STATE OF WISCONSIN CIRCUIT COURT SAUK
Decision No. 17343-E
[NOTE: This document was re-keyed
WERC. Original pagination has been
RELATIONS COMMISSION, et al,
Case No. 03CV085
Background Facts and Procedural Status
This is a proceeding under Wis. Stat. §§227.52 - 227.57, seeking
review of a decision
of the Wisconsin Employment Relations Commission (WERC) under the Municipal
Relations Act (MERA). The review is from a decision issued by the WERC pertaining to a
clarification petition filed by District 1199W / United Professionals for Quality Health Care,
AFL-CIO (United Professionals). The petition originally filed asked that two Sauk County
Occupational Health Nurses (Jail Nurses) be included in the bargaining unit represented by
County opposed the petition and accretion of the two jail nurses into the bargaining unit.
granted the petition and in doing so determined (1) that the jail nurses were neither
"Managerial" employees within MERA, (2) that the collective bargaining agreement between
County and United Professionals does not bar inclusion of the two jail nurse positions in the
bargaining unit covered by the
agreement, and (3) that the bargaining unit appropriately includes the two jail nurse
The facts adduced at the hearing are set forth at length in the record. They will not
repeated here other than as necessary
This case involves a judicial review of an administrative decision. If the findings of
fact of the
Commission is supported by substantial evidence they must be affirmed. Chicago, M.,
St. P. &
P.R.R. Co. v ILHR Dept., 62 Wis.2d 392, 396, 215 N.W.2d 443 (1974). Substantial
evidence is such
evidence as a reasonable mind might accept as adequate to support a conclusion.
Transfer Co. v. Public Service Comm., 253 Wis.2d 397, 405-06, 34 N.W.2d 238
(1948). If there are
two conflicting views of the evidence and each may be sustained by substantial evidence, it is
agency to determine which view of the evidence it wishes to accept. Roberston
Transport Co. v.
Public Service Comm., 39 Wis.2d 653, 658, 159 N.W.2d 636 (1968). When more
than one inference
can reasonably be drawn from the evidence the agency finding is conclusive. Vocation
Adult Ed. Dist. 13 v. ILHR Dept., 76 Wis.2d 230, 240, 251 N.W.2d 41 (1977). The
credibility of the evidence and witnesses are matters for the agency to determine rather than
Bucyrus-Erie Co. v. ILHR Dept., 90 Wis.2d 408, 418, 280 N.W.2d 142
(1979). The reviewing court
is limited to the determination of whether there was substantial
evidence to sustain the findings of fact made by the agency, E.F. Brewer Co. v.
82 Wis.2d 634, 636, 264 N.W.2d 222 (1978), that is, a court may not second guess the
proper exercise of the fact-finding function even though, ab initio, it
might have come to a different
result. Briggs & Stratton Corp. v ILHR Department, 43 Wis.2d 398, 409,
168 N.W.2d 817 (1969).
Finally, the court is to search the record to determine if there is substantial evidence to
agency decision. Vande Zande v. ILHR Department, 70 Wis.2d 1086,
1097, 236 N.W.2d 250
There are three areas of challenge to the WERC decision:
(1) Could the WERC reasonably determine that the two
"supervisory" nor "managerial" employees within the meaning of MERA;
(2) Could the WERC reasonably determine that the collective
between the county and the United Professionals does not bar the inclusion of the jail
nurse positions in the bargaining unit covered by the agreement;
(3) Could the WERC reasonably determine that the bargaining unit
the jail nurse positions.
The first issue is whether the WERC could reasonably determine that the two jail
nurses were neither
"supervisory" nor "managerial" employees within the meaning of MERA. Municipal
defined by MERA, §111.70(1)(i),
excludes those who are supervisors or managerial employees. A
supervisor is defined as one who:
has authority, in the interest of the municipal employer, to hire,
transfer, suspend, lay
recall, promote, discharge, assign, reward or discipline other employees, or to adjust their
grievances or effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment ...
Sec. 111.70(1)(o)1, Wis. Stats.
A "managerial" employee is not defined by MERA. However, in Milwaukee
Wis.2d 709, 715-16, 239 NW 2d 63 (1976), the court approved the Commission's
a "managerial" employee within the meaning of MERA as an employee who (1) participates
formulation, development and implementation of management policy, or (2) possesses
authority to commit the employers resources. Effective authority to commit the employer's
means the power to establish an original budget or to allocated funds for differing purposes
such a budget. Kewaunee County v. WERC, 141 Wis.2d 347, 353, 415 NW 2d
839 (Ct. App. 1987).
The Commission concluded that neither jail nurse was a supervisor. In reaching this
Commission reviewed the activities of both nurses against the following seven criteria set
forth in City
Firefighters Union v. Madison, 48 Wis.2d 262, 270-71, 179 N.W.2d 805 (1970).
(1) The authority to effectively recommend the hiring,
transfer, discipline or
discharge of employees;
(2) The authority to direct and assign the work force;
(3) The number of employees supervised, and
the number of other persons exercising
greater, similar or lesser authority over the same employees;
(4) The level of pay, including an evaluation of whether the
supervisor is paid for his skill
or for his supervision or employees;
(5) Whether the supervisor is primarily supervising an activity or is
(6) Whether the supervisor is a working supervisor or whether he
spends a substantial
majority of his time supervising employees, and
(7) The amount of independent judgment and discretion exercised in
the supervision of
No one of these factors is determinative of the issue and the totality of the criteria
considered. Crear v. LIRC, 114 Wis.2d 537, 541-42, 339 N.W.2d 350
The Commission looked at each of these factors. It concluded that neither nurse
Whalen could hire, fire, promote, transfer or discipline employees. It conceded that Busser
input into some of these processes but did not have decision-making authority. Generally, in
personnel matters Busser either worked in committee with others or her recommendations
approved by other persons. There was virtually no evidence that Whalen had any duties that
approximated supervisory duties.
Factor two is the authority to direct or assign the workforce. The Commission again
concluded that no authority existed for Whalen and Busser in this regard. Clearly both
Whalen could direct matters relating to
health care but not as to other matters. The health care decisions
would be based upon their
occupations as nurses rather than a general supervisory responsibility. There was substantial
to sustain the commission determination as to this factor.
Nurse Busser provided some supervision to Whalen but many of the decisions were
collegially. There is no evidence to show that Whalen supervised anyone. In working with
or inmates, other than health related decisions, any suggested supervisory activities of Busser
subject to approval of a sergeant, the jail administrator or sheriff.
The record establishes a slight pay differential between Busser and Whalen but
Busser's higher level to longevity rather that a supervisory distinction.
The fifth factor or criteria involves looking at whether one is supervising activities
employees. The WERC concluded that nurses Busser and Whalen were primarily
activities in the medical or health areas rather than supervising other employees.
Factor six is whether the person spends a substantial majority of his or her time
employees. Again, Whalen had virtually no responsibilities that could be considered
thus spend little time in this area. The record establishes that Busser perhaps spent about
percent of her time supervising Whalen. Neither Nurse directly supervised other jail
The last of the seven criteria deals with the exercise of
independent judgment. Both Busser
and Whalen were required to exercise independent judgment relative to their occupations of
Any decisions, however, that suggest supervisory responsibilities were subject to approval by
sheriff or jail administrator.
The second exclusion relied upon by the Commission is that of the managerial
WERC concluded that neither Busser nor Whalen were managerial employees as neither had
power to establish an original budget nor to allocate funds for differing program purposes
a budget. Most of their activities that could be peripherally managerial were subject to
others, including policy drafts.
Certainly while there are some activities of primarily nurse Busser that could be
of supervisory responsibilities, there are other reasonable inferences that can be drawn from
evidence that those activities don't reach the threshold of supervisor. The function of this
limited to reviewing the record to see if there is substantial evidence to support the
decision. It does not independently analyze the evidence. The record shows that there is
evidence to support the Commission finding of the neither the nurses were supervisors nor
under MERA and the Commission must be affirmed relative to this.
The second issue raised by the petition for review is could the Wisconsin
Relations Commission reasonably determine that the collective bargaining agreement between
county and the United Professionals does not bar the inclusion of the
jail nurse positions in the
bargaining unit covered by the agreement.
This issue involves an interpretation of the collective bargaining agreement. In 1979,
defining the bargaining unit, the agreement read:
All regular full-time and part-time professional employes, including registered nurse
worker employed by the Department of Social Services and Public Health Service of Sauk
County, but excluding supervisors, craft employes, managerial employes and confidential
Sauk County, ME-1732, Dec. No. 17343 (WERC 11/79).
The union recognition clause of the collective bargaining agreement at issue relative
The County of Sauk hereby recognizes its legal obligation to
bargain with United
Professionals as the exclusive representative for the purposes of collective bargaining ...
for all regular, full-time and part-time professional employees employed by the Department
of Human Services and Public Health Department of Sauk County, but excluding
craft employees, managerial and confidential employees, in accordance with
Decision 25107 ME-1732. (bold added).
The Commission has concluded that the current agreement is ambiguous because of
the bold-faced language cited above. The reasoning is that the 1979 agreement did not limit
employees to the social services and public health departments but simply included them.
subsequent more recent language does limit the unit to full and part-time professional
employed by the Department of Human Services and Public Health Department of Sauk
deleting the word "including" that was part of the 1979 agreement. The agreement at issue,
goes on to add the language "in
accordance with WERC Decision 25107 ME-1732". This latter
language, in the opinion of the
Commission, creates an ambiguity thus requiring interpretation by the Commission.
A reviewing court must give deference to the Commission's findings of fact.
Kitten v State
Department of Workforce Development, 2002 WI 154, 252 Wis.2d 561, 576,
644 N.W.2d 649. In
addition, because of their experience with the interpretation and application of MERA,
determinations have "great weight". "If the agency is charged by the legislature with the
interpretation of a statute; the interpretation of the agency is long-standing; and the agency
experience, technical competence, and specialized knowledge that aid the agency in its
and application of the statute, we have afforded the agency determination great weight."
Muskego-Norway v. WERC, 35 Wis.2d 540, 562. WERC has
extensive experience in both interpreting and
applying MERA for many years. As a result deference must be given to the agency decision
area as well.
The question is then, under the standard that this court must follow, is the clause
The answer is yes. Sauk County argues in its brief to this court that the parties have the
bargain and change the language of the Recognition Clause to limit the coverage to Human
and Public Health. This is, however, not the issue. The issue is what does the reference to
decision mean in the context of the clause. A cursory reading of the language does not
is meant by that clause and the County, in its submission,
does not explain this but merely concludes that the parties are free to
modify existing units by mutual
Since the inclusion of this language is not adequately explained, there is a basis upon
the Commission could find the agreement to be ambiguous. Since there is a basis in the
support the Commission finding, this court must affirm that portion of the decision.
The third issue is: Could the WERCreasonably determine that the
appropriately includes the jail nurse positions. The Commission answered this question in
affirmative. The WERC is empowered by MERA to determine the appropriate collective
unit for the purpose of collective bargaining. See, Wis. Stat.
§111.70(4)(d)2.a. WERCis to avoid
fragmentation by maintaining as few collective bargaining units as practicable in keeping with
of the municipal work force. Id. The WERC may decide, in a particular case,
employees in the same or several departments constitute an
appropriate collective bargaining unit. Id.
The criteria to be used by the Commission in determining whether individual
to be grouped within a single bargaining unit are set forth in Arrowhead United
Wis.2d, 580, 591-93, 342 NW 2d 709 (1984). They are:
1. Whether the employees in the unit share a "community of
interest" that is distinct from
that of other employees.
2. The duties and skills of employees in the
unit sought as compared with the duties and
skills of other employees
3. The similarity of wages, hours, working conditions or other
4. Whether the employees in the unit sought or have separate or
with all other employees.
5. Whether the employees in the unit sought have a common work
place with the
employees in the desired unit or whether they share a workplace with other
6. Whether the unit sought will result in undue fragmentation or
7. Bargaining history.
After applying these criteria the WERC concluded that there did exist a community of
between the jail nurses and others within the bargaining unit and were appropriate for
Commission found that while there were differences, that is no common supervision or work
locations, between the jail nurses and others within the unit, that as nurses in a single
there is an inherent and substantial community of interest. Again, while differences were
terms of programmatic responsibilities of the departments, the nurses share the same
functions and skills. A wage similarity was noted between the groups. The Commission
concluded that inclusion would avoid fragmentation.
Again, the law that is to be applied by the reviewing court is clear. If there is
evidence to support the Commission determination it must be
affirmed. Deference is again given to the Commission due to its expertise in the area.
A review of the facts relied upon by the Commission makes it apparent that there is
to support its conclusions. This, again, is not to say that the evidence is not subject to
interpretation, however, a different interpretation is beyond the authority of the reviewing
The decision of the Commission must be affirmed.
Dated this 11 day of August , 2003.
BY THE COURT:
Copies to; Chad Hendee