STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
GARRY T. VANOUSE, Complainant,
CITY OF WAUSAU and AFSCME, LOCAL
Decision No. 30272-A
Mr. James W. VanOuse, 1904 Schuylier Avenue, LaFayette,
Indiana 47904, appearing on behalf
of the Complainant, Garry T. VanOuse.
Mr. William P. Nagle, City Attorney, Wausau City Hall, 407
Grant Street, Wausau, Wisconsin
54403-4783, appearing on behalf of the City of Wausau.
Shneidman, Hawks & Ehlke, S.C., by Attorney Aaron N.
Halstead, 217 South Hamilton, P.O. Box
2155, Madison, Wisconsin 53701-2155, appearing on behalf of AFSCME Local 1287.
FINDINGS OF FACT, CONCLUSIONS OF
AND ORDER DISMISSING
On January 7, 2002, Garry T. VanOuse, hereinafter Complainant, filed a complaint
the Wisconsin Employment Relations Commission alleging that the City of Wausau,
City, and AFSCME Local 1287, hereinafter Union, violated the terms of the collective
agreement by entering into an agreement in settlement of a grievance filed by three of the
Complainant's co-workers, which settlement agreement resulted in the loss of Complainant's
departmental seniority and, further, that the Union failed to fairly represent him by failing to
advance his subsequent grievances relating to same to arbitration, the fourth
Dec. No. 30272-A
Dec. No. 30272-A
and final step in the contractual grievance procedure. On February 5, 2002, the
appointed Steve Morrison, a member of its staff, to act as Examiner and to make and issue
of Fact, Conclusions of Law and Order as provided in Secs. 111.70(4)(a) and 111.07, Stats.
on the complaint was conducted by the undersigned on February 22, 2002, in Wausau,
Following the presentation of the Complainant's case, the Union made a motion to dismiss
complaint. The Examiner reserved ruling on the motion pending the receipt of post hearing
written arguments on the motion and proceeded to hear the Respondent's cases in chief. The
was transcribed and the parties completed the briefing schedule by April 26, 2002.
The Examiner, having considered the evidence and arguments of the parties and
fully advised in the premises, issues the following Findings of Fact, Conclusions of Law and
FINDINGS OF FACT
1. Garry T. VanOuse, Complainant herein, was at all times material herein, a
employee, and was employed by the City of Wausau as an Equipment Services Mechanic at
Department and, after March 19, 2001, at the DPW garage.
2. Respondent City of Wausau is a municipal employer, with offices located at City
Hall, 407 Grant
Street, Wausau, Wisconsin 54403-4783.
3. Respondent AFSCME Local 1287, the Union, is a labor organization, and has its
at 318 South Third Avenue, Wausau, Wisconsin 54401.
4. At all times material to this proceeding, Respondent Union has been the
representative of certain of the City's employees, including the Complainant.
5. Respondents Union and City have been parties to a series of collective bargaining
including the agreement involved herein which extended from January 1, 2000, to
2002. Said agreement was effective during the period involved herein and contained the
provisions relevant to this matter:
ARTICLE 5 MANAGEMENT RIGHTS
The City possesses the sole right to operate City government and
all management rights repose
in it but such rights must be exercised consistently with the other provisions of this contract.
rights include but are not limited to the following:
Dec. No. 30272-A
A. To direct all operations City government. [sic]
B. To hire, promote, transfer, assign and retain
employees in positions with the City;
C. To suspend, demote,
discharge and take other disciplinary action against employees for just
D. To relieve employees from
their duties because of lack of work or other legitimate reasons;
E. To maintain efficiency of
City Government operation entrusted to it;
F. To take whatever action is
necessary to comply with State or Federal law;
G. To introduce new or
improved methods or facilities;
H. To change existing methods
I. To contract out for goods or services. Whenever
possible, the Employer shall provide the
Union a reasonable opportunity to discuss contemplated subcontracting that would result
in the layoff of bargaining unit personnel prior to a final decision being made on such
J. To determine the methods, means and personnel
by which such operations are to be
K. To take whatever action is necessary to carry out
the functions of the City in situations of
The Union and the employees agree that
they will not attempt to abridge these management
rights and the City agrees it will not use these management rights to interfere with rights
under this agreement or for the purpose of undermining the Union or discriminating against
of its members.
