Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Attorneys at Law,
by Ms. Andrea F. Hoeschen, 1555 North Rivercenter Drive, Suite
202, P.O. Box 12993, Milwaukee, Wisconsin 53212, on behalf of the Union.
Amedeo Greco, Hearing Examiner:
43 ("Union"), on December 22,
2000, filed a prohibited practices complaint with the Wisconsin Employment Relations
("WERC"), alleging that the City of Lake Geneva ("City"), had committed prohibited
threatening to discharge City employee Barbara V. Nish because of her desire to be
On March 15, 2001, the Commission appointed the undersigned to make and issue
of Fact, Conclusions of Law and Order as provided in Sections 111.70(4)(a) and Section
Wis. Stats. The City subsequently filed an Answer that was received on June 12,
2001. Hearing was
held in Lake Geneva, Wisconsin on June 12, 2001, and July 30, 2001. The Union on
June 12, 2001,
moved to amend its Complaint by claiming that the City
Dec. No. 30091-A
terminated Nish's employment on March 15, 2001, because of her concerted activities
and her desire
to be represented by the Union. I granted the Union's motion to amend over the City's
subject to the City's right to not answer the amendment at that time and to have an additional
hearing where it could present its defense. I then also granted the City's motion to amend its
by claiming that Nish was a confidential employee and that she thus is not entitled to the
accorded by the Municipal Employment Relations Act ("MERA"). Both parties filed briefs
City filed a reply brief that was received by November 12, 2001.
Having considered the arguments of the parties and the entire record, I make and file
following Findings of Fact, Conclusions of Law and Order.
FINDINGS OF FACT
1. Local No. 43, a labor organization within the meaning of Section
Stats., represents for collective bargaining purposes certain clerical and office personnel
by the City. The Union maintains its principal office at 1624 Yout Street, Racine,
2. The City, a municipal employer within the meaning of Sec. 111.70(1)(j), Wis.
operates a city hall where various public functions are performed, including the collection of
The City maintains its principal office at 626 Geneva Street, Lake Geneva, Wisconsin.
At all times
material herein, Germaine Clifford has served as the City Treasurer, Geri Grabbert has
served as the
City's Finance Director, and Colleen Alexander has served as the City Clerk. At all times
herein, they have acted on the City's behalf and have served as its agents.
3. At all times material herein, Spyro Condos has served as the City's Mayor,
has served as the City Attorney, and Pete Peterson, Tony Saia, Dick Peterson and Sheldon
have served on the City Council, along with Aldermen Boldt, Folman and Flemming. At all
material herein, all of the aforementioned individuals have acted on the City's behalf and
as its agents.
4. Nish was hired by the City as a full-time temporary employee in March, 1999,
became a full-time permanent employee in August, 1999. Her title at that time was Deputy
Clerk/Deputy Treasurer. Throughout her employment, Nish was never privy to any
matters relating to the City's labor relations; she never participated in the City's collective
negotiations with its various unions; she never had access to confidential personnel files; she
participated in any grievance matters; and she never transcribed any confidential meetings
labor relations. In addition, she worked in the same office space as other bargaining unit
she answered to the same supervisors; and she never participated in any management
Dec. No. 30091-A
5. In May, 2000, Nish told City Treasurer Clifford that her brother was
paying his personal property tax bill of about $60 because he had given Nish the money to
it and that she, Nish had spent it and that she would pay for it when she got paid the
Nish then asked Clifford to hold up sending her brother a delinquent tax bill because she
care of it. Clifford acceded to Nish's request and did not send a notice of delinquency to
brother. When Nish failed to pay the bill the following week, Clifford asked Nish about it
said she would take care of it when she got paid. Nish did not do so over the next several
during which time, with Clifford's approval, she took the notices of delinquencies that were
for her brother and which normally would have been mailed to him. After repeated efforts
payment, Clifford in September, 2000, told Charles Rude, the then-chair of the City's
committee, about the situation. Rude told Clifford to instruct Nish to immediately pay the
she did so a few days later on September 7, 2000. Nish at the time was not disciplined over
matter. Nish testified that her brother, in fact, did not give her any money for the back taxes
she made up the story so that he would not be embarrassed over being unable to pay his own
6. Nish experienced a number of problems relating to her work performance
included tardiness, difficulty in reconciling bank statements, supposedly drawing a check on
wrong tax account, making errors regarding BID tax statements, arguing with City Finance
Grabbert in front of taxpayers, not finishing all her tasks on time, cashing a personal check
funds, not handling licenses properly, and returning late from lunch. Some of those
as signing Grabbert's name to a letter, cashing personal checks, and returning late after lunch
not recur after they were brought to Nish's attention.
