STATE OF WISCONSIN CIRCUIT COURT BROWN
COUNTY BRANCH 2
TECHNICAL COLLEGE FACULTY
Case No. 01-CV-1245
Decision No. 29955-C
[NOTE: This document was re-keyed by WERC. Original pagination has been
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
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.
- 2 -
STATE OF WISCONSIN CIRCUIT COURT BROWN
COUNTY BRANCH II
TECHNICAL COLLEGE FACULTY
Case No. 01 CV 1245
Petitioner, Northeast Wisconsin Technical College (Petitioner) has brought this action
seeking review of a Wisconsin Employment Relations Commission (Commission) decision
reversed decision of a Commission-appointed hearing examiner (Examiner). Petitioner
three of its employees for making off-color remarks while in the presence of another
Petitioner's employees are represented by a union, the Northeast Wisconsin Technical
Faculty Association (Union). Two of the disciplined employees filed grievances with the
To assist in the processing of those grievances, the Union attempted to obtain a copy of the
investigation report prepared by Petitioner in regards to the disciplinary actions.
On June 28, 2000, the Union filed a prohibited-practice complaint with the
alleging that the Petitioner was unlawfully withholding the report from the Union in violation
Wisconsin's Municipal Employment Relations Act. On January 12, 2001, the Examiner
favor of the Petitioner, and dismissed the complaint. On February 1, 2001, the Union
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
substantial evidence, it is affirmed.
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
(3)(a) It is a prohibited practice for a municipal employer individually
or in concert with
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.
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
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
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,
The Commission's interpretation here is one of long standing. The question before
Commission was whether Petitioner was engaging in a "prohibited practice" under Wis.
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
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
on precedent, specifically the "discovery-type" standard that the Commission has
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
allowed to weigh confidentiality concerns or Petitioner's obligations under state and federal
to develop a satisfactory sexual harassment policy. Neither argument has merit.
concerns have been addressed by the Commission many times when deciding issues of
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,
this places the analysis outside the scope of the Commission's decision making powers, is
too tenuous to be considered persuasive. Petitioner argues, but fails to demonstrate how
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
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.
decision of whether the information requested by the Union was relevant to the
a collective bargaining agreement was based on a standard developed by the Commission.
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
handling the case and legal counsel. The fact that the "order" portion of the opinion states
that the Petitioner must "provide a copy of the ... report to (Union) representative Kundin"
not mean that somehow this information will become public domain. It is obvious that the
of the order is to limit access to the people mentioned in the "conclusions of law and fact."
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
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
BY THE COURT:
Mark A. Warpinski /s/
Mark A. Warpinski
Circuit Court Judge, Branch II