Any dispute with respect to the
reasonableness of the application of said management rights with
employees covered by this agreement (see Exhibit 'A' for a complete list of these employees)
be processed through the grievance and arbitration procedures contained herein, however, the
pendency of any grievance or arbitration shall not interfere with the right of the City to
exercise these management rights.
Dec. No. 30272-A
ARTICLE 8 SENIORITY
A. Role of Seniority: It shall be the policy of the
City to recognize seniority in filling vacancies, making
promotions and in laying off or rehiring, provided however, that the application of seniority
shall not materially affect
the efficient operation of the various departments covered by this agreement.
B. Definition of Seniority:
Seniority shall commence upon date of hire and be based upon the actual continuous
length of service for which payment has been received by the employee. In the event of
transfer to another department
(as defined in Article 9, Section B - Departmental Posting) city-wide seniority shall continue
but the employee shall
be deemed a new employee with the department for the purpose of job posting, overtime and
vacation selection, which
shall be handled on a departmental seniority basis. Regular part-time employees shall have
seniority rights limited
to their department and involving the same type of employment.
. . .
ARTICLE 9 JOB POSTING
. . .
B. Divisional/Unit and City-Wide Posting:
Whenever a vacancy is to be filled or a new
job created, this position shall be posted for a period of three (3) working days on all shop
boards. Any employee interested in applying for the job shall endorse his/her name and
upon such notice in the space provided. The full-time employee with the greatest seniority
division/unit when a vacancy occurs, who can qualify, shall be given the job. If the job is
within the division, the full-time employee with the greatest seniority with the employer who
qualify shall be given the job. For the purpose of this section, division/unit seniority shall be
to the following divisions/units: maintenance and construction division, electrical division,
division, sign unit, water treatment plant division, water meter division, water distribution
wastewater treatment plant division, sewerage maintenance division, and motorpool. If no
employee bidding can qualify for the work, it shall be given to the regular part-time
the greatest seniority who has bid for the job and can qualify.
. . .
ARTICLE 14 GRIEVANCE PROCEDURE
. . .
Dec. No. 30272-A
1. Time Limit: If a satisfactory
settlement is not reached in Step 4, the employee and grievance committee or
the representative of Council 40, AFSCME must notify the Chair of the Human Resources
of the City and the Labor Negotiator in writing within ten (10) days that they intend to
grievance in arbitration.
. . .
ARTICLE 34 TRANSFER OF BENEFITS
Employees transferring into this bargaining unit from another City
of Wausau Department shall
be given credit for length of employment in the other department as it related to all benefits,
as length of service applies to seniority (for example: transfer of existing vacation and sick
balances to this department). If such a transfer is to an equal or lower wage rate class, the
shall be placed on the wage scheduled according to his/her length of service in the City
such a transfer is to a higher rated class, the employee shall be placed at the step on the
schedule which constitutes a minimum of a four percent (4%) increase, provided that no
shall be placed at a rate higher than the maximum rate for the class. This provision shall in
modify the provisions in Articles 9 and 10.
6. The Complainant was initially hired by the City as an
equipment services mechanic in 1991 and assigned to the
Fire Department to perform maintenance on the Department's vehicles. He worked at the
Fire Department until March
19, 2001, during which period he was supervised by the two assistant fire chiefs and by the
7. On March 12, 2001, the Complainant received the following correspondence
the City's Human Resources
TO: Garry VanOuse
FROM: Ila Koss
Human Resources Specialist
DATE: March 12, 2001
SUBJECT: Transfer to Department of Public Works
Dec. No. 30272-A
The City of Wausau must continually strive to maximize its level
of efficiency by improving the
way it concludes City business. It has been determined that changing the existing method of
operations in the City wide maintenance areas by assigning present employees to a combined
Pool at the Public Works Garage will increase the level of productivity provided by its
Therefore, beginning Monday, March 19, 2001, you will report
to work at the Public Works
garage. Your normal work hours will be 7:00 A.M. to 3:30 P.M., Monday through
meet with Mr. Don Skare, Public Works Superintendent, at 7:00 A.M. when you report for
Because this is not a change in your position
you will retain your seniority date of March 25, 1991, not only for
city-wide purposes but also for departmental purposes.
Don would like to meet with you at 1:00
P.M. on Friday, March 16, 2001, at the Public Works garage for a
work orientation meeting. At that time will also be retrieving your personal tools and items
from the Fire
Department, to store at the Public Works work site.
