Thomsen v. WERC

• Decision Date: 30 March 2000
• Docket Number: No. 99-1730.,99-1730.
• Citation: 610 N.W.2d 155,234 Wis.2d 494,2000 WI App 90
• Parties: Christian THOMSEN, Petitioner-Respondent-Cross-Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Co-Appellant-Cross-Respondent, TOWN OF MADISON, Respondent-Appellant-Cross Respondent.
• Court: Wisconsin Court of Appeals

234 Wis.2d 494

2000 WI App 90

610 N.W.2d 155

Christian THOMSEN, Petitioner-Respondent-Cross-Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Co-Appellant-Cross-Respondent, TOWN OF MADISON, Respondent-Appellant-Cross Respondent.

No. 99-1730.

Court of Appeals of Wisconsin.

Submitted on briefs January 11, 2000.

Decided March 30, 2000.

On behalf of the Town of Madison, respondent-appellant-cross-respondent, the cause was submitted on the briefs of David E. Rohrer and Kirk D. Strang of Lathrop & Clark LLP.

On behalf of the Wisconsin Employment Relations Commission, respondent-co-appellant-cross-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and John D. Niemisto, assistant attorney general.

On behalf of Christian Thomsen, the petitioner-respondent-cross-appellant, the cause was submitted on the briefs of John C. Talis of Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer.

Before Eich, Vergeront and Deininger, JJ

¶ 1. VERGERONT, J.

This appeal concerns the relationship between certain provisions of the Wisconsin Municipal Employment Relations Act (MERA) — Wis. STAT. §§ 111.70-111.77 (1997-98)¹ — and the federal statutory rights of individual employees. The Town of Madison filed a complaint with the Wisconsin Employment Relations Commission (WERC) alleging that a Town employee refused to sign a Memorandum of Understanding drafted by the Town's attorney after a mediation session on a grievance concerning the employee's discharge. The employee, Christian Thomsen; the Town's attorney; and a representative of the Wisconsin Professional Police Association (WPPA), the exclusive bargaining representative for Thomsen's collective bargaining unit, were present at the mediation session. WERC concluded that Thomsen's refusal to sign the Memorandum of Understanding constituted a violation of a "collective bargaining agreement previously agreed upon" under § 111.70(3)(b)4 and ordered him to sign the Memorandum. The trial court affirmed that order, with the modification that the waiver of claims provision in the Memorandum did not include a waiver of Thomsen's right to pursue a claim under 42 U.S.C. § 1983.

¶ 2. WERC and the Town appeal, contending the trial court erred in modifying the Memorandum to exclude the 42 U.S.C. § 1983 waiver because WERC had the authority to order Thomsen to sign the Memorandum unmodified. Thomsen cross-appeals, contending that WERC's decision should be reversed.² We conclude that even if Thomsen orally agreed to waive all federal statutory claims in the mediation session, that agreement was not a collective bargaining agreement within the meaning of WIS. STAT. § 111.70(3)(b)4 and (1)(a). Therefore, he did not violate § 111.70(3)(b)4 by refusing to sign the Memorandum insofar as it contained a waiver of such claims, and WERC did not have the authority to order him to sign the Memorandum as drafted. Accordingly, we reverse and remand to the circuit court with instructions to reverse and remand to WERC for further proceedings consistent with this opinion. We also decide one issue raised by Thomsen that may arise on remand. We conclude that when WERC reverses the decision of a hearing examiner based on an additional factual finding involving a dispute on witness credibility that has not been resolved by the examiner, WERC's decision must reflect that it consulted with the examiner or had access to the examiner's notes on witness demeanor.

BACKGROUND

¶ 3. At the time of Thomsen's termination in August 1994, he held the position of police sergeant, and was also president of the Town of Madison Professional Police Association (TMPPA), the local chapter for WPPA. Pursuant to the grievance procedure in the collective bargaining agreement (CBA)³ between WPPA and the Town, Thomsen, as TMPPA president, filed a grievance concerning his termination, asserting that he was terminated without just cause. The Town denied the grievance, contending that there was not a contract violation "where an employee has admitted the physical inability to perform the essential functions of the position." ¶ 4. When the grievance remained unresolved after the second step of the procedure, WPPA business representative Steven Urso requested mediation using representatives of WERC. The session was held on January 17, 1995. Thomsen, Urso, and the Town's attorney, Keith Strang, as well as the mediators were all present. They discussed settlement terms, including a waiver of claims provision. The factual disputes concerning the terms discussed and their finality will be covered in more detail later, but it is undisputed that following this session Strang drafted a Memorandum of Understanding, which, according to Strang and Urso, accurately reflected the settlement reached.

¶ 5. The Memorandum provided that the Town agreed to certify, upon the necessary medical information from WPPA and Thomsen, that Thomsen was injured while performing his duties as a police officer. Thomsen and the union agreed to stay, and refrain from commencing, any grievances or other actions against the Town while his duty disability application was processed, and, upon favorable resolution of the application, to drop all grievances and claims and not to refile them in any other forum. Upon the satisfaction of these obligations, Thomsen would be treated as having retired in good standing due to a duty disability. Paragraph 5 of the Memorandum provided:

In consideration of the foregoing, Mr. Thomsen and the Union hereby agree to fully waive and forever release discharge [sic] the Town, its present and former agents, assigns and subsidiaries of any and all claims, demands, damages, actions and causes of action of whatever kind or nature which they have or may have arising out of Mr. Thomsen's employment, his separation from employment, and any and all other employment matters without limitation including, but not limited to, matters arising at law, in equity, under the Town's collective bargaining agreement with the Union, or in state or federal agencies, courts, or other tribunals of competent jurisdiction.

¶ 6. When Thomsen refused to sign this Memorandum, Urso informed the Town and Thomsen that WPPA was withdrawing the grievance. The Town then filed the complaint with WERC, alleging that WPPA and Thomsen had refused to execute a bargaining agreement, refused to bargain in good faith, and violated the terms of a collective bargaining agreement previously agreed upon in violation of WIS. STAT. § 111.70(3)(b)3, (3)(b)4 and (3)(c).⁴ The Town and WPPA subsequently stipulated to a dismissal of WPPA upon WPPA's agreement to sign the Memorandum.

¶ 7. After an evidentiary hearing and briefing on the complaint against Thomsen, the hearing examiner issued a decision that contained these legal conclusions. Thomsen was not acting on behalf of WPPA when he refused to execute the Memorandum. There were three parties to the settlement—WPPA, the Town and Thomsen. Thomsen's agreement to the settlement was conditioned upon having it reviewed and approved by his attorney. The Memorandum was not a valid grievance settlement. Thomsen had not violated WIS. STAT. § 111.70(3)(b)3, (3)(b)4 or (3)(c).

¶ 8. The examiner's significant factual findings included the following. During the mediation session, Thomsen advised Urso that he (Thomsen) would not sign any settlement until the settlement had been reviewed and approved by his attorney and, at the time of this conversation, Urso knew that Thomsen had a pending WIS. STAT. § 40.65 claim as well as an EEOC claim against the Town. At that time Thomsen had also filed a worker's compensation claim against the Town and was consulting with an attorney regarding other potential claims against the Town. Urso advised Strang that the settlement would have to be approved by WPPA's counsel, but Strang was not advised that Thomsen would not sign any settlement until it had been reviewed and approved by his attorney. At the conclusion of the mediation session Strang summarized the terms of the settlement and neither Urso nor Thomsen objected. After the mediation session Urso notified Strang that WPPA's counsel approved the settlement and Strang drafted the Memorandum. Urso recommended to Thomsen that he sign the Memorandum, but Thomsen said it did not accurately reflect the settlement that had been reached after the mediation session because he did not agree to waive any and all claims against the Town as provided in paragraph five. Thomsen showed the Memorandum to his attorneys, who advised him not to sign it.

¶ 9. On review of the examiner's decisions, WERC affirmed the findings of fact and made the additional finding that the Memorandum accurately reflects the settlement agreement reached by Strang, Urso and Thomsen. WERC affirmed, as modified, this conclusion of law: Thomsen was not acting as a WPPA representative during the grievance settlement negotiations on January 17, 1995. WERC also affirmed the conclusions of the examiner that there were three parties to the settlement and that Thomsen did not violate WIS. STAT. § 111.70(3)(b)3. However, WERC reversed the conclusion that Thomsen did not violate subd. (3)(b)4 by failing to sign the Memorandum. WERC ordered that the complaint be dismissed as to subd. (3)(b)3 and para. (3)(c), and ordered Thomsen to sign the Memorandum.

¶ 10. In its decision WERC explained that because it found that the Memorandum accurately reflected the agreement reached by all three parties, and because Thomsen did not tell the Town's attorney that his agreement to a settlement was contingent on his attorney's approval, Thomsen could not rely on that contingency as a valid basis for refusing to sign the Memorandum. WERC then relied on prior rulings that grievance settlements were collective bargaining agreements, and a ruling that grievants violate WIS. STAT. § 111.70(3)(b)4 if they do not comply with their obligations under grievance...