On May 20, 2003, Examiner Richard B. McLaughlin issued Findings of Fact,
of Law and Order concluding that Respondent County had not terminated Complainant
employment out of hostility to her exercise of her rights under
Sec.111.70(2), Stats., and thus had
not committed a prohibited practice within the meaning of Sec. 111.70(3)(a)3, Stats.
Examiner also concluded that "County employees could reasonably perceive Complainant's
termination on January 16, 2002, as retaliation for her lawful, concerted activity," which
reasonable tendency to interfere in employee exercise of rights set forth in Sec. 111.70(2),
violation of Sec. 111.70(3)(a)1, Stats."
As a remedy for the violation of Sec. 111.70(3)(a)1, Stats., the Examiner ordered the
to cleanse Ms. Finkelson's personnel record of references to her having been involuntarily
to ensure that future employment references would be consistent with the change in her
make Ms. Finkelson "whole" by reimbursing her for the attorney's fees and costs she
processing the complaint through the evidentiary hearing on February 12, 2003, plus interest,
post a Notice to Courthouse employees.
Dec. No. 30361-B
Dec. No. 30361-B
On June 9, 2003, Ms. Finkelson filed a timely petition for review of the Examiner's
with the Commission pursuant to Secs. 111.07(5) and 111.70(4)(a), Stats., followed by a
support of her petition for review on July 1, 2003. The County filed a brief in opposition to
petition for review on July 21, 2003 and Ms. Finkelson filed a reply brief on August 11,
On September 12, 2003, the Commission heard Examiner McLaughlin's impressions
demeanor of witnesses during hearing.
Having reviewed the record and being fully advised in the premises, the Commission
and issues the following
A. The Examiner's Findings of Fact 1 - 10 are affirmed.
B. The Examiner's Finding of Fact 11 is modified as follows:
Dec. No. 30361-B
C. The Examiner's Findings of Fact 12 - 16 are affirmed.
D. The Examiner's Finding of Fact 17 is modified as follows:
Dec. No. 30361-B
considered a serious performance problem. Ms. Johnson
Ms. Finkelson had also corresponded with a minor child concerning
a parent's support efforts, in a fashion Ms. Johnson believed
Prior to suggesting that Ms. Johnson terminate Ms. Finkelson,
Ms. Petkovsek did not consult non-supervisory employees concerning
Ms. Finkelson's attitude toward work, toward management, or toward
other County employees. Prior to terminating Ms. Finkelson, Ms.
Johnson also made no such inquiry, except in her periodic discussions
with Ms. Finkelson and Ms. Jasmer, concerning Ms. Finkelson's
progress during the probation period.
During her probationary period, Ms. Finkelson's wages,
hours and conditions of employment were established by the collective
bargaining agreement between the Union and the County.
E. The Examiner's Finding of Fact 18 is reversed as follows:
18. Ms. Petkovsek and County Board Chairman Ralph
Landini, in suggesting that Ms. Johnson consider taking action against
Ms. Finkelson, and Ms. Johnson in terminating Ms. Finkelson, acted
at least in part out of hostility to Ms. Finkelson's expressions of
concern about the differences between the Ratification Document and
the Spreadsheet and the assertive manner in which Ms. Finkelson
voiced her concerns about said differences.
F. The Examiner's Conclusions of Law 1 - 3 are affirmed.
G. The Examiner's Conclusion of Law 4 is set aside and the
following Conclusion of Law
4. Ms. Finkelson's expressions of concern about the
differences between the Ratification Document and the Spreadsheet,
including the manner of her expression, were lawful, concerted
activities within the meaning of Sec. 111.70(2), Stats.
Dec. No. 30361-B
H. The Examiner's Conclusion of Law 5 is reversed as follows:
5. By terminating Ms. Finkelson's employment at least in
part out of hostility towards her lawful concerted activity, the County
discriminated against Ms. Finkelson in the exercise of her rights
guaranteed under Sec. 111.70(2), Stats., in violation of Sec.
I. The following Conclusion of Law is made:
6. By the conduct set forth in Conclusion of Law 5,
above, the County has interfered with, restrained and coerced its
employees in the exercise of their rights guaranteed under
Sec. 111.70(2), Stats., in violation of Sec. 111.70(3)(a)1, Stats.
J. The Examiner's Order is affirmed in part and reversed in part as follows:
Respondent Clark County, its officers and agents, shall immediately:
(a) Cease and desist from interfering with, restraining or coercing
Finkelson or any of its employees in the exercise of their rights
guaranteed in Sec. 111.70(2), Stats.
(b) Cease and desist from discriminating against Barbara Finkelson
of its employees for engaging in lawful concerted activity.