7. Nish received a written warning from Grabbert on August 29, 2000, for
check on the wrong account, for tardiness and for insubordination. The record is unclear
all or only part of that written warning was eventually converted to an oral warning by the
personnel committee on August 31, 2000. Nish did not receive any other formal
discipline before her
8. In an August 30, 2000 memo, City Treasurer Clifford informed the City's
. . .
I would like to comment on the letter I have received, concerning the above
reference. As a
relatively new employee of the City of Lake Geneva, it appears to me that Barb is a hard
employee. She has been very helpful to me, as the new Treasurer, in learning my duties and
responsibilities. Barb has been very patient, letting me figure things out, but keeping a
that I do not make any unnecessary mistakes, which would not be time or cost effective for
Jeri to correct.
Dec. No. 30091-A
I am a part-time employee and was not aware of the tardiness or compensatory
time issue. I was
made aware of the check issue on Monday, August 28, 2000, after it had been issued and
was not aware of the conversations between she and Jeri on Friday, August 25, 2000.
I have not been in employment for a tax season as yet; therefore, I am not familiar
proper procedures concerning tax issues. I doubt that this check issue is a usual occurrence,
however, ultimately the responsibility falls to my office. I am concerned.
If I can be of further assistance, please feel free to contact me.
. . .
9. There was a City-wide referendum in the spring of 2000 to determine whether
City's Treasurer should continue to be an elected position, rather than an appointed position.
voters decided to keep the position as an elected position. The City's personnel committee in
2000, voted to retain Nish's position even though that resulted in having one more City Hall
employee than would have been the case if City voters decided to abolish the City Treasurer
10. In August, 2000, Nish and several fellow employees became concerned over
were being treated and they met with several members of the City's personnel committee on
August 30, 2000, to discuss their working conditions.
11. Nish and fellow employees Sandy Kulik, the Union's steward, and Elaine
subsequently met with members of the City Council's personnel committee on September 27,
to again discuss working conditions. The published agenda for that meeting stated,
inter alia, that
the personnel committee would go into closed session to: "a. Consider specific personnel
under provisions of Wisconsin Statutes 19.85(1)(b)." The subsequent minutes for that
stated, inter alia:
. . .
Committee members: Rude, Boldt, Folman and Shepstone. Also present: Mayor
Aldermen Flemming, Pete Peterson and Tony Saia, Finance Director Grabbert, City Clerk
Police Chief Meinel, Captain Bauman, Sgts. Reuss, Lee and Fritz and Russ Carstenson.
City Hall saff
(sic) Sandra Kulik, Elaine Schultz and Barbara Nish attended a portion of the "Closed
did the Clerk, Finance Director, Mayor and Aldermen, when the meeting was called to order
P.M. by Chairman Rude.
Dec. No. 30091-A
. . .
Working and supervisory relationships in the City Hall Office were discussed. No
was taken, nor were there any motions made. It was suggested that weekly staff meetings be
initiated, in order to open communication lines.
12. Nish earlier that day contacted Union Business Agent Timothy Wagner to
her for collective bargaining purposes because, in her words: "It was becoming apparent that
Union, the bargaining unit people, had protection from management." She on September 27,
wrote a note stating: "I authorize Teamsters Local 43 to represent me for the purposes
bargaining for terms and conditions as an employee of the City of Lake Geneva." That note
hand-delivered on September 27, 2000 to then-personnel committee chair Rude. He
its receipt by writing: "Delivered to me personally by Teamster Local 43 President Tim
Lake Geneva City Hall."
