STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
MILWAUKEE DISTRICT COUNCIL 48,
AND ITS AFFILIATED LOCAL 882, Complainant
MILWAUKEE COUNTY, Respondent
Decision No. 30179-B
Mr. Kenneth J. Murray, Podell, Ugent & Haney, S.C.,
Attorneys at Law, 611 North Broadway,
Suite 200, Milwaukee, Wisconsin 53202-5004, for the Complainant.
Mr. Timothy R. Schoewe, Deputy Corporation Counsel,
Milwaukee County, Milwaukee County
Courthouse, Room 303, 901 North Ninth Street, Milwaukee, Wisconsin 53233, for the
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
On May 7, 2001, Local 882, affiliated with the Milwaukee District Council 48,
AFL-CIO ("the Union") filed a complaint with the Wisconsin Employment Relations
alleging that Milwaukee County ("the County") had violated Sections 111.70(3)(a) 1, 2
and 5, Wis.
Stats., and committed various prohibited practices in its administration of certain leave and
policies affecting maintenance workers at General Mitchell International Airport. The
the allegations. Hearing in the matter was held in Milwaukee, Wisconsin on July 25, 2001,
Hearing Examiner Stuart D. Levitan, a member of the Commission's staff. At that
time, I ruled that,
due to the availability of grievance arbitration in the parties' collective bargaining agreement,
Commission did not have jurisdiction over those elements of the complaint that alleged a
of the collective
Dec. No. 30179-B
bargaining agreement and thus did not have the authority to provide the relief sought
E1 of the complaint. Following ancillary litigation concerning certain evidentiary matters,
and County filed written arguments on December 3 and 4, 2002, respectively. The Union
filed a reply
brief, while the County on January 27, 2003 waived its right to file the same. On April 8,
wrote the parties to pose three specific questions concerning the pleadings and other
matters. That letter went unanswered, as did my correspondence dated June 30 and July 29.
September 9, 2003, on behalf of himself and Atty. Murray. Atty. Schoewe wrote to inform
"it is the view of both counsels that the major, primary underlying issue is ripe for
without further briefing." Based on the record evidence and the arguments of the parties, the
undersigned hereby issues the following
FINDINGS OF FACT
1. Local 882, affiliated with Milwaukee District Council 48, AFSCME,
AFL-CIO, is a
labor organization with offices at 3427 West St. Paul Avenue, Milwaukee, Wisconsin.
2. Milwaukee County is a municipal employer with offices at 901 North Ninth
3. Among its general government activities, the County operates General Mitchell
International Airport (GMIA). Among the ranking County supervisors and managerial
GMIA are James Kerr, Deputy Airport Director for Operations and Maintenance; Mark
Airport Maintenance Manager; Scott Kreiter, Airport Maintenance Assistant Superintendent;
Christopher Lukas, Airport Maintenance Supervisor and John Sifuentes, Airport Assistant
Maintenance Supervisor. The County and the several airlines at GMIA have entered into
which establish the rates and amounts the airlines pay and the services the County provides.
contracts, the airlines effectively hold significant authority over both the operating and capital
budgets. Due to recent losses, the airlines have refused to allow the airport to raise rates of
and Kerr has declined to formally propose new positions requested by Winkelmann because
convinced the airlines would not approve them.
4. Because of the exigencies of maintaining an airport in a northern climate, the
has promulgated work rules which differentiate between winter and non-winter months in
number of maintenance personnel who can be on authorized vacation and leave. Duly
work rules provide that during the period Nov. 1 to April 1, only one person per crew will
permitted to be off on any authorized time during any 24 hour period, with additional leaves
to approval by a management designee. The work rules also provide that during the
remainder of the
year, a maximum of ten employees per week may take
Dec. No. 30179-B
vacation time, with management reserving the right to limit additional unscheduled
leave to seven
workers per shift. Notwithstanding the work rule limit that only one maintenance employee
would be permitted leave during the November-April winter maintenance season, the County
routinely, over an extended period of time, exercised its discretion to allow leave for
personnel per shift. Airport maintenance workers who sought time off on less than 30 days
during the winter season (November 1-April 1) would submit requests to Lukas for
leave, which Lukas would consider and act upon on a day-to-day basis, based primarily on
and workload. Testimony differed on the number of personnel granted "unscheduled" leave
the winter season; Union witnesses testified that as many as 17 employees per shift were
allowed off; County witnesses said the number may on occasion have hit double figures, but
generally no more than a handful were off, if that many. No documents or other evidence
witness testimony was put into the record on this point. Notwithstanding the usual practice
allowing additional personnel off on "unscheduled leave," Lukas had already restricted
leave to one worker per crew on several occasions during the 2000-2001 winter season,
instances when he canceled all vacations and ordered off-duty workers to report, in order to
workload demand. Lukas was also aware that earlier in the winter, Department of Public
human resources manager Doris Harmon had written to Winkelmann to express concerns that
employees were carrying over an excessive amount of vacation from the summer into the
5. On October 27, 1998, the then-Director of Labor Relations for Milwaukee
Henry H. Zielinski, wrote to Mr. Stu Swessel, President of Local 882, as follows:
As a result of the conversation we had on 10/26/98, I agreed that the proposed
Airport Collateral Agreement could be further amended by striking the following
sentence contained in the GMIA Work Rules, Exhibit C, II. The sentence to be
struck is, "All policies and practices in the employee workrules are subject to change,
and the workrules should not be taken as a contractual agreement."
