COURT OF APPEALS DECISION
DATED AND RELEASED March 7, 1991
STATE OF WISCONSIN
IN COURT OF APPEALS
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
AFSCME LOCAL 2698,
Decision No. 25O92
APPEAL from an order of the circuit court for Columbia county:
DONN H. DAHLKE, Judge. Order modified and, as modified, affirmed.
Before Eich, C.J., Dykman and Sundby, JJ.
PER CURIAM. The Wisconsin Employment Relations Commission (WERC) and
Local 2698 appeal from an order reversing a decision of WERC which classified a collective
bargaining unit represented by AFSCME Local 2698 to include licensed practical nurses
employed at the Columbia County Home. Because we conclude that WERC's decision
on a finding of fact which is not supported by substantial evidence in the record, we modify
trial court's order to remand the matter to WERC and affirm as modified.
Columbia County, which operates the Columbia County Home, petitioned WERC to
existing bargaining unit at the Home to exclude LPN's on the ground that they are
within the meaning, of sec. II 1.70(1)(o), Stats. Following an evidentiary hearing, WERC
concluded that the LPN's were not supervisors and should be included in the bargaining,
The trial court concluded that WERC's decision was unreasonable and reversed.
In reviewing a trial court's reversal of an administrative agency decision, our scope of
the same as the trial court's. We owe no deference to the trial court's decision.
DILHR, 132 Wis.2d 402, 405, 393 N.W.2d 98, 100 (Ct. App. 1986). A reviewing
uphold WERC's findings of fact if they are supported by substantial evidence in the record.
Section 111.70(1)(o), Stats., defines "supervisor" as
any 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 employes, or
adjust their grievances or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature, but
the use of independent judgment.
WERC examines the following factors to decide whether a public employee is a
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;
4. The level of pay, including an
evaluation of whether the supervisor is paid for his or her
skills or for his [or her] supervision of employees;
5. Whether the supervisor is primarily
supervising an activity or is primarily supervising
6. Whether the supervisor is a working
supervisor or whether he [or she] spends a substantial
majority of his [or her] time supervising employees; and
7. The amount of independent judgment
and discretion exercised in the supervision of
City Firefighters Union, Local No. 311 v. City of Madison, 48 Wis.2d
262, 270-71, 179 N.W.2d
800, 804-05 (1970). No one factor is determinative; rather, the totality of the criteria must
considered. Crear v. LIRC, 114 Wis.2d 53-i, 541-42, 339 N.W.2d 350, 353
(Ct. App. 1983).
WERC found that, since approximately 1983, when state directives brought residents to
who required a higher degree of skilled care, the levels of care became more acute, requiring
upgrading of staffing patterns and the hiring of more licensed personnel, namely LPN's and
As a result, more LPN's took on leadership roles. All LPN's serve as team leaders. The
leader job description provides in part that the employee supervises the nursing staff,
nursing assistant evaluations, documents work rule violations and makes specific
of corrective action. The LPN job description also provides that the LPN recommends
or termination of nursing assistants.
WERC found that, the LPN'S, functioning as team leaders, are not involved in the
cannot grant requests for vacation, sick leave or overtime, do not decide whether to replace
employee who calls in sick, and do not have direct access to personnel files.
WERC further found that LPN's report deviations from standard patient care or
behavior to the Director of Nursing or a supervising nurse and recommend what should be
If the employee is verbally counseled the LPN is present along with the supervising nurse.
LPN'S, acting as team leaders, have authority to issue, and have issued, disciplinary notices,
which are the first step in the disciplinary process, after reporting and discussing the matter
the supervising nurse. LPN's have recommended follow-up corrective action as well as
However, WERC found that LPN's lack authority to effectively recommend discharge.
WERC further found that LPN's perform approximately four annual and probationary
on nursing assistants each year. The evaluations LPN's perform cannot lead to a nursing
being denied a transfer, forfeiting a pay raise or being disciplined, although a nursing
who receives a poor evaluation will not be retained. LPN evaluations of nursing assistants
often signed by an RN.
WERC compared the present LPN job description, but not the team leader job
that at issue in its prior decision involving the same employer. It found the present LPN's
less supervisory authority. It also compared this case to two of its prior decisions, but found
The County claims that WERC's decision is erroneous because the LPN's have
impose discipline and recommend higher levels of discipline. WERC specifically found that
current LPN job description states that LPN's may recommend the discharge or termination
nursing assistants, however, there was no evidence that this has in fact occurred." Gerald
Baldowin testified that an LPN, Lisa McNamee, effectively recommended that an aide,
Clark, be let go for failing to satisfactorily perform her job. (An exhibit indicates that it was,
fact, LPN, Clara Kennedy, who wrote the disciplinary warning'.) WERC's finding that the
LPN's do not have authority to effectively recommend termination lacks a substantial basis in
When an agency's decision depends on any fact found by the agency which is not
substantial evidence in the record, the reviewing court shall set aside the decision or remand
case to the agency. Sec. 227.57(6), Stats. Because WERC's decision depended, in part, on
finding, we remand the matter to the agency for further consideration.
We comment briefly on the other issues decided by the trial court in case they arise
another appeal. First, we disagree with the trial court's conclusions that WERC made a
defective" finding concerning the structure of the home. WERC correctly found that the
is divided into the Manor, which has four wings, and the East Wing, which is physically
from the Manor. We further disagree that WERC failed to provide a rational basis for its
deviation from its prior decisions in Dodge County, Dec. No. 11469-A and Sauk County,
No. 17882-A. Finally, WERC did not err in comparing the job duties of the LPN's with
found in its previous decision regarding the Home. The County argued to WERC that the
which occurred at the Home beginning in 1983 impacted on the LPN's job duties, changing
duties from what they had been when the LPN II's were previously included in the
unit. WERC could rely on the prior decision to determine whether the County's argument
accurate. However, WERC did not compare the team leader job description with the LPN II
descriptions from 1975. It should do so on remand because all of the LPN's function as
By the Court. Order modified to provide that the matter is remanded to WERC for
consideration and, as modified, affirmed.
This opinion will not be published. Rule 809.23(1)(b)5, Stats.