13. As a result of that meeting, Grabbert notified employees there would be
meetings to "open the lines of communication." Grabbert on September 29, 2000,
also was told by
the personnel committee to provide Nish with extra help so that she could straighten out the
reconciliations, and Grabbert for several weeks assigned another employee to help her.
14. The City's personnel committee subsequently recommended to the City
the City recognize the Union as Nish's collective bargaining representative by allowing her
to be accreted to the bargaining unit.
15. The City Council met on November 13, 2000, to consider the personnel
recommendation. Its meeting was televised and a videotape of the meeting was subsequently
16. After then-personnel committee chair Rude reported that the City's personnel
committee was recommending that Nish's position be accreted, Mayor Condos is shown on
videotape asking "Is there another option too that the position be eliminated?", and he later
that the elimination of her position "is another option you can consider here." Up to that
was no discussion whatsoever regarding Nish's alleged performance problems and/or whether
position had become redundant because of the recent City Treasurer's election. Mayor
question therefore was directly related to the Union's bargaining demand. After discussion
City Treasurer's position, Mayor Condos said: "I think something else that you should
when you do negotiate do we need the position? That is another thing that you should also
Shortly thereafter he added "All I am saying is we also have our options here too", and that
Union filed a unit accretion
Dec. No. 30091-A
petition with the Commission, "All I am saying is we also have our options here" and
that, "If that
was to happen, we have our options."
17. City Council member Dick Peterson there stated: "Isn't this something that
looked at at negotiating time to add a person to the union? Why are we just You
know, we can
give something up but we don't seem to get much in return. I think that we are jumping the
this thing, and I see no reason why we should jump into this thing at this time."
18. City Council member Pete Peterson said near the end of the discussion: "I am
lawyer but I think if you suggest to eliminate a position just because they have requested to
a member of the union, you are in violation of some law somewhere."
19. City Attorney Mike Riley immediately thereafter said: "You shouldn't even be
about this. It's not even on the agenda to eliminate the position. Your discussion shouldn't
there. So I would ask you to quit talking about eliminating the position."
20. Shortly thereafter, a motion to table the Union's accretion request passed and
never agreed to include Nish in the bargaining unit.
21. The Union by letter dated December 5, 2000, again asked the City to
Union as Nish's bargaining representative, but the City never responded to the Union's
22. Finance Director Grabbert, City Clerk Alexander and City Treasurer Clifford
dated February 6, 2001, informed Nish:
. . .
Dear Ms. Nish:
Please be advised that the undersigned, as your supervisors,
have reached a
recommend your termination from employment with the City of Lake Geneva. There are
reasons why we are recommending your termination, including the following. First, it is our
that you have engaged in misconduct in public office. You have admitted that your brother
money to pay his property taxes and that instead of paying those taxes you converted the
your own use. Moreover, you also admitted that you were removing reminder statements
mail so that your brother would not be made aware that his taxes had not been paid. We
Dec. No. 30091-A
act in your capacity as an employee that is inconsistent with the
duties of your
Deputy Clerk/Deputy Treasurer and which was done with an intent to obtain a dishonest
We are also recommending your discharge due to your continued misconduct
as an employee.
For example, you have continually exhibited an insubordinate attitude in interacting with
supervisors, arguing with them and refusing to follow their direct orders without argument.
of these arguments have taken place in front of other employees and the public. This
recommendation is also based on your work performance. For example, you have
you are not capable of performing some of the functions of your duties including the
of bank statements. You also committed numerous errors in completing the BID tax
resulting in potential or real monetary loss to the City.
Based upon the above factors, and your previous disciplinary record, we are
your discharge. Effective immediately, you will be suspended with pay. You will be
hearing in regard to this recommendation if you request one in writing directed to Geri
or before 4 p.m. February 21, 2001. You may also voluntarily submit your written
employment with the City of Lake Geneva to Geri Grabbert at any time between now and 4
February 21, 2001. If you do not request a hearing or voluntarily submit your written
will construe that as your written resignation.
. . .
23. The City Council subsequently terminated Nish on March 15, 2001, by a 4-3
the City's Council Council members. Aldermen Saia, Dick Peterson, Flemming and Folman
in favor of her termination and Boldt, Shepstone, and Pete Peterson voted against her
Mayor Condos did not vote because the mayor only votes to break a tie and Rude did not
because he was a witness in that proceeding.
24. Nish engaged in concerted, protected activities when she joined with other City
employees in complaining about working conditions to some members of the City's personnel
committee on or about August 30, 2000, and September 27, 2000, and when she that day
Union to represent her for collective bargaining purposes.
25. The City was aware of Nish's concerted, protected activities because her
27, 2000, note authorizing the Union to represent her was hand-delivered to Rude that day
because the City Council on November 13, 2000, discussed whether the City should
recognize the Union as her collective bargaining representative.
Dec. No. 30091-A
26. The statements made at that November 13, 2000, meeting by Mayor Condos
Alderman Dick Peterson, related above at Findings of Fact 16 and 17, reflected their union
by openly suggesting that Nish's position be eliminated because she had asked the Union to
her. The City Council's subsequent decision to terminate Nish on March 15, 2001
was tainted, at
least in part, by such anti-union sentiment.
Upon the basis of the aforementioned Findings of Fact, I hereby make and issue the
CONCLUSIONS OF LAW
1. Barbara Nish was not a confidential employee at the time of her termination.
instead, was a municipal employee under Section 111.70(1)(i), of the Municipal Employment
2. The City discriminated against Barbara Nish because of her concerted,
activities and it therefore violated Sections 111.70(3)(a)1, and 3 of the Municipal
Relations Act when it terminated her, at least in part, because of union animus.
3. The City discriminated against Barbara Nish because of her concerted,
activities and it therefore violated Sections 111.70(3)(a)1 and 3 of the Municipal Employment
Relations Act when it threatened to eliminate her position, at least in part, because of union
Upon the basis of the aforementioned Findings of Fact and Conclusions of Law, I
make and issue the following
1. IT IS ORDERED that the City shall immediately offer to reinstate Barbara
her former position and it shall make her whole by paying to her all monies and benefits she
have earned from the time of her March 15, 2001, termination to the time of the City's offer
reinstatement, minus any monies she received throughout that time that she would not have
but for her termination.
2. IT IS FURTHER ORDERED that the City shall immediately cease and desist
terminating, or in any other way discriminating against employees, in whole or in part,
their concerted, protected activities.
Dec. No. 30091-A
3. IT IS FURTHER ORDERED that the City shall immediately cease and desist
threatening to terminate, or in any other way discriminating against employees, in whole or
because of their concerted, protected activities.
4. IT IS FURTHER ORDERED that the City shall immediately post the attached
To All Employees in prominent places where all bargaining unit members can read
Dec. No. 30091-A
Pursuant to an Order of the Wisconsin Employment Relations
Commission, and in
effectuate the policies of the Municipal Employment Relations Act, we hereby notify our
1. WE WILL immediately offer to reinstate Barbara Nish to her former position
will make her whole by paying to her all monies and benefits that she would have earned
time of her March 15, 2001, termination to the time of the City's offer to reinstate her,
monies she received throughout that time that she would not have received but for her
2. WE WILL NOT terminate, or in any other way discriminate against any
in whole or in part, because of their concerted, protected activities and their desire to be
by the Union.
3. WE WILL NOT threaten to terminate, or in any other way discriminate
employees, in whole or in part, because of their concerted, protected activities and their
desire to be
represented by the Union.
CITY OF LAKE GENEVA
THIS NOTICE MUST BE POSTED FOR THIRTY (30) DAYS FROM THE DATE
AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY MATERIAL.
Dec. No. 30091-A
CITY OF LAKE GENEVA
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSIONS OF LAW AND
POSITIONS OF THE PARTIES
The Union claims that the City first threatened to terminate Nish at the City
November 13, 2000, meeting and that it subsequently did so at its March 15, 2001, meeting
of her concerted, protected activities and her desire to be represented by the Union, thereby
Sec. 111.70(3)(a)3, Wis. Stats. It thus argues that the City was aware of Nish's union
the City was "openly hostile to Union activity"; that "the reasons given for Nish's
pretext"; and that contrary to the City's claim, Nish was not a confidential employee. The
for a traditional make-whole remedy that includes Nish's reinstatement and backpay.
The City contends that the Union has failed to meet its burden of proving that the
violated Sec. 111.70(3)(a)(3), Wis. Stats. because Nish was not engaged in concerted,
activity; because, "There is absolutely no evidence that the City was hostile toward any
conducted by Ms. Nish"; and because, "Nish's misconduct in converting a tax payment to
use justifies her discharge". The City also argues that there is no evidence that the City has
with Nish's statutory rights under MERA.
To prevail, the Union has the burden of proving that: (1), Nish was engaged in
protected activities; (2), the City and its agents were aware of those activities; (3), the City
hostile to those activities; and (4), the City's termination of Nish was based, at least in part,
hostility to those activities. See Town of Spider Lake, Dec. No. 28038-A (Greco, 12/94);
by operation of law, Dec. No. 28038-C (WERC, 1995); See too, Town of
Mercer, Dec. No.
14783-A (Greco, 3/77), affirmed, Dec. No. 14783-B
(WERC, 1977), which stated:
. . .
. . .it is well established that the search for motive at times is
very difficult, since
direct evidence is not available. For, as noted in a leading case on this subject, Shattuck
Mining Corp. v. NLRB, 362 F. 2d 466, 470 (9th Cir.,
Dec. No. 30091-A
Actual motive, a state of mind being the question, it is seldom
that direct evidence
available that is not also self-serving. In such cases the self-serving declaration is not
trier of fact may infer motive from the total circumstances proved. Otherwise, no person
unlawful motive who took the stand and testified to a lawful motive could be brought to
at pp. 6-7.
. . .
In addition, an employer acts unlawfully when it discriminates against an employee if
actions is motivated, at least in part, by anti-union considerations irrespective of whether
valid, non-discriminatory reasons for any such action. See Muskego-Norway v. WERB, 35
2d. 540 (1967); Employment Relations Dept. v. WERC, 122 Wis. 2d. 132 (1985).
Here, Nish engaged in concerted, protected activities when she and several other City
employees met with members of the City's personnel committee on or about August 30,
September 27, 2000, to discuss working conditions and when she on September 27, 2000,
note authorizing the Union to represent her. Grabbert herself thus testified:
. . .At the September 27th personnel
apparently Sandy and Barb and Elayne
had contacted the personnel committee asking for a meeting to be set up and wanted to
they considered problems with my ability to supervise with the personnel committee. And
who had been employed by the City for three months, recommended to the personnel
they set up someone for me to answer to because I wasn't capable of doing my job. Sandy
employed for three months. I had been with the City for 18 years.
Asked here why she wanted the Union to represent her, Nish replied: "It was
apparent that the Union, the bargaining people, had protection from management." Nish's
therefore represented an effort on her part to band together with other bargaining unit
mutual aid and protection. That joint effort somewhat paid off since Grabbert shortly
notified City employees that as a result of the September 27, 2000 meeting, there would be a
effort to "open the lines of communication" and that she was assigning extra staff help to
The City asserts that Nish was only interested in having the Union protect
her; that she was
"looking for protection for herself"; and that she thus "had no intention of engaging in any
'concerted' activity" with any other employees.
Dec. No. 30091-A
As set forth above, Nish in fact was engaged in
concerted activity since she attended the
August 30, 2000, and September 27, 2000, meetings to discuss personnel issues with some
of the City's personnel committee something she felt more secure doing on
September 27, 2000,
with the benefits of union representation she tried to obtain on that day when her note
the Union to represent her was hand-delivered to then-personnel committee chair Rude. She
engaged in concerted, protected activity because her behavior involved and furthered
concerns". See City of LaCrosse et al., Dec. No. 17084-D (WERC, 10/83), at 5.
The City certainly had knowledge of Nish's concerted, protected activities because:
Nish's note authorizing the Union to represent her was hand-delivered to then-personnel chair
on September 27, 2000; and (2), the City Council on November 13, 2000, discussed whether
would accede to the Union's demand that the City recognize it as Nish's bargaining agent.