In addition, I agreed that one year from ratification of this agreement by the
parties, the parties could sit down and review the impact of the Attendance Policy
as it relates to the Airport Maintenance Workers contained in Exhibit C. In
addition, the union is free to raise it during negotiations for a successor agreement.
The above reflects the agreements made by yourself and me on 10/26/98. If you
disagree, please advise.
Dec. No. 30179-B
6. On December 16, 1998, Zielinski sent the executed collateral agreement
County and Local 882 to several management officials at GMIA, with the directive to "take
necessary action(s) to implement said agreement." As transmitted, the collateral agreement
the sentence which Zielinski informed Swessel was being stricken in his letter of October 27.
January 7, 1999, Airport Maintenance Manager Mark Winkleman distributed to Airport
Workers and Airport Maintenance Workers, In-Charge a new work rule booklet, with the
resulting from the Collateral Agreement effective December 27, 1998. The workers were
to complete, sign and return an acknowledgement of receipt of the document by the close of
on January 15.
The Work Rules contain the following provisions:
VACATION, ACCRUED COMP, ACCRUED
1. Vacations shall be granted according to the memorandum of
. . .
B. All employees are required to take their vacations
1 and November 1, because of winter maintenance requirements.
C. After October 5, management reserves the right to
unused vacation for the remainder of the year.
D. During the airport winter maintenance season, Nov. 1 to
only one person per crew will be permitted to be off on any
authorized time during any 24 hour period. However, additional
employees may be granted time off with approval of the
Maintenance Superintendent, or management designee.
. . .
2. Management will regularly allow preference for vacation
each crew based on bargaining unit seniority in the following manner:
All vacation request forms must be submitted no later than April
Dec. No. 30179-B
A maximum of 10 employees per ddweek may take vacation
(requested before April 1st) from April 1 November 1.
Vacation requests submitted after April 1 for unused vacation
granted in order of the date received.
WINTER MAINTENANCE SHIFT
. . .
Employees are required to have a properly operating telephone
at their home
(at their expense) so they can be reached and told to report for
emergency work during off hours.
During the winter maintenance season, each Airport
employee working in winter maintenance crews is expected to be
available for work. If the employee is not going to be at home for an
extended period of time he/she must inform his supervisor, or the
Operations Department, and leave a properly operating telephone
number where he/she can be reached. It is expected that each
employee will report for work when called in for winter maintenance
Each employee shall call his/her supervisor or Airport
Operations be(sic) 7:30
AM for the day shift and 11:00 PM for the night shift on regular work
days if he/she cannot report for work because of illness or any other
reason, or the employee may be marked absent for the day. Failure to
call may subject the employee to progressive steps on discipline up to
and including discharge.
7. Between March 12 and March 15, 2001, the Union filed five grievances
the County was violating the terms of the parties' collective bargaining agreement by failing
overtime opportunities to employees who were on vacation at the time the need arose. Those
grievances were processed in accordance with the terms of the collective bargaining
between the parties, which provides for final and binding arbitration of disputes arising
The ranking GMIA supervisors and managers identified in
Dec. No. 30179-B
Finding of Fact 3 were aware of the grievances upon their filing, or in the immediate
8. There was measurable snowfall essentially every day from December 10 to
31, 2000, placing the airport maintenance crews in almost continuous snow-operation duties.
to the greater-than-normal need for personnel to be assigned to snow removal, the County
to attend to all general and special maintenance activities. In mid-March, Lukas conveyed
increasing concerns over staffing and scheduling to Winkelmann, who on March 15 directed
adhere strictly to the "one man off" policy for the rest of the winter season. Winkelmann
provided Lukas a memorandum nor any other written correspondence expressing the new
provided a memo for his distribution to the Union and employees. Effective the remainder
winter maintenance season, namely March 16 to April 1, Lukas followed Winkelmann's
only released one maintenance worker per crew for unscheduled leave. Lukas also conveyed
directive to supervisory staff working under him.
9. Around noon on the 15th, Lukas went to the small equipment
shop to tell Charles
Staszewski, steward for Local 882, about the new policy. Lukas told Staszewski he had been
directed by Winkelmann to operate on the "one man off" per shift policy through the
weeks of the winter maintenance season. Lukas did not provide to Staszewski any written
correspondence or memo, either from himself or other airport officials, stating and
explaining the new
policy. Lukas and Staszewski gave conflicting sworn testimony about their exchange.
testified that Lukas said, ". . .because of all these grievances about this overtime issue and
of what I'm getting from my bosses, I'm going to have to. . .invoke the policy as written in
rules (of) . . .one man off per crew per day." Lukas affirmatively denied he had made any
statement, testifying that, "I explained to him (Staszewski) that due to staffing problems that
encountered through the winter, discussions I had with Mr. Winkelmann on the topic, other
influences, factors that had fallen in and the difficult I had when I did cut back to one
person, and the
jobs on the forefront that I was intending and. . . discussions with Mr. Winkelmann that we
go strictly with the one approved only for the duration of the following two weeks." There
evidence Lukas told Staszewski he expected him to communicate the new policy to the rest
work force, and Staszewski did not do so.
10. On March 16 and 30, 2001, Staszewski submitted requests to use 4.5 hours of
vacation and compensatory time off, respectively. Pursuant to the directive from
respective requests were denied by Sifuentes on March 19 and Lukas on March 28.
11. For the period March 5-March 16, 2001, there were 28 workers on the first
Monday-Friday, the rest Thursday-Monday). Out of over 250 separate work
Dec. No. 30179-B
assignments, fewer than ten dealt with conveyor maintenance. Starting on March 19,
were assigned to conveyor maintenance each day for two weeks, for 40 separate assignments.
12. The sudden and unexpected imposition of the new "manage-to-rule" policy
significant disruption to several members of the bargaining unit, who had already scheduled
and time-sensitive personal activities for leave that had already been approved, or which they
reasonably expect would be approved. Workers so affected found out about the new policy
sporadic basis over the next several days.
13. On March 19, Kerr, Winkelmann, Kreiter, Lukas, Staszewski and Union
Allen met to discuss workload, scheduling and cost issues, including the new policy of
managing-to-rule the vacation policy March 16-April 1 and the potential impact of the many
outstanding. No minutes were made of this meeting. At this meeting Kerr commented on
potential economic impact of the grievances, especially the higher operating costs that would
if the union prevailed on the overtime grievances. At no time either in preparation for that
at that meeting, or subsequent to that meeting, has the County provided the Union and
written statement regarding the nature and explanation of the new policy of managing
to rule March 16-April 1.
14. At the time of hearing, the workload situations that arose out of the weather
conditions in December 2000 had been addressed, and the discretion to grant unscheduled
in a manner consistent with the permissive practice that had been in place prior to
decision to manage the vacation policy to rule from March 16-April 1, 2001 had been
Lukas, so that Winkelman anticipated that, barring emergency, more than one worker would
to get off on any particular day during the coming winter maintenance seasons.
15. The County's decision to manage the vacation policy to rule March 16-April
had a reasonable tendency to interfere with the employee's exercise of their statutory rights
form and/or assist a labor organization.
16. The County had a valid business reason for managing the vacation policy to
March 16-April 1, 2001.
On the basis of the above and foregoing Findings of Fact, the undersigned hereby
issues the following
Dec. No. 30179-B
CONCLUSION OF LAW
Because it had a valid business reason to limit unscheduled vacation to one employee
from March 16-April 1 2001, the County did not interfere with, restrain or coerce municipal
employees in the exercise of their rights guaranteed in sec. 111.70(3)(a)2, Wis. Stats., and
not violate either that statute or sec. 111.70(3)(a)1, Stats.
On the basis of the above and foregoing Findings of Fact and Conclusions of Law,
undersigned hereby makes and issues the following
That the complaint filed in the instant matter be dismissed in its entirety.