Good Luck with these new ventures. If I
can help you with anything, please call.
c: G. Buchberger
8. The Complainant reported to the public works garage on
March 19, 2001, pursuant to the instructions in the
correspondence identified above and met with his new supervisor, Don Skare, the Public
Works Superintendent. In
addition to Mr. Skare, the Complainant was also to be supervised by Don Hansen, a lead
worker in the public works
9. Following his receipt of the March 12 correspondence, the Complainant spoke
the president of Local 1287,
Craig Gardener, and expressed his dissatisfaction with the move and inquired about filing a
grievance about it. Mr.
Gardener advised him that the City was acting within its management rights in effecting the
transfer and that, in his
opinion, the move was "not grievable." The Complainant took no further action.
Dec. No. 30272-A
10. On March 19, the same day the Complainant started work at the DPW, three
existing DPW employees, Robert
Pagel, Gordy Schultz and Todd Mendlik, discussed with the Complainant the fact that they
were planning to file a
grievance because the Complainant was to maintain his departmental seniority thus moving
existing DPW employees
behind him in the line of seniority. They felt that this violated the terms of the Agreement.
The Complainant agreed
that "If I would have the same problems you guys would, I would do it, too." The three
filed the grievance (hereinafter
referred to as the "Pagel grievance") on that same day, March 19, 2001. It states:
. . .
The letter dated March 12, 2001 from Ila Koss states that
VanOuse would move, Monday March 19,
2001 to the dept. of public works motor pool. The letter also states that because this is not a
change in position that
Garry would retain his seniority date of March 25, 1991 for city wide and also departmental
Article 34, transfer of benefits, states that
employees transfering [sic] to another dept. in the city of Wausau
shall be given credit for length of employment in another dept. as it relates to all benefits
except as length of service
applies to seniority.
The relief sought through the grievance procedure was "that Garry VanOuse start,
seniority wise on the bottom of
the departmental seniority list at DPW."
11. The Pagel grievance worked its way through the initial steps of the grievance
procedure and was denied by the City
at each step. During this period of time, the Complainant had opportunities to participate in
the process by attendance
at Union meetings or through discussions of the grievance with Union personnel or, in fact,
with his brother, Pat
VanOuse, a steward and past Vice President of the Union. The record reflects that the
Complainant did not do so.
When Robert Pagel suggested to the Complainant that he should attend the Union meeting
because the grievance
affected his job, Pagel testified that the Complainant replied that he would not attend because
he had not been
"invited." The Union processed the grievance to arbitration and a hearing was scheduled
before a WERC staff
arbitrator who was successful in mediating a settlement prior to hearing. The settlement
agreement evidences the
parties' accord upon the interpretation of the language contained in Article 8
Seniority as it relates to the transfer
of the Complainant and reads as follows:
AGREEMENT IN SETTLEMENT OF AFSCME LOCAL
Case 95 NO. 59958 MA-11471, DATED
THIS AGREEMENT is being entered
into between the City of Wausau and AFSCME Local 1287, DPW, to
settle the grievance filed on March 19, 2001, and assigned by the State of Wisconsin WERC
as Case 95 No. 59958
Dec. No. 30272-A
The City and the Union hereby agree as follows:
1. That effective September 1, 2001,
Schultz shall be assigned to and shall accept first shift duties.
2. That for all departmental applications of
seniority under the collective bargaining agreement, Gary [sic] VanOuse
shall have assigned to him and shall accept March 25, 2001, as his date of employment.
3. That this agreement shall not be
precedential for any purposes whatsoever, except for this case, shall not be binding
on the City or the Union for any purposes whatsoever, and neither the City nor the Union
shall be prejudiced by
anything within this agreement.
The agreement was dated July 13, 2001, and signed by the Union
President, Joseph Blair and by the
City Attorney, William P. Nagle.
12. As a result of the aforementioned settlement, the Complainant was moved from
first shift to second shift and placed
at the bottom of the departmental seniority list in DPW. In response to this development, his
brother, Pat VanOuse,
filed four separate grievances on his behalf on August 1, 2001, as follows:
First grievance: Alleges that "My City seniority has been violated" and
seeks relief of "All wages, rights and
benefits due to me by the labor agreement between City of Wausau and AFSCME, Local
Second grievance: Alleges that "My wages, hours, and working
conditions have or will change without
negotiations" and seeks relief of "All wages, rights, and benefits due to me by the labor
agreement between City of
Wausau and AFSCME, Local 1287."
