STATE OF WISCONSIN
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
Decision No. 25092
In 1974, Local 2698, AFSCME, Relations
Commission (WERC) as the exclusive bargaining agent for this Columbia
County (Home and
Hospital) bargaining unit. Included within this bargaining unit were employees who were
employed in the classification of licensed practical nurse (LPN).
On March 20, 1987, Columbia County filed a petition with the WERC seeking a
the bargaining unit represented by AFSCME Local 2698. The object of the County's unit,
clarification petition was to exclude the LPN classification from the existing unit. Currently
are fourteen (14) LPN positions in the bargaining unit.
Columbia County seeks judicial review of a decision of the WERC, which found that
of "Licensed Practical Nurse Team Leader" (LPN) at its Columbia County home is not a
supervisory one within the meaning of Wis. Stat. 111.70(1)(o). Columbia County initiated
action before the commission to clarify the existing bargaining unit of employees at the
Home. It contended that its licensed practical nurse-team leaders should no longer be
within the bargaining unit because they functioned as supervisors under the Municipal
Employment Relations Act ("MERA"), The WERC concluded that all of the nursing
in the home's five patient units are under the supervision of a single registered nurse (RN)
supervisor on each shift. The petition seeks a review of these findings and conclusions.
The Columbia County Home is licensed as a nursing home pursuant to Wis.Stat.
50.03. Its internal organization includes a nursing department headed by the director of
to be a registered nurse. The home also employs RN's to function as the charge nurse, or
supervising nurse, on each shift in accordance with Wis. Admin. Code. An RN charge
required on each shift because the home has more than 100 skilled care patients in residence.
charge nurse reports to the DON and is responsible for the oversight of the nursing services
entire facility on each shift. Of the remaining nurses, irrespective of whether they are RN's
LPN'S, one functions as a team leader in each of the 5 units over the nursing assistants.
The LPN'S, with the exception of two employees who were classified as LPN II's
included within the collective bargaining unit by stipulation at the time of the original
representation election. The union subsequently petitioned for clarification of the unit to
the two 2 LPN II's in the unit after the employer hired additional RN's to staff every shift.
1975 decision, the commission concluded that these two LPN's were not supervisors, and
were also includable within the collective bargaining unit.
Beginning in 1983 there were three changes in the operation of the County Home
on the job duties of LPN'S. First, because of the reimbursement of hospitals based upon
diagnostically related groups (DRG's), the patient mix at the Home became progressively
skilled and required both a substantially larger nursing staff and a greater degree of
over the nursing assistants providing the care. Second, the nursing home added additional
in the form of a locked and semi-locked ward. This-changed both the physical layout of the
facility and the way that services were provided in the home. Finally, a nursing shortage
the LPN's and RN's be hired and used virtually interchangeably, which raised the level
of--responsibility of the LPN'S. These changes led to the development of the team leader
There are now five separate nursing work units, each of which is overseen by a team
of the units function in the main building or "Manor", each on a separate wing, and the fifth
is the locked/semi-locked ward. Each of these teams is"headed by a nurse team leader, who
either a registered nurse or a licensed practical nurse. On all units, RN's and LPN's are
team leaders interchangeably. All of the LPN'S serve as team leaders at all times, there are
other jobs performed by LPN'S.
There are currently twelve RN's in the facility, nine part-time and three full-time, who
team leader responsibilities. There are approximately 14 LPN team leaders, nine part-time
The only significant difference in responsibility between an RN/team leader and
is that the RN can do a formal patient assessment and can take telephone orders from
These additional patient responsibilities for the RN's do not, however, affect the degree of
supervisory authority exercised by each of the two types of nurses over the nursing
Each team leader is responsible for supervising between three and six nursing assistants at
given point in time.
The nursing home is physically laid out so that the four wings in the manor come
together at one'
point like the spokes of a wheel. The hub of that wheel is a single nursing station, but a
cannot physically see from one wing to another.
The locked/semi-locked unit is physically removed from the other units. The team
therefore directly responsible for overseeing these wings or work units to insure that each of
nursing assistants are performing their job assignments properly. Decisions regarding what
to be done and which assignments need to be made to resolve problems occurring on each
unit during a shift are made by the individual team leaders.
A typical team leader's day is spent in passing medications and doing prescribed
charting in patient records, and overseeing the other care being given to the residents by the
The medications and treatments take between one and one- half to two hours, twice per day,
the charting takes about a half-hour each day. During their passing of medications and
of treatments, however, the team leaders also observe the work of the nursing assistants.
unrebutted evidence at the hearing established that team leaders spend in excess of 50% of
time actually supervising the nursing assistants in the performance of their job duties.
The team leaders, including the LPN'S, actively participate in the written evaluations
nursing assistants that they supervise. In fact, these evaluations are routinely done by the
team leaders themselves. These evaluations are taken into consideration when employees are
considered for transfer, discipline, and pay adjustments. LPN's themselves are evaluated on
basis.of the supervisory skills that they possess.
The team leaders are expected to take
corrective action on employee matters, administer
oral and written reprimands, and to recommend more severe forms of discipline for the
of their teams, when warranted. Such discipline is routinely imposed by all team leaders,
although admittedly the need for discipline is not frequent. The recommendations of the
leaders on these more severe disciplinary matters are generally followed.
1.Was there a rational basis for the decision of the Wisconsin Employment Relations
that the LPN's employed by Columbia County should not be classified as supervisors under
the Municipal Employment Relations Act (MERA), and therefore could be properly included
within the collective
bargaining unit represented by Local 2698, AFSCME, AFL-CIO?
2.Did the WERC err as a matter of law in considering evidence that was not admitted
into evidence at the
hearing nor for which official notice was properly taken, and did they err as a matter of law
in entering findings of
fact contrary to the undisputed evidence of record?
The Commission concluded, as a matter of law, that the LPN position at the Columbia
County Home is not
supervisory within the meaning of Sec. 111.70(1)(o), Wis.Stat., and therefore, the occupants
of said position are
municipal employees within the meaning of Sec. 111.70(1)(i), Stats.
The interpretation of a statute by the Commission presents a question of law that the
court reviews without deference,
Sec. 227.57(2), Wis. Stat. The Commission's interpretation of the Municipal Employment
Relations Act is entitled
to "great weight" and will be affirmed if it is reasonable, even though an alternative
interpretation is also reasonable.
In light of the Commission's expertise in this area, a reviewing court will sustain the
agency's interpretation of the
statute if it rests upon a rational basis and is consistent with the purposes of the statute.
City of Milwaukee v. WERC,
71 Wis.2d 709,715, 239 N.W. 2d 63, 66 (1976.
Sec.111-70(1)(o), Wis. Stat., defines a supervisor, for the purposes of the Municipal
Employment Relations Act, as
[A]ny individual who has authority, in the interest of the
municipal employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward or discipline other employees, or to adjust their
grievances or effectively
to recommend such action, if in connection with the foregoing the exercise of such authority
is not of merely routine
or clerical nature, but requires the use of independent judgment.
The Commission considered several factors in making its determination as to whether a
position is supervisory in
nature, factors that have been applied consistently in the past, including
1.The authority to effectively recommend the hiring, promotion,
transfer, discipline or discharge of employees;
2.The authority to direct and assign the
3.The number of employees
supervised, and the number of other persons exercising greater, similar, or lesser
authority over the same employees;
level of pay, including an evaluation of whether the supervisor is paid for his skills or for his
5.Whether the supervisor is
primarily supervising an activity or is primarily supervising employees;
6.Whether the supervisor is a working
supervisor or whether he spends a substantial majority of his time
7. The amount of
independent judgment exercised in the supervision of employees.
