STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
In the Matter of the Petition of
WAUPACA COUNTY NON-PROFESSIONAL
EMPLOYEES UNION, LOCAL 2771,
Involving Certain Employees of
Decision No. 20854-E
Mr. Michael J. Wilson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 8033
Excelsior Drive, Suite "B", Madison, Wisconsin 53717-1903, appearing on behalf of the
County Non-Professional Employees Union.
Godfrey & Kahn, by Attorney James R. Macy, 219
Washington Avenue, P.O. Box 1278, Oshkosh,
Wisconsin 54902, appearing on behalf of Waupaca County.
FINDINGS OF FACT, CONCLUSIONS OF
AND ORDER CLARIFYING THE BARGAINING
On May 16, 1997, the Waupaca County Non-Professional Employees Union, Local
AFSCME, AFL-CIO, herein the Union, filed with the Wisconsin Employment Relations
a Petition to Clarify Bargaining Unit, by which it sought the inclusion of two Legal
positions within the Corporation Counsel's office into an existing courthouse unit of Waupaca
employes. On August 12, 1997, Examiner Raleigh Jones scheduled a hearing in the matter
October 28, 1997. On September 5, 1997, the Union filed a supplemental Petition, by which
sought the inclusion of the positions of Emergency Management Program Assistant and
and Administrative Specialist. On October 10, 1997, Hearing Examiner Stuart Levitan, a
of the Commission staff, informed the parties that he would be conducting the hearing. On
22, 1997, at the Union's request, Examiner Levitan cancelled the October 28 hearing.
Hearing was thereafter held on May 21, 1998, in Waupaca,
Wisconsin. During the hearing,
the Union agreed the Confidential and Administrative Specialist was a confidential employe
withdrew its request that the position be included in the unit. A stenographic transcript of the
was available to the parties on June 22, 1998.
The Union filed written argument and reply on August 5 and August 7, 1998; the
written argument and reply on July 24 and August 19, 1998. The County resists the Union
based on its belief that: (1) Corporation Counsel Legal Secretary Horn is a confidential,
and supervisory employe; (2) Corporation Counsel Legal Secretary Tews is a confidential,
and professional employe; and (3) Emergency Management Program Assistant Weir is a
and managerial employe who is also appropriately excluded based on the scope of the
The Commission, now being fully advised in the premises, hereby makes and issues
FINDINGS OF FACT
1. Waupaca County Non-Professional Employees Union, Local 2771,
AFSCME, AFL-CIO, herein the Union, is a labor organization with offices in care of Staff
Representative Jeffrey J.
Wickland, P.O. Box 44, Stevens Point, Wisconsin. At all times material, the Union has
certified exclusive representative for collective bargaining for a unit described in the parties'
1996-1998 contract as:
all regular full-time and regular part-time employees of the
Waupaca County Courthouse, and
custodial employees and truck drivers in Human Services, excluding supervisor, confidential,
managerial, casual, seasonal, temporary and farm employees.
2. Waupaca County, herein the County, is a municipal
employer with offices at 810
Harding Street, Waupaca, Wisconsin. There are approximately 500 County employes.
Helgeson is the County Personnel Director, supported by two unrepresented assistants, one
is the Confidential and Administrative Specialist, who the Union at hearing stipulated was a
There are seven collective bargaining units of County employes, five
professionals, courthouse non-professionals, Lakeview Manor, highway and patrol
represented by AFSCME, and two corrections officers and telecommunicators
by the Labor Association of Wisconsin. The County retains Godfrey & Kahn, S.C., to
collective bargaining and contract administration, with Attorney James Macy representing the
in such proceedings. Corporation Counsel Siewert also provides the County with legal
labor relations matters.
3. Terri Tews and Barbara Horn each hold the position identified as Confidential
Secretary, Corporation Counsel's Office, with the following position description:
TITLE: CONFIDENTIAL LEGAL
CORPORATION COUNSEL'S OFFICE
TO AND SUPERVISED BY CORPORATION COUNSEL
This responsible administrative
assistant/clerical position requires the ability to master the
policies and procedures of the County Corporation Counsel's office. This position must
clerical duties related to the activities of the office from initiation to disposition in a timely
and must be able to perform effectively in response to oral task assignments. Work will be
under general supervision with considerable opportunity for independent judgment, problem
and decision making.
