STATE OF WISCONSIN
TOWN OF MADISON,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION, and
COUNTY AND MUNICIPAL EMPLOYEES, AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 60,
Case No. 94-CV-1327
Decision No. 24816-B
NOTICE OF ENTRY OF DECISION AND ORDER
To: Mark B. Hazelbaker
2 East Mifflin Street
Post Office Box 1767
Madison, Wisconsin 53701-1767
Richard V. Graylow
Lawton & Cates, S.C.
214 West Mifflin Street
Post Office Box 2965
Madison, Wisconsin 53701-2965
PLEASE TAKE NOTICE that a decision and order affirming the decision of the
Employment Relations Commission, of which a true and correct copy is hereto attached, was
signed by the court on the 4th day of January, 1995, and duly entered in the Circuit Court
Dane County, Wisconsin, on the 4th day of January, 1995.
Notice of entry of this decision and order is being given pursuant to secs. 806.06(5)
Dated this 9th day of January, 1995.
JAMES E. DOYLE
/s/ David C. Rice
David C. Rice
Assistant Attorney General
State Bar No. 1014323
Attorneys for Defendant Wisconsin
Employment Relations Commission
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
STATE OF WISCONSIN
Town of Madison,
Wisconsin Employment Relations Commission, and Wisconsin Council of County and
Municipal Employees, American Federation of State, County, and Municipal
94 CV 1327
Decision No. 24816-B
Decision and Order
This matter comes before the court on a Petition by the Town of Madison for a
administrative review of a decision rendered by the Wisconsin Employment Relations
(WERC) made pursuant to the Municipal Employment Relations Act. This
that the Town's Building Inspector was neither a "managerial employee" nor a "craft
but was a "municipal employee" and was therefore appropriately included in the Union
Petitioner, the Town of Madison, maintains that the decision by the WERC is arbitrary
capricious because WERC failed to sufficiently articulate the factual basis for its conclusion.
Petitioner also contends that a proper application of the facts must lead to the conclusion that
position of Building Inspector does entail managerial responsibilities or, in the alternative,
position is a craft position. Either conclusion would require reversal of the Commission's
to include the position in the bargaining unit.
The Union and the WERC contend that the WERC decision must be affirmed because
contains substantial evidence to support the Commission's determination and because the
supports the conclusion that the Commission could reasonably decide that the Building
was neither a "managerial employee" nor a "craft employee."
The Wisconsin Council of County and Municipal Employees (union) is the exclusive
bargaining representative for certain of the Town of Madison's (Town) employees. This
bargaining unit consists of:
"All regular employees of the Town of Madison, including public
works employees, clerical
employees and other employees, excluding employees with the power to arrest, the fire chief,
assistant fire chief and supervisory employees."
(Joint Exhibit 5).
These employees are deemed "municipal employees" under the Municipal Employment
Act (MERA). Section 111.70(1)(i), Stats. In order to accommodate an employer's need to
manage its operations, MERA exempts certain categories of positions from being represented
the Union. These positions include: supervisors, managers and confidential employees.
111.70(1)(i), Stats. Additionally, "craft" positions may not be included in a bargaining unit
composed of non-craft employees unless the craft employees vote separately in favor of such
representation. Section 111.70(4)(d)2.a., Stats.
Included within this bargaining unit until 1991 was a position for a Deputy Building
In October of 1991 the person holding that position was fired and the position remained
until January 1993, when the Town hired Matthew Wenzel for the newly created position of
Building Inspector. This position was created by splitting the Director of Public Works
into two positions - Director of Public Works and Building Inspector. It was this
which prompted the Union to file a petition with the WERC requesting a determination as to
whether the position of Building Inspector should be included in the existing collective
unit of Town of Madison employees represented by the Union. The Town contends that the
Building Inspector position should be removed from the bargaining unit because it is a
position. Alternatively, the Town maintains that even if it is not a managerial position, it is
"craft" position requiring a representation election to determine if the position should be
in the bargaining unit. After a hearing on the matter, the WERC issued an opinion on
1994, concluding that the position of Building Inspector was to be included in the bargaining
It is the appeal of this decision which is now before this court.