Third grievance: Alleges that "Article 3 states that when a new position
is created, or reclassification occurs
there will be collective bargaining between both parties. The present party in this case is
Garry VanOuse and the other
party being operations of the City of Wausau. The decision for change shall be determined
by stipulation. The fact
is Garry VanOuse was never involved in anyway (sic) with the decision of eliminating or
reclassifying his position.
This is a direct contradiction of agreed upon understanding between the Union and the City."
This grievance seeks
relief of "All wages, rights, and benefits due to me by the labor agreement between City of
Wausau and AFSCME,
Fourth grievance: Alleges that "Through out [sic] my 10 years of
dedicated service as the fire station
mechanic I was never repremanded [sic] and had excellent job evaluations. I have saved the
City 10s of thousands of
dollars during this period. My question is why wasn't I approached by a consultant team or
City official on the way
the maintenance department of the fire station was operated. I feel it was totally unethical in
the way I was treated
through out [sic] this situation." This grievance seeks relief of "All wages, rights, and
benefits due to me by the labor
agreement between City of Wausau and AFSCME, Local 1287.
Dec. No. 30272-A
13. Between August 1, 2001, and October 2, 2001, these four grievances were
processed by the Union through the initial
levels of the grievance procedure and denied by the City at each step. On October 10, 2001,
at the regularly scheduled
meeting of the local, the issue of whether the VanOuse grievances should be taken to
arbitration was considered by the
membership. Garry VanOuse was not present at this meeting but the case for taking the
grievances to arbitration was
argued to the membership by his brother, Pat. The minutes of the meeting indicate that the
grievances had been denied
at the last step and that the membership discussed the various choices available to them. The
Phil Salamone attended that meeting and that he provided his input to the membership
regarding the potential of
prevailing at arbitration. The Union President, Joseph Blair, stated that "We know we've
made mistakes through this,
but we decided to go with the many and not with the few." (Per Pat VanOuse, Tr. at 75: 7.)
Upon a motion made to
take the VanOuse grievances to arbitration, the membership voted 19 to 2 against.
14. The evidence fails to demonstrate that the Union's conduct in reaching the
set forth in Finding of Fact 11 was arbitrary, discriminatory or in bad faith. The evidence
support the conclusion that the Union made a good faith decision, weighing relevant factors
the merits of the grievance filed, on behalf of Pagel, Schultz and Mendlik.
15. The evidence fails to demonstrate that the Union's conduct toward the
was arbitrary, discriminatory
or in bad faith nor does it support the notion that the Union failed to make a good faith
decision, weighing relevant
factors such as the merits of the four VanOuse grievances, to not advance the grievances to
arbitration. The Union at
all times material herein fairly represented the Complainant.
CONCLUSIONS OF LAW
1. Respondent AFSCME, Local 1287, has not been shown to have failed to meet its
obligation to fairly represent
Complainant herein, both regarding the settlement of the Pagel grievance and regarding its
decision not to advance
the Complainant's four grievances to arbitration. Therefore, said Respondent did not commit
within the meaning of Sec. 111.70(3)(a)1 and 5 Stats. and Sec.111.70(3)(b)1, 2 and 4 Stats.,
or Sec. 111.70(3)(c) Stats.
2. Having concluded that AFSCME, Local 1287, did not violate its duty of fair
representation to the Complainant, the
Examiner declines to exercise the Commission's jurisdiction to determine the allegations that
Respondent City of
Wausau violated Sec. 111.70(3)(a)5.
3. Respondent City of Wausau did not commit prohibited practices within the
meaning of Sec. 111.70(3)(a)1 or Secs.
111.70(3)(b)1, 2 or 4, with respect to the handling and settlement of the grievances herein
and, consequently, did not
commit prohibited practices within the meaning of Sec. 111.70(3)(c).
