Case No. 02-CV-278
Decision No. 24705-D
UNION LOCAL NO. 662,
[NOTE: This document was re-keyed by WERC. Original pagination has been
NOTICE OF ENTRY OF DECISION
To: Naomi Soldon
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.
P.O. Box 12993
Milwaukee, WI 53212
P.O. Box 8003
Madison, WI 53708-8003
PLEASE TAKE NOTICE that a Decision affirming the decision of the Wisconsin
Employment Relations Commission, of which a true and correct copy is hereto attached, was
by the court on the 17th day of October, 2002, and duly entered in the
Circuit Court for Eau Claire
County, Wisconsin, on the 17th day of October, 2002.
Notice of entry of this Decision is being given pursuant to Wis. Stat. §§
Dated this 23rd day of October, 2002.
JAMES E. DOYLE
David C. Rice /s/
DAVID C. RICE
Assistant Attorney General
State Bar #1014323
Attorneys for Respondent
Wisconsin Employment Relations Commission
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
UNION LOCAL NO. 662,
vs. Case No. 02CV278
General Teamsters Union Local No. 662 (hereinafter Local 662) seeks this Court's
of a decision by the Wisconsin Employment Relations Commission (hereinafter WERC) as to
entity should represent teacher aides and clerical employees of the Stanley-Boyd Area School
District (hereinafter District) and further, whether the employees should be represented in
more collective bargaining units.
The facts of the matter are not greatly disputed. From July 1, 1998 through
June 30, 2001,
Local 662 represented the aforementioned employees in a single collective bargaining unit
District. On March 1, 2001, Local 662 contacted the District by letter and inquired whether
District would object to splitting the employees into two units, one comprised of teacher
and part-time) and one consisting of only clerical employees. The District agreed to the
April 23, 2001. Thereafter, Local 662 sent separate letters to the District proposing
occur for the next year's contract for each group.
On May 1, 2001, Central Wisconsin Uniserv Councils (hereinafter Uniserv)
WERC for an election seeking to represent all of the teacher aides and clerical staff in a
On September 6, 2001, Hearing Examiner John R. Emery conducted a hearing on
petition for election.
Local 662 argued the position that Uniserv's petition was inappropriate because the
aides and clerical employees had, by agreement, already been divided into two separate
units. The WERC rejected Local 662's position; an election was held; and a majority of the
employees opted to have Uniserv represent them in a single bargaining unit.
Local 662 seeks an order from this Court reversing the WERC's decision. The
judicial review of decisions made administratively is limited. It is not appropriate for a
substitute its judgment for that of an agency except in the most unusual instances.
Section 227.57(8) and (10) Stats. sets forth the guidelines for review:
(8) The court shall reverse or remand the case to the agency if it finds that the
of discretion is outside the range of discretion delegated to the agency by law, is inconsistent
an agency rule, an officially stated agency policy or a prior agency practice, if deviation
therefrom is not explained to the satisfaction of the court by the agency; or is otherwise in
violation of a constitutional or statutory provision; but the court shall not substitute its
for that of the agency on an issue of discretion.
(10) Upon such review due weight shall be accorded the expertise, technical
specialized knowledge of the agency involved, as well as discretionary authority conferred
it. The right of the appellant to challenge the constitutionality of any act or of its application
the appellant shall not be foreclosed or impaired by the fact that the appellant has applied for
holds a license, permit or privilege under such act.
Further, § 111.70(4)(d)(2)(a) grants the commission the power "...to determine
appropriate collective bargaining unit for the purpose of collective bargaining...". The
gives guidance as to what standard should be applied, i.e., avoiding "fragmentation," etc.
Arrowhead United Teachers v. E.R C., 116 Wis. 2d 580, 593, 342
N.W.2d 709 (1984)
citing earlier decisions:
the construction and interpretation of a statute adopted by the administrative
agency changed by the legislature with the duty of applying it is entitled to "great
weight" (emphasis added) and that it is "...only when the interpretation by the
administrative agency is an irrational one that a reviewing court does not defer to it."
As was further ruled in West Bend Education Association v. WERC,
Wis. 2d 1, 13, 357
N.W.2d 534 (1984):
Consequently, we should affirm WERC's conclusions ... if a rational basis exists for
them ... if the agency's view of the law is reasonable even though an alternative view
is reasonable. (citation omitted).
The Court concluded it should not apply a "balancing test" to the two alternatives.
The arguments made by Local 662 to seek a reversal of the agency's decision are
the same arguments it made to the agency. Local 662's position is that there is a disparity of
members between the two groups (i.e., there were nineteen teacher aides and six clerical
and even though comparable wages and benefits were paid to the employees, the clerical
should have the right to seek greater wage increases. It was argued to do otherwise would
minority interests to be submerged into the interests of the larger group. When all was said
done, WERC had to decide whether the creation of two bargaining units was an
fragmentation or whether the position of the two groups was disparate enough to warrant
After proper consideration, WERC ordered an election which allowed the employees
decide whether Local 662, Uniserv, or neither should represent the employees in collective
bargaining negotiations. A substantial majority of the employees voted to have Uniserv
Local 662's unhappiness with WERC's decision is understandable. After several
apparently successful representation, it lost a client (or perhaps more accurately, two clients)
rival organization. Local 662's arguments have merit but so does the decision of the WERC.
the appropriate standard of review, this Court concludes that under its limited power, it
overturn the WERC decision. It would be improper to apply a "balancing test" to determine
position is more meritorious.
There has been no showing that WERC improperly exercised its statutory discretion;
decision is inconsistent with agency "rule, policy or practice..." or that it is "...in violation
constitutional or statutory provision." Indeed, overturning the WERC decision would be
more than the prohibited substitution of this Court's judgment for that of the agency.
Therefore, for the reasons stated herein, the decision by the WERC on
January 25, 2002 is
Dated this 17th day of October, 2002.
BY THE COURT:
Eric J. Wahl
Circuit Court Judge, Branch 2
cc: Jill M. Hartley
David C. Rice
Laura J. Amundson