(c) Take the following affirmative action which the Commission
effectuate the purposes of the Municipal Employment Relations Act:
(1) Immediately offer to reinstate Barbara Finkelson
position on a non-probationary basis and without loss of
seniority and benefits. Make Finkelson whole by paying her
all wages and benefits she would have earned, less any amount
she earned or received that she would not otherwise have
received but for her termination, plus interest at the rate of
twelve percent (12%) per annum 1/ on said amount
date of her termination to the date she is reinstated or refuses
1/ The applicable interest rate is that set forth in Sec. 814.04(4),
Stats., in effect at the time the complaint is
initially filed with the agency. Wilmot UHS, Dec. No. 18820-B (WERC, 12/83), citing
Anderson v. LIRC, 111
Wis. 2d 245 (1983), and Madison Teachers, Inc. v. WERC, 115 Wis.2d 623 (Ct. App. IV
Dec. No. 30361-B
(2) Expunge from Ms. Finkelson's personnel file(s) any
to her termination on January 16, 2002.
(3) Notify all of its employees in the Courthouse bargaining unit
represented by Clark County Courthouse Employees,
Local 546-B, AFSCME, AFL-CIO by posting in conspicuous
places where employees are employed copies of the Notice
attached hereto and marked "Appendix A". That Notice shall
be signed by the Chairperson of the Clark County Board of
Supervisors and shall be posted immediately upon receipt of
a copy of this Order and shall remain posted for thirty (30)
days thereafter. Reasonable steps shall be taken by the County
to insure that said notices are not altered, defaced, or covered
by other material.
(4) Notify the Wisconsin Employment Relations
writing, within twenty (20) days following the date of this
Order, as to what steps have been taken to comply herewith.
Given under our hands and seal at the City of Madison, Wisconsin, this 28th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Judith Neumann, Chair
M. Bauman, Commissioner
Commissioner Paul Gordon did not participate.
Dec. No. 30361-B
NOTICE TO ALL CLARK COUNTY COURTHOUSE EMPLOYEES
REPRESENTED BY CLARK COUNTY COURTHOUSE EMPLOYEES,
LOCAL 546-B, AFSCME, AFL-CIO
Pursuant to an Order of the Wisconsin Employment Relations Commission, and in
effectuate the policies of the Wisconsin Municipal Employment Relations Act, we hereby
1. WE WILL immediately offer to reinstate Barbara
position in the County Child Support Agency on a non-probationary basis and
we will make her whole for all wages and benefits lost as a result of her
2. WE WILL NOT interfere with, restrain or coerce Barbara
Finkelson or any
other employees in the exercise of their rights pursuant to the Municipal
Employment Relations Act.
3. WE WILL NOT discriminate against Barbara Finkelson or any
employees because of their having exercised their rights pursuant to the
Municipal Employment Relations Act.
Dated this ________ day of ___________, 2003.
Clark County Board of Supervisors
THIS NOTICE MUST REMAIN POSTED FOR THIRTY
FROM THE DATE HEREOF AND MUST NOT BE ALTERED OR
COVERED BY ANY OTHER MATERIAL.
Dec. No. 30361-B
The issue in this case is whether the County violated the Municipal Employment
(MERA) by terminating Barbara Finkelson's employment at the conclusion of her
based upon her assertive protests over the manner in which the County intended to implement
wage adjustments affecting the bargaining unit in which Ms. Finkelson was included.
For the reasons
set forth below, we reverse the Examiner's conclusion that the County did not thereby violate
111.70(3)(a)3, Stats., and affirm his conclusion that the County thereby violated Sec.
Stats., albeit based on a different rationale. To remedy the County's violation of Secs.
and 3, Stats., we order reinstatement, back pay, and the posting of a notice to employees.
On March 15, 2002, Ms. Finkelson filed a complaint of prohibited practice alleging
County (the County) had violated Sec. 111.70(3), Stats., by terminating her employment for
rights protected by Sec. 111.70(2), Stats. By order dated May 31, 2002, the Commission
Richard B. McLaughlin, a member of its staff, to act as Examiner. Hearing on the matter
was set for
July 24, 2002, and on June 10, 2002, rescheduled to August 19, 2002. On August 28, 2002,
County filed its answer to the complaint. After several postponements requested by the
hearing was held in this matter on January 15, 2003 and February 12, 2003 in Neillsville,
On the first day of hearing, Ms. Finkelson amended her complaint without County objection
specify that the County had violated Secs. 111.70(3)(a)1 and 3, Stats. A transcript of the
filed with the Examiner on March 10, 2003. The parties filed briefs and reply briefs with
Examiner by April 18, 2003 and the Examiner issued his decision on May 20, 2003.
SUMMARY OF THE FACTS
We have largely adopted the Examiner's Findings of Fact, with the key exception of
that County officials acted without unlawful hostility in terminating Ms. Finkelson's
the last day of her probationary period. As discussed below, we conclude that the County
Ms. Finkelson at least in part (indeed, almost exclusively) out of hostility toward her
lawful, concerted activity protected by MERA. We summarize the relevant facts as follows.
On January 17, 2001, Ms. Finkelson began working for the County Child Support
as a Child Support Specialist II. As such, she was represented for purposes of collective
by the Clark County Courthouse Employees, an AFSCME local. The applicable collective
agreement, as well as County personnel policies, required Ms. Finkelson to serve a
probationary period. The policies allowed the department head to extend the probationary
"for up to an additional six months . . . for substantial
Dec. No. 30361-B
and documented reasons." The policies further provided that "Employees shall be
upon the adequacy of their performance. Each employee's job performance shall be
evaluated by their
department head/supervisor periodically but on no less than an annual
basis. . . ."
The County trained Ms. Finkelson by having her observe a co-worker, Gail Jasmer,
performed her work. After about three weeks, Ms. Finkelson began to process files under
observation of Ms. Jasmer or the other Child Support Specialist, Lori Schultz. After about
weeks, Ms. Finkelson began processing files on her own. Eventually Ms. Finkelson's
reached approximately 300 files, the average number handled by Child Support Specialists.
Ms. Finkelson's supervisor during her employment by the County was Colleen
Director of the Child Support Agency. Early on in Ms. Finkelson's employment, she met
Johnson briefly to check on how her training was progressing. Ms. Johnson did not express
concerns to Ms. Finkelson about job performance during these meetings. Ms. Johnson kept
a set of
personal notes regarding the employees she supervised in order to help her prepare for
In Ms. Finkelson's case, Ms. Johnson's notes indicated concerns about Ms. Finkelson's
assertive attitude displayed, for example, during staff meetings and with regard to an
training seminar, as well as overconfidence in her ability to handle cases without seeking
more experienced colleagues. However, Ms. Johnson did not evaluate Ms. Finkelson during
probationary period and had not consulted the notes before making the decision to terminate
employment. Indeed, Ms. Johnson clearly testified that nothing in those notes, had
them, would have led her to terminate Ms. Finkelson. Nor had any other County officials,
Ms. Petkovsek, raised concerns about Ms. Finkelson's job performance prior to her
Prior to Ms. Finkelson's employment, the County had contracted with Carlson
Associates, LLC (Carlson) for a classification and compensation study affecting many of the
employees in the bargaining unit, including the Child Support Specialists. The process
employee questionnaire, interviews, and ongoing dialogue among Carlson, the County, and
Union, as well as publication of preliminary conclusions subject to an appeal procedure for
who contested the accuracy of the preliminary job analysis. In late spring 2001, Carlson
its preliminary conclusions, including slotting positions into classifications within pay grades.
On May 11, 2001, all Child Support Specialist II's, including Ms. Finkelson, filed an
asserting that Carlson had incorrectly graded their positions. Ms. Johnson supported the
on September 5, 2001, the Carlson study issued its final recommendations, which,
inter alia, upgraded
the Child Support Specialist II position from where it had been classified in the preliminary
Thereafter the County and the Union bargained over wage issues related to the classification
and, on December 4, 2001, reached tentative agreement on a wage schedule to cover 2002
Dec. No. 30361-B
Prior to the Union ratification vote regarding the tentative agreement, scheduled for
December 10, 2001, the Union distributed a summary of the tentative agreement, which the
referred to as the Ratification Document. The Ratification Document included a three-page
costing-out spreadsheet showing individual wage rates pursuant to the agreed-upon wage
the reclassification itself, as well as employee changes in position and movement through the
during the process of reclassification, had complicated the process of costing out the
Hence, the spreadsheet data in the Ratification Document was based upon certain
were clearly set forth in the document. One of those assumptions was that each employee
at the 18 Month Step, although some had not yet actually reached that step. At the
2001 ratification meeting, Union officials explained this assumption and the result, i.e., that
Spreadsheet did not state the actual wage rate for those employees who had not yet reached
Month Step. Both Ms. Schultz and Ms. Finkelson had not yet reached the 18 Month Step
were affected by the assumption. Ms. Schultz attended the ratification meeting. Ms.
as a probationary employee was not a member of the Union, did not attend. The Union
After ratification, the County generated actual wage schedules, referred to as the
for distribution to employees. Ms. Petkovsek knew that some employees would be
because the Spreadsheet would show their actual wage rate as lower than the one set forth on
costing-out schedules distributed with the Ratification Document. She asked the department
including Ms. Johnson, to provide employees with the Spreadsheet and also to inform them
Petkovsek would make herself available to answer questions.
On Friday, January 11, 2002, Ms. Johnson gave Ms. Schultz a copy of the
pointing out and discussing the differences between it and the Ratification Document. Ms.
was upset by the information and thereafter discussed it with Ms. Finkelson. That
afternoon, at Ms.
Johnson's request, Ms. Petkovsek met with Ms. Schultz, Ms. Finkelson, and Ms.
Johnson at the Child
Support Agency. During that meeting, Ms. Petkovsek tried to explain the discrepancy
Spreadsheet and the Ratification Document, but Ms. Finkelson and Ms. Schultz expressed
that the wage discrepancy was due to a mistake or oversight, and/or that there had been
misrepresentation to employees at the ratification meeting. Ms. Finkelson believed Ms.
especially upset about the situation but was not suited by personality to confrontation.
Ms. Finkelson took it upon herself to be the main spokesperson and was quite forceful
in expressing her view that the County had a special responsibility, as a public entity, to
mistake. At one point during the meeting, she rose up slightly out of her chair and placed
on the table to emphasize her words. The two employees left the meeting unconvinced by
Ms. Petkovsek's explanation. Ms. Petkovsek was offended by Ms. Finkelson's
manner during this
meeting. However, both Ms. Johnson and Ms. Petkovsek acknowledged that
Ms. Finkelson had not
been hostile, angry, threatening, or abusive.
