Troy Area Landfill vs. Town of East Troy
STATE OF WISCONSIN
BEFORE THE WASTE FACILITY SITING BOARD
The decision which follows has been scanned from hard copy, and may contain scanning errors. Also, its formatting will not match the original.
BEFORE THE WASTE FACILITY SITING BOARD
The decision which follows has been scanned from hard copy, and may contain scanning errors. Also, its formatting will not match the original.
In the Matter of a Default Determination Pursuant to Section 144.445 (9)(d), Stats., Involving a Dispute Between
TROY AREA LANDFILL, INC., APPLICANT,
THE TOWN OF EAST TROY, WALWORTH COUNTY, LOCAL COMMITTEE,
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Case No. 3-84-01
Davis & Kuelthau, S.C., Attorneys at Law, Suite 800, 250 East Wisconsin Avenue, Milwaukee, WI 53202, by Mr. David W. Neeb and Mr. Peter J. Ruud, appearing on behalf of the Petitioner.
Greenwald, Maier & Hudec, P.C., Attorneys at Law, 2098 Church Street, P.O. Box 167, East Troy, WI 53120, by Mr. Patrick J. Hudec, appearing on behalf of the Respondent.
PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
On May 25, 1984, Troy Area Landfill, Inc. filed a petition with the Waste Facility Siting Board, alleging that the Town of East Troy, Walworth County, Local Committee had defaulted in its duty to negotiate pursuant to Sec. 144.445 (9) (d), Stats., by failing to hold meetings and to make counterproposals to offers made by the Petitioner. The Board appointed Christopher Honeyman to act as Examiner in this matter and to make and issue Proposed Findings of Fact, Conclusions of Law and Order as provided in Sec. 227.09(l) and (2), Stats. A hearing was held in East Troy, Wisconsin on September 7, 1984. Neither party filed a brief within the agreed-on time limit, (1) no extension was agreed on, and the record was closed on November 5, 1984. The Examiner, having considered the evidence and arguments, makes and files the following Proposed Findings of Fact, Conclusions of Law and Order.
PROPOSED FINDINGS OF FACT
1. Troy Area Landfill, Inc., is a domestic corporation with its principal offices at 2654 East Main Street, East Troy, Wisconsin 53120, and has as its registered agent Robert H. Diamond. Troy Area Landfill, Inc., herein referred to as the Petitioner or Applicant, seeks to construct and operate a solid waste landfill in the Town of East Troy, Walworth County, Wisconsin.
2. Town of East Troy, Walworth County, Local Committee, herein referred to as the Respondent or Local Committee, is a committee appointed by the Town of East Troy and Walworth County for the purpose of negotiating with Petitioner as to various terms and conditions of construction and operation of the proposed landfill. The members of the Local Committee at all material times have been Ellery Clayton (Chairman), Maxine Hough, Kurt Davidsen, Dareld West, James Kneilands, Roman Henningfeld, Henry Riese, and Kent Lewis.
3. The Local Committee was formed in or about November, 1982. The first negotiating session between Petitioner and Respondent occurred on January 31, 1983, and five further meetings were held between the parties by November 28, 1983. By the same date, the Local Committee had held meetings to discuss procedures, negotiations and specific proposals on approximately eleven additional occasions. On November 28, 1983 Petitioner forwarded to Respondent by mail a new complete proposal. Respondent acknowledged receipt of said proposal on November 30, 1983.
4. From November 28, 1983 onwards, the Local Committee held no meeting until April 11, 1984. During that time, meetings were scheduled for March 12 and 22, 1984, respectively, but both were cancelled. A written counterproposal to the Petitioner's August 28, 1983 proposal was sent by Respondent on or about June 28, 1984.
5. The voting members of the Local Committee are unpaid citizen volunteers, and the record demonstrates that certain members of that Committee, particularity its Chairman Clayton, have other civic and business responsibilities which result in scheduling conflicts. The record also demonstrates that the delay in holding internal meetings of the Local Committee from November 28, 1983 onwards was occasioned partly by the following:
a. A new formula for payments to the affected municipalities, which formed an essential part of Petitioner's proposal of August 28, 1983.
b. On or about March 9, 1984, certain Local Committee members indicated that they had a conflict with the March 12 meeting date, which was thereupon cancelled and postponed to March 22, 1984.
c. Local Committee Attorney Hudec became ill during the week of March 22, 1984, and the meeting of the Local Committee was thereupon postponed to April 11, 1984.
6. After the instant petition for default was filed, the Local Committee met on several occasions with Petitioner, but no agreement has been reached.
7. The record fails to demonstrate that the Local Committee's reasons for not immediately scheduling a meeting after receipt of the Petitioner's November 28, 1983 proposal, or for cancelling its March 12 and March 22 scheduled meetings, were not for good cause. The record further fails to demonstrate that the overall pattern of conduct of the Local Committee in its scheduling of internal meetings, scheduling of meetings with Petitioner and timing and content of offers to Petitioner constitutes a failure to participate in negotiating sessions.
Upon the basis of the foregoing Proposed Findings of Fact, the Examiner makes and files the following
PROPOSED CONCLUSIONS OF LAW
The actions of the Local Committee, including its sometime failure to act promptly on proposals and requests of Petitioner, do not constitute failure to participate in negotiating sessions or default within the meaning of Sec. 144.445 (9) (d), Stats.
Upon the basis of the foregoing Proposed Findings of Fact and Conclusions of Law, the Examiner makes and renders the following
That the petition for default filed in this matter be dismissed.
Dated at Madison, Wisconsin this 29th day of November, 1984.
WASTE FACILITY SITING BOARD
By___/s/ Christopher Honeyman
Christopher Honeyman, Hearing Examiner
TOWN OF EAST TROY-WALWORTH COUNTY TROY AREA LANDFILL, INC.
MEMORANDUM ACCOMPANYING PROPOSED
FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER
The petition alleges that the Local Committee has consistently delayed negotiations for the purpose of thwarting the negotiation process required by the Statute, that the Local Committee's actions have been taken in bad faith, and that these actions constitute default within the meaning of Sec. 144.445 (9) (d), Stats. The petition alleges specifically that the failure of the Local Committee to hold any meeting between the dates of November 28, 1983 and April 11, 1984 and its failure to submit any counterproposal to Petitioner by the date of the petition constitute a failure to participate in negotiating sessions without good cause.
Because this is the first case to be litigated under the applicable Statute, some general explanation is necessary. The legislature created Chapter 374 of the Laws of 1981 with the following stated intent:
(2) LEGISLATIVE INTENT. It is the intent of the legislature to create and maintain an effective and comprehensive policy of negotiation and arbitration between the applicant for a license to establish either a solid waste disposal facility or a hazardous waste treatment, storage or disposal facility and a committee representing the affected municipalities to assure that:
(a) Arbitrary or discriminatory policies and actions of local governments which obstruct the establishment of solid waste disposal facilities and hazardous waste facilities can be set aside.
(b) The legitimate concerns of nearby residents and affected municipalities can be expressed in a public forum, negotiated and, if need be, arbitrated with the applicant in a fair manner and reduced to a written document that is legally binding.
(c) An adequate mechanism exists under state law to assure the establishment of environmentally sound and economically viable solid waste disposal facilities and hazardous waste facilities.
The Statute provides for a complex series of requirements, including a list of items which may be negotiated between an applicant and a local committee, a list of items which are excluded from such negotiations, and a negotiation and binding arbitration procedure. At issue here is Sec. 144.445 (9) (d), which states:
(d) Failure of the applicant or the local committee to participate in negotiating sessions constitutes default except as provided in this paragraph. It is not default if the application or the local committee fails to participate in negotiating sessions either for good cause or if further negotiations cannot be reasonably expected to result in a settlement. Either party may petition the board in writing for a determination as to whether a given situation constitutes default. The board shall conduct a hearing in the matter. Notwithstanding s. 227.22 (2), the decision of the board on default is subject to judicial review under ss. 227.15 to 227.21. If the applicant defaults, the applicant may not construct the facility. If the local committee defaults, the applicant may continue to seek state approval of the facility, is not required to continue to negotiate or arbitrate under this section and the facility is not subject to any local approval, notwithstanding sub. (5).
The Board has adopted a set of administrative rules, in which Rule 9.07 addresses the criteria under which the Board intends to determine allegations of default. These are as follows:
WFSB 9.07 Considerations by the board.
(1) In making its decision concerning the petition, the board may consider:
(a)The length of time which has passed from appointment of local committee members.
(b) Whether the local committee has been meeting regularly as a body.
(c) The number of times the petitioner has requested a joint session.
(2) A decision finding default will be entered only if the board finds a deliberate, repeated and flagrant failure to participate in negotiating sessions.
(3) The board shall not find default on the part of a local committee if a feasibility report or its substantial equivalent has not been made available to the participating municipalities .
The facts are largely undisputed. The Applicant first filed a petition for default on or about December 31, 1982, alleging a failure of the Local Committee to schedule an initial negotiating session. Following discussions by both parties with the Board's Executive Secretary, an initial negotiating session was scheduled for January 31, 1983, and the Applicant withdrew its petition for default. Negotiations then proceeded with a number of meetings being held by the Local Committee independently, and by the two parties jointly, throughout 1983. On November 28, 1983, in response to a proposal received from the Local Committee, the Applicant submitted a counterproposal, which can be characterized as having changed the proposed basis of various terms of the relationship. The basis for the new proposal can be summarized as being a change from a series of requirements that the Applicant be responsible for monitoring certain safety requirements, bear the cost of certain road improvements and other required changes to the site and its surroundings, and perform other related work, to a cash payment formula by which the Applicant would pay a set fee per ton of waste accepted to the affected municipalities, for their use in defraying expenses incurred in performing these functions themselves. In testimony, several members of the Local Committee described themselves as surprised or, in one case, "shocked" by this change. Regardless of whether this is hyperbole, it is clear that the November 28, 1983 proposal by Petitioner represented no mere change in the details of the proposals that had been made previously. On November 30, 1983, Attorney Hudec acknowledged receipt of the Applicant's proposal and forwarded it to the Local Committee members. It is undisputed that a substantial period of time then elapsed before the Local Committee attempted to schedule a meeting.
Because neither party made an oral argument at the hearing (reserving the right to file briefs, but subsequently failing to file briefs) the arguments of the parties are here extrapolated from their pre-hearing submissions and from such arguments as became apparent during the course of the hearing. The Local Committee argues essentially that the initial delay in scheduling a meeting after receipt of the November 28 proposal was for several reasons. These, as described in testimony by Hudec and by Chairman Clayton, were that the proposal represented a radical change in the pattern of the proposed agreement; that the Committee needed to obtain from the Applicant a breakdown as to the expected costs of the various functions the municipalities were now expected to assume; scheduling difficulties caused by conflicts in the available dates of the various Committee members and of Hudec; and the lack of continuous availability of a suitable meeting place. The Local Committee defends the subsequent failure to meet from March 12 to 22 as being based on a scheduling conflict which several of the Committee members had on March 12. The delay from March 22 until April 11 is defended as being caused by Hudec's illness during the week of March 22 and, again, difficulties in finding a mutually agreeable date and location for several weeks thereafter. The Local Committee contends that the delay from April 11 until its submission of a counter-offer to the Applicant on June 29 was occasioned by the complexity of the proposals, by the fact that it had still not received from the Applicant the requested breakdown as to costs, and by requests made to it by the Town and Walworth County for specified shares of any cash payment agreed on, which required a series of meetings with the affected municipalities.
The Petitioner/Applicant contends that the Local Committee does not intend and has never intended to reach an agreement with the Applicant, and that the various reasons for delay put forward by the Local Committee are a smokescreen intended to mask its true intent. The Petitioner contends that a cost breakdown, within the reasonable expectations of accuracy that could be made for a projection extending may years into the future, was in fact submitted by its then attorney, David Stewart, to Hudec in a letter dated December 20, 1983, as well as in telephone discussions prior to that date. The Petitioner notes that since the beginning of its relationship with the Local Committee, joint negotiations have occurred only after it has filed petitions for default and for arbitration, and contends that this shows that the Local Committee's intent is mainly to preserve appearances. The Petitioner notes that in letters submitted to the Board as long ago as October, 1983 the Local Committee, in a reply to the Applicant's then pending arbitration petition, stated that it was "very optimistic" about reaching an agreement in the "very near future," and contends that this shows a pattern and practice of delaying matters by attempting to convince the Board that the Local Committee is acting in good faith while in fact it is engaging in extended delay in order to frustrate the construction of the landfill. The Petitioner further contends that the opposition of various members of the Local Committee to the landfill in the contested case proceeding before the Department of Natural Resources shows bad faith on their part, and that the fact that members Hough and Davidsen live across the road from the proposed site of the landfill shows that these members at least have an interest in delaying its implementation to the maximum extent possible.
The Local Committee argues that opposition to the siting of the landfill is proper within the terms of the Statute which apply to contested cases, and that by availing themselves of this statutory right the members do not indicate bad faith in the bargaining process, assuming that the landfill is ultimately approved for construction. The Local Committee further argues that there is no evidence that any member is unalterably opposed to reaching an agreement by which the landfill can be implemented.
Despite Petitioner's vigorous attempts to elicit admissions of undying opposition to the landfill from adverse witnesses, the record is devoid of any such statement, or indeed of any direct evidence that the members of the Local Committee have expressed any desire to engage in delay for delay's sake. It is clear that members of the Local Committee have engaged in a contested case proceeding with Petitioner before the Department of Natural Resources. But this is a statutory right, and its exercise can hardly be held to imply that, in the event that the Department of Natural Resources found the landfill feasible, those members ipso facto fail their obligation to negotiate with the Applicant. The same applies to members who live in close proximity to the landfill site. Even if their testimony is discounted and it is accepted that they would prefer to have no new landfill nearby, this is only one element in a complex judgment as to whether they have failed their duty to negotiate the terms of the landfill. (2)
This matter is a case of first impression, not only as to the particular section immediately at issue but as to the Statute as a whole. Statutes mandating negotiations over landfill issues are relatively new nationwide, and neither party has offered precedent from any other jurisdiction. And a review of the legislative history of the Statute shows that the relevant language in Sec. 144.445 (9) (d) survived intact from initial draft through passage; the available documents fail to show any discussion which might shed light on the legislature's intent in using those particular phrases. (3)
Because of the dearth of legislative history, and because American law contains few situations in which negotiations between two parties are statutorily required, there is a strong impetus to draw principles and analogies from the fifty-year history of statutes in labor law. Among the thousands of cases decided under those statutes are many which seek to define the nebulous concept of good-faith bargaining. By applying the standards arrived at in that field, a degree of consistency and continuity of legal thought, and of understanding of human behavior common to all negotiating contexts, may be expected. But a careful examination of the different purposes and circumstances of labor and environmental laws leads me to the view that reliance on the standards and precedents of labor law is not what the legislature or the Board has intended.
I do not rely, in this assessment, on the Statute's reference to the phrase "failure . . . to participate in negotiating sessions" rather than to "good-faith bargaining." Although the National Labor Relations Act, the nation's most widely applicable labor law, has used the phrase "bargain in good faith" since the Taft-Hartley amendments, its original form (the Wagner Act) required only that employers "bargain." The "good faith" requirement was initially the result of the National Labor Relations Board's interpretation of the statutory language, (4) and after experimenting with a different formulation (5) the Supreme Court adopted the "good faith" interpretation two years later. (6) A requirement simply to "bargain" is not obviously different in effect from one to "participate in negotiating sessions," and on the face of the Statute it would be possible to arrive at the same interpretation. This gives a semblance of logic, because it is difficult to conceive of the legislature condoning bad faith in a negotiation procedure it has so carefully constructed.
To interpret this section as implying a requirement of good faith, with all that that entails, would have a substantial impact not only on this case, but on other situations as well. The instant petition contends that the Local Committee is guilty of dilatory conduct, which under circumstances discussed below could violate the Board's applicable rule, the facial meaning of Sec. 144.445 (9) (d) and/or the "good faith" standard. But where several cited standards may imply different requirements of proof, it is essential to define which standard is applicable.
The "good faith" standard applied in labor law led to the rule that the "totality of conduct" of the accused party must be examined in order to determine if the requisite overall good faith could there be found. (7) This has led in turn to a Noah's Ark-like list of specific actions which have been found to evince good or bad faith under given circumstances. By and large, the specific types of conduct found, in suitable circumstances, to be evidence of bad faith fall into the following categories: going through the motions, otherwise known as "surface-bargaining"; dilatory or evasive tactics; sending negotiators with inadequate authority; imposing improper conditions on negotiations; taking unilateral actions; refusing to furnish pertinent information; and bypassing the representative.
It is clear on the face of Rule 9.07 that, of these categories, none is contemplated as the basis for a default finding, save for dilatory tactics. A finding that dilatory tactics constituted default per se would not, however, be sufficient to guarantee good-faith negotiations. Such a finding would undoubtedly propel parties into a great effort to meet. But a review of the other types of bad-faith bargaining outlined above shows that many opportunities for frustrating bargaining exist for those who are compelled merely to attend sessions promptly and regularly. Enforcement of the good faith standard therefore depends absolutely on the intent and ability to enforce each and every one of its components: they cannot be separated without nullifying the concept as a whole. The history of the Wagner Act cited above is sufficient to show that a finding that labor-management concepts of "good faith" should apply here would eventually result not only in extensive elaboration of Rule 9.07, but in the adoption of highly complex standards and lengthy trial records from which the good or bad faith of applicants and local committees could be assessed.
There are persuasive reasons for concluding that this was not the legislature's intent in enacting this statute. Even if, for reasons already noted, the specific language used in 9 (d) is considered ambiguous, a number of factors distinguish negotiations under this statute from those between labor and management.
The most obvious is inherent in the penalties specified by statute or arrived at by precedent. It is a consistent thread in American law that if a given offense carries a severe penalty, a high degree of proof will be called for; a lesser penalty may not require proof beyond a preponderance of the evidence. In labor law, both state and federal, the first and most common remedy for failure to negotiate in good faith is a bargaining order, which in a sense puts the force of the administrative and judicial system behind one of the parties. But no specific bargaining concession is required by a bargaining order, and many have argued that it does not materially change the relative power of the parties at the bargaining table. By contrast, the statute involved here provides a fixed penalty for default, which might be characterized as Draconian in comparison with the penalties available under labor law. Failure to negotiate within the meaning of Sec. 144.445 (9) (d) results, if by a local committee, in the forfeiture of any negotiation, arbitration or approval rights. The same failure by an applicant results in forfeiture of any right to construct the facility at all.
Several consequences flow from these penalties. First, it is a matter of record that a substantial amount of money is involved in a proceeding such as this. The Applicant's offer of November 28, 1983, for example, estimated that under that offer some three million dollars would be paid by the landfill to local municipalities during the period of its operation. Without characterizing this figure as either reasonable or unreasonable, it is apparent that by comparison to these types of costs the expense involved in litigation is unlikely to be a major deterrent to either party.
Second , an understanding which is generally believed to underlie much of the law relating to labor negotiations is that because of the nature of the parties' relationship, they will have to live with each other after the litigation is over. This cannot necessarily be paralleled here. It is true that if the facility is constructed and no default by the Local Committee is found, a continuing relationship might exist between persons appointed by the affected municipalities and the landfill operator. But in no sense can that relationship be expected to reach the level of intimacy of the employer-employee or employer-union relationships. And the possibility that the landfill might not be constructed, or that default against one or the other party might be found, could engender attitudes far from any sense that the parties have mutual interests which should moderate their behavior at the bargaining table or in litigation.
These factors can be expected to combine to encourage a party to try for a finding of default against its opponent. They can also work to undermine any real progress at the bargaining table. The Petitioner here has continued to bargain with the Local Committee and has averred that it does not waive its arguments of default by doing so. This is a meritorious argument, which could be denied only at the expense of stopping all attempts at bargaining the moment either party chose to file a default petition. Failure to accept such a no-waiver contention would thus frustrate the purposes of the Statute. But easy availability of the default proceeding, in view of the considerations noted above, could easily encourage parties to structure their behavior at the bargaining table with a view to defending against or pressing a default petition rather than to reaching agreement. Such posturing plainly would not serve the purpose of the Statute, and legal interpretations which would encourage it should therefore be considered with caution. For the same reason it is important to note that full judicial review of a default determination is available under this Section, in contrast to the limited standard for judicial review of an arbitration award. The possibility of lengthy appeals of default cases cannot be ignored in practice and must also be assessed as part of a determination of legislative intent, in view of the legislative concern for prompt handling of landfill disputes which is discussed below.
Under the Statute, a local committee is likely to consist, as in this case, mostly of citizen volunteers. It is well known that the rates of meeting, decision and action of public bodies in general do not please their private-sector counterparts, but it is justifiable to compare the pace of action of a local committee more to a typical public body than to a private company.
The right to file a unilateral petition for arbitration under this Statute is also significant, for it provides either party with a solution, consistent with the stated intent of the Statute, for any situation in which it is unable to reach agreement with its opponent. Nor would a pattern of recalcitrance at the bargaining table be condoned, in effect, by a finding that arbitration is a more appropriate solution than default: experience with Wisconsin public sector labor cases has given the strong impression that a party which has not bargained reasonably in negotiations has missed its best opportunity to develop a full understanding and response to the needs and abilities of both parties, and to the realities of its particular situation. Such a party can be expected to have great difficulty in formulating a reasonable final offer. Since the board must adopt in its entirety (8) one final offer or the other, it may fairly be said that such a party "sows the seeds of its own destruction."
The final significant factor is that the Statute specifies time periods for the submission of a unilateral petition for arbitration. (9) Such comprehensive time limits and minimum times are not reflected in the Wisconsin labor laws, even though they provide for arbitration of certain unresolved public-sector contracts.(10) The fact that the legislature has required specified periods for various stages of the procedure must have significance as to the legislature's expectation of the likely course of negotiations in these cases. The Applicant here has filed a unilateral petition for arbitration, which is currently held in abeyance. Without making any conclusion or implication as to the merits of that petition or its appropriateness at this time, I cannot but find that the legislature has given a clear indication that delays in negotiations are legislatively expected and that it has provided a clear intended remedy for mere delay. In particular, the provision of a set period of time beyond which a unilateral petition for arbitration may be filed gives at the least a strong implication that the legislature intends delayed negotiations to be resolved in this manner. To hold that, under these circumstances, a mere delay in arriving at agreement subjected whichever party was first accused to a possible finding of default, would frustrate the Statute both in the aspect just noted and in its larger purpose. For to return to the legislative intent quoted above, it is the purpose of the Statute to insure that landfills such as that involved here are established under conditions that will make them acceptable, if not to the citizens most immediately affected, then at least to a neutral body of arbitrators. Too low a standard for finding default would frustrate this purpose.
For all of these reasons, I conclude that the obvious need for good-faith negotiations to occur is accommodated and enforced in this Statute by the realities of the arbitration process, and that the remedy of default, vitiating as it does the stated intent of the law, is intended to be reserved for only the more extreme forms of failure to negotiate.
Here, the Local Committee has engaged in a lengthy series of delays, and the fact is worth noting that it has apparently found prompt meetings easier to achieve after the Applicant, on two occasions, filed petitions for default. The defenses of difficulty in finding a meeting place and of scheduling conflicts could be regarded, in that light, as mere prevarication. But at least some of the various grounds for delay advanced by Respondent have a degree of merit. The Petitioner did make a wholesale change in the basis of the proposals in its November 28 offer. The pace of action of the Local Committee has not been untypical of a public body, particularly one facing a novel set of issues. The time taken by the Local Committee to respond to demands made to it by Walworth County and the Town is not extraordinary and explains, in part, the delay from April 11 until Respondent's June 28 submission of a counterproposal. And the cancellation of the March 22 meeting, because of Hudec's uncontroverted illness, surely meets the exception of "good cause." It must also be noted that the five-and-a-half month period during which no meeting was held concerning the Applicant's November 28 offer does not represent total inactivity. During that period, Hudec and Stewart engaged in a continuous correspondence of some fourteen letters, at least part of which concerned substantive issues. It therefore appears that the delays in this matter, though "repeated," cannot be characterized uniformly as "flagrant" or "deliberate." With reference directly to the Statute, I cannot find that the Local Committee's conduct, viewed in its entirety, evidences a complete failure to participate in negotiating sessions. I conclude, accordingly, that the pattern of delays by the Local Committee has a potential remedy favored by the legislature and less extreme than the default proceeding; that the evidence fails to demonstrate clearly that the Local Committee's essential purpose is to frustrate the bargaining process; and that the petition for default meets neither the standard established in the Board's rules nor the requirement of proof implied in the Statute.
I therefore recommend that the petition be dismissed.
Dated at Madison, Wisconsin this 29th day of November, 1984.
WASTE FACILITY SITING BOARD
Christopher Honeyman, Hearing Examiner
1. A letter in the nature of an amicus brief was received form State Senator Lynn S. Adelman.
2. An analogy can be drawn between this situation and that of an employer which has campaigned against a union's organizing, but must now negotiate with it "in good faith." It is a commonplace in labor law that employer hostility to unions is not sufficient by itself to show failure to negotiate in good faith.
3. State Senator Lynn Adelman, in a letter filed in this matter, stated in pertinent part:
. . . the primary function of the negotiations between the local committees and landfill operators is to "address citizen concerns" by establishing methods of compensation and other assurances for the affected community. The participation of local citizens appearing on behalf of their community on a voluntary basis is a special circumstance, warranting special consideration. The efforts and performance of a local committee cannot be compared with other bargaining agents, such as those involved in labor arbitration, as members of local committees often have other personal compelling responsibilities which must be met.
As author of the needs siting law, I feel that opportunities for local input and citizen involvement in these negotiations far outweigh the inconvenience of any temporary delays. It is also my belief, having closely followed the East Troy case, that the local committee has negotiated in good faith and has every intention of reaching an agreement with the Troy Area Landfill. In fact, the local committee and applicant have been actively participating in negotiations over the past few months. To grant the motion for default under these circumstances would preempt all local involvement. This act would be extreme and would not be consistent with the spirit of the law.
This was not offered in evidence, nor was testimony offered to the same effect. In view of the fact that the normal procedural protections, including cross-examination, have not been provided, Senator Adelman's letter is treated here as an amicus brief in support of the Respondent, and not as evidence of legislative intent.
4. See Atlas Mills, 3 NLRB 10 (1937), also 1937 NLRB Annual Report, 82-85
5. See NLRB v. Sands Manufacturing Co., 306 U.S. 332 (1939).
6. National Licorice Co. v. NLRB, 109 U.S. 350 (1940)
7. NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941)
8. Excepting certain items as specified in Sec. 10 (g).
9. The applicable statutory section reads as follows:
(b) Either the applicant or the local committee may submit an individual written petition to the board to initiate arbitration under this subsection but not earlier than 120 days after the board issues a notice under sub. (6) (b).
(c) Within 15 days after receipt of a petition to initiate arbitration, the board shall notify the applicant and the local committee either that they are required to continue negotiating for at least 30 days after the date of the notice if, in the judgment of the board, arbitration can be avoided by the negotiation of any remaining issues or, otherwise, that they are required to submit their respective final offers to the board within 90 days after the date of the notice. If the board directs the applicant and the local committee to continue negotiating, the petition to initiate arbitration may be resubmitted after the extended period of negotiation. If the local committee fails to submit a final offer within the time limit in this paragraph, the applicant may continue to seek state approval of the facility, is not required to continue to negotiate or arbitrate under this section and the facility is not subject to any local approval, notwithstanding sub. (5). If the applicant fails to submit a final offer within the time limit in this paragraph, the applicant may not construct or operate the facility.
(f) Within 30 days after the last day for submitting final offers, the board shall conduct a public meeting in a place reasonably close to the location of the facility to provide an opportunity for the applicant and the local committee to explain or present supporting argument for their final offers. The board may conduct additional meetings with the applicant and the local committee as necessary to prepare its arbitration award. The board may administer oaths, issue summonses under s. 788.06 and direct the taking of depositions under s. 788.07.
(g) Within 90 days after the last day for submitting final offers under par. (c), the board may issue an arbitration award with the approval of a minimum of 5 board members. If the board fails to issue an arbitration award within this period, the governor shall issue an arbitration award within 120 days after the last day for submitting final offers under par. (c). The arbitration award shall adopt, without modification, the final offer of either the applicant or the local committee except that the arbitration award shall delete those items which are not consistent with the legislative findings and intent under subs. (1) and (2). A copy of the arbitration award shall be served on the applicant and the local committee.
10. See Secs. 111.70 (4) (cm) (6) and 111.77, Stats.