STATE OF WISCONSIN
In the Matter of the Petition of
Involving Certain Employes
GENERAL TEAMSTERS UNION LOCAL NO. 662
No. 47337 ME-574
Decision No. 27487
Weld, Riley, Prenn & Ricci, S.C., Attorneys at Law, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, by Mr. Richard J. Ricci, on behalf of Pierce County.
Ms. Christel Jorgensen, Business Agent, General Teamsters Union Local 662, P.O. Box 86, Eau Claire, Wisconsin 54702-0086, on behalf of General Teamsters Union Local No. 662.
On April 24, 1992, Pierce County filed a petition requesting that the Wisconsin Employment Relations Commission clarify the bargaining unit of the Pierce County Community Health Services Department to include the position of Early Intervention Coordinator I and II, a position currently included in the bargaining unit of the Pierce County Department of Human Services, represented by General Teamsters Union Local 662, on the basis that the position had been moved to the Pierce County Community Health Services Department and has a greater community of interest with the employes of that Department as opposed to the employes in the Pierce County Human Services Department. A hearing on the petition was held on July 21, 1992 in Ellsworth, Wisconsin before Examiner David E. Shaw, a member of the Commission's staff. A stenographic transcript was made of the hearing and post-hearing briefs were submitted by September 2, 1992. The Commission, having considered the evidence and the arguments of the parties and being fully advised in the premises, makes and issues the following
1. Pierce County, hereinafter the County, is a municipal employer having its principal offices located at 414 West Main Street, Ellsworth, Wisconsin 54011.
2. General Teamsters Union Local Union No. 662, hereinafter the Union, is a labor organization having its principal offices located at 119 West Madison Street, Eau Claire, Wisconsin 54702-0086.
3.The County maintains and operates the Pierce County Department of Human Services, hereinafter referred to as DHS, which is overseen by the Human Services Board. The County and the Union are parties to a collective bargaining agreement covering the period January 1, 1991 through December 31, 1993, which Agreement covers the position of Early Intervention Coordinator I and II. Said Agreement contains the following provisions:
THIS AGREEMENT, made and entered into by the between the PIERCE COUNTY DEPARTMENT OF HUMAN SERVICES, Ellsworth, Wisconsin, hereinafter referred to as the "Employer" or "County" and GENERAL TEAMSTERS UNION, LOCAL 662, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the "Union".
SCOPE OF AGREEMENT
Section 1. The execution of this Agreement on the part of the Employer, shall cover all operations of the Employer which are covered by this Agreement, and shall have application to the work performed within the classifications defined and set forth in this Agreement.
RECOGNITION, FAIR SHARE AND CHECK-OFF
Section 1. The Employer recognizes and acknowledges that the Union, its agents, representatives or successors, is the exclusive bargaining agency for all employees of the Employer, including such employees as may be presently or hereinafter represented by the Union, working on jobs in classifications as set forth in the attached Wage Schedule. (1)
4. The County maintains and operates the Pierce County Community Health Services Department, hereinafter referred to as the CHD, which is overseen by the Community Health Committee. The County is party to a collective bargaining agreement between itself and the Pierce County Community Health Association covering the years 1991 through 1993. Said Agreement contains the following Recognition Clause:
The County recognizes the Association as the sole bargaining representative for all regular full-time and part-time professional and non-professional employees of the Pierce County Community Health Association (sic) including public health nurses, registered nurses, licensed practical nurses and home health aides, but excluding managerial, supervisory, confidential and casual employees as certified by the Wisconsin Employment Relations Commission (Case XLVI, No. 33257, ME-2352, Dec. No. 21734). (2)
5. The position of Early Intervention Coordinator (EIC) is a professional position which has existed for at least 10 years and was previously known as the "Home Trainer" position. Said position has at all times been included in the DHS unit represented by the Union. By letter of August 23, 1991, the State Department of Health and Social Services, Division of Community Services, sent a directive to the chairman of the County's Board of Supervisors indicating that pursuant to recent legislation, the County must designate a local "lead agency" for providing early intervention services for the "Birth to Three" program. The EIC is primarily responsible for the "Birth to Three" program in the County and deals with early intervention in the home for children who are either developmentally disabled or pose a significant risk of being developmentally disabled. At the time, the EIC position was supervised by Charles Balzer, the Long-Term Support supervisor in DHS, and the position was housed in the DHS offices. The County contracted out for therapists who worked with the EIC through DHS. Balzer was asked to study the situation and make a recommendation as to which agency should be designated the lead agency. Balzer, along with a public health nurse from CHD, made a recommendation to the Pierce County Health Committee, which oversees the CHD, that the "Birth to Three" program and the EIC be moved to the CHD and the latter designated as the local lead agency for that program. At its September 12, 1991 meeting, the Health Committee approved a motion to designate the CHD as the lead agency and the following day the County's Human Services Board approved a motion transferring the program to the CHD. By Resolution No. 91-25 approved on September 24, 1991, the County named the CHD as the lead agency for its "Birth to Three" program and the EIC position was subsequently transferred to the CHD as well. Balzer's recommendation to transfer the program to the CHD and make it the lead agency, as well as the transfer of the EIC position to the CHD, was based on his conclusions that the EIC position is basically educational and often works hand-in-hand with therapists and the Public Health Nurses in the home as well as receiving more referrals from the Public Health Nurses than from any other one source. He further concluded that the clientele of the EIC frequently have medical problems as well as developmental problems and the position would better fit in the CHD. Also, a new office building was being planned and a room on the ground floor was originally planned for use as an "infant stimulation room" for the Center Program.
6. Prior to the fall of 1991, the EIC position had an office located in the DHS department, while the CHD was located in another building several blocks away. Sometime in 1991 the County built a new office building with the CHD housed on the ground floor and the DHS on the first floor. The EIC office is now located on the ground floor and the infant stimulation room is now a multi-purpose room located on the ground floor which the EIC uses approximately one-half day a week for the Center Program, where infants and young children are brought in to work with therapists during that time. In November of 1991 the present incumbent in the EIC position, Karen Thoen, was hired. Thoen reports to Ray Cink, the CHD Director, and has her office located on the ground floor in the CHD. Thoen's personnel records and payroll is administered by CHD. The public health nurses in the CHD have bi-monthly staff meetings, however, other than attending such a meeting initially after she was hired to explain the functions of her position, Thoen does not regularly attend those meetings. The County requires that the person holding the EIC position have a bachelor's degree in Early Childhood-Exceptional Educational Needs (EEN) from an accredited four-year college or university. Thoen, while having a teaching degree, was at the time of hearing working on obtaining her EEN certification. Other than the change in the physical location of the EIC office, the change in supervision with the accompanying administrative changes regarding personnel files and payroll, and the contracting out of the therapists being transferred to the CHD, the EIC position and its duties have not changed from what they were when it was located in the DHS.
7. Karen Thoen, in the position of the Early Intervention Coordinator, is employed by the Pierce County Community Health Services Department, and the position is no longer employed by the Pierce County Department of Human Services.
On the basis of the foregoing Findings of Fact, the Commission makes and issues the following
Due to Pierce County's designation of the Community Health Services Department as the lead agency for its "Birth to Three" Program and the transfer of the Early Intervention Coordinator position from the Department of Human Services to the Community Health Services Department, the position of Early Intervention Coordinator, which is currently included in the Department of Human Services professional bargaining unit represented by General Teamsters Local Union No. 662, is appropriately included in the bargaining unit of Community Health Services Department employes represented by the Pierce County Community Health Association.
Based upon the above and foregoing Findings of Fact and Conclusion of Law, the Commission makes and issues the following
The position of Early Intervention Coordinator is hereby included in the bargaining unit of Pierce County Community Health Services Department employes.
Given under our hands and seal at the City of Madison, Wisconsin this 7th day of December, 1992.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By A. Henry Hempe /s/
A. Henry Hempe, Chairperson
Herman Torosian /s/ Herman Torosian, Commissioner
William K. Strycker /s/
William K. Strycker, Commissioner
In its petition, the County seeks to remove the Early Intervention Coordinator position from the Department of Human Services bargaining unit represented by the Union and have it placed in the bargaining unit of the Community Health Services Department employes represented by the Pierce County Community Health Association. The Union contests the petition.
POSITIONS OF THE PARTIES
The County cites the Commission's decisions in Eau Claire Area School District (4) and Mid-State Vocational, Technical and Adult Education District (5) as holding that it is proper to alter the composition of a bargaining unit in a unit clarification proceeding when the position in dispute has been impacted by changed circumstances which materially affect its unit status. In this case, the state mandate requiring the County to name a lead agency for the "Birth to Three" program was the catalyst in the County's determination that the EIC position and the program would better be served in the Community Health Department. Upon the CHD being named as the lead agency for that program, responsibility for the supervision of the EIC position was transferred to the CHD Director, Ray Cink, and the EIC office was relocated to the CHD near the room used for the Infant Stimulation Program and near the offices of the County's public health nurses. The County notes that the EIC position is somewhat unique and indigenous neither to the DHS nor to the CHD. It is neither a social worker position, nor a medical care position, rather, it is an education-oriented position originally established by funding from the state's Department of Public Instruction.
The County cites the following criteria for determining the appropriate bargaining unit:
1. Whether the employees in the unit sought share a "community of interest" distinct from that of other employes.
2. The duties and skills of employes in the unit sought as compared with the duties and skills of other employes.
3. The similarity of wages, hours, and working conditions of employes in the unit sought as compared to wages, hours and working conditions of other employes.
4. Whether the employes in the unit sought have separate or common supervision with all other employes.
5. Whether the employes in the unit sought have a common work place with the employes in said desired unit or whether they share a work place with other employes.
6. Whether the unit sought will result in undue fragmentation of bargaining units.
7. Bargaining history.
Arrowhead School District, Dec. No. 17213-B (6/80) aff'd sub. nom, Arrowhead United Teachers v. WERC, 116 Wis.2d 580 (1984); Green County (Dept. of Human Services), Dec. No. 21453 (2/84); Marinette County (Sheriff's Dept.), Dec. No. 22102-D (7/87).
The County asserts that it is because the EIC position shares a "community of interest" with the CHD that the County designated the CHD as the lead agency for the "Birth to Three" program. Most of the referrals to the EIC come from Public Health Nurses and they often work as a team and are in the home at the same time. The supervisor of the position while it was in the DHS, Chuck Balzer, recommended that the EIC position and the program be placed in the CHD. The bases for the recommendation were that the space allocated for the Infant Stimulation Program is located in the CHD, most of the referrals to the EIC are received from that department or the medical profession, and the EIC worked primarily with occupational, speech and physical therapists who had no working relationship with DHS other than being contracted out from that department. Balzer also testified that the "Birth to Three" program clients are "developmentally delayed with a variety of medical anomalies and physical problems, mental development issues, and speech delays. It is a full gamut of medical issues." Thoen's current supervisor, Ray Cink, testified that most of Thoen's working relationship is between herself and the Public Health Nurses with whom she has joint clients. Thoen also has access to the Public Health Nutritionist and works with the Home Health Aides who provide guidance and nurturing skills to families of children Thoen deals with.
While the record demonstrates the EIC's community of interest with the Public Health Nurses, the record shows no close attachment or working relationship with DHS other than that the position was formerly supervised by Balzer and housed within that Department. Thoen communicates with both social workers and Public Health Nurses on an "as-needed" basis, however, she has spent substantially more time with the CHD personnel than with DHS personnel. Further, CHD keeps the payroll reports for the EIC and maintains her personnel records and Cink is responsible for her evaluations. The Community Health Grant Clerk provides clerical assistance for the "Birth to Three" program. The County concludes that the foregoing demonstrates a "community of interest" between the EIC and the employes in the CHD unit.
With regard to the other factors, wages, hours and working conditions, are not in issue as DHS and CHD employes work the same hours and receive essentially the same benefits. The County asserts that the factors of common supervision and workplace are decisive in this case. The EIC is supervised by the CHD Director, as are all the other members of the bargaining unit in the CHD, and the EIC is located on the same floor as the CHD and shares the multi-purpose room with the community health employes conducting screenings, inoculations, etc. As to undue fragmentation, none would result by accreting the EIC position into the CHD unit.
The County asserts that the question to be answered is whether the designation of the CHD as the "lead agency" for the EIC position is an intervening event which materially affects the current unit status of the EIC position. The County likens the facts here to the circumstances in Walworth County, Dec. No. 9394-B, 18271-A (WERC, 12/90), where after reorganization the five employes formerly in the public health department, and included in the courthouse bargaining unit, were moved to the hospital. In its decision, the Commission stated:
The record establishes that on January 1, 1990, the County's Public Health Department was absorbed into the County's Hospital. With the reorganization came a partial change in supervisory structure but the duties of the disputed employees were substantially unaffected and they will not move to a new work site for the next several years. The question before us is whether the reorganization of the County's public health service is an intervening event which materially affects the current AFSCME unit status of five public health employees. (footnote omitted)
The bargaining unit into which the County seeks to have us place the five employes consists of 'all regular full-time and part-time employes employed by the Hospital at its Elkhorn, Wisconsin facilities. . .' Although this broad unit already includes employes whose duties are similar to those of the five disputed employes, the scope of this unit is defined not by the function of the employes but solely by whether the employes are employed 'by the hospital'. 6/ Where the scope of the unit is so defined, a change in the identity of an employee's employment unit is an intervening event which materially affects such employee's unit status. The absence of any significant change in job responsibilities or present work location is irrelevant. (emphasis added)
6/ Although the parties have described the unit as employes 'employed by the Hospital', it is clear said reference is in the context of the Hospital being a separate employing unit and not a separate employer. (emphasis added)
The County asserts that the Agreement covering the DHS unit defines the scope of the unit by the classification of employes: "Employes. . .working on job classifications as set forth in the attached wage schedule." The Agreement covering the CHD unit defines the unit as: ". . .all regular full-time and part-time professional and non-professional employes of the Pierce County Community Health Association. . ." The CHD is now the "employing unit" and the transfer of the "Birth to Three" program to the CHD is an "intervening event" which materially affects the EIC's unit status.
The County also finds similarities between the facts in this case and those in Waukesha County, Dec. No. 26020-A (WERC, 9/89), where it was determined that a community health educator shared a sufficiently strong community of interest with public health nurses so as to be included in the health department unit. The EIC is also an educator requiring a degree in the field of education. She has substantial discretion in designing the therapy program and educating children and their families in developmental skills. Similarly, the position descriptions for Public Health Nurses, Home Care Nurses and the OB-GYN Nurse Practitioner all include as a primary job function the following: "Promotes and maintains the health of individuals, families and community through teaching, counseling and appropriate preventative and rehabilitative measures." Thus, not only do the community health professionals work in the same office area and have similar working conditions, but they educate individuals, families and the community much the same way the EIC educates parents of infants and young children and develops curriculum and works with the developmentally delayed children.
Thus, the County requests that the Early Intervention Coordinator position be removed from the DHS Professionals unit and accreted to the CHD bargaining unit represented by Pierce County Community Health Association.
The Union cites a number of statutory criteria for considering the appropriate bargaining unit. First, with respect to community of interest, the Union notes testimony throughout the hearing that established that the EIC position does not specifically fit into any job classification as it is neither a social worker position nor does it provide medical treatment. Rather, the EIC position essentially deals with educational needs and identifying possible deficiencies in that area in children from birth to age 3. Neither the testimony nor the EIC job description establishes a clear community of interest with either the social worker or Public Health Nurse classifications, however, it establishes a closer relationship with the Social Worker II classification than it does with any of the job descriptions for the positions in the CHD. Both have similar duties geared toward non-medical services and educational areas, while the job descriptions for the CHD, although having some educational aspects, list duties and functions geared toward providing medically-oriented services. Similarly, with regard to duties and skills, there is no clear separation as to which department the EIC position relates to as the required skills are quite specific. However, as noted, the skills required by the employes in the DHS are more closely related to the skills and duties of the EIC.
