1983.
¶2 WERC and the Town appeal, contending the trial court erred in
modifying the Memorandum
to exclude the 42 U.S.C. § 1983 waiver because WERC had the authority to order
Thomsen to sign
the Memorandum unmodified.
1 All references to the Wisconsin Statutes are to the 1997-98 version
unless otherwise noted.
Thomsen cross-appeals, contending that WERC's decision should be
reversed.2 We conclude that
even if Thomsen orally agreed to waive all federal statutory claims in the mediation session,
agreement was not a collective bargaining agreement within the meaning of Wis. Stat.
111.70(3)(b)4 and (1)(a). Therefore, he did not violate § 111.70(3)(b)4 by refusing to
Memorandum insofar as it contained a waiver of such claims, and WERC did not have the
to order him to sign the Memorandum as drafted. Accordingly, we reverse and remand to
court with instructions to reverse and remand to WERCfor further
proceedings consistent with this
opinion. We also decide one issue raised by Thomsen that may arise on remand. We
when WERC reverses the decision of a hearing examiner based on an additional factual
involving a dispute on witness credibility that has not been resolved by the examiner,
decision must reflect that it consulted with the examiner or had access to the examiner's
¶3 At the time of Thomsen's termination in August 1994, he held the
position of police
sergeant, and was also president of the Town of Madison Professional Police Association
the local chapter for WPPA. Pursuant to the grievance procedure in the collective bargaining
agreement (CBA)3 between
2 A respondent need not file a cross-appeal if seeking an affirmance
of the circuit court's order or
judgment on other grounds, but must file a cross-appeal if seeking a modification of that
order or judgment.
See State v. Alles, 106 Wis. 2d 368, 390,
316 N.W.2d 378 (1982); Wis. Stat. § 809.10(2)(b). Thomsen has
not followed this distinction in ordering his legal arguments, but we are satisfied that because
of the cross-appeal we have jurisdiction to issue the mandate we arrive at.
3 We use CBA to refer to the 1994-95 agreement between the
and WPPA and, when discussing
other cases, to refer to agreements between other exclusive bargaining representatives and
we use CBA we are not referring to grievance settlements or to the statutory language of
agreement 'that is at issue in this case.
WPPA and the Town, Thomsen, as TMPPA president filed a grievance concerning
asserting that he was terminated without just cause. The Town denied the grievance,
that there was not a contract violation "where an employee has admitted the physical inability
perform the essential functions of the position."
¶4 When the grievance remained unresolved after the second step of the
WPPA business representative Steven Urso requested mediation using representatives of
The session was held on January 17. Thomsen, Urso, and the Town's attorney, Keith
Strang, as well
as the mediators were all present. They discussed settlement terms, including a waiver of
provision. The factual disputes concerning the terms discussed and their finality will be
more detail later, but it is undisputed that following this session Strang drafted a
Understanding, which, according to Strang and Urso, accurately reflected the settlement
¶5 The Memorandum provided that the Town agreed to certify, upon the
medical information from WPPA and Thomsen, that Thomsen was injured while performing
as a police officer. Thomsen and the union agreed to stay, and refrain from commencing,
grievances or other actions against the Town while his duty disability application was
upon favorable resolution of the application, to drop all grievances and claims and not to
in any other forum. Upon the satisfaction of these obligations, Thomsen would be treated as
retired in good standing due to a duty disability. Paragraph 5 of the Memorandum provided:
In consideration of the foregoing, Mr. Thomsen and the Union
hereby agree to fully waive and forever release discharge the Town, its
present and former agents, assigns and subsidiaries of any and all
claims, demands, damages,
actions and causes of action of whatever kind or nature which they
have or may have arising out of Mr. Thomsen's employment, his
separation from employment, and any and all other employment
matters without limitation including, but not limited to, matters arising
at law, in equity, under the Town's collective bargaining agreement
with the Union, or in state or federal agencies, courts, or other
tribunals of competent jurisdiction.
¶6 When Thomsen refused to sign this Memorandum, Urso informed the
Thomsen that WPPA was withdrawing the grievance. The Town then filed the complaint
WERC, alleging that WPPA and Thomsen had refused to execute a bargaining agreement,
to bargain in good faith, and violated the terms of a collective bargaining agreement
upon in violation of Wis. Stat. § 111.70(3)(b)3, (3)(b)4 and (3)(c).4
The Town and
4 Wisconsin Stat. § 111.70(3)(b)3, (3)(b)4 and (3)(c) provide
(3) Prohibited practices and their prevention.
(b) It is a prohibited practice for a municipal employe, individually or
concert with others:
3. To refuse to bargain collectively with the duly authorized officer or
of a municipal employer, provided it is the recognized or certified exclusive
collective bargaining representative of employes in an appropriate collective
bargaining unit. Such refusal to bargain shall include, but not be limited to, the
refusal to execute a collective bargaining agreement previously agreed upon.
4. To violate any collective bargaining agreement previously agreed upon by
parties with respect to wages, hours and conditions of employment affecting
municipal employes, including an agreement to arbitrate questions arising as to
the meaning or application of the terms of a collective bargaining agreement or
to accept the terms of such arbitration award, where previously the parties have
agreed to accept such awards as final and binding upon them.
WPPA subsequently stipulated to a dismissal of WPPA upon WPPA's agreement to
¶7 After an evidentiary hearing and briefing on the complaint against
hearing examiner issued a decision that contained these legal conclusions. Thomsen was not
on behalf of WPPA when he refused to execute the Memorandum. There were three parties
settlement-WPPA, the Town and Thomsen. Thomsen's agreement to the settlement was
upon having it reviewed and approved by his attorney. The Memorandum was not a valid
settlement. Thomsen had not violated Wis. Stat. § 111.70(3)(b)3, (3)(b)4 or
¶8 The examiner's significant factual findings included the following.
mediation session, Thomsen advised Urso that he (Thomsen) would not sign any settlement
settlement had been reviewed and approved by his attorney and, at the time of this
knew that Thomsen had a pending Wis. Stat. § 40.65 claim as well as an EEOC claim
Town. At that time Thomsen had also filed a worker's compensation claim against the Town
consulting with an attorney regarding other potential claims against the Town. Urso advised
that the settlement would have to be approved by WPPA's counsel, but Strang was not
Thomsen would not sign any settlement until it had been reviewed and approved by his
the conclusion of the mediation session Strang summarized the terms of the settlement and
Urso nor Thomsen objected. After the mediation session Urso notified
(c) It is a prohibited practice for any person to do or cause to be done on
behalf of or in the interest of municipal employers or municipal employes, or in
connection with or to influence the outcome of any controversy as to employment
relations, any act prohibited by par. (a) or (b).
Strang that WPPA's counsel approved the settlement and Strang drafted the
recommended to Thomsen that he sign the Memorandum, but Thomsen said itdid not accurately
reflect the settlement that had been reached after the mediation session because he did not
waive any and all claims against the Town as provided in paragraph five. Thomsen showed
Memorandum to his attorneys, who advised him not to sign it.
¶9 On review of the examiner's decisions, WERC affirmed the findings of
fact and made
the additional finding that the Memorandum accurately reflects the settlement agreement
Strang, Urso and Thomsen. WERC affirmed, as modified, this conclusion of law: Thomsen
acting as a WPPA representative during the grievance settlement negotiations on January 17,
WERC also affirmed the conclusions of the examiner that there were three parties to the
and that Thomsen did not violate Wis. Stat. § 111.70(3)(b)3. However, WERC
conclusion that Thomsen did not violate subd. (3)(b)4 by failing to sign the Memorandum.
ordered that the complaint be dismissed as to subd. (3)(b)3 and para. (3)(c), and ordered
to sign the Memorandum.
¶10 In its decision WERC explained that because it was finding that the
accurately reflected the agreement reached by all three parties, and because Thomsen did not
Town's attorney that his agreement to a settlement was contingent on his attorney's approval,
Thomsen could not rely on that contingency as a valid basis for refusing to sign the
WERC then relied on prior rulings that grievance settlements were collective bargaining
and a ruling that grievants violate Wis. Stat. § 111.70(3)(b)4 if they do not
comply with their
obligations under grievance settlements. Finally, WERC stated that there was no
impediment" to enforcing a waiver of
claims that do not arise out of the collective bargaining agreement when the waiver is
agreed to in
a grievance settlement.
¶11 Thomsen appealed WERC's decisions to the circuit court and the court
of Thomsen's claimed errors, except one. The circuit court concluded that WERCdid not have the
authority to enforce a grievance settlement agreement that waived a 42 U.S.C. § 1983
an explicit waiver so stating. The court therefore affirmed WERC's decision and order,
exception that the Memorandum of Understanding does not include a waiver
of Thomsen's statutorily
protected right to pursue a § 1983 claim."
Waiver of Thomsen's Federal Statutory Claims
¶12 The Town and WERC contend that WERC correctly determined it had
to order Thomsen to sign the Memorandum, including the general release and waiver of all
paragraph five. Thomsen responds that the settlement of federal statutory
claims5 between an
employee and an employer is not a collective bargaining agreement within the meaning of
5 Thomsen also refers to constitutional claims in addition to federal
statutory claims because 42 U.S.C.
§ 1983 provides a remedy for a violation by a person acting under color of state law of
rights secured by the
United States Constitution. We use the term "federal statutory claim" in this opinion to refer
to claims under
§ 1983, which allege constitutional violations, as well as claims under federal statutes
that are specifically
directed to the rights of employees, such as Title VII, Fair Labor Standards Act, Americans
Act and Age Discrimination in Employment Act.
§ 111.70(3)(b)4, and WERC therefore lacked the authority to order Thomsen to
waive these claims
by signing the Memorandum.6
¶13 Resolution of this issue involves an interpretation and application of
MERA as well
as the federal case law on the waiver of federal statutory rights in the context of collective
These are questions of law. We review the decision of WERC, not that of the circuit court,
scope of review is the same as the circuit court. See Bunker v.
LIRC, 197 Wis. 2d 606, 611, 541
N.W.2d 168 (Ct. App. 1995). Although we are not bound by an agency's conclusions of
law, we may
accord them deference. See UFE, Inc. v. LIRC,
201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996).
Generally, we give great weight deference when: (1) the agency was charged by the
the duty of administering the statute; (2) the interpretation of the agency is long standing; (3)
agency employed its expertise or specialized knowledge in forming the interpretation; and (4)
agency's interpretation will provide uniformity and consistency in the application of the
We give a lesser amount of deference--due weight--when the agency has some experience in
area but has not developed the expertise that necessarily places it in a better position than the
to make judgments regarding the interpretation of the statute. Id.
¶14 We give no deference to the agency, and review the issue de novo,
when it is one of
first impression. Id. at 285. In addition courts have
tended to review de novo an agency's
conclusions of law regarding the scope of their own
6 Although at times it appears that Thomsen is also arguing that the
settlement of state statutory claims
that arise outside of the CBA is not a "collective bargaining agreement" within the meaning
of Wis. Stat. §
111.70(3)(b)4, he provides no legal authority for this position, apart from the cases that
address only federal
statutory claims. He does not develop an argument that links those cases to state statutory
and he does not analyze, or even identify, any particular state statute. Therefore, we confine
our analysis to
federal statutory claims.
authority, see Wisconsin's Envtl. Decade, Inc. v. Public Serv.
Comm'n, 81 Wis. 2d 344, 351, 260
N.W.2d 712 (1978); GTE North Inc. v. Public Serv.
Comm'n, 176 Wis. 2d 559, 564, 500 N.W.2d
284 (1993); and those that involve the application of federal law. See
American Family Mut. Ins.
Co. v. DOR, 214 Wis. 2d 577, 583, 571 N.W.2d 710 (Ct. App. 1997),
re'vd on other grounds, 222
Wis. 2d 650, 586 N.W.2d 872 (1998).
¶15 We do not agree with WERC and the Town that we should apply great
deference to WERC's conclusion on its authority to order the execution of a waiver of
statutory claims in the context of grievance settlements. Neither WERC nor the Town has
us with any prior decisions or ruling by WERC on this point. It therefore appears to be one
impression. In addition, although we recognize that WERC has expertise in applying Wis.
111.70(3)(b)4 to a variety of fact situations, including grievance settlements, the disputed
at issue here implicates federal statutory rights, federal law concerning the waiver of those
ultimately, the authority of WERC to enforce such waivers. We therefore conclude de novo
¶16 We first examine the relevant sections of MERA. WERC is authorized
by statute to
determine the rights of the parties in complaints charging prohibited practices and to enter
remedial orders under the procedures established in Wis. Stat. § 111.07. See
Wis. Stat. §
111.70(4)(a). An employee, individually or in concert with others, commits a prohibited
he or she:
violate[s] any collective bargaining agreement previously agreed upon by the
parties with respect to wages, hours and conditions of employment affecting
municipal employes, including an agreement to arbitrate questions arising as
the meaning or application of the terms of a collective bargaining agreement
or to accept the terms of such arbitration award, where previously the parties
have agreed to accept such awards as final and binding upon them.
Section 111.70(3)(b)4. "Collective bargaining agreement" is not defined in MERA but
bargaining" is defined as:
the performance of the mutual obligation of a municipal employer, through its
officers and agents, and the representative of its municipal employes in a
collective bargaining unit, to meet and confer at reasonable times, in good
faith, with the intention of reaching an agreement, or to resolve questions
arising under such an agreement, with respect to wages, hours and conditions
¶17 Although neither Wis. Stat. § 111.70(l)(a) nor (3)(b)4 refers to
short of arbitration, WERC has held in a number of decisions that grievance settlements are
bargaining agreements. See, e.g., Oneida County
Employees Union, Decision No. 15374-B (WERC
Dec. 12, 1977), aff'd, Decision No. 15374-C (WERC June 29, 1978);
Prairie du Chien Police,
Decision No. 21619-A (WERC July 13, 1984); and South Shore
Educ. Assoc., Decision No. 16935-A (WERC Dec. 21, 1979),
aff'd, Decision No. 6935-B (WERC Jan. 15, 1980). However, in
of these decisions did the grievance settlements contain a waiver of federal statutory claims,
decisions therefore do not provide support for WERC's position in this case. Nor does
case law aid our inquiry. The line of cases interpreting "wages, hours and conditions of
is primarily concerned with the distinction between mandatory subjects of bargaining and
subjects of bargaining. See, e.g., City of Beloit v. WERC,
73 Wis. 2d 43, 50, 242 N.W.2d 231
(1976). The parties have provided us with no cases outside Wisconsin that directly address
the issue, and we have been able to discover none. However, several recent United
Court decisions, and cases applying them in other jurisdictions, are relevant.
¶18 The United States Supreme Court in Wright v.
Maritime Serv. Corp., 525
U.S. 70 (1998), addressed the relationship between CBAs and federal statutory claims that
to the employee as an individual. The issue in that case was whether a general arbitration
a CBA required an employee to use the arbitration process for an alleged violation of the
with Disability Act (ADA) rather than filing suit in federal court. The Court first
there was "some tension" between two lines of authority.
Id. at 76. The first holds that an employee
does not forfeit the right to a judicial forum for certain federal claims if he or she first
grievance to final arbitration under a CBA. See id. at
75-76 (citing Alexander v. Gardner-Denver
Co., 415 U.S. 36 (1974) (Title VII);
McDonald v. City of West Branch, Mich., 466 U.S.
(42 U.S.C. § 1983); Barrentine v. Arkansas-Best Freight
System, Inc., 450 U.S. 728 (1981) (Fair
Labor Standards Act)). Thesecond is represented by
Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20 (1991), which holds that a claim under the Age Discrimination in Employment Act
may be subject to compulsory arbitration pursuant to an arbitration provision in a securities
registration form that the individual has signed.
Wright at 76. The Court in Wright
noted that the
employee's ADA claim was distinct from any right conferred by the CBA and, therefore, the
presumption of arbitrability with respect to grievances under CBAs did not apply: a
resolution of the
ADA claim involved the meaning of a federal statute rather than the application or
an existing CBA. Id. at 78-79. The Court in
Wright expressly did not decide
whether a CBA could
validly waive an employee's right to a
judicial forum for federal claims of employment discrimination.
Id. at 82. Rather it concluded that
any such waiver would, at a minimum, have to be "clear and unmistakable," and the general
arbitration clause in the CBA before the Court did not meet that requirement.
Id. The "clear and
unmistakable" requirement arises from the recognition of the importance of the right to a
forum for these federal statutory rights. Id. 80.
¶19 Before Wright, the majority
view among the federal circuits was that a union could not
prospectively waive, in a CBA, a judicial forum for the federal statutory rights of individual
employees, with only the Fourth Circuit holding to the contrary. Compare
Brisentine v. Stone &
Webster Eng'g Corp., 117 F.3d 519, 526 (11th Cir. 1997) (additional
illustrative cases discussed
therein), with Austin v. Owens-Brockway Glass Container, Inc.,
78 F.3d 875, 885 (4th Cir. 1996).
The rationale for the majority positionis the potential conflict between
which is based on a concept of majority rights, and rights under federal statutes, which are
to protect the rights of individuals and membersof minority groups.
See Pryner v. Tractor Supply
Co., 109 F.3d 354, 362-63 (7th Cir. 1997). We have located no
post-Wright decision upholding a
waiver of a judicial forum for the federal statutory rights of individual employees in a
¶20 We recognize, as the Town and WERC point out, that
Wright and the other cases
we have just discussed address prospective waiver for all employees in the bargaining unit,
issue in this case is a waiver in the context of the settlement of a grievance concerning a
employee. However, we do not agree that these cases are irrelevant for that reason. If a
not clearly and unmistakably subject the claims of individual employees under a particular
statute to the grievance/arbitration procedure, such claims are not part of the
procedure and are not within the authority of the union to settle on behalf of the employee,
under the minority view.
¶21 WERC and the Town do not appear to contend that this CBA subjects
statutory claims Thomsen might have arising out of the discharge to the grievance/arbitration
procedure, or that the union had the
7 Since Wright v. Universal Maritime Serv.
Corp., 525 U.S. 70 (1998), was decided,
the Fourth Circuit has applied the criteria for waiver in Wright
and has not found those criteria met;
but it has indicated that it would, consistent with Austin v.
Owens-Brockway Glass Container, Inc.,
78 F.3d 875, 885 (4th Cir. 1996), find a valid waiver if those criteria
are met. See Carson v. Giant
Food, Inc., 175 F.3d 325, 330-32 (4th Cir. 1999). Other jurisdictions
have either held that a union
may not, in a CBA, waive the right of its members to a judicial forum for federal statutory
consistent with the majority rule developed before
Thomas v. General Elec. Co., 723
N.E.2d 1139, 1142 (Ohio Ct. App. 1999); or they have found there to be no clear and
waiver in a CBA and therefore, like the Wright Court
found it unnecessary to decide whether there
could be a valid waiver at all. See Bratten v. SSI Serv. Inc.
185 F.3d 625, 631-32 (6th Cir. 1999);
Collins v. Michelin N. America, Inc., 71 F. Supp. 2d
909, 911 (N.D. Ind. 1999); Ozolins v.
Northwood-Kensett Community Sch. Dist., 40 F. Supp. 2d 1055, 1067
(N.D. Ia. 1999); Beason v.
United Techs. Corp., 37 F. Supp. 2d, 127, 130 (D. Conn.
1999); Schumacher v. Souderton Area
Sch. Dist., No. CIV. A. 99-1515, slip op. at 5 (E.D. Pa. Jan. 1, 2000).
authority to waive or settle any such claim on behalf of Thomsen.8
In light of Wright such a position
is not viable, given the terms of this CBA.9 Their position is rather that
Thomsen as an individual
employee could waive those claims and did so.
¶22 We agree that an employee who is a member of a collective bargaining
unit may waive
any potential federal statutory claims he or she may have arising out of the circumstances
that are the
subject of the grievance, and that waiver is binding on the employee if it is knowing and
See Alexander, 415 U.S. at
52, n.15; Wallin v. Minnesota Dept of Corrections,
8 Urso testified that he was representing Thomsen at the mediation
session only with respect to the
9 The CBA defines a grievance as:
a controversy between the Association and the Town, or between any
employee or employees and the Employer as to:
(a) A matter involving the interpretation of this Agreement;
(b) Any matter involving an alleged violation of this Agreement in which
an employee or group of employees, or the Employer, maintains that any of
their rights or privileges have been impaired in violation of this Agreement.
The CBA also provides a three-step grievance procedure, following which, if the
grievance is not settled, "either
party may take the matter to arbitration." Nothing elsewhere in the agreement even arguably
statutory or constitutional rights.
Because there is no "clear and unmistakable" waiver in this CBA, we need not decide
the question left
open by Wright: whether such a waiver would be
10 We observe, however, that the requirements for a valid waiver
are not necessarily the same for all
federal statutes. See, e.g., Lloyd v. Buenswich Corp.,
180 F.3d 893 (7th Cir. 1999) (discussing waiver
requirements for ADEA claim).
F.3d 681 (8th Cir. 1998), cert. denied 526 U.S. 1004
(1999).11 However, in the cases the Town and
WERC bring to our attention, the waiver is treated as an agreement between the employee
employer, and it is the court that determines whether such a waiver was knowing and
the employee seeks to bring an action under the federal statute against the employer. These
not establish that such an agreement is a CBA, is an agreement reached under a CBA, is
the jurisdiction of a state agency such as WERC, or that the union is a party to such an
¶23 Consistent with federal precedent, we conclude that any agreement
to waive any federal statutory claim was an agreement between him and the Town, and
not a party to that agreement. Such an agreement is therefore not a collective bargaining
within the meaning of Wis. Stat. § 111.70(3)(b)4 and (1)(a). It follows that
Thomsen's failure to
11 The Town cites two additional cases--Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Adcock,
176 F.R.D. 539, 544 (N.D. Ill. 1997), and Fair v. International
Flavors and Fragrances, Inc., 905 F.2d
1114, 1115-16 (7th Cir. 1990). In neither is the employee a member of a collective
bargaining unit. These
cases therefore simply stand for the well-established proposition that an individual employee
who has a dispute
with an employer and knowingly and voluntarily waives federal statutory claims in settling
the dispute with the
employer may not thereafter pursue those claims.
12 Indeed, in Wallin v. Minnesota Dept. of
Corrections, 153 F.3d 681 (8th Cir. 1998), cert. denied
526 U.S. 1004 (1999)--the only case brought to our attention in which the employee
was a member of a
collective bargaining unit and agreed to a waiver of all claims, including federal statutory
claims,in the context
of a grievance settlement-the court's analysis recognizes the distinction between rights arising
under the CBA
and those arising under federal statutory and constitutional law, even though both were
resolved in one
document signed by the union, the employer, the employee and the employee's personal
attorney. Id. at 685,
689. The court described "the grievance proceedings [under the CBA as] result[ing] in a
[the union] and [the employer] that reinstated the [employee]...."
Id. at 684-85. It acknowledged that the CBA
did not authorize an arbitrator to resolve the employee's statutory and constitutional claims;
that this did not prevent the employee from waiving those claims as long as he did so
knowingly; and concluded that he did do so, in particular because both he and his personal
attorney signed the
settlement agreement. Id. at 689-90.
sign such an agreement when reduced to writing, even if he orally agreed to it is not a
a collective bargaining agreement under § 111.70(3)(b)4.
¶24 Both the Town and WERC emphasize that WERC's decision furthers
one of the
important purposes of MERA and a significant policy of the State of Wisconsin: to encourage
voluntary settlement of "labor disputes arising in municipal employment ... through the
of collective bargaining." Wis. Stat. § 111.70(6). However this argument assumes the
proposition that is disputed on this appeal: that Thomsen's federal statutory claims are subject
collective bargaining and his dispute with the Town concerning those claims is a labor
WERC has the authority to assist in settling. As we have discussed above, this assumption is
supported by the language of MERA and, even if it were, it is inconsistent with the federal
that governs those federal statutory rights.
¶25 The Town also contends that if "parties to a labor dispute cannot fully
resolve all issues, voluntary settlements will become a rarity," because employers will be
reach a voluntary settlement of a grievance if they might still have to defend a court action
federal statutory claim. However, WERC's lack of authority to order Thomsen to sign a
his federal statutory claims does not create or increase the possibility that an employer may
defend both a court action brought by an employee under a federal statute and a grievance
grievance/arbitration procedures of a CBA. Alexander v. Gardner-Denver
Company, 415 U.S. at
54-55, and McDonald v. City of
West Branch, 466 U.S. at 288, established that under federal law
an employee has the right to pursue fully both the remedies available under the
clause of a CBA and a de novo federal statutory claim in a
judicial forum.13 And Wright
does not indicate a retreat from this holding--at least with terms of a
CBA such as the one between WPPA and the Town. To the extent that these rulings
settlement of grievances under a CBA when an employee is not willing to agree with an
waive all federal statutory claims, that is a result that neither WERC nor this court is free to
¶26 Our decision does not prevent an employer from conditioning the
settlement of a
grievance witha union on a waiver by the individual employee of all
potential federal statutory causes
of action, nor does it disturb WERC's rulings regarding grievance settlements that do not
employee's federal statutory rights. Our holding is simply that if an employee agrees to
federal statutory right, that is an agreement between the employee and the employer and is
collective bargaining agreement within the meaning of Wis. Stat. § 111.70(l)(a)
and (3)(b)4. If the
employee agrees and later violates that agreement by filing a court action against the
employer may assert that agreement as a defense in the court action. So, for example, the
free to make the same assertion as a defense to any court action Thomsen files against
13 Under the typical CBA, the union, not the employee, has the
authority to decide whether to pursue
a grievance, and, if so, how far, subject of course to its duty to the employee of fair
representation. See Gray
v. Marinette County, 200 Wis. 2d 426, 436, 546 N.W.2d 553 (Ct.
App. 1996). Therefore, it is not necessarily
the case that if a grievance does not settle at a particular stage, the union will continue to
14 We observe, however, that the Court in
Alexander v. Gardner-Denver Company,
415 U.S. 36, 54-55, specifically rejected the argument that
permitting an employee to file a de novo Title VII action in court
after an arbitrator under a CBA had ruled the employee was fired for just cause would
employer's incentive to arbitrate grievances under a CBA. Permitting the employee to fully
pursue both the
CBA remedies for those claimed violations of rights arising under the CBA and judicial
remedies for claimedviolations of rights arising under federal statute was, the Court decided, the
proper accommodation of "the
federal policy favoring arbitration of labor disputes and the federal policy against
practices." Id. at 59-60.
it that it has made to WERC: the Town may argue in the court action that Thomsen
orally agreed to
waive all claims of any type he might have against the Town related to his discharge and the
should hold him to it. The court, rather than WERC, will then apply federal law to decide
Thomsen did voluntarily and knowingly waive the particular federal claims that he asserts in
action. Indeed, as the Town acknowledges, even if we were to affirm WERC's order that
must sign the Memorandum, the court presiding over any action filed by Thomsen would still
to decide whether the Memorandum constituted a knowing and voluntary waiver of the
federal claim asserted in court.
Contingency of Thomsen's Attorney's Approval
¶27 Thomsen contends WERC erred in concluding he was not entitled to
rely on his
attorney's advice not to sign the Memorandum. According to Thomsen the prior WERC
decisions that WERC relied on15 do not apply to claims external to the
CBA, on which Urso
testified he did not have the authority to represent Thomsen and the settlement of which the
should expect that Thomsen would have his own attorney review. Because we have decided
not a violation of Wis. Stat. § 111.70(3)(b)4 for Thomsen to refuse to sign a written
waiving his federal statutory claims, it is axiomatic that it is not a
15 WERC relied by analogy on its prior decisions holding that a
party violates the duty to bargain
in good faith when it refuses to support a tentative agreement reached because of advice of
that party had not informed the other party that the tentative agreement is subject to advice of
Wisconsin Prof'l Police Assoc., Decision No. 27853-B
(WERC June 15, 1995), and decisions cited
therein. WERC explained that although those decisions were made in the context of contract
between a union and an employer, the same reasoning applied to a grievance settlement;
since Thomsen did
not tell the Town that his agreement was contingent upon attorney approval, he was not
entitled to rely on
attorney disapproval in refusing to sign the Memorandum.
prohibited practice for him to do so because of his attorney's advice, even if he did not
tell the Town
his agreement was contingent on his attorney's approval. However, we do not extend this
to other claims external to the CBA that are not federal statutory claims for the reasons we
explained in footnote 5.
WERC's Additional Factual Finding
¶28 Thomsen contends that WERC violated his right to due process by
failing to consult
with the hearing examiner on issues of witness credibility before making the additional
finding of fact
that the Memorandum accurately reflects the settlement agreement reached by Strang, Urso
Thomsen on January 17. Thomsen points out that in making this finding, WERC resolved a
in testimony that had not been resolved by the examiner, expressly determining that the
Urso and Strang that the Memorandum did accurately reflect the terms of the settlement
"more credible and consistent than that of Thomsen and Ratliffe [another employee who
The position of WERCand the Town is that due process does not require
that WERC consult with
the examiner on issues of witness credibility unless it is reversing a factual finding made by
examiner. We review this issue de novo because it presents a question of constitutional law
not involve any factual disputes. See Hakes v.
LIRC, 187 Wis. 2d 582, 586, 523 N.W.2d 155 (Ct.
16 Thomsen testified that he did not agree to waive all claims at the
mediation session but "only the
ADA claim and the grievance issue." Insofar as the factual dispute is whether Thomsen
agreed to waive all
his federal statutory claims at the mediation session, it is unnecessary to resolve that dispute,
since we have
concluded that it is not a violation of Wis. Stat. § 111.70(3)(b)4 for Thomsen to refuse
to sign a written
waiver of his federal statutory rights, even if he orally agreed to do so. However, insofar as
the factual dispute
is whether Thomsen agreed at the mediation session to waive his state statutory rights, we
cannot say with
certainty that dispute will be irrelevant if there are proceedings on remand, and we therefore
due process claim.
¶29 Where credibility of witnesses is at issue, it is a denial of due process
administrative agency making a fact determination does not have the benefit of the findings,
conclusions and impressions of each hearing officer who conducted any part of the hearing.
v. Industrial Comm'n, 16 Wis. 2d 535, 541-42, 114 N.W.2d 872
(1962). See also Falke v.
Industrial Comm'n, 17 Wis. 2d 289, 295, 116 N.W.2d 125 (1962) (there
is constitutional right to
benefit of demeanor evidence, where credibility is substantial element in case, which is lost if
decides controversy without benefit of participation of hearing examiner who heard such
In enunciating this principle, Shawley relied on
Wright v. Industrial Comm'n,
10Wis. 2d 653, 659,
103 N.W.2d 531 (1960) (which appears to be the first Wisconsin case addressing this issue),
cases from other jurisdictions. See Shawley, 16 Wis.
2d at 542. The rationale of the principle was
more fully explained in a Utah case which the court in
Wright and Shawley
both relied upon:
Where there is a conflict in the testimony, and the weight and
credibility to be given testimony of the various witnesses is the
determining factor, in order toaccord a 'full hearing' to which all
litigants are entitled, the person who conducts the hearing, hears the
testimony, and sees the witnesses while testifying, whether a
member of the board, or an examiner or referee, must either
participate in the decision, or where, at the time the decision is
rendered, he has severed his connections with the board,
commission or fact-finding body, the record must show
affirmatively that the one who finds the facts had access to the
benefit of his findings, conclusions, and impressionsof such
testimony, by either written or oral reports thereof. This does not
necessarily require that all of the commissioners must be present at
the hearing, or even that the one hearing the evidence must concur
in the result, but his opinion on the testimony must be available to
the commission in making its decision.
Wright, 10Wis. 2d at 659-60
(citing Crow v. Industrial Comm'n., 140 P.2d 321,
322 (Utah 1943)).
Shawley and Crow
did not concern a reversal of a factual finding made by an examiner who heard
the testimony, but rather concerned findings made in the first instance by examiners who had
heard the testimony.
¶30 Braun v. Industrial Comm'n, 36
Wis. 2d 48, 57, 153 N.W.2d 81 (1967),
subsequently decided the "demands of due process" required that the record must
that the commission had the benefit of the examiner's personal impressions of material
[, in] the form of either adequate notes of the examiner of personal consultation with him."
Braun was decided in the context of a reversal of an
examiner's findings by officials who were not
present at the hearing, Braun relied on
Shawley. Nothing in
Braun or later cases suggests any
retreat from the principle that one appearing before an administrative tribunal is entitled to
determinations of witness credibility made either by the examiner who saw and heard the
testify, or by another official who had the benefit of the examiner's impressions on witness
and credibility, at least where the agency is reversing the examiner.17
Further, we can see no
rationale, and neither WERC nor the Town presented one, for concluding that this principle
process is implicated when an official reverses an examiner's finding that involves witness
but not when the official makes a new finding that involves witness credibility and reverses
examiner's conclusion on that basis.
17 In Conradt v. Mt. Carmel Sch.,
197 Wis. 2d 60, 71-73, 539 N.W.2d 713 (Ct. App. 1995), we held
a credibility conference was not necessary when the agency was affirming the examiner.
¶31 In its additional finding WERC did make a witness credibility
determination not made
by the examiner, and one that cannot be inferred from the findings the examiner did make.
additional finding was the basis for WERC's reversal. There is no indication in WERC's
it conferred with the examiner in doing so or consulted the examiner's notes on witness
demeanor. Therefore, we reverse this finding. If a finding on this point is necessary for any
proceedings on remand, such a finding must be made consistent with this opinion.
¶32 We now consider the proper disposition of the Town's complaint based
on Wis. Stat.
§ 111.70(3)(b)4. In light of our conclusion that WERC does not have the authority to
Thomsen to sign a waiver of his federal statutory claims,we do not
agree with the circuit court that
the correct disposition is to affirm WERC's order that Thomsen sign the Memorandum of
Understanding "with the exception that the Memorandum of Understanding does not
include a waiverof Thomsen's statutorily protected right to pursue a § 1983 claim."
Thomsen's signature on the
Memorandum as modifiedby the court is not the relief the Town
sought in its complaint and the
Town may not want Thomsen's signature on anything other than the Memorandum as
¶33 We also do not agree with Thomsen that he is necessarily entitled to a
reversal of WERC's decision and a dismissal of the complaint under Wis. Stat.
§ 111.70(3)(b)4. We
have held only that he did not violate a collective bargaining agreement by refusing to sign a
that includes a waiver of his federal statutory rights, and therefore WERC may not order him
so. We are not deciding whether the Town is entitled to any other relief based on its
complaint under § 111.70(3)(b)4 that is consistent with this opinion, because the
parties have not
asked us to address that.
¶34 We conclude the appropriate disposition is a remand to WERC. We
the order of the circuit court and direct the court to enter an order reversing WERC's
Thomsen violated Wis. Stat. § 111.70(3)(b)4,18 reversing WERC's
order that Thomsen sign the
Memorandum, and remanding for further proceeding before WERC consistent
By the Court. --Orderreversed and cause
remanded with directions.
Recommended for publication in the official reports.
18 We do not disturb the examiner's conclusion of law, adopted by
WERC, that there are three parties
to the settlement of January 17, 1995--the WPPA, the Town and Thomsen. The examiner
decided this point
to resolve the dispute whether Thomsen was representing the union at the mediation session
or was present as
the grievant. Understood in that context, this conclusion of law is consistent with our
19 We do not address Thomsen's contention that WERC erred in
permitting Strang to testify concerning
his notes of the mediation session and his recollection of it, because he was representing the
Town at the
hearing. Although Thomsen objected to Strang's testimony at the hearing before the
examiner, it never argued
to WERC that this ruling was an error. We understand the reason is probably that, even
testimony, Thomsen prevailed before the examiner and was defending the examiner's
decision before WERC,
not challenging it. Nevertheless, we review the decision of WERC, not that of the examiner
or that of the
circuit court, and we have no ruling by WERC on thispoint to
review. If this point is relevant in any
proceedings on remand to WERC, Thomsen may raise it then.