STATE OF WISCONSIN
LOCAL 1287-CH, AFSCME,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
and CITY OF WAUSAU,
Case No. 98CV408
[Decision No. 20916-G]
[NOTE: This document was re-keyed by WERC. Original pagination has been
This matter arose after the plaintiff, LOCAL 1287-CH, AFSCME, AFL-CIO
Union"), filed a petition for unit clarification requesting five City of Wausau positions be
a bargaining unit of certain Wausau City Hall and City of Wausau employees. The five
include: (1) Confidential Office Assistant to the Mayor; (2) Confidential Office
Assistant in the Fire
Department; (3) Confidential Office Administrative Specialist in the Wausau Area Transit
(4) Confidential Administrative Specialist in the Clerk's Division; and (5) Confidential
Specialist in the Finance Department. The plaintiff argued the positions did not encompass
confidential duties to be excluded from the bargaining unit within the meaning of Wis. Stat.
The matter was heard on December 16, 1997 before a hearing examiner for the
Employment Relations Commission. On May, 18, 1998 the hearing examiner found the
were confidential within the statute's meaning and should continue to be excluded from the
bargaining unit. On July 3, 1998 a panel of three
additional commissioners affirmed that decision and the plaintiff subsequently
petitioned this court
STATEMENT OF FACTS
The employees represented by the Union consist of regular full-time and part-time
of the City of Wausau employed within City Hall and related buildings. The represented
not include departmental heads, supervisory, managerial, confidential and seasonal/temporary
employees or other city employees represented by other unions.
The five positions the Union now seeks to include in the bargaining unit are classified
city as "confidential". Because persons employed in confidential positions are exposed to
information they cannot be included in a union with persons classified as "municipal" under
Stat. § 111.70(1)(i). As such, the five positions at issue are excluded from the Union.
argues the confidential duties involved in the five positions are "de minimis" and
the positions are
therefore improperly excluded from the Union.
Standard of Review
The judicial review of findings of fact by an agency is governed by statute and
scope. Under Wis. Stat. § 227.57(6) judicial review of an agency's decision is limited
in that "the
court shall not substitute its judgment for that of the agency as to the weight of the evidence
disputed findings of fact." The court may only set aside agency action or remand the case
"if it finds
the agency action depends on any finding of fact
that is not supported by substantial evidence in the record." Section 227.57(6).
As long as a reasonable person could reach the same conclusion based on evidence in
entire record, the court must affirm the agency's findings even against great weight or clear
preponderance of the evidence. Hamilton v. DILHR, 94 Wis. 2d 611, 288
N.W.2d 857 (1980). Only
the agency may make an independent determination of fact, however, the trial court's review
of a case
ab initio could result in a different outcome. Briggs & Stratton Corp.
v. DILHR, 43 Wis. 2d 398, 168
N.W.2d 817 (1969).
Therefore, the reviewing court must search the record to locate substantial evidence
supporting the agency's decision. VandeZande v. DILHR, 70 Wis. 2d 1086,
236 N.W.2d 255
(1975). The trial court must rely on the agency's assessment of witness credibility and must
a commission's findings if the court finds any credible evidence in the record supporting such
See Gornason v. DILHR, 94 Wis, 2d 537, 289 N.W.2d 270
This court has searched the record and holds the agency's findings are supported by
substantial evidence. The five positions the Union seeks to have reclassified have sufficient
to and involvement in confidential matters to warrant their confidential classification.
minimis exposure to confidential duties is insufficient grounds for excluding an
employe from a
bargaining unit" (Boulder Junction Jt. School District, Dec. No. 24982
(WERC, 11/87), the court
finds there is substantial evidence
in the record to show the five positions have more than de minimis exposure to
Further, the court finds substantial evidence in the record showing that re-assigning
confidential duties of these five employees would be a significant interference. "Unless the
confidential work can be assigned to another employee without undue disruption of the
organization" the employee may be classified as confidential. Price County,
Dec. No. 11317-B
Confidential Office Assistant to the Mayor
This half-time position is filled by Jennifer Youtsos (hereinafter "Ms. Youtsos") and
directly to the mayor. Ms. Youtsos testified she spends approximately 25%, and often more,
her time performing confidential duties in the mayor's office. Ms. Youtsos is the first
view any confidential mail coming into the mayor's office from any union, personnel
meeting or negotiation. Ms. Youtsos reviews the correspondence and pulls any relevant
information to attach to the correspondence to assit the mayor in subsequent meetings in the
Additionally, once-a-month, Ms. Youtsos prepares minutes from council meetings,
closed session meetings, and is responsible for filing those minutes as well as filing
matters such as employee grievances and the mayor's confidential notes on various issues.
Ms. Youtsos receives phone calls of a confidential nature from employees and department
heads concerning complaints and is responsible for determining the
basis of those complaints and reporting them to the mayor. Ms. Youtsos also testified
many of the
files she prepares are locked and confidential and shared only with the mayor and others
the relevant labor negotiations.