As for union animus, Mayor Condos and other City Council members on
November 13, 2000,
discussed eliminating Nish's position even though: (1), the City's personnel committee in
voted to keep her position after the City-wide referendum on whether the City should retain
elected City Treasurer; (2), there is no evidence that the personnel committee after May,
discussed or voted on whether it should reconsider its earlier decision; (3), there is no
any major events occurred between May, 2000 to November 13, 2000, to warrant
of the personnel committee's decision to retain that position;(4), there is no evidence that the
Council between May, 2000 November 13, 2000, ever discussed whether to
retain Nish's position;
and (5), Nish throughout that time was never told that her job was in jeopardy.
Given this sequence of events, it can be inferred, and I so find, that the November
discussion by City Council members on whether to eliminate Nish's position was triggered
request that the Union represent her. The Union therefore has made out a
prima facie case showing
that the November 13, 2000, discussion about eliminating her position was based, at least in
The City's main brief asks, "how is a mere inquiry into the necessity of a position a
and it asserts that "the City had valid reasons for its discussion."
"Mere inquiry", of course, is not unlawful. But, when that "mere inquiry" is made
an employee has expressed interest in union representation and only after the
above, such an inquiry becomes discriminatory. Indeed, City Attorney Riley at the
2000, City Council meeting understood this because, as related in Finding of Fact 19 above,
warned the City Council members: "You shouldn't even be talking about this. It's not even
agenda to eliminate the position. Your discussion
Dec. No. 30091-A
shouldn't even be there. So I would ask you to quit talking about eliminating the
Attorney Riley's comments therefore reflected his understanding that the discussion
involved more than a "mere inquiry."
The City could rebut its earlier union animus if it could prove that its March 15,
discussion to terminate her was totally devoid of any anti-union considerations. The City has
attempted to do so by showing that Nish was deficient in performing her job duties. As set
Finding of Fact 6, the record indeed shows that she experienced a number of work problems.
But, it also is true that: (1), she received only one written warning before her
that was in August, 2000; (2), she withheld paying her brother's taxes and withheld his
notices with City Treasurer Clifford's express consent; (3), she was not disciplined over that
at that time; (4), some of her other deficiencies such as signing Grabbert's name to a
personal checks, and returning late after lunch immediately stopped when they were
Nish's attention; (5), certain other alleged deficiencies were not brought to her attention
occurred; (6), Nish was never warned that she would be fired if she did not improve her
performance; (7), neither Clifford, Grabbert, nor Alexander spoke to Nish before sending
February 6, 2001, letter which recommended her discharge; and (8), City alderman
has served on the City's personnel committee, testified that he believed Grabbert had treated
unfairly over the time-card problems. In addition, and as set forth in Finding of Fact 8,
herself in an August 30, 2000, letter to the personnel committee praised Nish's work,
something she hardly would have done if her work was that bad at that time.
Hence, there is no proof that Nish was slated for termination - or even serious
that matter - before November 13, 2000, and there is no proof that Nish's work
November 13, 2000, deteriorated to such a point that her termination was a certainty.
Given the anti-union statements made at the November 13, 2000, City Council
the close 4-3 vote by the City Council members on March 15, 2001, to terminate Nish, I
that the November 13, 2000, discussion on whether to abolish her position and the City's
decision to terminate Nish were based, at least in part, on the anti-union sentiments voiced
Condos and others at the November 13, 2000, City Council meeting. The City Council's
eliminate her position and its subsequent termination of Nish thereby violated Section
and 3, Wis. Stats.
To rectify that unlawful conduct, the City shall make Nish whole by immediately
reinstate her to her former position and by paying to her all wages and benefits she would
between the time of her March 15, 2001 termination to the time of the
Dec. No. 30091-A
City's offer of reinstatement, less any monies that she received only because of her
City also shall post the Notice To All Employees referenced above as Attachment "A".
Lastly, and as I related at the hearing in response to Attorney Stadler's question, the
the right to litigate in any backpay proceeding whether Nish has mitigated her damages.