The job description formulated for the Building Inspector position articulates the
responsibilities: (1) enforcing building, HVAC, residential, and commercial property
codes; (2) meeting with developers, builders, and public relative to building regulations; (3)
reviewing plans and specifications for building code compliance; (4) consulting with property
owners, builders, architects, and engineers about code applications and interpretations; (5)
investigating complaints about various State, county and local code violations; (6) preparing
maintaining records required by State, federal and local authorities; (7) drafting proposed
to existing Town codes and ordinances for consideration by appropriate Town committees
officials; (8) providing staff support to various Town committees; (9) preparing the annual
Building Inspection budget: (10) overseeing maintenance of the Town's buildings/grounds;
recommending and implementing capital improvements to the Town's buildings/grounds; (12)
performing miscellaneous licensing inspections, mobile home park inspections, and fire
inspections; and (13) assisting in other projects needing the attention of the building inspector
as directed by the Town Board. (Joint Exhibit 1). The requirements necessary to perform
include: (1) current certification by the State of Wisconsin as a qualified inspector in the
commercial, energy, general construction, and HVAC; or a combination of training and
experience which would lead to certification within 6 months of employment; (2) customer
relations skills; (3) communicate well with employees and public; (4) keep clear and accurate
records; (5) thorough knowledge of current building and HVAC construction practices; and
supervise outside contractors on building/grounds capital projects. Finally, the job
lists the following training and experience-necessary for the Building Inspector position as:
high school graduate supplemented by specialized courses in building/construction standards,
graduation from a college or technical school desirable; (2) 5 years experience in building
construction with familiarity of building codes and ordinances; (3) experience dealing with
public; (4) supervisory experience.
Mr. Wenzel's qualifications for the job include 16 years as a construction
project manager for various construction companies. In these positions, he supervised skilled
trade workers at the journey and master levels. He was licensed as a general contractor in
Florida. To become licensed, he had to pass an exam and have a knowledge of construction.
However, he was not required to have any journey level skills. Mr. Wenzel is not a skilled
journey crafts worker in any trade and has not worked in any trade. Mr. Wenzel is certified
the State of Wisconsin to perform inspections and to enforce the state building codes. These
inspections do require him to review the work of a variety of skilled trades workers including
those at the journey level and above. To perform these inspections, Mr. Wenzel must have
knowledge of the work these skilled trades workers perform.
In the course of the hearing before the WERC, Mr. Wenzel testified that his
conducted in the following manner: 30% - inspection and enforcement of codes; 25% -
with developers, builders, and public about building regulations; 10-15% - investigating
complaints regarding code violations; 10% - reviewing plans and specifications for code
compliance; 10% - overseeing maintenance of Town grounds/buildings; 5% - consulting with
owners, builders, architects and engineers about code applications/interpretations; 5%
records required by federal, state, and local agencies and drafting proposed local code
5% assisting in other projects as directed by Town Board and providing staff support to
Additionally, Mr. Wenzel testified that as Building Inspector he is authorized to stop
any type of
construction job if he discovers that the job is not in compliance with building codes. He
permits, correction orders, and is even authorized to issue citations for failure to stop a job
make corrections, repairs or to comply with code requirements. Mr. Wenzel also drafts and
recommends changes in the Town building codes and ordinances as the need arises. He
these proposals to the Town Board which is the final authority with respect to implementation
these proposed changes.
Mr. Wenzel is also responsible for supervising the work of the Town plumbing
inspector and the
Town electrical inspector. These two positions are actually hybrid positions. They are not
Town employees because their payment derives not from a salary but from the number of
issued. This arrangement makes them more like independent contractors paid on a per fee or
permit basis. However, the Town does withhold payroll, FICA and state taxes from their
checks. They are not considered Town employees for worker's compensation or
compensation purposes. Mr. Wenzel has the authority to conduct performance reviews,
them for misconduct, and recommend hiring and firing. However, the Town Board retains
final authority on his recommendations.
Mr. Wenzel is also responsible for preparing the budget for the building inspection
The majority of the budget is for salaries and wages. He does not have any control over this
aspect of the budget. It is prepared by the Town Manager. However, Mr. Wenzel does
input into the amounts budgeted for separate line items like contractual services, supplies,
operating expenses, and repair/maintenance of town buildings. In preparing his budget, Mr.