While Ms. Youtsos' position is only half-time it is clear much of that time is spent
confidential matters in the mayor's office and she has more than de minimis
exposure to these matters.
There is substantial evidence in the record showing she is frequenlty a party to confidential
correspondence, notes and decisions regarding labor matters, including the mayor's personal
Not only is she responsible for filing this information but she is responsible for typing closed
minutes and screening confidential correspondence.
Ms. Youtsos testified at times she spends more than 25% of her time on confidential
Although a percentage of Ms. Youtsos' time is not spent on confidential matters there is no
in the record showing how this percentage could be transferred to another confidential
without disruption or inefficiency resulting. In fact, Jacquelin Peterson (hereinafter "Ms.
Human Resources Director for the City of Wausau, testified she did not see how there could
shifting of the confidential duties away from this position.
The court finds the position of Confidential Office Assistant to the Mayor should
classified as confidential.
B. Confidential Office Assistant in the Fire
This position is currently filled by Tammy Friedrich (hereinafter "Ms. Friedrich")
out of the Wausau Central Fire Station located on the corner of Thomas Street and Grand
Ms. Friedrich is the only clerical employee for the fire department and reports directly to the
Chief. Ms. Friedrich is responsible for handling all incoming phone calls to the fire
including confidential phone calls from employees.
Ms. Friedrich also handles the charting of all employee absences such as sick-time,
leave etc. Further, when the fire chief receives an employee grievance he instructs Ms.
gather information pertaining to the grievance, especially as related to absences.
Friedrich is responsible for follow-up filing and research on those labor issues.
The record shows this position involves a substantial amount of confidential duties.
the charting of matters such as leave time is not alone a basis for confidential status
(City of New
Berlin, Dec. No. 13173-B (WERC, 8/25/83), Ms. Friedrich's duties relating to these
beyond mere charting. Initially Ms. Friedrich logs each fire department employees'
however, when a grievance occurs the fire chief testified Ms. Friedrich is instructed to
research on that particular employee's absences. According to the fire chief and Ms.
two then discuss Ms. Friedrich's findings. Ms. Friedrich's knowledge of grievances
particular employees shows access to labor
matters beyond simple charting of absences.
Although individual employees have access to their own absence information, it is the
Friedrich researches the absences looking for specific patterns related to grievances that
matter to a confidential level. Ms. Friedrich's duties in this respect involve her making
decisions about the employee's absence records. Further, the fire chief testified after sharing
information with the grievant, Ms. Friedrich is responsible for subsequent requests from the
department on the grievant and filing of any records in the matter.
Finally, Ms. Friedrich is the only clerical employee in the fire department. She is
for absence requests of the whole fire department and has frequent, if not daily, direct
the fire chief. Ms. Friedrich is clearly the only person in the fire department available to
duties, whatever percentage is confidential.
Additionally, the fire department is located over a mile from Wausau City Hall.
Even if the
actual amount of confidential work was not significant, which the court believes it is, "unless
confidential work can be assigned to another employee without undue disruption of the
organization" the employee may be classified as confidential. Price County,
Dec. No. 11317-B
The record clearly shows to move these duties or this individual out of the fire
would be extremely disruptive. The duties directly relate to the maintenance of
employees and issues within the fire department and are performed by a single
individual at that
location. Granted, three fire stations are located in the City of Wausau, however, to have
activities of fire department employees directed out of one of the three stations is obviously
disruptive than having the fire department's confidential issues directed out of a disconnected
location, such as City Hall.
Additionally, Ms. Peterson testified the human resources office relies on this position
related to confidential issues involving labor relations. Ms. Peterson testified the location of
position being at the central fire station is "key" to identifying relevant labor matters.
There is substantial evidence in the record supporting the Confidential Office
Assistant in the
Fire Department retaining its confidential status.
C. Confidential Administrative
in the Wausau Area Transit System
This position is filled by Shirley Freiberg (hereinafter "Ms. Freiberg"), who works
out of the
Wausau Area Transit System offices (hereinafter "WATS") located at 420 Plumer Street.
Freiberg is the only clerical worker within the WATS offices.
As part of Ms. Freiberg's duties she is occasionally present at closed Transit
meetings where preliminary budget figures and monthly financial statements are discussed.
addition to budget matters, issues such as management strategy with regard to labor relations,
grievances and discipline are also discussed at
those closed meetings. Ms. Freiberg is also responsible for preparing the minutes from
As the only clerical worker for the four management employees at WATS,
Ms. Freiberg also
occasionally prepares the four management employees' clerical work. Ms. Freiberg is
only person in the WATS office and is responsible for handling any incoming issues,
grievance calls from employees and opening any confidential mail coming into the WATS
Freiberg also files grievances and management responses within the personnel files located in
Finally, Ms. Freiberg is the only WATS employee not a licensed bus driver and is
for scheduling and monitoring random drug testing for WATS employees. As even the four
management employees are part of the testing pool, Ms. Freiberg is the only employee privy
information about which employees are being tested and at what times.
