STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
In the Matter of the Petition of
SOUTH WEST EDUCATION ASSOCIATION
Involving Certain Employees of
COOPERATIVE EDUCATIONAL SERVICE AGENCY
Decision No. 30257-B
Attorney Chris Galinat, Legal Counsel, Wisconsin Education
Association Council, 33 Nob Hill Drive, P.O. Box 8003, Madison, Wisconsin 53708-8003,
appearing on behalf of the South West Education Association.
Attorney Robert W. Butler and Attorney Lisa Soronen, Staff
Counsel, Wisconsin Association of School Boards, Inc., 122 West Washington Avenue, Suite
400, Madison, Wisconsin 53703, appearing on behalf of the Cooperative Educational Service
FINDINGS OF FACT, CONCLUSION OF
AND ORDER CLARIFYING BARGAINING
On April 3, 2002, South West Education Association filed a unit clarification petition
the Wisconsin Employment Relations Commission seeking to include the Secretary to the
of Special Education and the Compensation Specialist in an existing support staff bargaining
Cooperative Educational Service Agency #3 (CESA) employees that it represents. CESA
the petition because it believes the employees holding those two positions are confidential
On August 9, 2002, the Association withdrew its request to include the position of
Specialist in the bargaining unit.
Dec. No. 30257-B
Hearing as to the Secretary to the Director of Special Education was held in
Wisconsin, on August 13, 2002, before Examiner Raleigh Jones. The parties filed
and reply briefs, the last of which was received on October 17, 2002.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Having reviewed the record and being fully advised in the premises, the Commission
and issues the following
FINDINGS OF FACT
1. Cooperative Educational Service Agency #3, hereinafter referred to as CESA,
municipal employer and has its offices at 1300 Industrial Drive, Fennimore, Wisconsin
2. South West Education Association, WEAC, hereinafter referred to as the
is a labor organization and has its offices at 960 North Washington Street, P.O. Box 722,
Wisconsin 53818-0722. It is the bargaining representative for CESA's professional and
employees. These employees are in separate bargaining units. There are currently 24
the professional unit and 15 employees in the support staff unit.
3. CESA's administrator is Gary Rooney. Among other matters, Rooney has
responsibility for bargaining and administering labor agreements on CESA's behalf.
Administrative Assistant (currently Marianne Krogen) is excluded from the support staff unit
Rooney reports to a Board of Control. Four department directors, in turn, report to
The four are the Director of Special Education, the Director of Instructional Technology and
Services, the Director of Instructional Services and the Director of Business Services. The
are responsible for everything that occurs in their department.
The Director of Special Education, Tom Stuckey, runs CESA's largest department.
responsible for about 50 employees, half of whom are in the professional bargaining unit.
supervises four employees. Three of the employees that he supervises are department
McLimans (the position/individual in dispute) and Kate Hennessy and department bookkeeper
Dec. No. 30257-B
The Director of Instructional Technology and Support Services, Terri Iverson,
eight employees. One of the employees that she supervises is her secretary, Joni Udelhofen.
Director of Instructional Services, Jeanetta Kirkpatrick, supervises ten employees. One of
employees that she supervises is her secretary, Diane Alm.
The Director of Business Services, Connie Shemak, does not have a secretary. One
employees that Shemak supervises is Compensation Specialist Courtney Rounds, who is
from the support staff unit as a confidential employee.
Department secretaries Hennessey, Udelhofen and Alm and bookkeeper Reimenapp
included in the Association support staff unit. McLimans is currently excluded from the
unit as a confidential employee and, if her exclusion continues, will perform all confidential
relations work previously performed by Hennessey, Udelhofen, Alm and Reimenapp.
4. CESA provides and staffs a number of different programs which local school
may participate in. These programs are funded by a variety of sources. Among the sources
grants, contracts with school districts and the State and federal government. These grants
contracts are a matter of public record. Each program must have enough consumers
participating in the program and must receive enough revenue to fund the program to keep it
The amount of money CESA receives to operate its programs is "soft" because the
may not be available the following year. For example, a grant available one year may not
next year. Some funding sources restrict how CESA can spend the money. For example,
the grants specify that only a certain percent of the grant can be used for staffing and
Each of CESA's programs must run without using the funds of the other programs.
amount of money received for each program affects how many people can be employed in
program for how many days. Each director determines what amount of money will be
each funding source to operate a particular program. The director then determines how the
can be spent. As part of this process, the director determines how many people can be
the program and for how many days (i.e. percent of full time equivalency (FTE)).