Wenzel testified that he reviews the old budget, makes corrections where needed for the new
budget and then recommends the completed document to the Town Board for final approval.
make changes to the budget, Mr. Wenzel must justify them before the Board and make those
requests to the business manager or Board. He lacks the independent authority to change
from one line of the budget to another line. Mr. Wenzel testified that he spends
40 - 80 hours on the budget.
The standard of review of an administrative decision depends on whether the issues
involve questions of law or fact. A court must separate the factual findings from the
of law and apply the appropriate standard of review to each. Badger State Agri-Credit
122 Wis. 2d 718, 723 (Ct. App. 1985).
In the case before this court, the Town raises two issues. First, it contends that the
to sufficiently articulate the reasons for its decision. This is a legal question which requires
court to evaluate the structure of the Commission's decision to determine whether there are
sufficient facts to support the conclusions reached by the Commission. This review can be
conducted without deference. Section 227.57(5), Stats. Secondly, the Town contends that
position of Building Inspector is not a "municipal employee" position as defined by Section
111.70(1)(i), Stats. but is either a managerial position or craft position. This determination
presents a question of law. Milwaukee v. Wisconsin Employment Relations
Comm'n. , 43 Wis.
2d 596, 600 (1969). However, because this issue presents a legal question focusing on the
agency's construction of a statute (MERA) and its application to a particular set of facts, the
court's review of this second issue is more deferential.
The construction of a statute and its application to a particular set of facts is a question
Eau Claire County v. WERC, 122 Wis. 2d 363, 365 (Ct. App. 1984). A
reviewing court is not
bound by an agency's conclusions of law; however, if the agency's legal conclusions are
reasonable, the reviewing court will sustain the agency's view even though an alternative
may be equally reasonable. Kenwood Merchandising Corp. v. LIRC, 114 Wis.
2d 226, 230 (Ct.
App. 1983). Where a legal question is intertwined with factual determinations, the court
defer to the agency with primary responsibility. Revenue Dept. v. Lake
Wisconsin Country Club,
123 Wis. 2d 239, 242 (Ct. App. 1985). In fields in which the agency has particular
or expertise, a reviewing court should not substitute its judgment for the agency's application
a particular statute to the found facts if a rational basis exists in law for the agency's
interpretation. Wis. Environmental Decade v. Public Service Comm., 105 Wis.
2d 457, 460 (Ct.
App. 1981). Where, however, a legal question is concerned and there is no evidence of any
special expertise or experience,'the weight to be afforded an agency interpretation is no
at all. Local No. 695 v. LIRC, 154 Wis. 2d 75, 84 (1990).
Because WERC is charged with applying MERA, its interpretation of this statute is
great weight. Drivers, etc., Local 695 v. WERC, 121 Wis. 2d 291, 294 (Ct.
WERC has well-established expertise in distinguishing between municipal and managerial
employees. Milwaukee v. WERC, 71 Wis. 2d 709, 716-17 (1976). Where an
is involved in the application of a law to a set of facts, we defer to any reasonable conclusion
the agency. Nigbor v. DILHR, 120 Wis. 2d 375, 383-84 (1984). Therefore in
a case such as this
where WERC is required to distinguish between municipal and managerial employees, this
will defer to its application of MERA if there is any reasonable or rational basis to support
The Town first contends that the Commission's decision failed to articulate sufficiently
for its conclusions. In support of this assertion, the Town argues that the decision contains
analysis of the facts, only legal conclusions. In addition, the Town contends that there are
citations to the record to identify the testimony or evidence upon which the Commission
conclusions. It also argues that evidence which favored its argument that the Building
position was managerial or craft was ignored or brushed aside and that the Commission
consider the evidence in the context of the size of the Town of Madison.
This court finds this argument unpersuasive. The Petitioner cites no authority to
requirement that the Commission must cite to the record to identify the testimony or evidence
is considering. In fact, as pointed out in WERC's brief, an administrative agency decision
be accompanied by findings of fact and conclusions of law and the findings of fact must be a
concise, separate statement of the ultimate conclusions upon each material issue of fact
recital of evidence. Section 227.47(1), Stats.