ESSENTIAL DUTIES AND
1. Serve as administrative
assistant/calendar clerk/receptionist for the Corporation
Counsel's Office, make referrals, schedule appointments, take messages and furnish
the public and County personnel.
2. Calendar and set up hearings, draft
Motions, Orders and Stipulations for child support
matters needing court actions (referred from the Child Support Agency).
3. Assist in calendaring, drafting
paperwork and monitoring guardianships, protective
placements, emergency protective placements, mental health emergency detentions and
petitions for alcohol and mental health commitments. (See attached for detailed descriptions
4. Assist in establishment of paternity
cases pursuant to time limits established by State
Statute. (See attached for detailed description of duties involved.)
5. Assist in drafting of necessary
documentation, coordinate with County Treasurer's
Office, file tax liens and/or tax foreclosures; draft Judgment of Foreclosure; draft Quit Claim
and Transfer Tax Returns upon sale of foreclosed properties.
6. Assist in researching, typing, filing
and monitoring of civil lawsuits and or union
grievances brought on behalf of or against Waupaca County.
7. Research, type, proofread and/or
edit correspondence, memos, legal opinions, legal
briefs, resolutions, ordinances, contracts and any other paper work related but not limited to
law management/union disputes, tax foreclosure actions, and contract disputes.
8. Monitor bankruptcy cases filed as
they relate to the Department of Human Services
and the County Treasurer's Office; file Proofs of Claim with Bankruptcy Court as needed.
9. Supervise miscellaneous real estate
transactions (purchases by County) including
drafting Offers to Purchase, Deeds, Transfer Tax Returns and Closing Statements.
10. Prepare and file Small Claims
Summons and Complaints for miscellaneous collections
matters on behalf of the County.
11. Open and maintain files on cases of
12. Open, sort and date stamp
13. Monitor and maintain office
14. Other duties as assigned by
KNOWLEDGE & SKILLS:
A. Demonstrated knowledge of office and legal terminology,
office procedures, office
equipment, basic bookkeeping, business math and English;
B. Ability to attain thorough
knowledge of regulations pertaining to the operation of the
Corporation Counsel's office;
C. Word processing/typing (55 wpm
minimum) skill required;
D. Demonstrated interpersonal skills in
dealing with other County staff and the public;
E. Ability to interpret policies and to
develop and implement office procedures;
F. Demonstrated ability to attain
knowledge of legal terms, legal forms, court procedures
and the interrelationships of the Courts, Clerk of Courts, Police and Sheriff's Departments,
Attorney's Office, Department of Health and Human Services and other County Departments
the Corporation Counsel's office.
G. Skill in interviewing clients,
gathering and verifying information from diverse sources.
Experience in complex clerical and office management work,
preferably gained through
progressive responsible work in a law office and completion of a standard high school course
supplementary business/technical school training or any other combination of training and
which process the required knowledge, skills and abilities.
TOOLS AND EQUIPMENT USED:
Telephone, word processor/computer terminal, copy machine,
calculator, typewriter and fax
While performing the duties of this job, the employee is
required to spend the majority of the
time sitting at a desk. Use of hands and arms is required to answer phones, type, sort files
operate a calculator. Limited walking between offices and/or court is also required.
This position operates in an office setting with a relatively
noise level. Frequent unhappy
clients visiting the office and/or on the telephone makes the position stressful.
Formal application, rating of education and experience; oral
interview and reference check;
job related tests may be required.
The duties listed above are intended only
as illustrations of the various types of work that may
be performed. The omission of specific statements of duties does not exclude them from the
if the work is similar, related to a logical assignment to the position.
The job description does not constitute an
employment agreement between the employer and
employee is and subject to change by the employer as the needs of the employer and
of the job change.
A. Conduct initial interviews (either walk-in clients referred
by Child Support Agency or
Economic Support Unit). Schedule by letter to mothers for interviews with normal referrals.
B. Open file if child is
unborn, hold in pending and monitor for birth of child contact
economic support workers for birth reports.
C. When child is born or if child is
born when referral is made, do necessary cross-reference cards, labels and information
D. Draft Summons, Petition, Notice to
Respondent and Waiver of First Appearance;
schedule court date; file with Clerk of Courts, copy and send certified mail to respondent or
for personal service; make guardian ad litem appointments for minor mothers and public
appointments for minor fathers; draft Orders appointing guardian ad litems for minors.
