STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
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PREMONTRE EDUCATION ASSOCIATION, an unincorporated association,
Complainant, :
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- vs.
- Case 12
No. 44069 Ce-2102
- Decision No. 26762-A
- THE PREMONSTRATENSIAN ORDER, a
religious organization, THE PREMONSTRATENSIAN FATHERS, INC., a Wisconsin corporation, PREMONTRE HIGH SCHOOL, INC., a Wisconsin corporation & NOTRE DAME de la BAIE, INC., a Wisconsin corporation,
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Respondents. :
:
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:
PREMONTRE EDUCATION ASSOCIATION, an unincorporated association, and EUGENE A. LUNDERGAN, DONALD C. BETTINE, and JOHN J. JAUQUET, officers of the PREMONTRE EDUCATION ASSOCIATION,
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- Complainants, :
- Case 13
No. 44097 Ce-2103 Decision No. 26763-A
:::vs.
THE PREMONSTRATENSIAN ORDER, a religious organization, THE PREMONSTRATENSIAN FATHERS, INC., a Wisconsin corporation, PREMONTRE HIGH SCHOOL, INC., a Wisconsin corporation & NOTRE DAME de la BAIE, INC., a Wisconsin corporation,
:
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Respondents. :
:
- - - - - - - - - - - - - - - - - - - - - Appearances:
Mr. Thomas J. Parins, Attorney at Law, Jefferson Court Building, 125
South Jefferson Street, P.O. Box 1038, Green Bay, Wisconsin 54305, appearing on behalf of Premontre Education Association and, for purposes of the motions posed here, for Eugene A. Lundergan, Donald C. Bettine, and John J. Jauquet.
Mr. Herbert C. Liebmann III, with Mr. Donald L. Romundson on the brief,
Liebmann, Conway, Olejniczak & Jerry, S.C., Attorneys at Law, 231 South Adams Street, P.O. Box 1241, Green Bay, Wisconsin 54305, appearing on behalf of the Premonstratensian Order and the Premonstratensian Fathers.
Mr. Dennis W. Rader, Godfrey & Kahn, S.C., Attorneys at Law, 333 Main
Street, Suite 600, P.O. Box 13067, Green Bay, Wisconsin 54307-3067, appearing on behalf of Notre Dame de la Baie Academy, Inc.
Mr. Mark A. Warpinski, Warpinski & Vande Castle, S.C., Attorneys at Law,
303 South Jefferson Street, P.O. Box 993, Green Bay, Wisconsin 54305, appearing on behalf of Premontre High School, Inc.
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
On May 23, 1990, the Premontre Education Association filed with the
Wisconsin Employment Relations Commission (Commission) a complaint of unfair labor practice which alleged that "THE PREMONSTRATENSIAN ORDER, a Religious organization, THE PREMONSTRATENSIAN FATHERS, INC., a Wisconsin corporation, PREMONTRE HIGH SCHOOL, INC., a Wisconsin corporation & NOTRE DAME de la BAIE, INC., a Wisconsin corporation" had violated the terms of a collective bargaining agreement to which the Premontre Education Association was a party. The Commission captioned this complaint as Case 12, No. 44069, Ce-2102.
On June 4, 1990, the Premontre Education Association "and Eugene
Lundergan, Donald C. Bettine, and John J. Jauquet, officers of the Premontre Education Association", filed with the Commission a complaint of unfair labor practice which alleged that "THE PREMONSTRATENSIAN ORDER, a religious organization, THE PREMONSTRATENSIAN FATHERS, INC., a Wisconsin corporation, PREMONTRE HIGH SCHOOL, INC., a Wisconsin corporation, NOTRE DAME de la BAIE, INC., a Wisconsin corporation & Rev. Dane Radecki, Principal of Premontre High School and Notre Dame de la Baie Academy", had violated "Sections 111.06a, 111.06b, 111.06c, 111.06f, 111.06h, 111.06k of the Wisconsin Employment Peace Act." The Commission captioned this complaint as Case 13, No. 44097, Ce-2103.
No. 26762-A No. 26763-A
In documents filed with the Commission on June 1, 1990, the
Premonstratensian Fathers noted their objection to the exercise of Commission jurisdiction over Case 12, and challenged the accuracy of the reference, in that complaint, to The Premonstratensian Order and The Premonstratensian Fathers, Inc. On June 4, 1990, the Premonstratensian Fathers filed an answer to the complaint captioned as Case 12. On June 4, 1990, Notre Dame de la Baie Academy, Inc., filed its answer to the complaint captioned as Case 12. On June 14, 1990, Notre Dame de la Baie Academy, Inc., requested from the Commission documentation concerning "eleven prior cases involving Premontre High School and the Premontre Education Association handled by the WERC." On June 14, 1990, the Premonstratensian Fathers filed an answer to the complaint captioned as Case 13. On June 15, 1990, Notre Dame de la Baie Academy, Inc., filed an answer to that complaint. On June 19, 1990, the Commission issued a letter to counsel for Notre Dame de la Baie Academy, Inc., which included "copies of the docket sheets for eleven prior cases" involving Premontre Education Association. On June 19, 1990, Premontre High School Inc., and the Rev. Dane Radecki filed an answer to each complaint. Each of the answers noted above challenged the exercise of Commission jurisdiction over the complaints.
On June 26, 1990, the Commission informally assigned me to act as
Examiner in each case. In a letter dated July 24, 1990, to each appearing party in both cases, I stated:
I have been unable to reach each party to the above noted matters, by phone, and thus write to determine your positions on the following questions:
1.
2. 3.
Can the jurisdictional issues posed in the answers to the complaints be resolved though the submission of written briefs?
- Must
- those
- jurisdictional
issues be resolved before evidentiary hearing on the merits of the complaints is conducted?
Can the two complaints noted above be consolidated?
. . .
The Premontre Education Association, and the individual complainants responded in a letter filed by Thomas Parins with the Commission on July 30, 1990. That letter reads thus:
. . .
In answer to paragraph 1, we believe that the jurisdictional issues can be resolved through the
- submission of written briefs.
- Essentially the
jurisdictional issues have to do with church and state and we believe that such is settled law.
In answer to paragraph 2, we do not believe that these jurisdictional issues must be resolved before an evidentiary hearing on the merits in that the examiner will be able to make a legal conclusion prior to the hearing and no factual questions are involved.
In answer to paragraph 3, the complainants in both complaints agree that the two complaints can be consolidated on the basis that both essentially derive from the same underlying fact situation and that separate hearings would not be in the interest of judicial economy.
Mark Warpinski responded in a letter filed with the Commission on August 1, 1990, which reads thus:
. . .
In response to your inquiries, please be advised that it is my position that the jurisdictional issues should be resolved before an evidentiary hearing on the merits of the complaint is conducted. I also believe that the jurisdictional issues posed may be resolved through the submission of written briefs. Finally, I think that the cases at this point could be consolidated for purposes of resolving the jurisdictional issues.
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- No. 26762-A
No. 26763-A
The Premonstratensian Fathers responded in a letter filed with the Commission on August 1, 1990, which reads thus:
. . .
- 1.
- The jurisdictional issues undoubtedly pose
questions of law, but there are significant differences in the factual allegations set forth in the pleadings. The case filed by Attorney Parins makes specific allegations against my client, and recites allegations that are factually erroneous. As to that case, if Mr. Parins would care to stipulate to the facts set forth in my answer, I believe that the matter could be briefed and resolved on briefs. If Mr. Parins wishes to maintain the recitations of his complaint, then it seems to me that you will need to schedule an evidentiary hearing to focus on the facts directly related to the jurisdictional questions.
No such issue arises in the case filed by Messrs. Lundergan, Bettine and Jauquet, since that complaint makes no allegations against Abbot Mackin or The Premonstratensian Fathers except that they exist and that the complainants would like relief. On that set of facts, and on that case, the allegations of the answer will stand unchallenged it seems to me, and accordingly the matter could be determined on briefs.
2. before evidentiary hearing on the merits of the complaints. The issues raised are very important
The jurisdictional issues must be resolved issues related to the Constitutions of the United States of America and the State of Wisconsin. There is no more significant legal doctrine in this country than the doctrine of separation of church and state, and my clients simply must have those issues resolved first. We believe that the WERC and, in fact, the Courts, have no authority to even conduct evidentiary hearings on the merits of these complaints, and it is necessary that I hold firm to that position. We respectfully request that you approach the jurisdictional questions first.
- 3.
- As to my clients, I do not believe that the two
complaints can be consolidated. I believe that the allegations in the two cases directed to my clients are significantly different . . .
Each of the written responses noted above addressed both complaints.
In a letter dated September 4, 1990, to the parties in each complaint, I stated:
I am again having difficulty reaching each of you by phone in a timely manner. I write this letter to summarize the status of the above-noted matters, and to establish a procedure for addressing the pending issues.
It is my understanding that each advocate would be willing to address the church/state jurisdictional issues through written briefs. Mr. Liebmann's letter . . . does, however, pose a threshold issue of fact to the establishment of a briefing schedule.
That letter raises the possibility that those factual issues can be resolved "if Mr. Parins would care to stipulate to the facts set forth in my answer . . . " If Mr. Parins is willing to so stipulate or is willing to so stipulate for the limited purpose of posing the church/state jurisdictional issues, then a briefing schedule can be established. I would ask Mr. Parins to state his position on these points as soon as he can.
Mr. Liebmann's . . . letter also assumes that "the allegations of the answer . . . stand unchallenged" with respect to Case 13 . . . I would ask Messrs. Lundergan, Bettine and Jauquet to advise me, as soon as they can, if they agree with the above-noted assumption.
I will also note that Messrs. Parins, Lundergan,
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- No. 26762-A
No. 26763-A
Bettine and Jauquet, unlike the remaining parties, do not believe the jurisdictional issues must be resolved prior to the conduct of an evidentiary hearing on the merits.
Before ruling on whether the jurisdictional issues must be resolved prior to an evidentiary hearing, I would like to know if evidentiary hearing on the jurisdictional issue is necessary. Thus, I will await the responses of Messrs. Parins, Lundergan, Bettine and Jauquet before ruling on whether the hearing will be bifurcated to separately address the jurisdictional issues.
Whether it is necessary to bifurcate the hearing or not, I am holding . . . September 26, 1990 open for an informal pre-hearing conference on the procedural and substantive issues posed by the cases captioned above. If that date is not available for any of you, please advise me as soon as you can.
In a letter dated September 14, 1990, to the parties in each complaint, I stated:
I have received no response to my September 4, 1990 letter. I will take up the issues posed in that letter and any others you may wish to raise regarding the above noted matters at an informal pre-hearing conference to be held on . . . September 26, 1990 . . .
In a letter dated September 28, 1990, to the parties in each complaint, I stated:
I write to summarize the pre-hearing conference held on September 26, 1990 . . .
It is my understanding the parties will attempt to reach a stipulation of fact sufficient to pose the church/state jurisdictional issues. If a stipulation is reached, the church/state jurisdictional issue will be posed by the submission of briefs . . .
In the event that it is impossible to reach a stipulation, hearing on both matters has been set for . . . November 15, 1990 . . . I have already ruled that hearing will be limited to the submission of evidence and argument on the church/state jurisdictional issue.
Potential issues on the consolidation of Case 12 and Case 13 were touched upon. I have indicated to you that it is my opinion that consolidation of the two cases can come only by a Commission order. Issues on consolidation have been set to the side so that the jurisdictional issue underlying each case can be addressed.
I informed the Complainants in Case 13 that the allegations of Paragraph 9 need to be clarified. If the issue posed by that paragraph is that the three named complainants were terminated for "secular" reasons, the complaint should be clarified to say so. If this is not the issue posed by that paragraph, it should be clarified to state what the issue is.
Finally, I noted to you that while I have not fully researched the issues potentially posed by the complaints, I have looked to the series of decisions in Archdiocese of Milwaukee and St. Albert School, for guidance on the procedural points discussed mat the pre-hearing conference . . . If you wish a copy of any of these decisions, please advise me. More to the point here, I pointed out that Footnote 2/ at Page 6 of the Commission's decision, and, the discussion at pages 2-3 and 4 of the Circuit Court's decision state what I feel is the factual basis necessary to pose the church/state jurisdictional issue.
. . .
On October 12, 1990, the Premontre Education Association filed an amendment to the complaint captioned as Case 12. On October 16, 1990, the Premonstratensian Fathers supplied the Commission "a fully executed Stipulation." On October 24, 1990, Premontre High School, Inc., filed an
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- No. 26762-A
No. 26763-A answer to the amended complaint in Case 12. On October 29, 1990, Donald Bettine filed with the Commission an amendment to the complaint captioned as Case 13. On November 16, 1990, the Premonstratensian Fathers filed an answer to the amended complaint of Case 13.
The parties filed briefs and reply briefs, or a waiver of the right to file a brief or reply brief, by December 19, 1990. The Commission formally appointed me to act as Examiner in an Order Appointing Examiner dated January 25, 1991.
FINDINGS OF FACT
- 1.
- On May 23, 1990, the Premontre Education Association, referred to
below as the PEA, filed a complaint of unfair labor practice with the Commission. Included in the allegations of that complaint are the following:
. . .
- 1.
- The Complainant, the Premontre Education
Association, is an unincorporated association, being a bargaining unit under Wisconsin law duly recognized by the respondents, to represent all of the persons actively engaged in educational work at Premontre High School 610 Maryhill Drive, Green Bay, Wisconsin, on behalf of which Complainant has entered into a binding Labor Agreement with the respondents for the school
- years 1989-90 and 1990-91.
- The Complainant is
represented by Parins Law Office, S.C., 125 South Jefferson Street, Green Bay, Wisconsin 54301 . . .
. . .
- 13.
- In February of 1989, the respondents,
through respondent, Premontre High School, Inc., did terminate the employment of all the members of the Complainant, Premontre Education Association. These terminations meant that all of the teachers at Premontre High School, Inc., were, in fact, fired.
14. The above described firings were done by respondents under the ruse and fiction that Premontre High School was being closed, and because of such closure, no longer needed teachers.
- 15.
- In truth and in fact, the educational
facility now known as Premontre High School will not close at the end of the 1989-90 school year, but rather will continue in business and will open for the 1990-91 school year. The only changes that are contemplated is that the school will have a change of name . . .
. . .
18. The above said firings are all contrary to the terms and conditions of the Labor Agreement now in effect between the parties as described above.
- 19.
- The Complainant, Premontre Education
Association, maintains that the above described labor agreement continues in effect and is binding upon, the respondents, and each of them, during its term . . .
20. The relief sought hereby is for an order from the commission requiring the respondents, and each of them, to honor all of the terms and conditions of the labor agreement between them, and each of them, and the Complainant, Premontre Education Association, during the entire term of said agreement.
. . .
The Commission captioned this matter as Case 12, No. 44069, Ce-2102.
- 2.
- On June 4, 1990, the PEA "and Eugene A. Lundergan, Donald C.
Bettine and John J. Jauquet, officers of the Premontre Education Association" filed a complaint of unfair labor practice with the Commission. This complaint was amended on October 29, 1990. complaint, as amended, are the following:
Included in the allegations of that
. . .
- Complainants,
- 1.
- The
- Eugene
- Lundergan,
John Jauquet and Donald Bettine are all representatives
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- No. 26762-A
No. 26763-A of Complainant Premontre Education Association, being a bargaining unit under Wisconsin law duly recognized by the respondents, to represent all of the persons actively engaged in educational work at Premontre High School, 610 Maryhill Drive, Green Bay, Wisconsin, on behalf of which Complainant has entered into a binding Labor Agreement with the respondents for the school years 1989-90 and 1990-91.
. . .
9. In February of 1990, the respondents, through respondent, Premontre High School, Inc., did terminate the employment of the three aforementioned complainants. These terminations meant that all of the teachers at Premontre High School were, in fact, fired, such being a secular action.
10. Additionally, the respondents . . . denied employment to the three complainants for the 1990-91 school year.
11. Complainants contend that respondents are engaging in an Unfair Labor Practice(s) both as termination and as failure to employ on part of the respondents violate Sections 111.06a, 111.06b, 111.06c, 111.06f, 111.06h, 111.06k of the Wisconsin Employment Peace Act.
12. The relief sought hereby is for an order from the commission a) requiring the respondents to offer employment to the complainants at Notre Dame de la Baie Academy for the 1990-91 school year commensurate with their 1989-90 duties b) a cease and desist order preventing the said respondents from engaging in any further discriminatory acts toward union representatives c) requiring the respondents to issue a public apology in a conspicuous place at Notre Dame de la Baie Academy indicating the respondents have committed an Unfair Labor Practice and that they agree to cease and desist from further Unfair Labor Practices d) for such and further relief as the commission deems reasonable.
. . .
The Commission captioned this matter as Case 13, No. 44097, Ce-2103.
- 3.
- The Premonstratensian Fathers, referred to below as the Fathers, is
a Wisconsin non-stock, non-profit corporation, whose Articles of Incorporation include the following provisions:
ARTICLE ONE
NAME AND OFFICE
Section 1. The name of the Corporation shall be
The Premonstratensian Fathers. The address of the principal office of the Corporation is 1016 North Broadway, De Pere, Brown County, Wisconsin 54115.
. . .
ARTICLE FOUR
OBJECTS AND PURPOSES
The objects and purposes of this Corporation shall be the operation and management of the affairs, property, business and activities of religious and educational facilities and as such shall be duly benevolent, beneficial, educational, charitable, religious and scientific. This Corporation shall be operated in a manner consistent with the theology, philosophy, other teachings and doctrines of the Roman Catholic Church and with the objectives and philosophy of The Order of Canons Regular of Premontre, a religious order of the Roman Catholic Church.
. . .
ARTICLE FIVE
POWERS
This Corporation, in order to carry out its
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No. 26763-A objects and purposes, shall have the powers necessary or convenient to effect any or all of the purposes for which the Corporation is organized, as set out in Section 181.04, Wis. Stats., and, generally, Chapter 181, Wis. Stats., including the powers as set forth herein:
Section 1. To own, acquire, hold, manage or direct Corporations which are organized for the purpose of operating or conducting religious and educational facilities of every kind and character.
. . .
The Fathers' written by-laws include the following provisions:
ARTICLE I
OBJECTS AND PURPOSES
Section 1. Precepts. The Corporation shall exist and function pursuant to the precepts of civil law, the norms of the Roman Catholic Church and the philosophy of the Order of Canons Regular of Premontre. The Corporation and its affiliated corporations shall be managed and directed according to the doctrines, disciplines, laws, rules and regulations of the Roman Catholic Church.