The Town correctly argues however that an agency decision must fill in the gap
between the facts
and the conclusion otherwise a reviewing court could determine that the agency exercised its
discretion in an arbitrary and capricious manner. A reviewing court must be able to
why the decision maker made the decision it made. The decision must explain how the
reached that result. This requires more than just an articulation of the factors considered by
agency. Kammes v. Mining Investment and Local Impact Fund Board, 115
Wis. 2d 144, 157 (Ct.
App. 1983). However, it is sufficient if those findings of fact and conclusions of law are
enough to inform the parties and the reviewing court of the basis of the decision. Wis.
Environmental Decade v. Public Service Comm., 98 Wis. 2d 682, 701 (Ct. App.
The Town argues extensively that the WERC failed to consider numerous factors and
the Building Inspector's managerial or craft status. It frames its argument with such phrases
the Commission having "disparaged the Building Inspector's involvement in the Town's
code and policy" and the "brushing aside" or "completely ignoring" of other evidentiary
However, just because the Commission did not issue those factors in its findings of fact does
mean that they were brushed aside or ignored. The Commission must sort through all the
evidence presented and make determinations as to the weight and credibility of that evidence.
findings of fact the agency does eventually make are conclusive as long as they are supported
credible and substantial evidence. Section 227.57(6), Stats. There may be conflicting views
which each may be sustained by substantial evidence. In such a case, it is for the agency to
determine which view of the evidence it wishes to accept. Hamilton v. ILHR
Dept., 94 Wis. 2d
611, 617 (1980). The weight and credibility of evidence is solely within the province of the
administrative agency and a court will give deference to an examiner's evaluation of the
evidence, including credibility. Amtronix Industries, Ltd. v. LIRC, 115 Wis.
2d 108, 114-15
(Ct. App. 1983). Upon review, this court cannot make an independent determination of the
This court may only determine whether there was any substantial evidence to sustain the
that were in fact made. Unruh v. Industrial Comm., 8 Wis. 2d 394, 39,8
Here, there is clearly substantial evidence to sustain the findings of fact which the
The Town does not seem to dispute or challenge those findings which the Commission did
Rather, the Town's argument seems concerned with the evidence which the Commission
not as weighty or credible and which therefore was not included in its findings of fact. For
example, the Town refers to the extent of the Building Inspector's involvement in developing
housing codes and policy, the significant amount of discretion attached to the Inspector's
enforcement responsibilities, and the Inspector's responsibilities for managing the Town's
safety program. However, the agency need not substantiate its reasons for not adopting all
alternatives urged on it. Wis. Environmental Decade v. Public Service
Comm., 98 Wis. 2d 682,
702 (Ct. App. 1980).
In addition, upon reviewing the WERC's conclusions of law, this court finds the
explain its reasons for finding that the Building Inspector position was neither managerial nor
craft. The entire findings of fact section contains numerous references to factual evidence
the Commission accepted and which supports this conclusion. In addition, in the discussion
section of the opinion, after setting forth the legal standards upon which it is required to
the evidence, the Commission identified further specific factual bases upon which it
the position was neither managerial nor craft. For example, the Commission noted that the
responsibilities of the Inspector were ministerial because the bulk of the budget is devoted to
salary items over which the Inspector has no control. Further support was gleaned from the
evidence that the remaining line items over which the Inspector did have control were
by baselines already established through prior years experience making the process one of
projecting forward as opposed to reflecting affirmative policy decisions made by the Building
Inspector. The Commission also cited evidence supporting its conclusion that the position
not affect the formulation of policy at a high level. For example, the Commission notes the
Inspector's role on several Town committees is to provide practical and technical expertise
than actual policy formulation affecting the Town's operations. To support its determination
the position is not a craft position, the Commission relied on the job description and the
by Mr. Wenzel regarding his experience in finding that neither met the standard for being a
position. Thus, while further specific evidentiary facts from the record could have been
to support the Commissions conclusion, this court finds that the Commission did not abuse
discretion and did articulate sufficient facts from which a reviewing court could find that
substantial evidence to support its opinion.
The Town further argues that the decision is erroneous because the evidence on the
sufficient to establish that the Building Inspector is managerial and/or craft. The Town
this court must review this determination without deference to the WERC. This standard of
review is incorrect. As this court has set out above, the standard of review the court must
to this issue is one of great deference to the agency because of the agency's expertise in
MERA. Section 227.57(10), Stats. We will defer to the agency's application of MERA if
is any reasonable basis to support it.