E. Based on Waiver forms received
either Findings of Fact, Conclusions of Law and
Judgment of Paternity based on admission, copy, file, remit to all parties and close file;
tests for all parties if requested and draft Orders and correspondence to all parties for blood
F. Monitor files for blood tests results,
when received copy, file and send to all parties;
draft proposed Stipulation for respondent to admit paternity; schedule further proceedings if
Stipulation is not accepted; if alleged father is excluded by blood tests, dismiss action and
mother for further information regarding other possible fathers. Refile new case based on
G. Coordinate paternity court calendar,
outline cases for Corporation Counsel, attend
hearings, draft Findings of Fact, Conclusions of Law and Judgments of Paternity, Default
or arrange blood tests per findings of hearings, file, copy, send to all parties and close file.
A. Receive and review Chapter 51 emergency detentions,
coordinate with Department
of Health and Human Services court liaison and mental health facilities; set for hearing
time limit, arrange for public defender or court appointed attorney, arrange Sheriff's
paperwork, obtain Judge's signature, open file, copy and deliver paperwork to appropriate
coordinate with court liaison for doctor's testimony at hearing. (See C below if being rolled
Chapter 55 at hearing.) Attend court hearing and take notes; draft 90-day Stipulation at
cause or make arrangements for final hearing or change of venue, including scheduling with
drafting of paper work, arranging for two psychological evaluations and Sheriff's transport;
deliver paperwork to appropriate parties. Monitor file until final hearing date; attend hearing
notes; draft Order of Commitment and deliver copies to appropriate parties.
B. Follow same procedures in A above
for 3-party petitions for mental health and alcohol
commitments, except in addition must coordinate affadavits of petitioners, ascertain
needed for petition, draft Order for Detention and Transport, coordinate pickup with
Department, Department of Health and Human Services and facility.
C. Follow same procedurs in A above
for Chapter 51 to Chapter 55 rollovers. In addition
follow procedures for Temporary Guardianship as in C under GUARDIANSHIP AND
PROTECTIVE PLACEMENT below.
D. Maintain and monitor list of
commitments with expiration dates with the Department
of Health and Human Services; coordinate extension hearings with caseworkers; draft
assist in obtaining psychological evaluations, schedule hearings, obtain counsel, monitor file
hearing, attend hearing and take notes, draft Order for Extension of Commitment and deliver
to appropriate parties.
E. Draft Petitions and Orders for
transfer from facility to facility or from outpatient to
inpatient status and Medication Orders on an as needed basis.
F. Monitor and draft dismissal Orders
on 90-day Stipulations at expiration, obtain
Judge's signature and send to appropriate parties.
A. Receive and review Petitions from facilities or social
workers with Department of
Health and Human Services.
B. Schedule court hearing, arrange for
competency evaluation, obtain volunteer guardian
where needed, appoint guardian ad litem; draft Notice of Hearing, Order Appointing
Litem, Rights of Proposed Ward and Order for Competency Evaluation, Certificate of
file, copy and send paperwork to all interested parties on timely basis; draft Affidavit of
letter to nursing home or facility with Certificate of Service on proposed ward; draft letter to
proposed guardian enclosing brochure describing duties; draft letter to guardian ad litem with
instructions; draft letter to all other interested parties; monitor file until hearing, draft
and Order, Bond and Letters of Guardianship, attend hearing and take notes, finalize bond
signatures, obtain Judge's signature, draft letter and send final documents to appropriate
C. Emergency Protective Placements
Receive and review petition, set for hearing within
72 hour time limit; appoint guardian ad litem; coordinate with Department of Health and
Services and/or living facility or family for temporary guardian; draft paperwork, fax to
facility if ward
is not transported; coordinate with guardian ad litem as to waiver of appearance of ward; if
waived, arrange of transport of ward to hearing; coordinate telephone testimony of doctor re
competency; draft Determination and Order, Bond and Letters of Temporary Guardianship;
hearing and take notes, finalize Bond with signatures, obtain Judge's signature, and draft
send temporary documents to appropriate parties. This procedure is good for up to sixty
which time the procedures in B above must be repeated for a final guardianship and
D. Miscellaneous duties regarding
review hearings, including arranging for evaluations,
drafting Notices of Hearing and Motions and Orders for revision or dismissal of
4. Tews has held her position since January
1995, with her primary duties relating to
mental health commitments, guardianships and paternity/child support issues. Tews has an
the Corporation Counsel's office area. She holds a paralegal degree. At the time of hearing
hourly wage was $13.72, pay grade eight.
She receives correspondence, phone messages and faxes relating to
collective bargaining and
contract administration, particularly involving the County's labor relations outside counsel,
Tews assists Corporation Counsel Siewert in performing legal research relating to ongoing
which from time to time involves confidential labor relations matters. When the County was
in litigation over layoffs in its Highway Department, Tews was privy to confidential labor
information to and from Macy.
There have been occasions on which Siewert would discuss with Tews
the possibility of
particular discipline or discharge, some of which the County did not ultimately impose.
discussions were held at various points in the office, including in Siewert's office with the
At the time of hearing the County was involved in litigation with an employe of the Human
Division, about which litigation Tews had no particular knowledge. At the time of hearing,
County was also involved in potential litigation concerning another bargaining unit member,
a claim of discrimination and a grievance, which has occasioned confidential correspondence
Macy and Siewert, which correspondence Tews did not prepare. However, Tews has faxed
confidential correspondence which Horn prepared. Macy has the practice of leaving detailed
messages with Tews for Siewert, explicitly relaying and relating legal strategy for matters
Tews is heavily involved in child support enforcement services, which
in 1997 totaled over
$500,000. It was Tews who initially recommended to Siewert the retention of private outside
to handle aspects of this work, which recommendation ultimately led to County Board action
allocating the necessary funds in an identified line item. Siewert, and not Tews, has the
transfer funds from another line item into this fund. Tews participated, with Siewert and the
counsel, in the negotiations which set the rates the outside counsel receive. She does not
authority to alter those rates. Siewert routinely accepts and implements her suggestions on
and procedures for managing the child support enforcement function, including budget
5. Horn has held her position since January, 1995, and functions as
a de facto office
manager in terms of office equipment, budget, scheduling cases and establishing a filing
the time of hearing her hourly wage was $13.72.
She has the primary responsibility for typing all of Siewert's
confidential labor relations
material. She maintains the grievance files for Siewert, which include memoranda and
correspondence, both internal and to and from outside legal counsel, regarding the County's
strategy, investigations and potential settlement offers. Not all matters that she handles in
are communicated to the employe or labor organization affected. She receives and relates
telephone messages between Siewert and outside legal counsel which sometimes relate to
labor relations matters.
Horn has primary responsibility within the office for guardianship
matters, including a coming
system of centralized receiving and disbursing. Horn has been helping Siewert with position
descriptions for new positions that may be created, which Horn may then supervise. Horn
effective recommendations for the ordering of office equipment, and has effectively
choosing to lease rather than purchase. The office computer system is arrayed in such a way
the monitor on Horn's desk is connected to the internal County e-mail system; Horn, Tews
Siewert all have password access to the e-mail.
6. John Siewert has been the Waupaca County Corporation
Counsel since January 1990.
He has given Tews and Horn access to all items in his office, and routinely discusses with
Attorney Macy legal strategy concerning litigation and grievances involving bargaining unit
employes. Siewert does not serve as the County's primary spokesperson in collective
attending such sessions only occasionally; Macy and the County's Personnel Director hold
primary responsibility for collective bargaining. Although in the year prior to hearing,
not formally represented the County in any litigation relating to labor relations, he is
involved in the determination of the County's strategy in such matters. He did make
on such matters in the prior year.
7. Sue Weir is the Emergency Management Program Assistant, with the
WAUPACA COUNTY POSITION
Location: Courthouse Annex
This position under the direction of the Emergency Management
Director, shall assist in
maintaining emergency preparedness for manmade, natural or hazardous materials disasters
requires the handling of the Emergency Management's confidential information and the E911
Works under the supervision of the Emergency Management
Supervises as assigned and in the absence of the Emergency
Processes final drafts and quarterly reports of grant applications.
Processes County Emergency Plan annexes as directed.
Processes SARA/EPCRA offsite plans as directed.
Coordinates and maintains filing system for Emergency
Receives, stamps, and distributes incoming mail and processes
Maintains and assists in procurement of office supplies.
Works closely with Emergency Management Director during
Composes, types and edits a variety of correspondence, reports,
memoranda, confidential minutes
and other material requiring judgement as to content, accuracy and completeness.