Dec. No. 30272-A
Upon the basis of the foregoing Findings of Fact and Conclusions of Law, the
makes and issues the following
IT IS ORDERED that the complaint filed herein be, and the same hereby is,
dismissed in its
Dated at Wausau, Wisconsin, this 30th day of May, 2002.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Steve Morrison, Examiner
Dec. No. 30272-A
CITY OF WAUSAU
MEMORANDUM ACCOMPANYING FINDINGS
OF FACT, CONCLUSIONS
OF LAW AND ORDER DISMISSING
In the complaint initiating these proceedings, the Complainant alleged that the Union
committed a prohibited practice by violating its duty of fair representation to him by entering
settlement of a grievance, the affect of which stripped the Complainant of his departmental
and caused him to be moved from first shift to second shift and by failing to advance his four
grievances relating to his loss of seniority and shift movement to arbitration. The
asserted that the Employer and the Union violated the collective bargaining agreement by
consort with each other in reaching the settlement. The complaint also alleged that the
agreement entered into by the Union and the Employer constituted violations of Secs.
and 111.70(3)(b)1, 2 and 4, and finally, Sec. 111.70(c) Stats., by each party. The Employer
any violation of the contract or the statutes and the Union alleged that at all times it acted in
a non-arbitrary, non-discriminatory and good faith manner with respect to the decisions made
with the settlement of the grievance which led to the Complainant's loss of seniority and shift
movement and in all other matters relative to the complaint. At the hearing in this matter,
moved to dismiss the complaint in its entirety at the close of the Complainant's case in chief.
POSITIONS OF THE PARTIES
The Complainant argues that the settlement reached by and between the City and the
Union in the Pagel
grievance caused him to lose his departmental seniority and to be moved from the first shift
to the second. He
maintains that the Union and the City violated the collective bargaining agreement by
agreeing to strip him of his
departmental seniority because the agreement is clear on this point and because the grievance
was without merit. The
Complainant argues that he was not transferred from one "department" to another
"department" under the language
of Article 8 Seniority and thus should not have lost his departmental
seniority. He also argues that the actions of the
Union constituted a breach of its duty of fair representation because he "was not aware of the
machinations leading to
this agreement until the agreement had already been reached" and because the Union's
settlement of the grievance
denied "him his right to enjoy the benefits of membership in the Union."
The Complainant also argues that the Union has failed in its duty to fairly represent
him because it neglected
to take four grievances he filed following the Pagel grievance settlement to arbitration. He
agrees the Union processed
these grievances through the initial four steps of the grievance procedure but asserts that it
had a duty to take them to
the arbitration phase. He argues that the Union's failure to take the grievances to arbitration
was "arbitrary, capricious,
Dec. No. 30272-A
discriminatory and in bad faith." As such, he says, the Union's actions interfered with
his MERA rights and
constituted a prohibited practice in violation of Sec. 111.70(3)(b)1, Stats.
In response to the Union's motion to dismiss the complaint on the grounds that
"taking all of
the testimony offered in the case in chief, in its best light, and including all of the exhibits
been marked and received into evidence . . . there is no possible way in which those
that testimony could be construed to find the Union failed to fairly represent Mr. VanOuse or
other way violated section 111.70," the Complainant simply objected to the motion and stated
the "case speaks for itself."
The Union argues that in order for the Complainant to prove a prohibited practices
charge against it he must
demonstrate that the Union acted in an arbitrary or discriminatory manner or in bad faith.
The Union says that the
evidence falls far short of proving such allegations. It argues, citing Gray v. Marinette
County, 200 Wis. 2d
426,442, 546 N.W. 2d 553 (Ct. App. 1996), that simply because a Union's
decisions result in the advancement of the
interests of one person or group over another does not constitute a failure to fairly represent
the person or persons
The Union asserts that the Complainant himself admitted that the Union's decisions
were not the result of
any discriminatory motive (citing Tr. 60-61) and that he failed to offer any proof that the
Union acted in bad faith when
it entered into the settlement agreement of the Pagel grievance or in refusing to arbitrate the
four grievances filed by
the Complainant. It argues that the term "bad faith" equates with "hostility in the form of ill
will or common law
malitia" citing Coleman v. Outboard Marine Corp., 92 Wis.2d 565, 575,
285 N.W. 2d 631 (1979) (quoting Ryan
v. Pressman's Union No. 2, 590 F.2d 451, 455 (2nd Cir. 1979)). Once
again, argues the Union, the Complainant has
failed in his burden to present any evidence tending to support such an allegation.
The Union says that VanOuse has failed to present any evidence that any action of
Union was the result
of an arbitrary decision making process. In order to do so, it argues, the Complainant must
show that the Union
engaged in irrational conduct or that its actions had no rational basis. This it failed to do.
On the contrary, argues the
Union, there was a genuine basis for differing interpretations of the contract language which
led to the Pagel grievance
settlement and this fact supports the argument that the Union's settlement was reasonable and
had a rational basis and,
hence, was not arbitrary. Likewise, the decision not to take the Complainant's grievances to
arbitration was also
rational. Had the Union voted to proceed to arbitration with these four grievances it would
have contradicted the
settlement it had just reached in the Pagel grievance.
Dec. No. 30272-A
The City argues that it complied with every provision of Chapter 111 relating to
grievance arbitration and that
it complied with every provision of the labor agreement with regard to grievances and
grievance arbitration. It states
that the agreement in settlement of the Pagel grievance was entered into under the auspices of
the WERC and that it
was obligated to deal with the Union, not with the Complainant.
The City asks the Examiner to dismiss the complaint against it, with prejudice.
The primary question presented in this case is whether the Union violated its duty to
represent the Complainant. Secondary issues raised by the Complainant are whether the
and the Union, or either of them individually, breached the collective bargaining agreement
at the time (Sec. 111.70(3)(a)5 and Sec. 111.70(3)(b)4); whether the Employer interfered
Complainants rights guaranteed by Sec. 111.70(2) Stats. (Sec. 111.70(3)(a)1);
whether the Union
coerced or intimidated the Complainant in the enjoyment of his legal rights (Sec.
whether the Union coerced, intimidated or induced the Employer to interfere with
rights (Sec. 111.70(3)(b)2); and, finally, whether anyone is guilty of violating the dictates of
The Complainant has the burden to demonstrate, by a clear and satisfactory
preponderance of the evidence,
each element of its contention. West Allis-West Milwaukee School District, Dec. No.
10/84). Mere negligence on the part of the Union does not rise to the level of a breach of
the duty of fair representation.
Peters v. Burlington N.R.R., 931 F.2d 534 (9th Cir. 1991) at 538. An
error of judgment or mismanagement does
not equate with arbitrary, discriminatory and bad faith conduct on the part of the Union.
Svcs., 292 NLRB 603 (1989).
The source of the Union's duty of fair representation is its status as the exclusive
bargaining agent for its
membership. In Vaca v. Sipes, 87 S.Ct. 903, 64 LRRM 2369 (1967) which was adopted by
our Supreme Court in
Mahnke v. WERC, 66 Wis.2d 524 (1974) the court recognized this and synthesized
standards enunciated by earlier
Under this doctrine, the exclusive agent's statutory authority to
represent all members of a
designated unit includes a statutory obligation to serve the interests of all members without
or discrimination toward any, to exercise its discretion with complete good faith and honesty,
avoid arbitrary conduct. (Id. at 910)
Dec. No. 30272-A
The Complainant argues that his Union failed in its duty to fairly represent him in
two respects. First, when it entered into the settlement of the Pagel grievance which stripped
Complainant of his departmental seniority and caused him to be moved from first shift to
and, second, when it failed to advance to arbitration the four grievances he filed relating to
settlement and its adverse consequences for him.
Regarding the first issue, the settlement of the Pagel matter, the Complainant argues
that the grievance had
no merit and, hence, should not have been brought by the Union in the first place. He
asserts that the agreement is
clear on the point that he should have maintained his departmental seniority following his
transfer to DPW from the
Fire Department and that by entering into the settlement the Union and the City breached the
contract and the Union
failed to fairly represent him. The Examiner concludes, upon consideration of Articles 8, 9
and 34, and the agreement
as a whole, that the agreement was susceptible to more than one interpretation regarding the
issue of seniority
following transfer. Thus, there existed a dispute between the parties, to wit, the Union and
the City, and where, as
here, the contract provides for a grievance procedure which is final, binding and exclusive,
the Union controls the
grievance as long as it does not act in an arbitrary or discriminatory manner or in bad faith.
The United States
Supreme Court stated in Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965), 58 LRRM
2193 at 2194:
. . . Congress has expressly approved contract grievance
procedures as a preferred method for settling disputes and
stabilizing the "common law" of the plant. LMRA ss. 203(d), 29 U.S.C. ss. 173(d); ss. 201
(c), 29 U.S.C. ss. 171 (c).
Union interest in prosecuting employee grievances is clear. Such activity complements the
union's status as exclusive
bargaining representative by permitting it to participate actively in the continuing
administration of the contract. In
addition, conscientious handling of grievance claims will enhance the union's prestige with
interests, for their part, are served by limiting the choice of remedies available to aggrieved
employees. And it cannot
be said, in the normal situation, that contract grievance procedures are inadequate to protect
the interests of an
aggrieved employee until the employee has attempted to implement the procedures and found
A contrary rule which would permit an
employee to completely sidestep available grievance procedures in
favor of a law suit has little to commend it. In addition to cutting across the interests already
mentioned, it would
deprive employer and union of the ability to establish a uniform and exclusive method for
orderly settlement of
employee grievances. If a grievance procedure cannot be made exclusive, it loses much of
its desirability as a method
of settlement. A rule creating such a situation "would inevitably exert a disruptive influence
upon both the negotiation
and administration of collective agreements." Teamsters Local v. Lucas Flour
Co., 369 U.S. 95, 103, 49 LRRM 2717.
Dec. No. 30272-A
There is no question that the Complainant suffered as a result of the Pagel settlement,
but he fails to advance
any persuasive arguments that the Union acted arbitrarily, discriminatorily or in bad faith in
reaching that settlement.
This he must do in order to wrest control of the grievance from the Union and prove a
failure to provide fair
representation. The Union has the authority to settle a grievance even against the wishes of
the grievant, see
Consolidated Papers v. Dorr-Oliver, Inc., 153 Wis. 2d 589 at 599, (1989) (Ct. App. 1989),
and Mahnke, Id.
quoting Humphrey v. Moore, 375 U.S. 335, 349, 84 Sup. Ct. 363, 11 L.Ed.2d 370 (". . .
'Inevitably differences arise
in the manner and degree to which the terms of any negotiated agreement affect individual
employees and classes of
employees. The mere existence of such differences does not make them invalid. The
complete satisfaction of all who
are represented is hardly to be expected. A wide range of reasonableness must be allowed a
representative in serving the unit it represents, subject always to complete good faith and
honesty of purpose in the
exercise of its discretion . . . .' Just as a union must be free to sift out wholly frivolous
grievances which would only
clog the grievance process, so it must be free to take a position on the not so frivolous
disputes. . . .")
The Complainant, at best, puts forth a case of negligence on the part of the Union in
the Pagel grievance. Negligence is not enough to carry the day in proving a union's failure
represent a unit member. Vaca and Mahnke, Id., obligate the Union to represent the
its members without hostility or discrimination, to exercise its discretion with good faith and
and to eschew arbitrary conduct. Negligence is not one of the factors. Hence, even if the
of the Union was negligent relative to the Pagel settlement, and the Examiner does not find
that it was
so, it would be insufficient to prove the Union guilty of failing in its duty of fair
The Complainant argues that the Union conducted its settlement activities in secret,
involving him, and asserts that he knew nothing of the settlement until after the fact and by
then it was
too late for him to provide input on his behalf. The record does not support this assertion.
Complainant had a discussion with Pagel on the very day he started work at DPW wherein
him that he, Schultz and Mendlik intended to file the grievance and the Complainant agreed
should do so. Thereafter, Pagel advised the Complainant to attend union meetings because
grievance would be discussed and "because it's involving your job" (Tr. 94) and the
responded by saying that he had not been invited to attend. No invitation was necessary.
Complainant, as a member of the unit, has a standing invitation to attend meetings.
In sum, the Complainant alleges that the Union acted arbitrarily, in a discriminatory
and in bad faith because of the way in which it handled the Pagel grievance and in reaching
settlement with the City. These are mere allegations found in the complaint filed by the
and in his post-hearing brief, not facts that have been developed in the record. The record
only that the Complainant was unhappy with his transfer from the Fire Department to DPW;
Union filed a grievance on behalf of three other DPW employees grieving the fact that the
allowed the Complainant to maintain his departmental
Dec. No. 30272-A
seniority following the transfer; that the Union advanced that grievance to arbitration
where it was
settled to the satisfaction of the City and the Union; and that he was unhappy with the results
settlement. This is a far cry from proving that the Union violated its duty to fairly represent
Although the Union made a motion to dismiss following the Complainant's case in
chief, the Examiner's
decision is based on the record as a whole and made in light of all the evidence. The
evidence fails to show that the
Union violated its duty to fairly represent the Complainant as a result of its handling of the
Pagel grievance and
settlement and, thus, has not violated Sec. 111.70(3)(b). Having concluded that the Union
did not violate its duty to
fairly represent the Complainant, the Examiner has no basis for exercising the Commission's
jurisdiction to consider
any breach of contract claims against the Employer. (Mahnke, Id. at 532.)
Turning now to the Complainant's assertion that the Union failed to fairly represent
him because it failed to
advance his four grievances to arbitration, the Examiner again looks to Mahnke, Id. for
guidance. The Mahnke court
observed that ". . . a union has considerable latitude in deciding whether to pursue a
grievance through arbitration"
and quoting Moore v. Sunbeam Corp. (7th Cir. 1972) 459 F.2d 811, 820
said "The Supreme Court in Vaca left no
doubt that a union owes its members a duty of fair representation, but that opinion also
makes it clear that the union
may exercise discretion in deciding whether a grievance warrants arbitration. Even if an
employee claim has merit,
a union may properly reject it unless its action is arbitrary or taken in bad faith. . . ."
Citing Fray v. Amalgamated
Meat Cutters (1960), 9 Wis.2d 631, 641, 101 N.W.2d 782, a pre-Vaca case, the Mahnke
court said ". . . The union
has great discretion in processing the claims of its members, and only in extreme cases of
abuse of discretion will courts
interfere with the union's decision not to present an employee's grievance. See 44 Virginia
Law Review (No. 8,
1958), 1337, 1338. In certain cases for the greater good of the members as a whole, some
individual rights may have
to be compromised. Whether or not a cause of action is stated depends upon the particular
facts of each case. (Case
cited.)" The court went on to say that the reference to "extreme cases of abuse of
discretion" was perhaps too broad
and that the test is whether the action taken was arbitrary or in bad faith and that "In
administering the grievance and
arbitration machinery as statutory agent of the employees, a union must, in good faith and in
a non-arbitrary manner,
make decisions as to the merits of particular grievances." (Mahnke at 532)
The record in the instant case fails to support an argument that the actions of the
Union in not taking the
Complainant's grievances to arbitration were done in an arbitrary manner or were in bad
faith. The Union processed
the four grievances through each and every step of the grievance process even though doing
so flew directly in the face
of the settlement agreement it had reached with the City just months before in the Pagel case.
There is no evidence
that the Union acted in a perfunctory way in doing so nor does the Complainant argue that it
did. When the Union had
to decide whether it would take the grievances to arbitration it discussed the
Dec. No. 30272-A
options at a regularly scheduled membership meeting at which the Complainant was
represented by his brother Patrick,
a union steward. The record clearly demonstrates that the Complainant could have attended
this meeting but chose
not to do so. The Union's business representative, Phil Salamone, was also in attendance
and gave the membership
the benefit of his experience in the grievance arbitration process and Patrick VanOuse was
allowed to plead the
Complainant's case. Following these discussions, the issue was put to a vote of the
membership which voted 19 to 2
not to take the grievances to arbitration. Following the vote, the Union President, Joseph
Blair, made the comment
"We know we've made mistakes through this, but we decided to go with the many and not
with the few." This
comment is insufficient to prove that the Union breached its duty of fair representation. It is
not clear from the record,
but this comment may well have referred to the fact that earlier comments Mr. Blair
made to the Complainant about
his seniority were inaccurate or, indeed, they may have referred to the fact that the Unions
brought the Complainant's
grievances as far as it did through the grievance procedure. The conceptual ideology behind
going "with the many and
not with the few," though, is consistent with the duties required of the Union and is
inconsistent with the notion of
unfair representation and bad faith. It formulates a rational basis for the Union's decision
not to go to arbitration and
the Union's actions were, therefore, not arbitrary. In short, the Union's actions in refusing
to take the four grievances
to arbitration did not violate the duty of fair representation it owed to the Complainant.
Having so found, the Examiner
has no authority to consider a breach of contract claim against the City on this point. (See
The fact that the Union had acted lawfully in entering into a settlement of the Pagel
and to refuse to take the Complainant's four grievances to arbitration and the failure of the
Complainant to prove that the Union breached its duty of fair representation in that regard,
other, combine to negate the Complainant's allegations that the City and the Union, in
individually, violated Secs. 111.70(3)(a)1 and 5 or Secs. 111.70(3)(b)1, 2 and 4, Wis. Stats.
no violations of either paragraph (a) or (b) of Sec. 111.70(3), and because the Respondents
specifically covered by said paragraphs (a) and (b), the allegation that Sec. 111.70(3)(c), was
must also fail and the complaint must be dismissed.
Dated at Wausau, Wisconsin, this 30th day of May, 2002.
Steve Morrison, Examiner