The Wisconsin Supreme Court has accepted WERC's definition of "managerial
managerial employee is one whose relationship to management imbues them with interests
significantly at variance with those of other employees. Milwaukee v. WERC,
71 Wis. 2d 709,
716 (1976). (emphasis added). This determination requires application of a two-fold test.
first test is whether an employee participates in formulating, determining and implementing
management policy. The second test is whether an employee has effective authority to
the employer's resources, or the authority to establish an original budget or to allocate funds
differing program purposes from such an original budget. Kewaunee County v.
WERC, 141 Wis.
2d 347, 353 (Ct. App. 1987).
As to the first test, the Commission requires that the employees participation in
implementing management policy must be at a relatively high level of responsibility for a
to qualify as managerial. City of Mauston, Dec. No. 21424-E (WERC,
11/93). The test is not
whether the position has any managerial authority but whether the position has significant
managerial authority. Eau Claire County v. WERC, 122 Wis. 2d..363, 365
(Ct. App. 1984).
In this case, the WERC concluded that the Building Inspector position did not possess
of managerial responsibility necessary, to meet the test. It appears that the Commission was
particularly persuaded by the substance of and amount of time devoted to those activities
the Town argues are indicia of managerial status. The Commission noted that while the
Inspector does sit on various Town committees which deal with Town policy, the substance
Inspector's role is relegated to providing technical expertise as opposed to significantly
the nature and direction of the Town's operation. His job description states that he is to
"staff support" to those committees. The committees do not adopt policy for the Town nor
they even give advice to the Town Board which does development Town policy. The
indicates that the Building Inspector has not even participated on either the Planning and
Community Development Committee or the Dane County Zoning Board of Appeals. This
committee work involves only 1% of his time.
Neither was the Commission persuaded that the significant amount of discretion
Building Inspector in allocating his responsibilities and directing his priorities amounts to
managerial status. The fact that the Building Inspector can decide to investigate residential
violations instead of commercial code violations is simply a function of his job as the
Inspector. It is not a managerial function in the sense that such discretion affects the Town's
operation. Nor does it imbue his position with interests significantly at variance with those
other employees. This is part of his role as a Building Inspector just as his ability to issue
permits, correction orders, and citations involve discretion but are part of his job as Building
Inspector. The mere fact that a position is imbued with a substantial amount of discretion
not necessarily lead to the conclusion that the position is managerial in nature.
The Commission also found that the fact that the Building Inspector can recommend
improvements was not indicative of managerial status. This was because it deemed the
s role in this area as providing technical assistance to the Town Board as opposed to
and independently determining the necessity of the improvements and then on his own
allocating and committing the resources for those items. It is the Inspector's role to monitor
need for capital improvements and then notify the Town Board. The expenditures are
and committed by the Town Board.
In only two areas did the Commission signify that the Building Inspector position might
in affecting Town Policy. First, the Inspector participated in the decision to replace a
janitorial service with a part-time employee. However, the testimony indicated that the
did not originate the idea nor did he make specific recommendations on this issue. Secondly,
may be that the Inspector will assume supervisory responsibility for the new janitorial
that eventuality is too speculative to consider at this time.
Consequently, given the nature of the duties identified as. managerial and the amount
devoted to those duties, it was not unreasonable for the Commission to conclude that the
failed to meet the first test of managerial status.
Under the second test, a court determines whether the employee possesses effective
commit the employer's resources. The Town argues that the Building Inspector's budgetary
responsibilities constitute effective authority to commit the Town's resources. For this to be
the employee must possess the discretionary power to determine the type and level of
be provided and the manner and means by which those services will be delivered.
County v. WERC, 141 Wis. 2d 347, 355 (Ct. App. 1987).
Formulating a budget, as opposed to merely submitting a budget,
involves determining the
services required, the number of persons necessary to deliver those services, and the quantity
type of equipment and supplies required to provide those services. Consequently, to possess
effective authority to commit an employer's resources, an employee preparing a budget must
possess the authority to effectively recommend the amount and the manner in which funds
be expended in support of each of the services provided..... This test focuses on the power to
determine the manner and method by which the office discharges its responsibility.
last year's budget if it reflects the affirmative decisions of the person preparing the budget is
sufficient to meet this test. Submitting a budget that does not reflect the decisions of its
is not an original budget and fails this test.