Dated at Madison, Wisconsin, this 3rd day of November, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dec. No. 30179-B
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSIONS OF LAW AND ORDER
POSITIONS OF THE PARTIES
In support of its position that the complaint should be sustained, the Union asserts
The ultimate issue is whether management's decision to impose a one-man per crew
rule when considering requests for unscheduled, but earned time-off was intended to
coerce the union into abandoning five grievances which had been filed in the four days
prior to management's adoption of the new policy.
The circumstances of employee requests for unscheduled days off and the
unprecedented rejection of their requests were imposed regardless of staffing
requirements. They also testified to statements made by various members of
management relating the rigid imposition of the rule to the filing of the five
grievances. Predictably enough, management uniformly denies that any of the
statements allegedly made by them had ever been uttered.
Contrary to management's assertions, there was no urgent carousel repair work
performed during the time in question; no work orders were produced carrying
management's burden to show that the impact of high priority demands on staffing
precluded permitting any exception to the one-man per shift rule.
In denying time off, management relied on a work rule that expressly provides that
"only one person per crew will be permitted to be offHowever, additional
employees may be granted time off " Implicit in the authorization to grant
additional employees off is that discretion would be exercised. An arbitrary decision
based on a rigid, self-serving interpretation of what was intended as a flexible standard
is not the exercise of discretion, but an abuse of discretion. Such an abuse of
discretion is a violation of the implicit right of the employee to rely on a reasonable
exercise of the power management reserved for itself.
Certainly, the rule literally applied, as limited to one-man per crew, was not intended
to provide management with a weapon to compel its employees to yield to
management demands and forego the contract right they have to file grievances.
Dec. No. 30179-B
Management's arbitrary imposition of the one-man per shift rule made routine
housekeeping assignments a staffing imperative. Their pious declarations in this
regard does not meet the smell test, and poisons efforts to establish and maintain good
labor relations between the parties.
The complainant has met its burden in establishing that the alleged prohibited practice
occurred. There was the extraordinary coincidence of the filing of the grievances in
the several days prior to the summary and rigid implementation of the one-man rule;
the history of the application of the work rule; the stark contrast between
management's official position in their answer and the meandering obfuscation they
placed on the record in a failed attempt to rationalize their action; and the failure to
support their position with documentation at the hearing and the inexplicable post-hearing
assertion that the subpoenaed records did not exist when their sworn
testimony asserted that the records in question were kept by management and
In support of its position that the complaint should be dismissed, the County asserts
By stating that the question at hand was whether management used coercive and
intimidating tactics to discourage the union members from filing grievances, the union
has restricted its complaint and effectively abandoned the claims of contract violation
and/or union domination.
The Union complaint attributes certain statements to Chris Lukas. But the fact is
those comments did not even occur. The record is clear. There is no evidence of
any such statement imputed to Lukas. The entirety of the claim hinges upon
connecting the Lukas statement with the supposed change in practice. Since one
thing did not happen, there can be no cause and effect. Further, the second part of
the equation, change in practice did not happen either. The claims fails.
The Union has asserted that a long standing past practice was somehow vitiated. This
bears no relevance to the charges at bar, nor is it true. The labor agreement controls.
The alleged past practice here is not one that meets the common definition. And even
if there were a past practice, it cannot contradict the clear language of the agreement
or interfere with the county's carrying out its responsibilities. The labor contract
reserves to the county the right to assign, schedule and mobilize the work force
appropriate to the task. There was no past practice.
Dec. No. 30179-B
The Union further claims that unidentified employees were denied requested
liquidation of vacation time when no weather or other emergency facts were evident.
If true, this is of no moment. The scheduling of time off is governed by work rules.
The work rules and their legitimacy are not and have not been challenged in this or
any other forum. These rule provide the basis for considering of time off driven not
only by weather but also chiefly by departmental workload. Management merely
applied the work rules as agreed to in the collateral and reserved to it in the collective
The Union alleges that certain statements attributed to Jim Kerr somehow had a
chilling effect on filing grievances. The Union presented no evidence as to the number
of grievances filed before or after this purported statement. Further, no witness ever
claimed any chilling effect.
The Union alleges that John Sifuentes made to statement to Mark Genske. The facts
prove otherwise, namely that Genske himself made the statement.
The Union case fades in the clear light of the record. The Union's own witnesses
contradict the allegations of the complaint.
The argument as to past practice is just that argument which has nowhere
proved up. The evidence is that past practices were abolished by the union agreement
to the collateral agreement and subsequent work rules.
There is no evidence in the record that any action was retaliatory as to any protected
conduct. Scheduling went on as before. No change in staffing is claimed or shown
except as dictated by weather and staffing requirements.
Even Union witnesses could not confirm with clarity the supposed statements by Kerr
regarding the so-called chilling effect.
In response, the Union posits further as follows:
The County's statement of the case is substantially flawed, in that the county
witnesses themselves testified that the union was not notified of the change. Also, the
collateral agreement contains the "smoking gun" in this matter.
The Union based its complaint on the coincidence of the filing of five grievances
regarding overtime and seniority issues and the resulting response of the County
Dec. No. 30179-B
to terminate a past practice that permitted more than one-man-per crew to use
available off-days in the absence of inclement weather or emergency factors.
The work rules transmitted to union members did not contain a provision abolishing
past practices as a limitation on the County's right to schedule work. However, the
work rules as distributed to the Union did not include the modification made by the
county's labor relations director in a letter incorporated into the final, executed
Failure to follow the established past practice or request bargaining to make a change
was, by itself, a prohibited practice. Had the local been aware of the amendment and
its implications, their complaint would/could have included it as a specific allegation.
The County argues that a past practice has not been established. Based on the
extensive record, this is a specious argument.
The County argues that there is no proof that the implementation of the
one-man-per-crew rule was in retaliation for the filing of the multiple grievances in the
before management adopted that portion of the rule as an inflexible mandate. This is
a fact-based question and will turn largely on the credibility of the witnesses and the
circumstantial evidence, such as timing, absence of documentary proof of emergency
factors, etc. These considerations are the exclusive province of the examiner.
The County baldly asserts that the sworn testimony of union witness Staszewski does
not support the allegation because the statement imputed to management official
Lukas could not have been made as alleged by Staszewski. The County's assertion
is based on a misreading or a deliberate distortion of the testimony, in that Lukas was
indeed at work on the day the alleged statements were said to have been made.
The County's reliance on the collateral agreement as a bar to the complaint is a
chimerical supposition in light of the amendment by the labor relations director. The
testimony clearly established the past practice applied to the on-man-per-crew rule
and the County did not deny either the policy or the practice. It acknowledged both,
but claimed an exception not grounded in the collateral agreement or the work rules.
Dec. No. 30179-B
On March 15, 2001, management at the General Mitchell International Airport
changed an established policy of allowing more than one airport maintenance workers to be
unscheduled leave, decreeing that until the end of the winter maintenance season on April 1
enforce the existing work rule of allowing only one such leave per day. By this action, the
alleges, the County violated Sections 111.70(3)(a) 1, 2 and 5, Wis. Stats. The County denies
Analysis of 111.70(3)(a)5 Complaint
Section 111.70(3)(a)5, Wis. Stats., makes it a prohibited practice for an employer to:
To violate any collective bargaining agreement previously
agreed upon by the parties
respect to wages, hours and conditions of employment affecting municipal employees,
including an agreement to arbitrate questions arising as to the meaning or application of the
terms of a collective bargaining agreement. . . .
The Commission has had a long-standing policy of refusing to assert jurisdiction to
the merits of breach of contract allegations where the parties' labor contract provides for
binding arbitration of such disputes and where that arbitration procedure has not been
School Dist. No. 1, City of Green Bay et al., Dec. No. 16753-A, B (WERC,
12/79); Board of
School Directors of Milwaukee, Dec. No. 18525-B, C (WERC, 6/79); Oostburg Jt. School
District, Dec. No. 11196-A, B (WERC, 12/79). Given that policy, the availability of
arbitration, and the fact that the Union filed grievances relating to the use of paid vacation
compensatory time-off benefits, I dismissed at hearing that part of the complaint alleging
of Sec. 111.70(3)(a)5, Stats.
Analysis of Alleged Violation of Sec. 111.70(3)(a)1,
Section 111.70(3)(a)1, Stats., makes it a prohibited practice for a municipal
1. To interfere with, restrain or coerce municipal employes in the
their rights guaranteed in sub. (2).
Section 111.70(2), Stats., describes the rights protected by Sec. 111.70(3)(a)1, Stats.,
Dec. No. 30179-B
(2) RIGHTS OF MUNICIPAL EMPLOYES. Municipal employes shall have the
right of self-organization, and the right to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in
lawful, concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
The statutes thus protect the rights of employees and their union to file and prosecute
grievances alleging violations of the collective bargaining agreement.