In an effort to determine whether or not there was a rational basis for the decision of
the Wisconsin Employment
Relations Commission that the LPN's employed by Columbia County should not be classified
as supervisors under
Sec. 111.70, Wis-Stat., the Municipal Employment Relations Act,and therefore could
properly be included within
the collective bargaining unit, this Court has reviewed the entire record of the proceedings in
The first finding of fact that is completely incorrect and fatally defective, is that the
home is divided into two units,
the Manor and the East Wing. The uncontroverted testimony is that the operation consists of
5 units, 4 of them
radiating out from the center, and the 5th, the locked unit, that is actually a separate wing,
with a separate nurses'
station, and separate staff that is located by the kitchen, and dietary unit. The
uncontroverted testimony also indicates
that there is a team leader in charge of all of the nursing assistants on-each of the wings, and
also the locked unit.
As to the locked unit, the testimony is that the supervising nurse may spend as little as five
minutes a day in that unit.
The Commission, in its decision, relied very heavily on a prior Case between the same
parties involving LPN II's.
This evidence was clearly not introduced in the hearing, and no reference of any kind was
made during the hearing.
This Court has read the entire record of the proceedings, and the first time that this Court
was aware of the LPN II's,
was in the decision of the Commission. The Commission went to great lengths to compare
the authority and
responsibility of the current LPN's and the LPN II's, even though the case of the LPN II's
was a fifteen year old
determination, on the status of two LPN II's, and was a number of years prior to the
introduction of the team concept
currently in existence. The Court notes that approximately one-half of the discussion portion
of the decision is related
to the comparison with the former LPN II positions and the Commission's prior decision on
these two individuals,
and that this material was improperly interjected to this hearing in that it was not properly
admitted or referred to,
and the improper admission of a fifteen year old case, to a controversy after the team
concept had been admitted, was
improperly and extremely prejudicial to the county.
After giving the great weight to the Commission's interpretation of the Municipal
Employment Relations Act, this
Court feels that their interpretation is unreasonable, and finds as a matter of law, that the
LPN'S, who are all team
leaders, are in fact, supervisory personnel, and as such, should be excluded from the
bargaining unit represented by
AFSCME Local 2698.
Prior to 1983 or 1984, nursing homes were basically long-term care facilities, where
now, hospitals discharge the
patients much sooner, and many are there for a shorter period of time, requiring
rehabilitative services. Because of
this, staffing patterns have been upgraded, and the number of employees required has
increased, as has the need for
supervisory personnel. The Columbia County Home switched to the team concept where
each of the 5 units would
have a team leader, who would supervise the three to six nurses' aids in that particular unit.
There would be one RN
as supervisor over the team leaders, and the Director of Nursing would be in charge of the
entire nursing staff. The
team leaders could be either an RN or an LPN, however the nursing supervisor, by State
law, would have to be an
RN. The team leader supervised all of the aids on her particular wing. The team leader is
responsible for the
directing of the patient care in the unit and to the individuals supplying this care. The team
leader is the first stage
in the grievance procedure in that if something is not done correctly,she may speak to the
individual involved, and
may also directly recommend an employee nursing Assistant for discipline. As stated
previously, the RN's (who are
already excluded from the bargaining unit), and the LPN's are both utilized as team leaders,
and as such, their
supervisory duties are identical. The only differences between the two would be any duties
or responsibilities that
would have to be assumed by the RN by virtue of their license, such as an evaluation of a
It is correct, that the LPN's.do not have the authority to transfer, promote, suspend,
terminate or hire, and they cannot
grant requests for vacation, personal days, sick leave, or overtime. However, the RN's are
in exactly the same
position, as they do not have any of the above duties or responsibilities either, as all of the
above are vested solely
in the Director of Nursing or her designee, in her absence.
The Director of Nursing cannot supervise all of the details for this entire large complex
operation. There must be
supervisory assistants. The county has set forth this supervisory level in its organization
This Court further finds that the WERC's finding, deviates from its most closely
related prior decisions without
providing significant explanation. These decisions are the decisions in Sauk County and
Dodge County, which are
comparable institutions in the same general location in the State.
For all of the reasons previously set forth, the Court does hereby set aside the findings
and order of the WERC, and
directs entry of an order, excluding the LPN's from the collective bargaining unit of Local
The attorney from the county may draw up the necessary documents in accordance
with this decision.
Dated this 28th day of February, 1990.
By the Court
/s/ Donn H. Dahlke
Donn H. Dahlke, Circuit Judge