Over the weekend, Ms. Schultz consulted Union officials about the discrepancy and
Monday morning, January 14, informed Ms. Finkelson that the Union was unwilling to alter
schedule. Later that morning, Union officials met with Ms. Schultz, as well as
Dec. No. 30361-B
Ms. Johnson and two other employees in the Department, to discuss the issue.
Ms. Finkelson was
also present for a portion of the meeting. The Union officials gave the same explanation as
Petkovsek had given, which was similarly unsatisfying to Ms. Schultz and
Ms. Finkelson. At the
conclusion of the meeting, the Union officials informed Ms. Schultz that she had a right to
grievance. Shortly afterwards, Ms. Schultz, Ms. Finkelson, and Ms. Jasmer met to discuss
possibility of a group grievance and Ms. Finkelson advised Ms. Schultz that, if the
decision were hers
(Finkelson's), she would file a grievance.
That same Monday evening, Ms. Finkelson telephoned Charles Rueth, the Vice
the County Board of Supervisors, with whom she was acquainted. She insisted in this
that the Spreadsheet was wrong and that the County and the Union were wrongdoers in
it. Mr. Rueth examined the two documents during this conversation and was also unable to
them. Sometime between that conversation and the end of the day on Wednesday, January
Mr. Rueth discussed the issue with Ms. Petkovsek and then took no further action.
On Wednesday morning, January 16, 2002, Ms. Finkelson discussed the issue with
another County employee, and later that morning shared a copy of the Spreadsheet with her.
Finkelson, Ms. Opelt, Ms. Jasmer and Ms. Schultz reviewed the Spreadsheet and carried on
discussion during their morning break. Ms. Opelt also brought two other employees into the
discussion, which lasted about 15 minutes.
Wednesday, January 16, 2002, was also the last day of Ms. Finkelson's probationary
At some point during that day, Ms. Johnson was called into a meeting with
Ms. Petkovsek and Ralph
Landini, Chairman of the County Board of Supervisors, about whether to terminate Ms.
at the conclusion of her probationary period. While stating that the decision was Ms.
Ms. Petkovsek and Mr. Landini recommended that Ms. Johnson take action against
because of her attitude and behavior during the October 14 meeting about the Spreadsheet.
Petkovsek had found Ms. Finkelson "condescending" (Tr. Vol. II at 60) and "disrespectful"
II at 92) in expressing her view that the County was wrong about the wage rates. At about
minutes before the close of the work day, Ms. Johnson handed Ms. Finkelson a letter
employment immediately, unless the Union would agree to extend her probation. Prior to
this letter, Ms. Finkelson had received no notice that her employment was in jeopardy. The
executive board met the next day and decided not to agree to extend Ms. Finkelson's
Hence, January 16, 2002, was Ms. Finkelson's last day of work for the County.
Violation of Sec. 111.70(3)(a)3
Ms. Finkelson's petition for review does not challenge the Examiner's conclusion that
County did not act out of unlawful hostility in terminating her employment and therefore
Dec. No. 30361-B
did not violate Sec. 111.70(3)(a)3, Stats. Rather, the petition focuses upon the alleged
of the Examiner's remedy for the violation he found of Sec. 111.70 (3)(a)1, Stats. However,
it is well
settled that a petition for review opens the entire Examiner decision for affirmation,
reversal. See Secs. 111.07(5) and 111.70(4)(a), Stats.; Trans America Insurance Co. v.
Department, 54 Wis.2d 252 (1971); State v. Industrial Commission, 233 Wis. 461 (1940);
Green County, Dec. No. 26798-B (WERC, 7/92). Accordingly, we have reviewed all
the Examiner's decision de novo and we hold that the County
terminated Ms. Finkelson's employment
at least in part out of hostility to her protected activity in protesting the Spreadsheet. 2/
In Muskego-Norway C.S.J.S.D. No. 9 v. WERB, 35 Wis.2d 540 (1967), and again
Employment Relations Dept. v. WERC, 122 Wis.2d 132 (1985), the Wisconsin Supreme
Court affirmed that a violation of Sec. 111.70(3)(a)3, Stats., is to be found where the
party establishes the following four elements: (1) that a municipal employee engaged in
concerted activity; (2) that the municipal employer, by its officers or agents, was aware of
activity; (3) that the municipal employer was hostile to the lawful concerted activity; and (4)
the municipal employer took action against the municipal employee based at least in part
2/ As discussed in the following section, we believe that
cases like the present one are
appropriately decided under a Sec. 111.70(3)(a)3 type analysis even as to alleged independent
of Section (3)(a)1 and we depart from the Examiner's rationale on that
As the Examiner correctly held, the first element is satisfied in this case. In
she viewed as a discrepancy between the wages displayed on the Spreadsheet and the wages
on the Ratification Document, Ms. Finkelson was acting in pursuit of traditional
interests on behalf of and in concert with other employees, in particular Ms. Schultz.
activity need not be associated with a union, as such, or coincide with a union's point of
view in order
to have a purpose of "mutual aid or protection" within the ambit of Sec. 111.70(2), Stats.
Oshkosh, Dec. No. 28971-A (Mawhinney, 8/97), Aff'd by operation of law, Dec. No.
(WERC, 9/97); School District of Nekoosa, Dec. No. 25026-A (Gratz, 5/88), Aff'd by
operation of law, Dec. No. 25026-B (WERC, 6/88).
As to the question of whether Ms. Finkelson's concerted activity was protected, the
Examiner correctly noted that concerted activity can go beyond the pale of statutory
some circumstances. Violent or threatening behavior are examples of concerted activity that
likely lose statutory protection. However, the rights established by Section 2 of MERA are
exercised in tense, chilly, or hostile atmospheres, because by its very nature such activity
challenging the employer's authority. We agree with the Examiner that, while Ms.
conduct was vocal (perhaps even "condescending" and "disrespectful" as County officials
it remained within the law's protection. 3/
Dec. No. 30361-B
3/ The National Labor Relations Board (NLRB) recently came to
the same conclusion in a context very
similar to the present one. See Union Carbide Corp., 331 NLRB No. 54 (2000), Enf'd,
2001 U.S. App.
LEXIS 26594 (4th Cir. 2001) (unpublished decision) (a probationary
employee repeatedly insisted that his
starting date be determined in a particular way, so that he would be entitled to a certain
holiday; the Board
held that his activity, which included calling a supervisor a "fucking liar," was "at most rude
disrespectful" and constituted protected activity).
More troubling as to the protected nature of the concerted activity is the potential for
Finkelson's protest to be viewed as inviting the employer to engage in "individual
derogation of the rights of the Union as exclusive bargaining representative. The Examiner
this issue in devising his remedy. In a unionized work place, where a subset of employees
not only the employer's actions but also the union's position on the issue, it is possible for
or protection" to collide with the principle of exclusive recognition. See, e.g., Emporium
Co. v. Western Addition Community Organization, 420 U.S. 50 (1975), a case arising under
the National Labor Relations Act (NLRA), holding that a group of minority employees
unprotected activity when, by picketing and boycotting, they sought to compel their employer
bargain with them rather than with the recognized union over the issue of race discrimination
work place. However, we are mindful that employees could neither organize into a union
a union attain the status of exclusive representative without the right to engage in "lawful,
activity" granted by Section 2 of MERA. Because Section 2 is MERA's cornerstone, we are
to interpret its scope broadly. In the present case, Ms. Finkelson did not ask the County to
Union's contract (the Ratification Document), but instead disagreed, albeit vociferously, with
County's and the Union leadership's interpretation of that document. Her activity did not
the Union's exclusive bargaining status or provoke individual bargaining by the County, and
remained protected. 4/
4/ We also note that the statutory provision establishing
exclusive recognition expressly permits an
employer to deal directly with individual employees over grievances, as long as the union is
the outcome is consistent with the conditions of employment negotiated between the union
employer. Sec. 111.70(4)(d), Stats.
The second element of the four-pronged analysis under Section (3)(a)3 is not in
County was well aware of Ms. Finkelson's activity in connection with the Spreadsheet and
The County's central defense lies in the third element of the analysis. The County
that it bore no hostility to Ms. Finkelson for questioning and challenging the
but rather found her manner offensive. The Examiner agreed with the County,
the County's annoyance at Ms. Finkelson's tenacity was merely
Dec. No. 30361-B
hostility in "an inter-personal relationship," was not intended to "encourage or
membership in a labor organization," did not result in any gain to the County, did not extend
Schultz, who engaged in the same concerted activity, and is countered by the County's
to extend Ms. Finkelson's probation. Hence, the Examiner concluded that, "Whatever
is traceable to [Ms. Finkelson's conduct relating to the Ratification Document] is the sole
source of hostility," which "falls short of the statutory standard." Examiner's decision at
We think the Examiner employed an overly narrow and complicated notion of
hostility. Since Ms. Finkelson's persistence regarding the Ratification Document and
lawful, concerted activity - as the Examiner himself found - then it follows simply and
the County's hostility to that activity is illegal hostility. Unlawful discrimination within the
proscription of Section (3)(a)3 can involve animus toward a particular employee's protected
or toward protected activity of a particular kind, even where the employer has not displayed
toward the union as such, toward union activity in general, or toward other employees'
activity. An employer is not free to exercise his annoyance at one employee's concerted
simply because the employer has found other concerted activity less annoying. An
grievance officer is likely to incur employer antipathy more readily than a steward who is
the employer terminates the assertive grievance officer for his assertiveness, the employer
prevail by demonstrating that he bore no animus towards union stewards in general or
passive stewards. For that matter, an employer agent who is a present or former union
official is not
necessarily immune to developing hostility towards the concerted activities of his own
In this light, the County has essentially admitted its hostility by explicitly
it was unhappy with the manner in which Ms. Finkelson asserted her views regarding the
and Ratification Documents. It could very well be true, as the County states, that it took no
at the mere fact that Ms. Finkelson disputed the data. We acknowledge that the County
benignly to Ms. Schultz's participation in the protest and that the County had invited
bring forward their questions about the Spreadsheet. However, as discussed above, the
which an employee undertakes concerted activity is indivisible from the activity itself and
thus is also
protected, provided the employee does not exceed the law's liberal parameters. The record
that Ms. Finkelson adopted a relatively assertive manner precisely in order to buttress Ms.
equally heartfelt concern but more reticent manner. Hence, we hold that the County's
antipathy toward Ms. Finkelson's demeanor or attitude in carrying out her concerted activity
to unlawful animus. 5/
5/ The Examiner noted that the County (Ms. Johnson)
attempted to persuade the union to extend
Ms. Finkelson's probationary period, a gesture that the Examiner saw as inconsistent
animus on the part of the County. In our view, however, the County's effort suggests only
that its animus
was not so vituperative as to preclude continued probationary employment. Further,
Finkelson's probationary period had that occurred, would have been adverse action motivated
towards Ms. Finkelson's protected activity and would itself have violated Section (3)(a)3.
Hence the fact
that the County considered a lesser form of adverse action does not undermine our
conclusion that the
County acted out of unlawful animus towards Ms. Finkelson.
Dec. No. 30361-B
The fourth and final element of a Section (3)(a)3 violation is an established nexus
between the unlawful
hostility and the adverse action. This element is met easily in the present case. The County
has essentially admitted
that its displeasure with Ms. Finkelson's conduct regarding the Spreadsheet (or, as the
County saw it, her attitude or
manner) led it to terminate her employment at the conclusion of her probationary period.
Even without this admission,
the timing of the termination so closely juxtaposed with the Spreadsheet controversy, together
with the admitted lack
of prior warning or contemporaneously considered lawful grounds for the termination, would
be sufficient to establish
the necessary nexus.
Therefore we reverse the Examiner and conclude that the County terminated
Ms. Finkelson's employment on
January 16, 2002, out of hostility toward her lawful, concerted activity in protesting and
questioning the Spreadsheet
and Ratification Documents, in violation of Sec. 111.70(3)(a)3, Stats.
Violation of Sec. 111.70(3)(a)1
Because retaliation for lawful, concerted activity inherently discourages other
employees from engaging in
concerted activity, a violation of Section (3)(a)3 is also a violation of Section (3)(a)1. The
Examiner concluded that
the County's conduct constituted a violation of Section (3)(a)1, applying the traditional
Section (3)(a)1 analysis of
whether the employer's action had a reasonable tendency to interfere with protected activity
and, if so, whether the
employer had valid reasons for its actions.
In our view, a Section (3)(a)3 type analysis is sufficient and appropriate to apply to
violations of Sec. 111.70(3)(a)1, Stats., in cases like the present one, where the essence of
violation lies in the employer's motive for taking adverse action against one or more
the circumstances demonstrate that the adverse action (e.g., termination, discipline, layoff)
lawfully motivated, we will not find it unlawful under Section (3)(a)1 simply because it could
perceived as retaliatory. To find an independent (3)(a)1 where the discipline was lawfully
would constructively establish a higher hurdle for disciplining union activists than for other
employees. While we understand that the "valid reasons" portion of the traditional Sec.
111.70(3)(a)1, Stats., analysis can be viewed as sufficient protection against such a result, we
the law is well served by eliminating the potential for a contrary result.
The present situation demonstrates why the traditional (3)(a)1 analysis is problematic
in a case
that centers on retaliation. As a general rule, probationary employees of the County are not
to prior warning or documentation of deficiencies before being terminated. The Examiner,
while noting that the County had no "duty" in this regard, and despite finding that the
County had a
lawful motive, nonetheless effectively imposed those requirements on the County in Ms.
case, solely because she had engaged openly in the Spreadsheet dispute. Had she not engaged
protected activity, or had she exercised that activity more discreetly, she would not have
to prior warning or documentation of deficiencies. While we understand the Examiner's
dilemma, this result seems
Dec. No. 30361-B
anomalous to us and intrudes too deeply into the disciplinary prerogatives of public
Moreover, it tends to elicit a potentially confusing and unconventional remedy, as it did in
Examiner's decision in this case.
We do not intend by this discussion to alter or undermine the traditional Section
analysis, under which the employer's intent is not dispositive. Section (3)(a)1 will still
employer threats, statements, work rules, and other actions that burden or chill lawful
activity without a valid countervailing business reason, whether or not the employer acted out
unlawful animus. Nor do we mean to suggest that an employer's actions against employees
never be "inherently destructive" of Section 2 rights within the Erie Resistor doctrine, 6/ or
narrow the circumstances that reflect unlawful animus. We simply hold that the appropriate
for cases involving retaliatory or discriminatory adverse action lies in the four-element
Section (3)(a)3. 7/ See also, Allstate Insurance Co., 332 NLRB No. 66, 165 LRRM 1293
(NLRB applied the (a)(3) motive analysis in holding that a written warning violated Section
of the NLRA). In such cases, if an employer is found to have acted out of lawful motives,
employer's action will not be found to violate the law.
6/ 373 U.S. 221 (1963).
7/ The NLRB utilizes an (a)(1) analysis, rather than an (a)(3)
analysis, where the employer mistakenly
but in good faith believed the employee had engaged in misconduct in the course of
such as picket line violence. Burnup & Sims, 379 U.S. 21 (1964); Knuth Brothers, 229
(1977), enf'd, 584 F.2d 813 (7th Cir. 1978); Shamrock Foods Co. v.
NLRB, 173 LRRM 2454 (D.C. Cir.
2003). Such cases are appropriately handled under a (3)(a)1 paradigm, because the essence
of such claims
is not retaliation. In such cases the employer's animus is not toward the protected activity
rather toward the unprotected misconduct (e.g., picket line violence). If the employee is
guilty of the
misconduct, there is no violation of law. If the employee is innocent, however, then other
reasonably perceive that the employee has been punished for the protected activity. In effect,
& Sims doctrine places an onus upon employers to be correct before they punish
employees for misconduct
in the course of protected activity. Here, in contrast, the County did not mistakenly believe
Finkelson had engaged in misconduct; the County knew exactly what Ms. Finkelson
had done. Its
"mistake" was in thinking that this activity was unprotected. Similarly, the Examiner did not
find that Ms.
Finkelson had engaged in misconduct, but rather found that unlawful animus had not been
under an (a)3 analysis. He reasoned that, since employees may have gotten the wrong
employer nonetheless should be liable under (3)(a)1. We disagree with the Examiner's
analysis. In our
view, where a mistake is not the employer's mistake, but lies in the misperceptions of
purposes of the law are not served by holding the employer liable.
Therefore, we affirm the Examiner's conclusion that the County independently
111.70 (3)(a)1, Stats., but do so based on the strength of our Sec. 111.70(3)(a)3 analysis.
Dec. No. 30361-B
The standard remedy for violations of Section (3)(a)3 is an order that the employer
immediate reinstatement to the employee and provide back pay from the date of the unlawful
termination until the date of reinstatement or the date the reinstatement offer is declined),
interim earnings and unemployment compensation, if any. In this case, Ms. Finkelson was
15 minutes before the conclusion of her probationary period without any contemporaneously
legitimate reasons for that termination. It is clear that but for her lawful concerted activity in
connection with the Spreadsheet, she would have completed probation successfully and
entered non-probationary status as of January 17, 2002. Hence, we order the County to
offer her reinstatement
to non-probationary status and provide her with back pay from January 17, 2002 until she is
reinstated or declines reinstatement, with appropriate offsets.
Both parties have sought modifications to the standard remedy. The County argued
Examiner that Ms. Finkelson had engaged in serious job-related misconduct during her
which the County did not discover until afterwards. On the strength of such "after-acquired
evidence" of misconduct, the County contends that reinstatement is inappropriate and back
should be curtailed. Ms. Finkelson, for her part, seeks "front pay" in lieu of reinstatement,
fees, and costs.
In recent years, it has become increasingly common in employment discrimination
limit the remedies of reinstatement and back pay where, subsequent to terminating the
employer discovers misconduct "of such severity that the employee in fact would have
terminated on those grounds alone if the employer had known of it at the time of the
McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879, 883 (1996) (emphasis
(a successful age discrimination plaintiff was refused reinstatement because the employer
discovered that she had violated confidentiality prior to her discharge). The NLRB has also
a willingness to consider such a limitation of remedies in cases involving anti-union
See, e.g., Berkshire Farm Ctr., 333 NLRB 367, 166 LRRM 1243, 1244 (2001), and cases
therein. The Commission, however, has not previously considered the effect of such
evidence" in determining whether to limit reinstatement or back pay. In this case and in
decision issued today, Village of Sturtevant, Dec. No. 30378-B, we decide not to adopt such
limitation of remedies.
In Mojave Elec. Coop., 327 NLRB 13, 18, 163 LRRM 1288 (1998), where the
affirmed the Administrative Law Judge's decision not to limit reinstatement and back pay
"after-acquired evidence," the ALJ had commented as follows: "In light of my findings
Respondent harbors animus and discriminatory intent toward [an employee] and unionism, I
deemed it appropriate to examine such evidence with great care, and with no small amount
suspicion." Similarly, we note the difficulty of untangling an employer's original unlawful
from the employer's subsequent assertions about how it would have handled alleged
it had never unlawfully terminated the employee in
Dec. No. 30361-B
the first place. Inevitably, it seems, such determinations would depend upon an
of speculation. To cut off back pay at a specific point in time would require us to determine
upon which the misconduct would likely have been discovered and to evaluate the employer's
state of mind at that point in time independent of previous unlawful hostility. The task is
complicated where, as here, the employee would have been protected by a contractual just
standard for dismissal but for the unlawful termination. See also Board of Regents v. State
Personnel Commission, 254 Wis.2d 148, 167-73 (2002) (holding that the just cause standard
the state civil service law does not permit back pay or reinstatement to be limited based upon
acquired evidence" of misconduct, but rather requires a separate, independent hearing
by the normal due process antecedents of notice and opportunity to respond). Finally, it
consideration that our traditional monetary remedy of back pay alone is relatively modest in
comparison with what is available to victims of other forms of employment discrimination,
encompasses compensatory damages, attorneys fees, and sometimes punitive damages. For
reasons, we decline to limit our traditional remedy of reinstatement and back pay based upon
discovered after the discharge. 8/ Since Ms. Finkelson would have been beyond probation
not been terminated on January 16, 2002, we also reinstate her to non-probationary
8/ We recognize that we have traditionally accompanied the
"in-part" standard for
determining violations of Section (3)(a)3 with the caveat that, where the employer has
established contemporaneous lawful motives that would have led to the adverse action even
in the absence of the unlawful motive, reinstatement and/or full back pay could be limited.
ERD v. WERC, 122 Wis.2d 132, 143 (1985). However, sorting out such contemporaneous
lawful and unlawful motives based on evidence of what actually occurred is a far less
speculative task than discerning how things might have played out retrospectively if the
employer had known of certain misconduct that it may
never have discovered at all but for the
discharge. This is also to be distinguished from situations where the employer can establish
that the employee
would have lost his position because of an intervening reduction in force, where such
situations do not involve
retrospective speculation about the employer's motive or about "just cause."
See, e.g., City of Evansville,
Dec. No. 24246-B (WERC, 9/88); Wisconsin Steel Industries, 318 NLRB 212, 152 LRRM
and cases cited therein.
9/ We note, however, that, should Ms. Finkelson accept
reinstatement, the County is entitled to take
appropriate steps to impose whatever discipline it believes it can justify based upon the
misconduct it believes
it has discovered, subject, of course, to Ms. Finkelson's and the Union's right to use the
to challenge such discipline.
We also decline Ms. Finkelson's request for front pay and attorney's fees. The
has not had occasion to decide whether front pay would be an appropriate substitute for
reinstatement. We note that front pay is available in employment discrimination cases
reinstatement is not feasible." Lindemann and Grossman, Employment Discrimination Law,
II at 1815 (BNA 1996). The parameters for establishing that
Dec. No. 30361-B
reinstatement is not "feasible" are inconsistent, as reflected in court decisions in
discrimination cases. Some courts have been stringent in requiring proof of hostility beyond
normally generated by litigation. See, e.g., Squires v. Bonser, 54 F.3d 168, 174-75
(3rd Cir. 1995).
Other courts have granted front pay simply to avoid displacing the employee who had been
replace the plaintiff. See, e.g., Deloach v. Delchamps, Inc., 897 F.2d 815, 822
(5th Cir. 1990).
The NLRB has recently authorized its regional attorneys "to consider the issue of front pay
remedy in an appropriate case," and set forth a series of guidelines for doing so. General
Memorandum 00-01 (February 3, 2000). However, the NRLB's General Counsel has taken
[T]he standard Board remedy for discriminatory discharges
should continue to be
reinstatement. Reinstatement better effectuates the purposes and policies of the
[NLRA] because it restores the employee to the circumstances that existed prior to
the Respondent's unlawful action, or that would be in effect had there been no
unlawful action. However, there are some limited areas in which reinstatement is
either impossible or highly undesirable . . . . They include: (a) where the wrongdoer
has impaired his victim's ability to work, . . .; (b) where the employer remains hostile
to the employee and the employees presently at work are also hostile to the
discriminatee . . .; (c) where the discriminatee is close to retirement; (d) as a substitute
for a preferential hiring list.
The NLRB's cautious approach seems wise to us. The record in the present case
establish extraordinary animosity between the parties or other special circumstances that
militate against reinstatement. Indeed, the County would have continued
Ms. Finkelson's employment
if the Union had agreed to extend her probation. It is true that Ms. Finkelson has not sought
reinstatement, but circumstances may have changed since she disclaimed that interest. For
having been unsuccessful in her request for front pay, she may find reinstatement more
However, while we have ordered the County to offer Ms. Finkelson reinstatement, if that
offer is not
accepted, the County's liability for back pay will be tolled as of the date of refusal.
Regarding attorney's fees, the Commission has long construed this remedy to be
certain duty of fair representation cases and to cases where an extraordinary remedy is
See Madison Metropolitan School District, Dec. No. 16471-D (WERC, 5/81), aff'd in
pertinent part, MTI v. WERC, 115 Wis.2d 623 (Ct. App. 1983); University of
Wisconsin-Milwaukee (Guthrie), Dec. No. 11457-F (WERC, 12/77); Department of
Relations (UW Hospital and Clinics), Dec. No. 29093-B (WERC, 11/98). We see no reason
reconsider the Commission's view of its remedial authority regarding attorney's fees in the
of this case and conclude that an extraordinary remedy is not needed. Hence we deny Ms.
Dec. No. 30361-B
For the foregoing reasons, we conclude that Ms. Finkelson was discharged at the
of her probationary period at least in part out of animus toward her lawful, concerted activity
protesting the Spreadsheet, and we order her reinstated with back pay. We decline to award
pay or attorney's fees.
Dated at Madison, Wisconsin, this 28th day of November, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Judith Neumann, Chair
M. Bauman, Commissioner
Commissioner Paul Gordon did not participate.