To establish a claim of interference, a complainant must establish by a clear and
preponderance of the evidence that the respondent's conduct contained either some threat of
or promise of benefit which would tend to interfere with, restrain or coerce employees in the
of their section (2) rights. WERC v. Evansville, 69 Wis.2d 140 (1975); Juneau County,
12593-B, (WERC, 1/77). It is not necessary to demonstrate that the employer intended its
to have such effect, or even that there was actual interference; instead, interference may be
by showing that the conduct has a reasonable tendency to interfere with the exercise of
rights. City of Brookfield, Dec. No. 20691-A, (WERC, 2/84). If the conduct in question
reasonable tendency to interfere with the exercise of Sec. 111.70(2) rights, a violation will be
even if the employer did not intend to interfere and no employee felt coerced or was, in fact,
from exercising Sec. 111.70(2) rights. Beaver Dam Unified School District, Dec.
(WERC, 5/84); City Of Brookfield, DEC. NO. 20691-A (WERC, 2/84); Juneau County,
12593-B (WERC, 1/77). However, employer conduct which may well have a reasonable
to interfere with an employee's exercise of Sec. 111.70(2) rights will generally not be found
Sec. 111.70(3)(a)1 if the employer had valid business reasons for its actions. D.C.
School District, Dec. No. 29946-L (Burns, 8/03); City of Brookfield, Dec. No. 20691-A
(WERC, 2/84); Cedar Grove-Belgium Area School District, Dec. No. 25849-B (WERC,
5/91); Central High, Dec. No. 29671-B (Mahwinney, 5/00); Brown County, Dec. No.
(WERC, 12/96); City of Oconto, DEC. NO. 28650-A (Crowley, 10/96), aff'd by operation
law, DEC. No. 28650-B (11/96); Milwaukee Board of School Directors, Dec. No.
As to the disputed facts, the Union is right on several key points.
As the Union alleges, the record establishes that over an extended period of time, the
applied the duly promulgated work rules to permit several maintenance workers to be off
during the winter maintenance season. While the record does not support the union's claim
full 17 were routinely off, the testimony of three airport managers supports a finding of
application of the staffing rules. Winkelmann himself testified
Dec. No. 30179-B
that this episode was the first time in his tenure of about 6 years that he had told Lukas
to deny all
leave beyond one per crew for the remainder of the winter maintenance season. It was this
understanding of the work rules and collateral the routine approval of daily,
-- that the parties mutually endorsed on December 27, 1998.
As the Union alleges, the record further establishes that in the immediate aftermath of
union filing five overtime and related grievances, the County unexpectedly and unilaterally
a new policy of managing-to-rule and thereafter allowed only one worker off per shift for the
remaining two weeks of the winter maintenance season.
As the Union alleges, the record further establishes that County managers and
gave oral presentations to the Union which included references to potential costs attendant on
grievances and other workload and staffing concerns.
Finding these facts does not, however, inexorably lead to the conclusion of law that
County committed prohibited practices.
I believe that management's suspension of an established leave policy in the
aftermath of the union filing a series of grievances over hours of work and overtime would
reasonable tendency to interfere with an employee's exercise of statutory rights. That is,
Union files five grievances between March 12 and March 15, and management suddenly
will "manage to rule" and deny the kinds of leaves previously granted, it would be
reasonable for an
employee to infer that management was reacting to the grievances.
Thus, the question now turns to the legitimacy of the employer's "business reason"
The valid business reason defense "is not a complete shield
to liability, and the mere ability
to articulate a legitimate business reason for an action does not defeat a claim" of
of Wisconsin (Corrections), Dec. No. 30340-A (Nielsen, 8/03). As the Commission has
in another case involving state employees under a companion statute, it is "clear that the
of the legitimate business interest in conflict reduction needs to be balanced against the
statutory rights when we determine whether a statutory violation has occurred." Department
Corrections, Dec. No. 29448-C (WERC, 8/00). The traditional mode of analyzing whether
violation has occurred has involved "a balancing of the interests at stake of the affected
employes and of the municipal employer to determine whether, under the circumstances,
of the protections of the interference and restraint prohibitions would serve the underlying
of the act. Id. at 22-23. See also, Kenosha Board of Education, Dec. No. 6986-C
Racine Unified Schools, Dec. No. 29074-B (Gratz, 4/98), aff'd Dec.
No. 29074C (WERC, 7/98)
at pps. 14-15.
Dec. No. 30179-B
In undertaking to weigh the balance as the Commission has called for, I find it useful
assess the degree of the employer's culpability. That is, the more egregious the employer's
interference, the higher its burden of establishing a valid business defense.
