STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
In the Matter of the Petition of
TEAMSTERS LOCAL UNION NO. 43
Involving Certain Employees of
WATERFORD SANITARY DISTRICT NO. 1
Decision No. 30214-E
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Andrea F. Hoeschen, 1555 North Rivercenter Drive, Suite
202, P. O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of Teamsters
Local Union No. 43.
Weber & Cafferty, S.C., by Attorney Robert K. Weber, 704
Park Avenue, Racine, Wisconsin 53403, appearing on behalf of Waterford Sanitary District
ORDER DENYING MOTION TO
On September 19, 2001, the Wisconsin Employment Relations Commission issued
of Fact, Conclusion of Law and Order Clarifying Bargaining Unit with Accompanying
concluding that the Operations Superintendent of the Town of Waterford Sanitary District
No. 1 was
a supervisor within the meaning of Sec. 111.70(1)(o)1, Stats., who therefore should be
the collective bargaining unit represented by Teamsters Union Local No. 43. Teamsters then
a petition seeking judicial review of the Commission's decision which was subsequently
upon stipulation of the parties on January 30, 2002.
On April 18, 2002, Teamsters Union Local No. 43 filed a petition to clarify
with the Wisconsin Employment Relations Commission again seeking inclusion of the
Superintendent in the Teamsters' Sanitary District bargaining unit.
Dec. No. 30214-E
Dec. No. 30214-E
On May 2, 2002, the Sanitary District filed a motion to dismiss the Teamsters'
clarification petition arguing that the claim asserted was "res judicata" and "frivolous"
and that there
has been no change in circumstances affecting the supervisory status of the Operations
Superintendent. On May 15, 2002, Teamsters filed a response to the motion to dismiss
the motion should be denied because there had been changes in circumstances as to the
Superintendent's supervisory authority since the Commission's September 19, 2001
On June 13, 2002, a Commission majority (Commissioner Hahn dissenting) granted
motion to dismiss without prejudice based on its view that the April 18, 2002 petition should
been but was not supported by a sworn affidavit specifying the nature of the changed
that warranted a hearing. Commissioner Hahn concluded that the assertions of change by
for Teamsters were sufficient to deny the motion to dismiss.
On April 16, 2003, Teamsters again filed a petition to clarify bargaining unit with the
Wisconsin Employment Relations Commission seeking inclusion of the Operations
in the Teamsters' Sanitary District bargaining unit.
On May 2, 2003, the Sanitary District again filed a motion to dismiss the petition
there has been no change in circumstances since the original Commission decision was issued
On May 21, 2003, Teamsters filed a response to the motion asserting that there has
change in circumstances because the District has eliminated the Operations Superintendent's
hiring -- a prior role that was a significant factor in the Commission's September 2001
Attached to the response were documents that purported to be copies of minutes of January
meetings of the District during which potential employees were interviewed and hired.
As to the Sanitary District's contention that the petition should be dismissed because
has been no change in circumstances, we have held that we will revisit an employee's
status where the employee's duties and responsibilities have changed in some material way.
Manitowoc, Dec. No. 7667-D (WERC, 6/97); City of Milwaukee, Dec. No. 6960-J (WERC,
5/89). Here, it is alleged that there has been a change in hiring
responsibility -- clearly a change that
is material to the analysis of supervisory status. Only through an evidentiary hearing can the
of such a change be definitively tested. Thus, we do not find this District contention to be a
persuasive basis for dismissing the petition.
However, as was true for its April 2002 petition, Teamsters did not provide a sworn
in support of its contention that there has been a material change in circumstances. As to the
petition, the absence of the affidavit is directly at odds with the direction
Dec. No. 30214-E
given Teamsters by the Commission majority in its June 2002 decision. Thus, while
Commissioner Hahn's dissent to be persuasive as to all future petitions, we think it important
historical context of this petition and these parties to hold Teamsters to the requirement of an
affidavit. Therefore, although we are not granting the motion to dismiss, we will not further
the petition unless and until such an affidavit is filed.
Having reviewed the record and consistent with the foregoing, the Commission makes
issues the following
The motion to dismiss is denied, but the petition is held in abeyance pending receipt
Given under our hands and seal at the City of Madison, Wisconsin, this 9th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Judith Neumann, Chair
M. Bauman, Commissioner