Id. at 355-56.
In this case, the Commission's determination that the Building Inspector's budgetary
to confer managerial status is reasonable. This determination was based on the testimony of
Building Inspector and the Town Manager as well as the budgetary exhibits. The Inspector
testified that only 2-3% of his time was spent on preparing the budget. The vast majority of
budget is devoted to salary items over which the Inspector has absolutely no control. These
prepared by the Town Manager. The remaining line items require the Inspector's input.
items are described as contractual services and include inspection fees, telephone, computer,
supplies, travel reimbursement, training, photo supplies, repairs made by Town Inspector,
miscellaneous expenses. The total budgeted for these expenses is approximately $12,250 out
a $51,000 budget. However, the Inspector fees, which comprise $5,200 of the $12,250 are
customarily set by using the DILHR fee schedule. As to the remaining items, the Inspector
testified that he takes last year's budget and allocates the dollars making adjustments for the
coming year. He bases his adjustments on baselines established from prior years experience.
Inspector testified that he does not spend the money of the Town freely without letting them
or at least have knowledge of what to expect. Additionally, the Building Inspector does not
the authority to move dollars from one line item to another. Finally, the evidence indicates
the final authority for the budget and any changes made to it rest with the Town Board which
accept or reject the Building Inspector's recommendations. Considering these factors, it is
reasonable to conclude that the Building Inspector's budget role does not reflect a significant
on Town policy decisions. Given the amount of time devoted to this role, the routine of the
presented, the amount of actual discretion or authority the Building Inspector can actually
and the lack of authority to initiate and independently make expenditures, it is reasonable to
conclude that the budget does not necessarily reflect the decisions of its preparer.
Finally, the Town argues that even if the position of Building Inspector is a municipal
it must be considered a craft position. Again, this court finds that the evidence supports a
reasonable conclusion that the position of Building Inspector for the Town of Madison is not
craft position. Section 111.70(1)(d), Stats. provides:
"Craft employe" means a skilled journeyman craftsman, including
his apprentices and helpers,
but shall not include employes not in direct line of progression in the craft.
To constitute a craft employe within the meaning of this provision, an employe must
substantial period of apprenticeship or comparable training. The Commission recognizes an
experience equivalent where it is clearly demonstrated to exist. The actual work performed
given greater weight than a requirement for a certain title, level of pay or diversity of duties.
Adams County, Dec. No. 27093 (WERC, 11/91).
In this case, the evidence established that Mr. Wenzel did not have an actual
in any craft. He is not required by the Town nor has he ever spent a substantial period of
apprenticeship or comparable training in any single craft. His job description requires high
graduation, specialized courses in building/construction standards, 5 years experience in
construction, public relations experience, and supervisory experience. The record indicates
while Mr. Wenzel does have 17 years of construction industry experience, and is licensed in
State of Florida as a general contractor these do not require journey level skills. While his
position may require knowledge of how the work is to be done for all trades including
level work, this is simply not sufficient to meet the definition of craft employee. He has
a Journey license, equivalent experience, nor is he in direct line of progression in the craft.
Basically, Mr. Wenzel's position requires him to be a "jack-of-all trades" but "master" of
This conclusion is consistent with other WERC decisions. In City of
Appleton, Dec. 11784
(WERC, 4/73) the WERC determined that the City's Building and Housing Inspectors were
employees because of the training and experience required by the City and because of the
and experience brought to the job by the employees. That is not the case here. In
Kenosha, Dec. 12620 (WERC, 4/74) the WERC reached the same conclusion as in
Appleton because Kenosha required its Building Inspector to have 2 years of
experience as a journeyman craftsman. That is also not the case here.
Consequently, this court finds that the Commission's conclusion regarding the craft
the Town of Madison's Building Inspector position was reasonable.
For all of the reasons stated above, this court orders that the decision of the WERC in
Madison, Dec. No. 24816-A (WERC, 3/25/94) be AFFIRMED.
Dated and mailed this 4th day of January, 1995.
By the Court
/s/ Stuart A. Schwartz
Stuart A. Schwartz