KENOSHA TEACHERS UNION v. WISCONSIN E. R. COMM., 39 Wis.2d 196 (1968)

158 N.W.2d 914

KENOSHA TEACHERS UNION LOCAL 557 and another, Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent.

Supreme Court of Wisconsin.
No. 254.Argued May 6, 1968. —
Decided June 4, 1968.

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APPEAL from a judgment of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Affirmed.

This is an appeal by Colin R. Spaight and the Kenosha Teachers Union Local 557 (KTU), herein referred to as appellants, from a judgment of the circuit court for Dane county affirming the decision of the Wisconsin Employment Relations Commission (WERC), herein referred to as the respondent.

Colin R. Spaight was employed as a teacher at Lance Junior High School, and during his second year of teaching, the Kenosha Board of Education, upon recommendation of John Hosmanek, the principal of the school, informed Spaight that his teaching contract would not be renewed for the following year. In the Kenosha school system, teachers acquire tenure upon commencing their third year of teaching.

The recommendation of Hosmanek and his reasons therefor, upon which the Board of Education based its decision not to renew the contract, are as follows:

Recommendation: “Although I feel that this teacher has the potential for improvement, such factors as his age, relative lack of discretion, and other personality factors, lead me to state that I cannot recommend him for renewal of his contract for the coming year.”

Supporting reasons: “Mr. Spaight is in his second year of teaching in Kenosha. Although he had many of the difficulties commonly found in an initial teaching experience, he gave some indications that he was learning much from experience.

“I regret to say that he has not shown substantial progress. He continues to give indications of having a personality not particularly appropriate to the teaching profession. Therefore, after considerable thought I have concluded that, in my opinion, Mr. Spaight does not possess the potential for becoming a better than average teacher at this school.

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“While he gives the appearance of being conscientious, there are many indications that his philosophy of teaching and his conception of what a teacher is are not in harmony with what is expected at this school and school system. Some examples of the kinds of incidents which have led to this conclusion are these:

“(1) During the first year, it was necessary to remind
him to dress appropriately for teaching. On several
occasions he came with a sweater over a T-shirt.
This year, he has appeared in a dark blue
knit shirt with a large emblem sewed to it displaying
the word, `Jaguar.’

“(2) Despite my frequent visitations to his class, discussions
relative to class-control, a handbook
which carefully describes what is desirable and
necessary, and various announcements designed
to supplement this information, he maintains an
overly-permissive and a highly informal, disorganized
type of class situation.

“(3) Toward the end of the school year he hired a
number of ninth grade students to help him
wreck a building at Great Lakes upon which he
was the successful bidder.

“(4) He does not hesitate to discuss highly controversial
aspects of topics such as religion, birth
control, politics, etc., in places such as the faculty
dining room and professional library.

“(5) He gives evidence of a philosophy of grading inconsistent
with the stated guidelines for evaluating
and grading student progress. These are
contained in a bulletin issued regularly and have
been discussed thoroughly at faculty meetings.
During the first quarter he issued 35 `F’ and 39
`D’ grades. He is a frequent tester and relies
almost solely on a lecture or lecture-discussion
presentation during which students speak out
freely, interrupting him or other students.

“(6) Because of the classroom atmosphere, several
relatively serious incidents have occurred during
the past year. Among these have been the lifting
of skirts and placing of hands on girls by
boys, an incident in which a colored girl student
was openly called a `black bastard,’ by another
student, several incidents of physical force by

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the teacher to compel students to obey his requests,
etc.

“(7) On one occasion, early in November, he became
highly emotional one morning when he found a
flyer pertaining to the KEA-KTU controversy
in his mailbox with something written across it.
He complained to me vigorously and publicly,
stating, `If I find out who is doing this, I’ll deck
him if he’s a man, and I’ll slap the person if it’s
a woman.’

“(8) He has been highly vocal in his criticism of the
Kenosha Public Schools, commenting extensively
on matters of which he has no direct knowledge,
such as, a situation involving a substitute teacher
in a Spanish class at one of the high schools
which he said resulted in students getting no
grades.

“(9) During the latter part of last year, he applied for
a transfer to the senior high school without even
extending the professional courtesy of notifying
his principal beforehand.”

In essence, the complaint alleges that the recommendation of Hosmanek for nonrenewal of Spaight’s contract was motivated by Hosmanek’s desire to discourage membership in the KTU. It is the position of the appellants that such action was contrary to the provisions of sec. 111.70 (2), Stats., and in violation of sec. 111.70 (3) (a) 1 and 2.[1]

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After extensive proceedings, the WERC found that the determination of the Kenosha Board of Education not to renew the contract of Spaight was not motivated by his union activities. The commission’s order also dismissed the complaint of the KTU.[2]

For the appellants there was a brief by Goldberg, Previant Uelmen of Milwaukee, and oral argument b Richard M. Goldberg.

For the respondent the cause was argued by William H. Wilker, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.

CONNOR T. HANSEN, J.

This appeal presents two issues:

(1) Whether the trial court erred in not determining as a matter of law that one motivating factor in the nonrenewal of Spaight’s contract was his involvement in union activities.

(2) Whether there is substantial evidence, in view of the record as a whole, to support the determination of the WERC that nonrenewal of Spaight’s contract was not motivated by his union activities.

(1) We have carefully reviewed the entire record in this proceeding and conclude that in this particular case the question of whether union activity was a motivating factor in the nonrenewal of the teaching contract was a question of fact and not one of law.

Appellants contend that the fourth reason enumerated by Hosmanek in support of his recommendation relates to a brief, but heated discussion which occurred between

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the librarian and Spaight in the professional library. It is uncontroverted that the topic of discussion was unionism and teaching professionalism. It is also undisputed that the librarian reported the incident to Hosmanek who later mentioned this to Spaight as an example of the latter’s unprofessional attitude. However, the undisputed occurrence of the incident does not, in and of itself, constitute a motivating factor as a matter of law. The incident must be viewed within the scope of the relationship between Hosmanek and Spaight. Spaight was not exceptionally active in the union. He was neither an organizer, nor an officer, agent or steward. Hosmanek testified that at the time he began evaluating Spaight he had no knowledge of Spaight’s participation in either the KTU or the Kenosha Education Association (KEA). He also testified that when he composed the teacher evaluation during Spaight’s second year, the only indication Hosmanek had of Spaight’s relation to the KTU was the librarian’s complaint relating to the library incident.

Therefore the question of whether the library incident constituted a motivating factor, was a question of fact and properly within the scope of the WERC’s review. We deem it significant that the WERC made the following specific finding:

“. . . the refusal of the School Board to renew Spaight’s teaching contract was not motivated for the purpose of discouraging activity or membership in any employe organization, including the KTU, and that the action by the School Board in this regard was based on Spaight’s performance and behavior in relationship to his teaching position.” (Emphasis added.)

The findings of the WERC in this case were rendered over a year before the decision of this court in Muskego-Norway Consolidated Schools Joint School Dist. No. 9 v. Wisconsin Employment Relations Board (1967), 35 Wis.2d 540, 151 N.W.2d 617. However, both the trial court and the WERC were cognizant of the motivating

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factor criteria as explained by this court in Muskego-Norway, supra, page 562:

“Although these cases (several federal cases) all involve a construction of unfair labor practices under the Wagner Act, the case of St. Joseph’s Hospital v. Wisconsin Employment Relations Board[3] adopts their legal conclusion 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 appellants possessed the burden of proof before the WERC. The appellants must establish that the union activity of Spaight was a motivating factor in the nonrenewal of his contract by the clear and satisfactory preponderance of the evidence. See sec. 111.07(3), Stats.;[4] Century Building Co. v. Wisconsin Employment Relations Board (1940), 235 Wis. 376, 382, 291 N.W. 305.

The trial court correctly concluded that in this case a question of fact was presented for determination by the WERC and not a question of law.

(2) Appellants contend that the findings and conclusions of the WERC are erroneous and not supported by substantial evidence in view of the record as a whole. Appellants specifically contest the finding that the nonrenewal of Spaight’s contract was not motivated by union activities but was based upon his performance and behavior in relation to his teaching position.

In Muskego-Norway Consolidated Schools Joint School Dist. No. 9 v. Wisconsin Employment Relations Board,

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supra, this court reiterated the standard of judicial view of the findings of the WERC. It is well established that under sec. 227.20(1)(d), Stats.[5] judicial review of WERC findings determines whether or not the questioned finding is supported by “substantial evidence in view of the entire record.”

In Copland v. Department of Taxation (1962), 16 Wis.2d 543, 554, 114 N.W.2d 858, this court explained what is meant by substantial evidence by quoting from an article entitled “Substantial Evidence” in Administrative Law, 89 Univ. of Pa. L. Rev. (1941), 1026, 1038:

“`[T]he term “substantial evidence” should be construed to confer finality upon an administrative decision on the facts when, upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable man, acting reasonably, might have reached the decision; but, on the other hand, if a reasonable man, acting reasonably could not have reached the decision from the evidence and its inferences then the decision is not supported by substantial evidence and it should be set aside.'”

Moreover, in Copland, this court noted that substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and then determined:

“We deem that the test of reasonableness is implicit in the statutory words `substantial evidence.’ However,

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in applying this test the crucial question is whether a reviewing court is only to consider the evidence which tends to support the agency’s findings, or whether it is also to consider the evidence which controverts, explains, or impeaches the former. Use of the statutory words `in view of the entire record as submitted’ strongly suggests that the test of reasonableness is to be applied to the evidence as a whole, not merely to that part which tends to support the agency’s findings.”

Appellant’s contention is based upon the allegedly adverse attitudes of Principal Hosmanek and upon an analysis of the reasons supporting Hosmanek’s written recommendation of nonrenewal.

Concerning Principal Hosmanek’s attitudes, the WERC filed an explanatory memorandum along with its findings, which memorandum detailed the complaints against him and concluded:

“We have carefully reviewed the testimony and other evidence surrounding the decision of Hosmanek to recommend the non-renewal of the teaching contract of Colin Spaight for the 1965-66 school year. We are satisfied that Hosmanek’s recommendation and the determination by the School Board in the non-renewal of Spaight’s teaching contract was not motivated by his concerted activity on behalf of either of the organizations, or the lack thereof, and therefore, we have concluded that such action did not constitute unlawful discrimination against Spaight nor was it intended to unlawfully interfere, restrain or coerce any of the teachers in the employ of the School Board.”

As previously stated, in the evaluation of Spaight by Hosmanek when making his ultimate recommendation to the Board of Education, the tenure status of Spaight was a matter for consideration. Hosmanek was not the sole source of this evaluation. Charles Danke, assistant principal, testified that it was his duty to help evaluate teachers who had not gained tenure status. He recommended to Principal Hosmanek that the contract of Spaight not be renewed. All of the observations of

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Danke upon which his recommendation is based relate solely and only to the teaching ability of Spaight. These observations are also supported by the teacher evaluation summary of him. It is also significant that the contracts of two other teachers were not renewed for the same general reasons and one of these teachers was very active in the Kenosha Education Association which was an association allegedly given preferential treatment as to KTU.

The WERC is the judge of the credibility of the witnesses and the reviewing court is not to substitute its judgment for the judgment of the board. St. Francis Hospital v. Wisconsin Employment Relations Board
(1959), 8 Wis.2d 308, 318, 98 N.W.2d 909; St. Joseph’s Hospital v. Wisconsin Employment Relations Board, supra, 401, 402.

It is, therefore, our determination that the findings of the WERC are supported by substantial evidence when considering the entire record.

By the Court. — Judgment affirmed.

WILKIE, J., took no part.