The Union notes that there are no great differences in the wages, hours or working conditions of any of the employes in either department. The EIC I and II positions are, however, listed in the Union's Agreement and are currently being paid at the Social Worker I and II rates, respectively. Balzer testified that he was consulted as to the appropriateness of those rates and that he felt they were equitable. The Union notes there are no job titles or rates in the Agreement covering the CHD that are descriptive of the EIC position. The wages, hours and working conditions would have to be bargained for the position should it be moved into that unit.
While the EIC position is currently under the supervision of the CHD Director, it was previously supervised by the Long-Term Support Supervisor in the DHS. When the position was moved, all the administrative duties regarding the employe changed hands. Grant administration and the consulting therapists also moved. Everything else, however, stayed the same, there was no reorganization of departments or changes in the position's duties. Thoen reports to Cink on the same limited basis that the former person in the position reported to Balzer. There is no daily contact or reporting unless there is a problem and Thoen is not a part of the bi-monthly staff meetings of the employes in the CHD.
With respect to workplace, the Union notes that DHS is located on the first floor and the CHD is located on the ground floor of the same building. As to the County's assertion that the position was moved because the dayroom used for the Center Program was downstairs, that room is a multi-purpose room that Thoen uses approximately one-half day per week. Most of her duties are performed at the home of the child and not in the office or the dayroom.
Regarding other factors, the Union notes the County's argument that the EIC position receives referrals from, and makes referrals to, the CHD's Public Health Nurses. Since the referrals are part and parcel of the work performed and the EIC position receives and makes referrals to a variety of different agencies or entities, that argument is not persuasive.
The Union concludes that there is nothing in the law that requires that the EIC position be moved to a specific department. It notes that Exhibit 11 shows that only five counties have the position in public health agencies, while 67 have assigned the position to human services departments. That supports the Union's position that there was a reason why this position has been in the DHS from its beginning and should remain there. There was no change of circumstances that demanded the County's moving the position from one bargaining unit to another. The position is unique and does not clearly belong here or there. However, to permit an employer to move a position from one bargaining unit to another based on the location of the room that is used one-half day per week or based on referrals, creates an unsettling precedent in labor relations. Thus, the Union requests that the position remain in the DHS unit.
We initially note the Union's contention that the County was not required by any law or agency to move the EIC position to the Community Health Services Department, and that the reasons given by the County for deciding to do so are not sufficient to justify moving the position to that department from DHS. However, as part of its management rights, the County has the right to manage and organize its operation as it wishes, unless the Union can show the reasons given by the County for the change are pretextual and would constitute a prohibited practice. Here, the County appears to have a rational basis for its decision, and no illegal pretext has been established.
As a result of moving the EIC position from the DHS to the CHD, the position is now supervised by the CHD Director, the payroll and personnel responsibilities for that position have been transferred to the CHD and the EIC's office is located in the CHD. The duties and responsibilities of the EIC position have not changed as a result of the move. Although the Union and the County argue that the EIC's functions relate more to a Social Worker's or to a Public Health Nurse's, respectively, both concede that the functions are unique and that the position does not fit neatly in either unit on that basis.
The determination in this case, however, does not hinge on similarity of duties or the other indicia we utilize to determine the appropriate unit. Rather, this case is determined by the defined scope of the two units. The Union is the recognized exclusive collective bargaining representative of the bargaining unit consisting of "all employees of the Employer,. . . working on jobs in classifications as set forth in the attached Wage Schedule." Similarly the CHD unit, represented by the Pierce County Community Health Services Association, consists of "all regular full-time and regular part-time employes of the Pierce County Community Health Service, including home health aides, public health nurses and registered nurses, but excluding managerial, supervisory, confidential and casual employes." As we held in Walworth County, supra.:
Where the scope of the unit is so defined, a change in the identity of an employe's employment unit is an intervening event which materially affects such employe's unit status. The absence of any significant change in job responsibilities or present work location is irrelevant under such circumstances.
The transfer of the "Birth to Three" program and the EIC position to the CHD was an intervening event that materially changed the position's unit status. Due to the transfer of the EIC position to the Community Health Services Department, the EIC is now an employe of that Department and falls squarely within the defined scope of the CHD unit. (6) For the same reason, the position no longer falls within the scope of the DHS Professionals unit represented by the Union. Thus, we have ordered the position included in the Community Health Services Department unit.
Dated at Madison, Wisconsin this 7th day of December, 1992.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By A. Henry Hempe /s/
A. Henry Hempe, Chairperson
Herman Torosian /s/ Herman Torosian, Commissioner
William K. Strycker /s/
William K. Strycker, Commissioner
1. The Union was originally certified as the exclusive bargaining representative for "all regular employees of the Pierce County Social Services Department, including professional employees. . ." Dec. No. 12316 (WERC, 4/74).
2. While the Recognition Clause refers to "employees of the Pierce County Community Health Association", that appears to be a typographical error. The "Certification of Results of Election" for this bargaining unit sets forth the unit as "all regular full-time and regular part-time employes of the Pierce County Community Health Service, including. . ." Dec. No. 21734 (WERC, 7/84).
3. Pursuant to Sec. 227.48(2), Stats., the Commission hereby notifies the parties that a petition for rehearing may be filed with the Commission by following the procedures set forth in Sec. 227.49 and that a petition for judicial review naming the Commission as Respondent, may be filed by following the procedures set forth in Sec. 227.53, Stats.
227.49 Petitions for rehearing in contested cases. (1) A petition for rehearing shall not be prerequisite for appeal or review. Any person aggrieved by a final order may, within 20 days after service of the order, file a written petition for rehearing which shall specify in detail the grounds for the relief sought and supporting authorities. An agency may order a rehearing on its own motion within 20 days after service of a final order. This subsection does not apply to s. 17.025(3)(e). No agency is required to conduct more than one rehearing based on a petition for rehearing filed under this subsection in any contested case.
227.53 Parties and proceedings for review. (1) Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.52 shall be entitled to judicial review thereof as provided in this chapter.
(a) Proceedings for review shall be instituted by serving a petition therefore personally or by certified mail upon the agency or one of its officials, and filing the petition in the office of the clerk of the circuit court for the county where the judicial review proceedings are to be held. Unless a rehearing is requested under s. 227.49, petitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties under s. 227.48. If a rehearing is requested under s. 227.49, any party desiring judicial review shall serve and file a petition for review within 30 days after service of the order finally disposing of the application for rehearing, or within 30 days after the final disposition by operation of law of any such application for rehearing. The 30-day period for serving and filing a petition under this paragraph commences on the day after personal service or mailing of the decision by the agency. If the petitioner is a resident, the proceedings shall be held in the circuit court for the county where the petitioner resides, except that if the petitioner is an agency, the proceedings shall be in the circuit court for the county where the respondent resides and except as provided in ss. 77.59(6)(b), 182.70(6) and 182.71(5)(g). The proceedings shall be in the circuit court for Dane county if the petitioner is a nonresident. If all parties stipulate and the court to which the parties desire to transfer the proceedings agrees, the proceedings may be held in the county designated by the parties. If 2 or more petitions for review of the same decision are filed in different counties, the circuit judge for the county in which a petition for review of the decision was first filed shall determine the venue for judicial review of the decision, and shall order transfer or consolidation where appropriate.
(b) The petition shall state the nature of the petitioner's interest, the facts showing that petitioner is a person aggrieved by the decision, and the grounds specified in s. 227.57 upon which petitioner contends that the decision should be reversed or modified.
(c) Copies of the petition shall be served, personally or by certified mail, or, when service is timely admitted in writing, by first class mail, not later than 30 days after the institution of the proceeding, upon all parties who appeared before the agency in the proceeding in which the order sought to be reviewed was made.
Note: For purposes of the above-noted statutory time-limits, the date of Commission service of this decision is the date it is placed in the mail (in this case the date appearing immediately above the signatures); the date of filing of a rehearing petition is the date of actual receipt by the Commission; and the service date of a judicial review petition is the date of actual receipt by the Court and placement in the mail to the Commission.
4. Dec. No. 17124-A (WERC, 4/90).
5. Dec. No. 14526-A (WERC, 5/85).
6. We reached a similar result in Brown County (Department of Social Services), Dec. No. 15559-A, where, due to a reorganization, the identity of the employe's employing unit changed. (At 12). We also note that inclusion of the EIC position in the CHD unit does not create a unit that is repugnant to the statute.