All three directors have historically relied on their secretary and/or the bookkeeper to
them with the determination of how many people can be employed and for how long. Based
available or anticipated grant money, and available or anticipated salary and fringe benefit
secretary and/or bookkeeper would perform calculations to determine how long an individual
employee could be funded. Sometimes, a variety of employment scenarios
Dec. No. 30257-B
were configured using the same amount of grant money. For example, under one
employee would be laid off entirely, while in another scenario a number of employees would
partially laid off. The various scenarios which were calculated were not shared with the
employee(s) or union(s).
5. None of the department directors currently has any direct collective bargaining
responsibilities. Stuckey used to serve on CESA's bargaining team, but has not done so for
years that Rooney has been administrator.
No grievances have been filed in the professional bargaining unit in the six years that
has been administrator. Thus, since Stuckey oversees CESA's professional employees in that
bargaining unit, he has not had to respond to any grievances in that time period.
secretaries have not performed any duties in the last six years with respect to grievances.
Historically, when an employee is to be fired or laid off, that decision, and the
paperwork, has originated from the administrator's office. The last time an employee in the
Education Department was discharged was in the Spring of 2002. In that instance, the
came from Rooney not Stuckey. Prior to that, the last instance involving formal
discipline in the
Special Education Department occurred four or five years earlier. Stuckey has also issued
plans of assistance to employees who were not meeting performance expectations. When he
he had either McLimans or Hennessy type up these documents (and any drafts thereof) for
Neither Iverson (who has been with CESA for 16 years) nor Kirkpatrick (who has
CESA for 1 year) have issued formal discipline beyond verbal warnings and corrective plans
assistance. When this happened, none of the three department secretaries typed anything
thereto. A probationary employee who worked under Business Manager Shemak was
recently "non-renewed". When this happened, none of the three department secretaries typed
Although Stuckey oversees CESA's professional employees, he does not evaluate
CESA uses a retired school district administrator evaluate CESA's professional employees.
that person drafts the evaluations, he gives the drafts to Hennessy who types them and
them. As of the date of the hearing, Kirkpatrick had not done any staff evaluations. Thus,
secretary, Alm, had not typed any employee evaluations for Kirkpatrick. Iverson has
employees that she supervises. When she did this, she stored the evaluations in a folder and
Stuckey has issued preliminary layoff notices to employees. When he did this, he
McLimans or Hennessy type up these documents for him.
Dec. No. 30257-B
6. McLimans has held the position of Secretary to the Director of Special
22 years. She is the senior secretary in that department. Her job responsibilities include
secretarial duties such as processing the requisitions for the special education department.
handles the telephones for any incoming calls to her department. Additionally, she takes
care of the
inventory for her department and makes travel arrangements for conferences.
As of the day of the hearing, McLimans had not participated in the development of
proposals. She currently does not have access to files relating to collective bargaining
She has never typed or prepared bargaining proposals or documents that pertain to collective
bargaining. She has never costed any proposals for CESA to use in collective bargaining
negotiations. She has never attended an executive session in which labor relations matters
discussed. She has not been involved in an investigation of any other employee's behavior
result in discipline. She does not currently type employee evaluations. She did type
evaluations years ago. She has never developed an answer to an employee grievance or
response to same. She has never taken part in any litigation preparation for a labor relations
She has never taken part in the development of a work rule. She has typed corrective plans
assistance for employees and layoff notices that Stuckey wrote.
7. As reflected in her job description, Courtney Rounds, the confidential
Specialist, is to "coordinate the identification of various employee compensation groups as
to determine various costing and projections for each group." She is also responsible for
and submitting to the Administrative team, "recommendations concerning
salaries and benefits and concerns which will assist in the development of individual
Agency directions." She also serves as an "advisor to the Administrative Team on all
matters, including employee negotiations for the Board of Control." Rounds performs
duties when needed. When Administrative Assistant Krogen is on vacation, Rooney has used
to perform secretarial duties.
8. Susan McLimans does not have and will not have sufficient access to,
or participation in confidential matters relating to labor relations to be a confidential
CESA's confidential labor relations work can be performed by Rounds and Krogen without
disruption of CESA's operations.