Sufficient evidence exists in the record to support this position remaining confidential.
with the Office Assistant in the Fire Department, Ms. Freiberg is the only clerical employee
WATS office. She alone is the gatekeeper for all confidential employee grievance phone
mail and often the only person in the office when this information comes in. Additionally,
present at closed meetings where labor matters are discussed and is responsible for preparing
Again, as with the fire department, the WATS offices are located outside Wausau
The record shows Ms. Freiberg
performs duties unique to WATS that would be made far more difficult by being
another confidential employee located outside the WATS offices. While Ms. Freiberg may
a portion of her time on confidential matters, this again is a situation where even if the actual
of confidential work is not significant, "unless the confidential work can be assigned to
employee without undue disruption of the employer's organization" the employee may be
as confidential. Price County, Dec. No. 11317-B (WERC, 9/25/89).
In this case, Greg Seubert (hereinafter "Mr. Seubert"), WATS Transit Director,
to reassign Ms. Freiberg's tasks would be costly and disruptive. Mr. Seubert testified
because of the
unique scheduling problems of WATS employees, which Ms. Freiberg is familiar with,
related to drug testing, to reassign this duty to another individual would increase costs and
compromise the tests. Clearly, to reassign Ms. Freiberg's confidential duties to another
would be disruptive. Ms. Peterson, the human resources director also supported this
There is credible and substantial evidence in the record to support classifying the
Administrative Specialist in the Wausau Area Transit System as confidential.
in the Clerk's Division of the Finance Department
Mary Ann Stieber (hereinafter "Ms. Stieber") currently fills this position. Ms.
almost every Wausau Common
Council meeting, both open and closed, takes minutes of the meetings and prepares and
the minutes to any relevant party. Ms. Stieber testified at times preparation and distribution
minutes can takes up a major portion of her time. Ms. Stieber also works out of the office
closed session minutes of any common council committee are housed.
Ms. Stieber is responsible for managing and assigning work to any part-time clerical
seasonal workers in the office and for developing the job description and duties for potential
clerical workers. Further, Ms. Stieber handles a majority of the mail coming through City
Hall as well
as other types of correspondence that at times includes confidential alderperson mailings.
when the Wausau City Clerk is absent Ms. Stieber acts as the city clerk and is able to
function of the regular city clerk, including attending council meetings and signing contracts.
The record shows Ms. Stieber's presence and involvement with all closed council
as well as her directing other employees and developing new positions is clearly more than
involvement with confidential issues. Further, her ability to fill in as the city clerk and
various confidential duties would be severely hampered were her position to be reclassified
"municipal". Finally, there is no evidence in the record showing how the confidential duties
with this position could be transferred to another employee without causing disruption.
The record clearly contains substantial evidence to support the Confidential
Specialist in the Clerk's Division of Finance Department remaining confidential.
E. Confidential Administrative
in the Finance Department
This position is currently filled by Kelly Michaels-Saager (hereinafter
As part of her job duties Ms. Michaels-Saager is one of the first people to have contact with
budget materials relating to labor relations. Ms. Michaels-Saager then prepares estimated
figures in the form of spread sheets. These spread sheets contain, among other information,
relating to reserve dollars for personnel costs for represented employees.
This position also acts as deputy city clerk and Ms. Michaels-Saager has participated
meetings involving planned employee hiring as well as supervising employees on occasion.
she occasionally attends closed session council meetings and takes and prepares minutes from
meetings. Ms. Michaels-Saager also has access to employee disciplinary memos and closed
minutes for meetings she does not attend.
The record shows this position has substantial access to confidential information.
Ms. Michaels-Saager testified at times her preparation of confidential budget figures
can take up as
much as 25% of her time, especially from July until November. Ms. Michaels-Saager also
the budget information she has access to and prepares is confidential and not accessible by
labor union. Ms. Michaels-Saager's access to closed session meetings and their
minutes, even if only
occasionally, also adds to the overall access she has to confidential information. This is also
when performing the duties of deputy clerk.
Ms. Peterson also testified she has often obtained confidential information on labor
matters from Ms. Michaels-Saager and has found her to be the only person knowledgeable on
confidential matters. For example, closed session meetings, eliminating certain positions and
labor relations. Ms. Peterson testified she could not identify another person besides Ms.
Michaels-Saager who had the technical knowledge of the finance operation to whom she
could ask for help.
Additionally, Ms. Peterson testified without Ms. Michaels-Saager being allowed access to
budget information the budget process would be severely hampered and would not be timely.
The record shows Ms. Michaels-Saager performs more than a de
confidential work and also shows her duties could not easily be transferred to another
employee. There is substantial evidence in the record to support the Confidential
Specialist in the Finance Department retaining confidential status.
Based on the foregoing, there is substantial evidence in the record to support the
findings as well as inferences that could be drawn from such evidence. This court affirms
of the agency.
Dated this 13th day of April, 1999.
BY THE COURT
Dorothy Bain /s/
HON. DOROTHY L. BAIN
Copies to: Anne L. Jacobson, Esq.
John D. Niemisto, Esq.
Bruce F. Elhke, Esq.
Peter G. Davis, Esq.