Maintains good working relations with officials and all
Performs other closely related activities as required and/or
directed by the Emergency
Management Director which may include:
Attending meetings, serving as messenger between Emergency
Office and other County Departments,
preparing memos and/or handling directives/information
relative to the E911 Communications Center and the Emergency Management Office, and
out any other duties assigned by the Emergency Management Director.
Education: Graduation from a high school or equivalent with
specialized course work in general
office practices, public administration or public relations.
Experience: 3 to 5 years of increasingly responsible related
experience, or any equivalent
combination of related experience and education.
Necessary Knowledge, Skills, and Abilities:
Working knowledge of civil government structure. Personal
Computers (PC's), WordPerfect
6.0, and modern office procedures in order to organize and prioritize assigned projects;
communicate effectively orally and in writing, must be a self-starter and take initiative in
including being imaginative and innovative in office procedures; must be able to handle
situations; must have valid Wisconsin drivers' license.
Tools and Equipment Used:
Copy machine, personal computer including related software,
calculator, telephone, FAX
The physical demands described here are representative of those
that must be met by an employee
to successfully perform the functions of this job. Reasonable accommodations may be made
individuals with disabilities to perform the essential functions.
While performing the duties of this job, the employee is
frequently required to sit and talk or hear.
The employee is frequently required to sit for extended periods of time, stand and walk, use
to handle or operate objects, tools, or controls, and reach with hands and arms. The
be able to lift and move up to 60 pounds. Specific vision abilities required by this job
and distance vision, color vision, and the ability to adjust focus. Work hours will usually be
office hours Monday through Friday; however, emergency situations may require being
called in other
The work environment characteristics described here are
representative of those an employee
encounters while performing the essential functions of this job. Reasonable accommodations
made to enable individuals with disabilities to perform the essential functions. The noise
level in the
work environment is usually quiet with some background noise.
Formal application and screening, job related testing, reference
check and oral interview.
The duties listed above are intended only as illustrations of the
various types of work that may
be performed. The omission of specific statements of duties does not exclude them from the
if the work is similar, related, or a logical assignment to the position.
The job description does not constitute an employment agreement
between the employer and
employee and is subject to change by the employer as the needs of the employer and
of the job change.
The Emergency Management Program, which encompasses
functions relating to both
emergency response to disasters and emergency dispatch for more individual protective
consists of Director Jeffrey Kubitz; Weir; three unrepresented supervisors and nine
positions who are represented by the Labor Association of Wisconsin. Weir has been
Program Assistant since June 1996. At the time of hearing, her hourly wage was $11.68.
is in the lower level of the Sheriff's Department, in a building separate from but adjacent to
Waupaca County Courthouse. Weir's office adjoins Kubitz's; each has a separate lock and
Technically on-call around-the-clock, her normal duty hours are 6:30 a.m. to 3:00 p.m.
Weir is responsible for the receipt and filing of correspondence between and among
Macy and Helgeson concerning labor relations matters, including their shared responsibilities
the bargaining of a first contract upon the establishment of this unit. There has been
LAW unit employes, and Weir has been responsible for correspondence between and among
and other County officials. Weir has also been made aware, and has prepared
other documents, relating to discipline which Kubitz considered but did not impose.
8. The Confidential Legal Secretaries, Corporation Counsel, have sufficient
with or access to confidential matters relating to labor relations to be deemed confidential
9. The Program Assistant, Emergency Management Program, has sufficient
with or access to confidential matters relating to labor relations to be deemed a confidential
Based on the above and foregoing Findings of Fact, the Commission makes and
CONCLUSIONS OF LAW
1. The two Confidential Legal Secretaries, Corporation Counsel, are confidential
employes within the meaning of Sec. 111.70(1)(i), Stats.
2. The Program Assistant, Emergency Management Program, is a confidential
within the meaning of Sec. 111.70(1)(i), Stats.
Based on the above and foregoing Findings of Fact and Conclusions of Law, the
makes and issues the following
ORDER CLARIFYING BARGAINING
The positions of Confidential Legal Secretary, Corporation Counsel and Program
Emergency Government Program, shall remain excluded from the unit described in Finding
Given under our hands and seal at the City of Madison, Wisconsin this 17th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
WAUPACA COUNTY (COURTHOUSE)
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSIONS OF LAW AND ORDER
CLARIFYING BARGAINING UNIT
POSITIONS OF THE PARTIES
In support of its contention that the three subject positions should be accreted into the
the Union contends the positions do not satisfy the statutory or case law criteria for exclusion
confidential or managerial positions. The Union states that, although the Corporation
testified that he spends 20 percent of his time on labor relations matters, the subject positions
privy to sensitive labor relations matters because the County retains outside legal counsel to
its negotiations, contract administration and litigation. The Union also notes that the County
full-time Personnel Director, and states that there was no supporting testimony which
subject positions had access to confidential matters pertaining to labor relations.
The Union also argues that the de minimis
confidential duties of the position within the
Emergency Management area can be handled by other confidential employes without undue
disruption. There is no reason, the Union states, that whoever does the confidential filing
Sheriff cannot perform the same duties for the Director of Emergency Government.
The Union also states that efficiency does not justify the exclusion of two confidential
employes in the Corporation Counsel's office. While cross-training may be a laudable device
increase office efficiency, the duties do not even justify one confidential exclusion.
The Union concludes that, under current circumstances, the positions in question are
confidential, supervisory and/or managerial and argues that as is now routine in these types
proceedings, the employer has presented a revised job description and elicited testimony as to
supervisor's conjecture of future circumstances. But based upon existing circumstances, the
Legal Secretaries and the Program Assistant should be accreted to the bargaining unit.
The County contends that the three subject position incumbents are properly excluded
the bargaining unit because they are all confidential and managerial employes. The County
contends there are additional grounds for exclusion in that one of the Legal Secretaries is
supervisor, while the other Legal Secretary is a professional employe.
The County, noting that the Corporation Counsel testified that about one-fifth of his
involves confidential labor relations, contends that Secretary Barbara Horn has access to or
knowledge of its position and strategy with regard to labor relations, including collective
contract administration, litigation, grievance handling or other similar matters. The
Counsel regularly discusses strategies involving litigation or grievances with Horn,
would not be available to the Union. The Corporation Counsel has significant labor relations
responsibilities, and Horn's exposure to confidential labor relations information is more than
de minimis. That hers is a confidential position is
reflected in her position description. She prepares
confidential correspondence for the Counsel, takes and conveys phone messages, maintains
has access to information and data. There is little doubt that she is a confidential employe
excluded from the bargaining unit.
It is also the County's position that Horn's position is managerial, given her
in formulating, determining, and implementing various policies and programs relating to
matters. The Corporation Counsel and Horn both testified that Horn is in charge of the
equipment, office budget, scheduling cases, and assigning attorneys for guardianships. Horn
responsible for making decisions with regard to the budget and purchases for the Corporation
Counsel's office. She has the authority to commit County resources in that she establishes
Corporation Counsel's budget, and she has the authority to allocate budgeted funds. There is
doubt that she is a managerial employe.
Finally, Horn's prospective authority to supervise other employes makes her a
again properly excluded from the unit.
As to Legal Secretary Terry Tews, the County states that her access to and
confidential labor relations information makes her properly excluded as a confidential
example, she has typed correspondence for the Corporation Counsel that contained
information; and she opens all incoming mail, relays phone messages, and prepares and
some of which no doubt contain confidential labor relations information. Tews is also privy
confidential labor relations information as a result of conversations she is a party to within
The County also contends that Tews is a managerial employe, in that she is
formulating, determining and implementing policies relating to child support and paternity
determinations. She has been responsible for contracting with outside private counsel, and
implemented various policies and programs for child support cases. She also has the
commit the County's resources in that she plays a significant role in setting the budget and
funds. There is little doubt she is a managerial employe and properly excluded from the
Finally, the County contends that Tews is a professional employe, in that she has a
degree, and performs work that is predominantly intellectual, involves discretion as well as
and is of the character that its output cannot be standardized in relation to a given period of
The County contends that the position of Emergency Management Program Assistant
remain excluded from the bargaining unit because the position is managerial, confidential,
outside the scope of the courthouse unit.
The County notes that the recognition clause of the collective bargaining agreement
limits the bargaining unit to employes of the "courthouse"; as the incumbent works in he
of the Sheriff's Department, the collective bargaining agreement explicitly excludes her
The County also states that the incumbent has access to or knowledge of confidential
relations matters, including correspondence relating to collective bargaining and potential
and is the only confidential employe available to the Director of Emergency Management.
The County also argues that the incumbent is responsible for formulating,
implementing programs and policies, making her a managerial employe as well. These
included the responsibility for committing the County's resources, developing an office filing
and having the independent authority to do all of the Department's purchasing.
Accordingly, the County requests that all three subject positions remain outside the
Union Reply Brief
The Union replies that the County's position defies both logic and well-established
and, aside from its verbiage, the facts indicate the County's position cannot be taken
seriously. It is
astounding and simply unbelievable for Waupaca County to claim the need for two
employes in the same office.
The County's presentation, which the Commission will readily accept as showing
is self-serving speculation that shows how the Union can be ambushed at will by a
disingenuous case. The County takes the tactic of throwing out any argument, no matter
fetched, to a new level by its revision of job descriptions for the express purpose of
outcome of this case.
The County has alluded to future changes which may or may not occur. But the fact
the major labor relations duties formerly performed by the former District Attorney have
transferred to officials other than the incumbent Corporation Counsel. The County has
conclusions rather than hard evidence as to the amount of time devoted to sensitive labor
matters, and misrepresents what labor relations matters really are. The County could not
Union testimony that the Corporation Counsel has never participated in negotiations,
arbitration and the like.
The discontinuance of the use of the Legal Secretaries as a sounding board would not
undue disruption of the employer's operation.
Nor is the Emergency Management position needed for confidential duties, given the
availability of other personnel to handle confidential matters.
The Union errs in relying on the previous case involving these parties; since the facts
materially changed, that decision supports continued exclusion of the subject positions. The
Corporation Counsel has assumed the labor relations role formerly held by the District
Because of the demanding workload, the Counsel has two Legal Secretaries, both of whom
occasion to perform a significant amount of confidential labor relations work.
role of consultants or outside labor counsel, the County is entitled to confidential clerical and
staff. Numerous Commission cases support the exclusion of legal secretaries on grounds of
As a matter of law, the Corporation Counsel is responsible for determining how
legal services are
to be performed; the right of the Counsel to retain outside counsel has created a legitimate
organizational need that requires the continued exclusion of two Legal Secretaries. For the
Commission to determine otherwise would prove truly disruptive. The Corporation Counsel
entitled to confidential clerical and support staff as the Corporation Counsel determines. The
Commission must then evaluate if a sufficient amount of responsibilities are assigned so as to
the definition of confidential. For the Commission to determine otherwise would not only be
counter-productive, but would violate state law. If case law allows the Commission to
reassignment of duties, the Commission should reconsider that case law.
Finally, contrary to the Union's contention, the Courthouse unit is not the appropriate
bargaining unit for the Emergency Management Program Assistant. That position is housed
the Courthouse, and is a confidential employe.
It is well-established that for an employe to be held confidential, such employe must
access to, knowledge of, or participation in confidential matters relating to labor relations.
information to be confidential, it must: (a) deal with the employer's strategy or position in
bargaining, contract administration, litigation or other similar matters pertaining to labor
grievance handling between the bargaining representative and the employer; and (b) be
which is not available to the bargaining representative or its agents. Dane County, Dec. No.
22796-C (WERC, 9/88). While a de minimis
exposure to confidential materials is generally insufficient
grounds for exclusion of an employe from a bargaining unit, Boulder Junction Joint School
District, Dec. No. 24982 (WERC, 11/87) we have also sought to protect an employer's right
conduct its labor relations through employes whose interests are aligned with those of
CESA Agency No. 9, Dec. No. 23863-A (WERC, 12/86). Thus, notwithstanding the actual
of confidential work conducted, but assuming good faith on the part of the employer, an
be found to be confidential where the person in question is the only one available to perform
legitimate confidential work, Town of Grand Chute, Dec. No. 22934 (WERC, 9/85) and,
where a management employe has significant labor relations responsibility, the clerical
assigned as her or his secretary may be found to be confidential, even if the actual amount of
confidential work is not significant, unless the confidential work can be assigned to another
without undue disruption of the employer's organization. Howard-Suamico School District,
Dec. No. 22731-A (WERC, 9/88). However, an employer clearly cannot be allowed to
inordinately large number of employes by spreading the work of a confidential nature among
employes or giving them occasional tasks of a confidential nature. Marshfield Joint School
District No. 1, Dec. No. 14575-A (WERC, 7/76). To do so would be to allow the employer
deprive said employes of their status as "employes" under the law. Menomonee Falls Jt.
District No. 1, Dec. No. 11669 (WERC, 3/73).
Information available to either the union or the employe is not considered to be
DePere School District, Dec. No. 25712-A (WERC, 10/90). For example, access to
files is not typically indicative of confidential status because the information contained therein
typically accessible to employes or their union, Appleton Area School District, Dec. No.
22338-B (WERC, 7/87), and because the employer can limit access if it chooses. Oregon
District, Dec. No. 28110-C (WERC, 4/96). Likewise, access to the information and records
concerning employes' pay levels, health and life insurance benefits, unemployment
leave, retirement, etc. does not exclude an employe as confidential unless such employe is
to the employer's decision-making process with respect to personnel and labor relations
Outagamie County, Dec. No. 14062 (WERC, 10/75). In addition, providing information for
by the employer in collective bargaining or in responding to grievances, absent knowledge of
employer's grievance or bargaining strategy, generally does not render a position confidential
the meaning of the law. City of Cudahy, Dec. No. 21887 (WERC, 8/84). Finally, possible
confidential duties combined with current exposure to confidential matters may warrant a
exclusion as confidential, Manitowoc County, Dec. No. 8152-J (WERC, 11/90), or such
duties and responsibilities may be too speculative or de
minimis to warrant exclusion from the
bargaining unit as confidential. Waukesha Joint School District No. 1, Dec. No. 10823-A
The Commission has held that,"the physical proximity of confidential and
employes or the effect of finding a confidential status or a non-confidential status on the
of the work place are not appropriate considerations in making a determination of whether
are confidential employes." Marshfield Joint School District No. 1, Dec. No. 14575-A
7/76), cited in West Salem School District, Dec. No. 22514-A (WERC, 8/89).
However, an employer may have legitimate privacy concerns. In Dunn County, Dec.
8170-A (WERC, 10/91), a Commission majority (Commissioners Hempe and Strycker)
a concern to be "significant when combined with the difficulty of rearranging the work load
logical manner and the significant labor relations responsibility which the Administrative
The record clearly establishes that Corporation Counsel Siewert does have ongoing
confidential labor relations responsibilities. While many of those responsibilities are shared
outside labor counsel, there is no doubt that these shared responsibilities involve a significant
of confidential communication between Siewert and outside counsel. Thus, although Siewert
not routinely formally represent the County in labor relations matters, he is routinely
involved in the
determination of the underlying County labor relations strategy.
Horn has the primary responsibility for providing clerical support as to
outside counsel and others through typing confidential labor relations documents and
confidential labor relations telephone messages and faxes. Based on these responsibilities,
clearly a confidential employe.
Like Horn, Tews performs confidential labor relations clerical work for Siewert by
telephone messages from outside counsel, opening confidential mail and receiving
Significantly, given Tews paralegal training, Siefert has Tews assist him in performing legal
which from time to time involves confidential labor relations matters. While it might well be
concluded that Horn could reasonably be expected to perform all of the clerical confidential
relations support for Corporation Counsel Siewert without undue disruption of the office,
has the training to perform the legal research duties assigned by the Corporation Counsel.
some of those research duties are clerical in nature (i.e. xeroxing cases etc.), Siefert credibly
that Tews' paralegal training allows him to have her conduct research with an eye toward
him of the strengths and weaknesses of his position in matters which include labor relations
Given her paralegal responsibilities and her clerical labor relations responsibilities, we
Tews is also a confidential employe.
Turning to the Program Assistant, it is clear that Weir provides all of the confidential
support for Emergency Government Management Director Kubitz who, in turn, has
relations responsibilities as to the telecommunicator bargaining unit. Contrary to the Union,
believe it would be unduly disruptive of the County's organization to have all of this
work performed by employes in the adjacent Courthouse. Thus, as the individual performing
clerical work for a management employe with significant labor relations responsibilities,
appropriately excluded as a confidential employe.
In summary, all three disputed positions are held by confidential employes who are
appropriately excluded from the unit on that basis. Given our conclusion, we need not
alternative theories of exclusion raised by the County.
Dated at Madison, Wisconsin this 17th day of December, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
A. Henry Hempe, Commissioner
Paul A. Hahn, Commissioner