Based upon the above and foregoing Findings of Fact, the Commission makes and
Dec. No. 30257-B
CONCLUSION OF LAW
Susan McLimans, the incumbent Secretary to the Director of Special Education, is
confidential employee within the meaning of Sec. 111.70(1)(i), Stats., but instead is a
employee within the meaning of Sec. 111.70(1)(i), Stats.
Based upon the above and foregoing Findings of Fact and Conclusion of Law, the
Commission makes and issues the following
ORDER CLARIFYING BARGAINING
The Secretary to the Director of Special Education position currently held by Susan
McLimans is included in the support staff bargaining unit referenced in Finding of Fact 2.
Given under our hands and seal at the City of Madison, Wisconsin, this 25th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
A. Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
Dec. No. 30257-B
COOPERATIVE EDUCATIONAL SERVICE AGENCY
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSION OF LAW AND ORDER
CLARIFYING BARGAINING UNIT
POSITIONS OF THE PARTIES
The Association seeks to include the Secretary to the Director of Special Education
currently held by Susan McLimans in the support staff bargaining unit. The Association
with CESA's contention that McLimans' position is confidential. In its view, the record
establishes that McLimans does not perform duties that are considered confidential under the
Municipal Employment Relations Act (MERA). It elaborates as follows.
The Association begins its argument by emphasizing the following basic point: As of
of the hearing, McLimans had not yet been assigned, or performed, any job duties which
considered confidential under MERA. First, she has never typed or prepared documents
collective bargaining, nor has she ever costed bargaining proposals. Second, she has never
a meeting where labor relations matters were discussed. Third, she has never investigated
employee's behavior that might result in discipline. Fourth, she has never typed or prepared
to grievances. Fifth, while she does type student educational evaluations, she does not
employee evaluations. Based on the foregoing, the Association believes McLimans has no
exposure to confidential matters.
The Association concedes that the Commission has historically excluded employees as
confidential when the employee's supervisor has substantial labor relations responsibilities.
Association submits that here, though, that is not the case. According to the Association,
supervisor, Stuckey, currently has no collective bargaining responsibilities and limited
responsibilities. That being so, it is the Association's position that McLimans cannot be
from the unit on that basis.
Next, the Association addresses CESA's plans to transfer other employees'
duties to McLimans in the future. First, it asserts that in the three-month period that elapsed
the parties' election stipulation and the filing of the instant unit clarification petition, CESA
take any preliminary steps to transfer other employees' confidential work duties to
Second, it maintains that neither McLimans nor Stuckey was privy to this plan. To support
contention, it notes that Rooney drafted a new job description for McLimans in the month
the hearing without either McLimans' or Stuckey's input and
Dec. No. 30257-B
never shared this job description with McLimans. Additionally, it avers that
McLimans was never
told she would be receiving additional job responsibilities. The inference which the
from the foregoing is that CESA's plan to transfer additional job duties to McLimans arises
desire to exclude her from the bargaining unit rather than from a need to have an employee
perform a significant amount of confidential work. Third, the Association argues that
claim that he did not transfer any confidential duties because he did not know he could do so
false because he had the benefit of his attorney's counsel at the January hearing. As the
sees it, if there was a need for a confidential employee to help with the budgets and any
matters, it would be reasonable to expect Rooney to seek clarification from counsel at that
rather than waiting for direct examination at the hearing. Fourth, the Association argues that
cases that CESA relies on for the proposition that anticipated duties are a basis for finding an
employee confidential are readily distinguishable from the instant factual situation. That
the Association believes those cases should not apply here. Finally, the Association asserts
an attempt to establish that there would be a significant amount of confidential work for
in the future, CESA relied on vague general speculations by the department directors rather
concrete examples, and misunderstandings over what is actually considered confidential under
Next, the Association addresses CESA's argument that McLimans' impending budget
responsibilities render her position confidential. The Association disputes that assertion. It
even if CESA transfers budget responsibilities to McLimans, and she performs them for all
directors, those duties are not confidential duties under MERA. The Association contends
duties do not involve sensitive information with respect to labor relations between CESA and
collective bargaining units. Instead, the budget duties involve crunching numbers in a
to determine, based upon money available from grants and contracts with school districts, the
of available contract hours. The Association maintains this is not confidential work because
information is available to the Association. To support that premise, it notes that the grants
agency receives and CESA's contracts with school districts are public records which are
the union. Additionally, the Association notes that it would also have access to employee
benefit information. Aside from that, the Association submits that it is unclear how even
knowledge of a department's budget would assist the Association in collective bargaining or
administering the contract which, it points out, are the requisite standards for determining
status. Building on the foregoing point, the Association contends that McLimans' purported
budget job responsibilities would not give her access to budget information that would
CESA was prepared to offer in bargaining or information that would give CESA any
administering a contract.
The Association also argues that the Employer should not be allowed to spread
work around in an effort to keep McLimans out of the bargaining unit. For
Dec. No. 30257-B
background purposes, it notes that CESA has only two bargaining units consisting of
and it already has two confidential employees who can perform any confidential work:
Krogen. According to the Association, CESA does not need a third confidential employee.
view, the labor relations work performed at CESA is not sufficient to require a third
employee. The Association contends that Rounds and Krogen can handle the relatively small
volume/de minimis confidential work that is generated by the two existing
As the Association sees it, it would not be an undue burden to shift any confidential
those two confidential employees. First, the Association opines that the increased
which will be generated from the new support staff bargaining unit would most likely be
bargaining a contract for that new unit. It notes that Rounds existing job responsibilities
costing for collective bargaining. Second, the Association maintains that since CESA has not
grievances with the teacher unit in six years and has had few disciplinary issues with the
workforce, it seems unreasonable for CESA to suggest that given the advent of another
bargaining agreement, there will be a sudden upsurge in disciplinary matters. Building on
premise, the Association avers that it would be unreasonable to assume that there will be a
increase in confidential work due to the new, small unit. Third, the Commission has
considered the availability of other confidential employees when determining confidential
notes that here, McLimans is not the only one available to perform confidential duties.
secretary is available (Krogen) as is the Compensation Specialist (Rounds). Both have
skills and therefore can perform secretarial duties when needed. Accordingly, the
that McLimans' position be included in the bargaining unit.
CESA contends that the Special Education Secretary is a confidential employee and
should continue to be excluded from the support staff bargaining unit. It makes the
arguments to support this contention.
CESA acknowledges that as of the time of the hearing, McLimans had not yet been
or performed, many confidential duties. CESA avers that if the Commission finds her
position to be
confidential, she will then be assigned many confidential duties. CESA cites three reasons
has not yet been assigned such confidential duties. First, CESA believes that it was not
transfer all of the contemplated labor relations duties to the new position immediately due to
Association's filing of the unit clarification petition. Second, CESA asserts that a substantial
of training will need to be done in order to orient the Special Education Secretary to her new
responsibilities. Third, it relies on Rooney's testimony that he was not aware that the
Education Secretary could be assigned these new duties during the period of time between the
of the unit clarification petition and the
Dec. No. 30257-B
issuance of a decision by the Commission. It also notes that Rooney testified that if he
he could assign all the confidential labor relations duties to the Special Education Secretary
the WERC ruling, he would have done so.
CESA maintains that the most significant confidential job duty that the Special
Secretary will take over is assisting all three directors with budgeting. According to CESA,
of the budgeting work is confidential because it involves (1) determining how many
employees can be employed (based on the money CESA is expected to receive to fund each
and (2) for what amount of time on a program by program basis. CESA asserts that
estimates of who
may be employed for what amount of time must be made over and over again because its
funds and the amount of funds is "fluid". Due to the number of potential permutations and
which can be made, these estimates are not shared with affected employees until a final
made. CESA asserts the amount of budgetary work the Special Education Secretary will be
performing is not going to be de minimis because she will
be assisting all three directors with this
Turning now to the labor relations work, CESA claims that in the past, all three
secretaries were involved, to varying extent, with labor relations matters. According to
drafted and typed evaluations, layoff notices, disciplinary notices and notices of performance
expectations. CESA contends that after the instant unit clarification petition was filed, the
stopped assigning this work to them and started doing it themselves. CESA argues that
will be typing letters concerning employee discipline, employee evaluations, layoff notices,
to grievances, and misconduct investigations. It notes in this regard that McLimans' job
has been changed to reflect that. CESA acknowledges that merely typing evaluations,
grievances, layoff notices, disciplinary notices, and notices of performance expectations may
enough to deem the labor relations work confidential if the affected employee or the Union
a copy of the relevant document. However, it avers that if a secretary is working on drafts
documents which the affected employee(s) and the Union may not see, then the work is
confidential. According to CESA, that is exactly what is going to occur here.
To support that assertion, CESA relies on the testimony of the three department
First, it cites Kirkpatrick's testimony that she expects her secretary to write up
involving discipline, investigate employee misconduct, draft employee evaluations and
answers to grievances. It also cites Kirkpatrick's testimony that while she did not involve
secretary (Alm) in recent instances where she disciplined an employee and clarified her
expectations for another employee, the reason she did not involve Alm in either situation was
she was informed that Alm was now a bargaining unit employee. Second, it cites Iverson's
that she also expects secretarial assistance in processing grievances and writing drafts of
evaluations. Third, it cites Stuckey's testimony that he also expects his secretary to type
notices and notices of
Dec. No. 30257-B
performance expectations, and to assist in writing drafts of layoff notices and
which may not be shared with employees.
CESA maintains that its plan to transfer confidential duties to McLimans is not
attempt to spread the confidential work around and exclude one more person from the
unit. It notes in this regard that all three directors expressed distress at the compromise
reached on January 9, 2002, that only one confidential secretary would exist for them to
wanted their own secretary excluded as confidential because they have relied on their
bookkeeper to assist them with the budget process and labor relations functions in the past.
claims that each director is overwhelmed at the idea of having to do that work without
is likewise overwhelmed at the idea of having to train the Special Education Secretary to do
CESA believes that the budget and labor relations work just identified, plus whatever amount
relations work comes from the support staff unionizing, is too much for the directors to do
assistance, and cannot be considered de minimis.
Aside from the contentions just noted, CESA also addresses various other arguments
by the Association. In CESA's view, none of them pass muster.
First, in response to the Association's contention that McLimans' immediate
Stuckey, does not have significant labor relations responsibility, CESA simply notes that it is
arguing that the Special Education Secretary should be excluded from the bargaining unit
Stuckey has significant labor relations responsibility.
Second, CESA responds to the Association's assertion that Rooney changed
description without McLimans' and Stuckey's input and without telling either McLimans or
CESA argues that even if these assertions are true, they are not relevant to determining
Special Education Secretary is a confidential employee.
Third, CESA addresses the Association's contention that Rounds could be assigned
budgeting and labor relations work rather than McLimans. CESA acknowledges that based
Rounds' job description, she may indeed have the skills necessary to perform that work.
even if she does, CESA's position is that she does not have the time to do it. To support
premise, CESA notes that Rounds was not called as a witness at the hearing. CESA submits
since she was not called as a witness, there is no record evidence concerning how much time
available for additional job responsibilities. That being so, it is CESA's position that the
cannot now claim without any proof of Rounds' workload that she can take on the added
responsibility of assisting all three directors with budgeting and labor relations work.
Dec. No. 30257-B
Fourth, CESA responds to the Association's contention that Krogen (Rooney's
could be assigned the budgeting and labor relations work rather than McLimans. It disputes
assertion. CESA calls attention to the fact that like Rounds, Krogen was not called as a
the hearing. CESA submits that since Krogen was not called as a witness, there is no record
that establishes that she has he time to perform these additional job duties. If it is held that
have the time to perform these duties, CESA maintains that finding would ignore and conflict
Rooney's testimony to the contrary.
In conclusion, CESA avers that if the Commission finds the Special Education
confidential, she will then be assigned the work of assisting all three directors with their
relations and budgeting functions. With regard to the former (i.e. labor relations functions)
asserts that she will be responding to employee grievances, drafting employee discipline
letters clarifying performance expectations, drafting evaluations, drafting layoff notices and
investigating employee misconduct. According to CESA, the Special Education Secretary
just type up these documents; rather, she may be required to participate in the initial drafting
documents that are not subsequently shared with the affected employee or the Association.
regard to the latter (i.e. budgeting functions), CESA avers that the Special Education
also be assisting all three department directors in determining on an on-going basis how
bargaining unit members each department will employ and for how many days (percentage of
In CESA's view, the amount of budgeting and labor relations work which McLimans is
perform is not de minimis. Additionally, CESA believes that this work
cannot easily be assigned to
either Rounds or Krogen. Accordingly, CESA asks that McLimans be found to be a
Section 111.70(1)(i), Stats., defines a municipal employee in pertinent part as:
. . . any individual employed by a municipal employer other than
an independent contractor,
supervisor, or confidential, managerial or executive employee.
The statutory term "confidential . . . employee" is not statutorily defined. With
approval (See Mineral Point Unified School District v. WERC, 251 Wis.2d 325 (Ct. App.
2002), we have defined a confidential employee as one having sufficient access to,
knowledge of, or
participation in confidential matters relating to labor relations. For
Dec. No. 30257-B
information to be confidential, it must: (a) deal with the employer's strategy or position
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. 1/
1/ Dane County, Dec. No. 22796-C (WERC,
While a de minimis exposure to confidential labor relations matters is
grounds for exclusion of an employee from a bargaining unit, 2/ we have also sought to
employer's right to conduct its labor relations through employees whose interests are aligned
those of management. 3/ Thus, notwithstanding the actual amount of confidential work
but assuming good faith on the part of the employer, an employee may be found to be
where the person in question is the only one available to perform legitimate confidential
work, 4/ and,
similarly, where a management employee has significant labor relations responsibility, the
employee assigned as his or her secretary may be found to be confidential, even if the actual
of confidential work is not significant, where the confidential work cannot be assigned to
employee without undue disruption of the employer's organization. 5/ In reviewing an
of confidential status, the Commission is mindful of the need to balance the statutory right of
employees to engage in concerted activity with the right of employers to conduct labor
through employees whose interests are aligned with management. 6/ In striking this
balance, we look
to, among other things, the amount of confidential work, and the degree of disruption that
caused to the employer's operation if confidential work is reassigned. 7/
2/ Boulder Junction Joint School District, Dec.
No. 24982 (WERC, 11/87).
3/ CESA Agency No.9,
Dec. No. 23863, (WERC, 12/86).
4/ Town of Grand
Chute, Dec. No. 22934 (WERC, 9/85).
School District, Dec. No. 22731-A (WERC, 9/88).
6/ City of Seymour,
Dec. No. 28112 (WERC, 7/94).
7/ City of Seymour,
supra.; City of Greenfield, Dec. No. 26423 (WERC, 4/90).
Applying these general principles to this case, we find that the Secretary to the
Special Education is not a confidential employee and therefore is included in the support staff
bargaining unit. Our analysis follows.
Dec. No. 30257-B
It is noted at the outset that as of the date of the hearing, McLimans has not
confidential labor relations duties. She has not participated in the development of bargaining
proposals or attended meetings where they were discussed, has not typed or prepared
proposals or documents that pertain to collective bargaining, does not have access to files
to collective bargaining and has not costed any bargaining proposals for negotiations. She
attended meetings where personnel matters were discussed, has never been involved in a
investigation, has never developed or typed an answer to an employee grievance, and has
helped prepare for labor relations litigation. While she typed employee evaluations years
does not currently do so.
She has typed corrective plans of assistance and preliminary layoff notices.
Recognizing that McLimans has not yet been assigned or performed many
CESA's theory herein rests primarily on the proposition that if we find her to be a
employee, then she will be assigned sufficient confidential duties to establish her confidential
We have previously found that anticipated duties can be a basis for excluding an employee as
confidential. See, for example, Manitowoc County, Dec. No. 8152-J (WERC, 11/90).
Accordingly, the fact that McLimans is not currently performing any significant confidential
not the end of our analysis. Similarly, the fact that as of the date of the hearing, CESA had
any steps to transfer the confidential work duties to McLimans is of no legal consequence
from the record as a whole we do not doubt CESA's intentions. The same is true of the fact
when Rooney revised McLimans' job description, he did not get her input on same or tell
would be receiving additional job duties. Again, from the record as a whole, we are
CESA fully intends to transfer those duties to McLimans and Rooney was not obligated to
the matter with her.
That said, our focus turns to an analysis of the confidential labor relations duties
plans to assign to McLimans that are currently performed by secretaries Alm, Udelhofen and
Hennessy and bookkeeper Reimenapp.
Our initial focus of inquiry is on what CESA characterizes as the most significant
job duty that McLimans will perform in the future: budget work. We begin our discussion
at the outset that for any budget work to be considered confidential, it must relate to CESA's
in collective bargaining or administering the contract. As noted in Finding of Fact 4, the
is as follows: after each director determines how much money will be received from each
source (i.e. grants and contracts with school districts) to operate a particular program, the
will have McLimans "crunch the numbers" and make preliminary estimates concerning how
employees can be employed in that program for what full-time equivalent (FTE) status.
these calculations have to be done again and again using different scenarios because of
over how much money CESA will receive for that program.
Dec. No. 30257-B
Most of the information used in this budget process is available to the union(s)
grants CESA receives and CESA's contracts with school districts are public records and
union(s) have access to existing employee wage and benefit information. However, the
not have access to the various preliminary budget estimates derived from the publicly
or to any assumptions CESA used as to possible increases in salary and fringe benefit costs.
we are satisfied that there may be limited circumstances in which knowledge of this budget
information would be relevant to CESA's bargaining strategy or manner of administering the
contract. Thus, to this limited extent, the budget work McLimans will be asked to perform
confidential labor relations work.
CESA also plans to have McLimans type what it calls all "union issues" for all three
including: employee disciplinary notices, employee evaluations, layoff notices, answers to
and misconduct investigations. We accept CESA's plans at face value because McLimans'
description was recently changed to specify that she would be doing that work and Rooney
three directors credibly so testified. While the final versions of these documents are not
because the affected employee(s)/union(s) receive them, drafts of the documents (and the
knowledge of the action the employer contemplates taking) do expose the typist to
relations information. Green Bay School District, Dec. No. 17706-B (WERC, 1/00).
However, given the number of bargaining units (2), the number of represented
and the evidence of labor relations activity with the professional employee unit, we are
the amount of such work will be very limited. While all three directors do have
administering the existing professional employee bargaining agreement, their duties in that
have produced little confidential work. Iverson and Kirkpatrick have never responded to a
grievance. While Stuckey oversees the professional employees in the professional bargaining
there have not been any grievances in that unit in the last six years. Consequently, Stuckey
had to respond to any grievances in that time period. There are just a few instances
the record where CESA imposed formal discipline on employees. In the one recent instance
a probationary employee was "non-renewed", that employee was not supervised by any of
directors involved herein (i.e. Stuckey, Iverson and Kirkpatrick). In the only discharge
in the record, the decision to discharge and the corresponding paperwork came from the
administrator (Rooney) not the director. Aside from that discharge and an instance
formal discipline which occurred in the Special Education Department about four or five
all the other instances of discipline referenced in the record involve verbal warnings and
plans of assistance for employees who were not meeting performance expectations. We do
acknowledge that typing evaluations and layoff notices to employees will generate a limited
of ongoing confidential work for McLimans.
Dec. No. 30257-B
Having identified and considered the type and amount of confidential work McLimans
perform, the question is whether that work justifies McLimans' exclusion from the
as a confidential employee. We find it does not for the following reasons. First, as
CESA has just two bargaining units consisting of 39 employees: 24 in the professional unit
in the support staff unit. With respect to administering the professional contract, CESA has
any grievances in that unit in the last six years and has had few disciplinary instances with its
workforce. Even if the new support staff unit generates substantially more confidential
overall amount generated by the three directors will remain minimal. Second, in deciding
to exclude an individual as a confidential employee, we have routinely considered the
other confidential employees to perform the work. City of Rhinelander, Dec. No.
(WERC, 11/02); Marathon County, Dec. No. 17083-B (WERC, 2/92). In this case,
Administrative Assistant (Krogen) and the Compensation Specialist (Rounds) have secretarial
and we conclude that can perform the directors' confidential secretarial work without undue
disruption of CESA's operations. City of Rhinelander, supra; Manitowoc
Schools, Dec. No.
29777-C (WERC, 7/01); Barron Schools, Dec. No. 29687 (WERC, 8/91). As to their
we acknowledge Rooney's testimony that Krogen does not have the time to perform any
work and the absence of direct evidence as to Rounds' work load. However, the existing
as to the very limited amount of confidential labor relations work in question persuades us
between the workloads of Krogen and Rounds, sufficient time is available to perform the
Given all of the foregoing, we conclude that the Secretary to the Director of Special
Education is not a confidential employee. We have therefore included that position in the
staff bargaining unit.
Dated at Madison, Wisconsin, this 25th day of March, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION