¶ 24. (concurring).
I just want to make clear what we are holding and what we are not holding. We are holding that because the Union knew that Washington County was considering work force changes in order to cut costs — and specifically knew that the County had earlier issued layoff notices to five Union members (only to rescind them soon thereafter) — the Union was on notice that the County might take advantage of a bargained right to lay off or subcontract as a cost-saving measure. This is especially so when the County warned the affected Union employees that its action in rescinding the layoffs was not "a guarantee of future employment." The yellow flag had been raised and, therefore, the Union had a notice and an opportunity to seek information about the layoff/subcontract clause. Had the Union done so, and had the County been forthcoming, the issue of subcontracting could have been negotiated. Had the County not been forthcoming, then the Union would have had a valid bad faith claim.
¶ 25. For WERC to reason that the County had to let the Union know it was "seriously considering" invok*425ing the layoff/subcontract clause is contrary to WERC's own prior opinion on the subject. It also, in my view, is an unworkable standard. What would be considered "serious" and what not? Neither employer nor union could glean any guidance for the future.
¶ 26. We are not holding, however, that a union must speak up about a clause even in the absence of a yellow flag. I note that, according to the previous collective bargaining agreements, the Union had to let the County know five months in advance what clauses the Union wanted to put on the table for negotiation. Consistent with WERC's decision in City of Marshfield, if a union had no reason to know that it should seek certain relevant and necessary information, then we would have a different fact situation entirely.