At hearing and in its written arguments, the Union has used highly colorful language
describe what it sees as the malicious and malevolent county action. It based its analysis on
coincidence of timing (the change in scheduling policy took place immediately after the filing
grievances) and what it said were contemporaneous admissions by county managers. While
of the grievances and the change in scheduling policy are easily established on the record, an
understanding of the non-written evidence is more difficult to attain.
The Union's complaint highlights three instances in which it alleges that County
supervisors made incriminating comments. Because John Sifuentes was not involved in
new scheduling policy, and his conversation with Local 882 member Genske took place after
winter maintenance season had ended, I do not consider the Union's allegation concerning his
comments to be dispositive. The comments purportedly made by Lukas and Kerr, however,
high importance, as is the testimony of Winkelman, the actual author of the new policy.
I have discussed the Lukas/Staszewski meeting in Finding of Fact 9, and therein note
underlying conflict in their testimony about that event. The essential question between the
County interpretation of this meeting is that between correlation and causation. As recalled
Staszewski and interpreted by the union, Lukas gave a causal interpretation
of the relationship
between the grievances and the new policy. Staszewski testified that Lukas said he was
to impose the new leave policy "because of all these grievances about this
overtime issue," testimony
which corresponds roughly to paragraph C-1 of the complaint. Lukas denied making the
in the complaint, but testified that, "I explained to him (Staszewski) that due to staffing
I've encountered through the winter, discussions I had with Mr. Winkelmann on the
influences, factors that had fallen in and the difficulty I had when I did cut back to one
the jobs on the forefront that I was intending and discussions with Mr. Winkelmann that we
go strictly with the one approved only for the duration of the following two weeks." While
causality, Lukas does describe a correlation between the events. Thus, it is
not difficult to find that
both Lukas and Staszewski testified truthfully.
Nor is it hard to see how Kerr's testimony corresponds to an allegation in the
complaint. At paragraph C-3, the Union alleges that at the meeting of the
19th, Kerr said that "because
of the potential economic impact of paying of the overtime grievance we have to eliminate
possibility of this ever happening again." Kerr denied making the statement as
Dec. No. 30179-B
alleged but confirmed its essence by testifying that the "reference to potential economic
"reasonably correct." Kerr testified that cost control was "of very great concern," and that
"conversation concerning the overall impact issue on the table" included the "economic
of maintaining a lot of people (on) time off," which could "result in greater overtime cost,
expense to the airport." That, Kerr testified, "was one part of the concern here."
The fatal flaw in the Union's case here is that even Kerr's statement as alleged in the
complaint is not necessarily violative of MERA. The statement as alleged simply reflects
management is taking the grievances seriously and projecting cost and staffing considerations
case it loses. The Union had just filed five grievances concerning the relationship of
overtime opportunities, all with several make whole and prospective remedies, all of which it
presumably felt were meritorious. It was entirely appropriate for management to calculate a
potential economic impact if it lost any or all of the grievances, and to plan for that
Indeed, knowing of the potential liability of losing the grievances, the County would have
its duty to manage the enterprise if it had not undertaken such planning. Further, Union
on the grievances would have led to higher costs due to the need to pay overtime to
who had been on vacation when the need arose. Faced with the prospect of unexpectedly
overtime costs, and knowing the futility of seeking sufficient revenue from the airlines, the
was within its rights to seek to minimize that impact by limiting, to the extent allowable
collective bargaining agreement, use of unscheduled vacation for the remainder of the winter
maintenance season. I express no opinion, of course, on the question of whether the
action was or was not consistent with the collective bargaining agreement.
Finally, there was the testimony of Winkelman, the manager who actually made the
decision to manage to rule the last two weeks of the winter maintenance season. He testified
he made this decision at that time because that was when Lukas brought the workload
his attention, and the Union offered no convincing evidence to rebut that assertion.
Thus, while the County's action in managing to rule March 16-April
1 had the effect of
interfering with protected rights, the Union has not established by a preponderance of the
that it was the County's intent to do so. This understanding informs my
evaluation of the County's
business necessity defense.
As to this defense, the County claims that the excessive snows of December had left
lingering load of work orders. County managers and supervisors Winkelmann, Kerr, Lukas
Sifuentes all testified as to the heavy workload, and the need for a full complement of
all shifts. Kerr and Winkelmann further testified to the particular expectations of the
the difficulty the County faced in assessing higher rates and hiring more
Dec. No. 30179-B
workers. The airport management staff had also been alerted by DPW Human
Resources to watch
the extent to which employees were carrying vacation over into the winter months.
In further explaining the County's necessity defense for its Friday abrogation, Lukas
the tear-down and repair of a baggage carousel, which he claimed was scheduled for the
Following protracted litigation, the record includes a substantial pile of unit work
records. Since neither party has seen fit to offer any assistance in analyzing these raw
can only apply my own understandings.
As I review the documents, I find that for the period March 5-March 16, there were
workers on the first shift (21 Monday-Friday, the rest Thursday-Monday). Out of over 250
work assignments, fewer than ten dealt with conveyor maintenance.
Starting on March 19, however, four employees were assigned to conveyor
day for two weeks, for 40 separate assignments. Surely, a 300% increase in a particular
represents such a significant reallocation of resources as to establish, at a minimum, that the
employer's necessity defense is not subterfuge.
The winter had brought substantial snowfall. The airlines were not allocating funds
additional personnel. Lukas has already cancelled unscheduled vacations and leaves to
workload. A major project was looming. For the ensuing winter maintenance seasons,
testified under oath that discretion would be returned to Lukas to grant unscheduled vacations
the prior permissive policy, subject to weather and other exigent circumstances. On balance,
this accumulation of supporting indicia is sufficient to establish that the County had a valid
reason for "managing-to-rule" the last two weeks of the 2000-2001 winter maintenance
Accordingly, I have dismissed the Union's complaint alleging interference, restraint and/or
under Sec. 111.70(3)(a)1, Stats.
In its presentation at hearing and written arguments, the Union repeatedly and
raised the specter of retaliation as motivating the employer's actions. However, while
retaliation was at the heart of the County's actions, the Union declined to allege a violation
111.70(3)(A)3, the appropriate statute for addressing such a purported prohibited practice. I
decline to examine whether a violation of that statute occurred.
Nor can I address the Union's implicit assertion of a violation of 111.70(3)(a)4,
precisely because it is only implied.
Dec. No. 30179-B
It is well-established that the employer has a duty to provide information for both
bargaining and contract administration. The statutory duty to bargain in good faith under
includes a requirement that, where appropriate, municipal employers provide the collective
representative of their employes with information that is relevant and reasonably necessary to
bargaining a successor contract or administering the terms of an existing
added). City of Marshfield, Wastewater Treatment Plant, Dec. No. 28937-B (WERC,
3/98); Moraine Park VTAE, Dec. No. 26859-B (WERC, 8/93). The "applicable standard
relevancy is a very liberal one." Madison School District, Dec. No. 28832-B (WERC, 9/98).
While the legal questions in a complaint alleging a violation of (3)(a)4 and (3)(a) 1 are 2 are
the policy in play in a (3)(a)4 complaint to provide the employees and union with
information "necessary to administering the terms of an existing agreement" is also
present in complaints alleging violations of Secs. (3)(a) 1 and 2.
The County puts such stock in the work rules that it requires the employees to give
receipts. The work rules which the members of Local 882 signed for in January 1999
an understanding that the policy on unscheduled leave during the winter months allowed for
employees to be off on any shift, pending weather or exigent circumstances. On March 15,
Winkelmann changed that policy, but failed to notify the recipients of the original work rules
de facto amendment, either individually or through union leadership.
As part of the remedy identified in its complaint, the Union sought orders directing
county to "cease and desist changing of past practices without notification" to the leadership
District Council 48 and "cease and desist bypassing authorized representatives" of the Union
"negotiating hours and working conditions and attempting to coerce withdrawal of grievances
with individual Union members." While I did not dismiss these aspects of the complaint at
hearing, I did note in my letter of April 8, 2003, that these were remedies a remedy most
associated with a violation of sec. 111.70(3)(A)4, and I invited the parties to comment on the
question of whether "the pleadings in this proceeding should be amended to allege a
that statute. The Union never responded in any meaningful manner to my letters of April,
July and September, 2003, however, and declined to allege a violation of this provision.
Accordingly, because the Union's failure to allege a violation of Sec. 111.70(3)(A)4
from finding a violation thereof, I cannot order the relief such a violation would occasion. I
leave unanswered the question of Winkleman's duty, if any, to notify union leadership of his
decision to manage the unscheduled vacation to rule. I do note, however, that the
dissension and confusion that ensued from Winkelman's decision to manage the vacation
rule could have been avoided if the County had communicated with the workforce in a more
Dec. No. 30179-B
comprehensive manner. That is, rather than relying on hit-and-miss shop floor
simple memorandum from Winkelman and Lukas, explaining what the County was doing and
why, would have made things easier for everybody. To paraphrase the adage, an ounce of
explanation is worth a pound of litigation.
Dated at Madison, Wisconsin, this 3rd day of November, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION