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STATE OF WISCONSIN CIRCUIT COURT BROWN COUNTY BRANCH 2

NORTHEAST WISCONSIN

TECHNICAL COLLEGE,

Petitioner,

v.

WISCONSIN EMPLOYMENT

RELATIONS COMMISSION,

Respondent,

and

NORTHEAST WISCONSIN

TECHNICAL COLLEGE FACULTY

ASSOCIATION,

Interested Party.

Case No. 01-CV-1245

Decision No. 29955-C

[NOTE: This document was re-keyed by WERC. Original pagination has been retained.]

NOTICE OF ENTRY OF DECISION

TO: Attorney Robert W. Burns

Attorney Lisa L. Kristke

Davis & Kuelthau

P.O. Box 1534

200 South Washington Street

Green Bay, WI 54305-1534

Attorneys for Petitioner

Attorney Laura Amundson

Wisconsin Education Association

P.O. Box 8003

Madison, WI 53708-8003

Attorneys for Interested Party, NWTC Faculty Association

PLEASE TAKE NOTICE that a Decision affirming the decision of the Wisconsin Employment Relations Commission, of which a true and correct copy is hereto attached, was signed by the court on the 15th day of April, 2002, and duly entered in the Circuit Court for Brown County, Wisconsin, on the 15th day of April, 2002.

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STATE OF WISCONSIN CIRCUIT COURT BROWN COUNTY BRANCH II

NORTHEAST WISCONSIN

TECHNICAL COLLEGE,

Petitioner,

v.

WISCONSIN EMPLOYMENT

RELATIONS COMMISSION,

Respondent.

and

NORTHEAST WISCONSIN

TECHNICAL COLLEGE FACULTY

ASSOCIATION,

Interested Party.

DECISION

Case No. 01 CV 1245

I. BACKGROUND

Petitioner, Northeast Wisconsin Technical College (Petitioner) has brought this action seeking review of a Wisconsin Employment Relations Commission (Commission) decision that reversed decision of a Commission-appointed hearing examiner (Examiner). Petitioner disciplined three of its employees for making off-color remarks while in the presence of another employee. Petitioner's employees are represented by a union, the Northeast Wisconsin Technical College Faculty Association (Union). Two of the disciplined employees filed grievances with the Union. To assist in the processing of those grievances, the Union attempted to obtain a copy of the entire investigation report prepared by Petitioner in regards to the disciplinary actions.

On June 28, 2000, the Union filed a prohibited-practice complaint with the Commission, alleging that the Petitioner was unlawfully withholding the report from the Union in violation of Wisconsin's Municipal Employment Relations Act. On January 12, 2001, the Examiner ruled in favor of the Petitioner, and dismissed the complaint. On February 1, 2001, the Union petitioned the Commission for review of the Examiner's decision. On July 24, 2001, the Commission reversed the decision of the Examiner and ordered that the report be given to the Union. On August 22, 2001, Petitioner filed this action seeking review of the Commission's decision. Because the decision of the Commission is based on a reasonable interpretation of the statute and substantial evidence, it is affirmed.

II. ANALSIS

At issue in this case is whether Petitioner has violated the part of MERA outlining prohibited practices by municipal employers, Wis. Stats. § 111.70(3), which provides in pertinent part:

(3)(a) It is a prohibited practice for a municipal employer individually or in concert with others:

1. To interfere with, restrain or coerce municipal employees in the exercise of their rights guaranteed in sub. (2)1

4. To refuse to bargain collectively with a representative of a majority of its employees in an appropriate collectible bargaining unit. Such refusal shall include ... though not be limited thereby, to the refusal to execute a collective bargaining agreement previously agreed upon.

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_____________________________

1 That section outlines the right of municipal employees to join and participate in labor unions. Wis. Stat. § 1170(2).

Interpretation of a statute and how it applies to a certain set of facts is a question of law for the courts. Barron Electric Cooperative v. Public Service Comm'n of Wisconsin, 212 Wis. 2d 752, 760, 569 N.W.2d 726, 731 (Ct. App. 1997). When interpreting a statute and its application to a set of facts, a reviewing court is not bound by the decision of an administrative agency. Dodgeland Education Association v. WERC, 2002 WI 22, 639 N.W.2d 733, 743

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The Commission's interpretation here is one of long standing. The question before the Commission was whether Petitioner was engaging in a "prohibited practice" under Wis. Stats. § 111.70(3) by withholding the report. It is apparent that this is a type of question that the Commission has faced on numerous occasions in the past. This case is not analogous to Kelley Company, Inc. v. Marquardt, 172 Wis.2d 234, 493 NW.2d 68 (1992), where the decision of the agency was based on no precedent whatsoever. Here, the decision of the agency was based

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on precedent, specifically the "discovery-type" standard that the Commission has developed to help decide disputes over the duty to furnish information. Petitioner argues that the Commission's expertise lies in interpreting collective bargaining requirements and should not be allowed to weigh confidentiality concerns or Petitioner's obligations under state and federal law to develop a satisfactory sexual harassment policy. Neither argument has merit. Confidentiality concerns have been addressed by the Commission many times when deciding issues of information disclosure. The argument that somehow the Petitioner would be liable under federal law for failing to maintain a proper sexual harassment policy if forced to divulge this information, and that this places the analysis outside the scope of the Commission's decision making powers, is simply too tenuous to be considered persuasive. Petitioner argues, but fails to demonstrate how allowing a limited group of people involved in the representation of the accused to have access to the report will cause the Petitioner's sexual harassment policy to become ineffectual.2 The interpretation of whether or not Petitioner committed a prohibited practice under Wis. Stats. § 111.70(3) by the Commission is one of long standing.

The decision of the Commission is based upon specialized knowledge or expertise. The decision of whether the information requested by the Union was relevant to the administration of a collective bargaining agreement was based on a standard developed by the Commission.

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________________________

2 Petitioner argues that the Commission places no restrictions as to who may view the information contained in the report. However, the Commission specifically sets out in its "conclusions of law and fact" that access to the report is to be limited to the Union representative handling the case and legal counsel. The fact that the "order" portion of the opinion states only that the Petitioner must "provide a copy of the ... report to (Union) representative Kundin" should not mean that somehow this information will become public domain. It is obvious that the intent of the order is to limit access to the people mentioned in the "conclusions of law and fact." If Petitioner is truly concerned about this issue, they have recourse. They can request that the Commission clarify or modify the Order.

Wis.2d at 354. Because the interpretation of the Commission is reasonable, and based on substantial evidence, it may not be disturbed.

For the aforementioned reasons, the decision of the Wisconsin Employment Relations Commission is hereby AFFIRMED.

Dated at Green Bay, Wisconsin, this 15th day of April, 2002.

BY THE COURT:

Mark A. Warpinski /s/

Mark A. Warpinski

Circuit Court Judge, Branch II

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