In an era when municipal budgets are shrinking and the cost of operation is increasing, difficult choices often must be made. When the Edgerton (Wis.) Fire Protection District decided to raise the money to purchase a fire truck by eliminating the only three full-time firefighter positions it had and allowing volunteer firefighters to assume their duties, trouble followed.

The district had employed two or more full-time personnel for 10 years when, in the winter of 2002, the district's three employees began discussing the benefits of forming a union. By April 2002, the International Association of Fire Fighters Local 580 requested the district to recognize it as the exclusive bargaining agent for the employees and an election was scheduled.

Shortly before the employees received their election ballots, Robert Hellendrung, the district's director of human relations, met with the three employees. He made such remarks as, “Remember, that by having a union, you or we will not have the flexibility to handle situations, add, increase, change benefit or working conditions, work schedules, trading days, etc., because everything will be controlled by the contract that is negotiated.… Everything will be negotiated. With a union, our relationship will end because the union will come between us. I do not want that to happen and I hope you do not either.” All three employees later stated that they felt threatened to some extent by these or other comments.

Despite Hellendrung's arguments, the election resulted in the certification of the IAFF as the exclusive bargaining representative for the unit on Dec. 2, 2002.

When the district board met in April and May 2003, it discussed the purchase of a new tanker. Hellendrung presented information on several options for possible financing and the board directed the fire chief to obtain specifications for both a pumper and a tanker.

At the district board meeting on June 5, 2003, Hellendrung presented what was essentially a proposed 2004 budget. He highlighted areas that could be expected to increase significantly, including the purchase of a new tanker, EMS and about a $30,000 increase in attorney fees, primarily related to collective bargaining. He also included $41,000 for increased wages and benefits for the unit employees.

After his presentation, one of the trustees asked what would be the easiest means to cut $150,000 from the budget. Hellendrung responded that it would be to eliminate the bargaining-unit positions. Shortly thereafter, the board voted unanimously to do so. The union promptly challenged this decision to the Wisconsin Employment Relations Commission, which found that at the time of this meeting, the district had no reason to believe that it would not have sufficient funds to fulfill its FY 2003 budgetary commitments, including the salaries of the three employees, and at no time did the district lack sufficient funds to do so.

The board did discuss that using volunteers to perform the duties of the bargaining-unit employees would continue the existing level of service while generating savings. It was highly unusual, if not unprecedented, for the district to discuss budgetary development issues and/or implement major budgetary changes mid-year, rather than at the October board meeting. When the WERC found in the union's favor, the district appealed to the Court of Appeals of Wisconsin in the case of Edgerton Fire Protection district v. Wisconsin Employment Relations Commission, et al, 739 N.W. 2d 490, 2007 WL 2323881.

In the appeal, the union claimed that the decision to eliminate the positions was subject to mandatory bargaining. In reviewing that position, the court said that a balancing test is required that recognizes that the municipal employer, the employees and the public all have significant interests at stake and their competing interests should be weighed to determine whether a proposed subject for bargaining should be characterized as mandatory. If the employees' legitimate interest in wages, hours and conditions of employment outweighs the employer's concerns about the restriction on managerial prerogatives or public policy, the proposal is a mandatory subject of bargaining. In contrast, where the management and direction of the governmental unit or the formulation of public policy predominates, the matter is not a mandatory subject of bargaining.

The district contended that the decision to eliminate the three positions and return to a volunteer fire department was due to a projected budget shortfall caused primarily by the need to purchase a new truck, and therefore was not a mandatory subject of bargaining. This relied on an earlier Wisconsin case that held that a decision to lay off five firefighters based on budget reductions was not a mandatory subject of bargaining. The court disagreed, saying that the decision to lay off the firefighters in the earlier case resulted in a reduction of firefighting services to the community, thus implicating policy and political processes. However in this case, the volunteer firefighters would be doing the same work the paid firefighters had done.

The WERC likened this case to one in which a school district decided to lay off its employees and subcontract its food service program to a private contractor to save money. In that case, the court found that the decision did not involve policy concerns because “the decision merely substituted private employees for public employees” who would do the same work in the same places and in the same manner.

The court quoted with approval from the WERC ruling, which noted that the district heavily emphasized the alleged public policy choice involved in its decision: whether to purchase a new truck on the one hand, or maintain a full-time work force on the other. It said that certainly every expenditure and budgetary decision carries some policy implications. Had the district faced a choice between reducing its fire protection services and purchasing a truck, its decision might have been viewed differently. However, if a public employer's choice to spend money on equipment rather than wages were ipso facto nonbargainable, even if services were unaffected, then virtually any economic issue affecting employees could be cast in nonbargainable terms, at least in an environment of limited revenues. This is why it is necessary to balance the relative weight of the asserted policy interests against the effect on wages, hours and working conditions of employment.

A political body's decision to endure reduced services is sufficiently imbued with policy to outweigh the effect of a layoff on wages, hours and conditions of employment. Concerns about a union pre-empting public debate over policy choices would have little resonance in a situation where the choice did not involve a potential loss of services. Asking the public, “Would you like to have the same service you have now and a new truck, too, but spend less money?” is like asking whether they want to have their cake and eat it, too.

The district countered that the WERC's decision does great damage to the ability of local municipalities and local governing agencies to control their own affairs. The court, however, ruled to the contrary, saying that governing bodies like the district may act on economic motivations without being subject to mandatory bargaining as long as actual policy choices are being made and anti-union bias is not also a motivating factor. The court said that the problem in this case is that the district's actions were primarily related to wages, hours, and conditions of employment. As such, the decision to lay off the employees was a subject of mandatory bargaining.

The court next considered whether the district was motivated to eliminate the three full-time positions in part because of hostility toward the employees' union activities. The court stated that an employee may not be fired when one of the motivating factors is his union activities, no matter how many other valid reasons exist for firing him.

The court noted that the district maintained an equipment fund which, at the time of the June 2003 board meeting, contained approximately $140,000. At that meeting, neither Hellendrung nor the board discussed ways to finance the purchase of an updated tanker or pumper truck, or whether to purchase a new truck as opposed to a used truck, before voting to eliminate the three full-time positions. The court said that the district took this unusual action even though it already had funds set aside to pay the three full-time employees for another six months, the need to purchase a new fire truck had been under discussion for at least two years, and nothing happened between the April and June board meetings that made the need more urgent. Additionally, the court held that the record was replete with facts that show that Hellendrung did not want a union and actively tried to persuade the men not to form one. The court then concluded that the district's decision to cut the positions from the budget outside the normal budget cycle was not in keeping with its prior practice and was motivated in part by anti-union animus.

The final issue the court considered was whether Hellendrung's statement to the employees constituted a prohibited practice. It concluded that he overstated the inflexibility that the union contract would bring and the consequent detriment to the employees. It also concluded that the statement contained threatening language because the district listed the economic benefits it was willing to offer the employees, but implied that it would have a different attitude if improvements were sought by the union. The statement also implied that unionization might force the district to eliminate the jobs altogether.

Based on these findings, the court affirmed the WERC order returning the three employees to their positions with back pay accompanied by 12% annual interest. Keep in mind:

• Timing is everything. Decisions that may seem to make sense may still run afoul of the law.
• A municipality does not have unfettered control of budget decisions.
• If positions are being eliminated, be certain to document the reasoning and demonstrate that other alternatives were considered.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation.