BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ELCHO SCHOOL DISTRICT
NORTHERN TIER UNISERV - EAST
Ms. Carol J. Nelson, Executive Director, Northern Tier
UniServ-East, 200A South Lake Avenue, Post Office Box 9, Crandon, Wisconsin 54520-
0009, on behalf of the Association.
Ruder, Ware & Michler, by Attorney Cari L. Westerhof,
Suite 700, 500 Third Street, Post Office Box 8050, Wausau, Wisconsin 54402-8050, on
behalf of the District.
On April 15, 1998 the Association filed a request with the Wisconsin Employment
Commission requesting the Commission to appoint a Commissioner or a member of its staff
as the sole arbitrator to hear and decide a grievance pending between the parties. The matter
assigned to the undersigned who held an evidentiary hearing on August 12, 1998 at the
offices in Elcho, Wisconsin. A transcript of the proceedings was taken and produced by
Reporting Service, Wausau, Wisconsin. Briefs have been filed and exchanged, and the
closed November 12, 1998.
The Association submitted the issue as:
Whether or not the district violated the collective bargaining
agreement by refusing to deduct
Union dues for an employe the District now asserts is casual.
The District submitted the issue as:
Whether the District violated the collective bargaining agreement
by failing to recognize the
Association as the bargaining representative of Barbara Ament, and, if so, what is the
I conclude that the issue is:
Whether the District violated the collective bargaining agreement
when it failed to recognize the
Association as the exclusive bargaining representative of employe Barbara Ament and, if so,
The Board recognizes the Association as the exclusive
bargaining representative for all regular
full-time and regular part-time non-professional employees of the Elcho School District,
all confidential supervisory, managerial and professional employees as defined by the
Employment Relations Commission and all substitute, summer help, temporary and casual
for the purpose of bargaining collectively on matters pertaining to wages, hours and
. . .
. . .
Casual Employees: A casual
employee is defined as an employee who is not regularly
scheduled to work or who is hired to replace a bargaining unit employee who is absent or on
under the provisions of the contract. This employee is not part of the bargaining unit.
BACKGROUND AND FACTS
The District and the Association have been signatories to a series of collective
agreements, the relevant terms of which have been set out above. This dispute involves the
interpretation of the agreement as it relates to the work of employe Barbara Ament.
Barbara Ament began work for the District in January 1997. The District advertised
Administrative Assistant at two half days per week in April 1997 and Barbara Ament was
that position. Thereafter she worked every month not less than 49 hours nor more than 144
for an average through July 1998 of 70 hours per month or sixteen hours per week. Ms.
worked in many roles, most often in support of the school's
confidential Administrative Secretary, Susan Shuster and/or the District's confidential
Assistant, Veronica Weyner. She has also substituted as a teacher's aide, worked in the
etc., but generally is asked to come in to assist Ms. Shuster and Ms. Weyner with work they
unable to perform in their usual workweek. The job description for her position denominates
position title as Administrative Assistant Secretary. Other facts will be set out in explanation
POSITIONS OF THE PARTIES
Position of the District
The District cites the general WERC rule that casual employes are excluded from
bargaining units when the irregular nature of their work conflicts with the interests of regular
employes. Citing Commission decisions, the District points out that the determinative factor
considered is the regularity of employment. In determining regularity of
Commission has considered whether the employe can accept or reject work when offered,
there are defined work periods and hours, and whether there is a sufficient community of
other regular employes based on similarity of job functions and wages and conditions of
The District posits that the Commission has consistently found an employe to be
the employe worked on an "on call" basis and the employe was free to refuse work offered.
District cites several cases in which the Commission has so held, including on call employes
county highway department and on call employes of a county sheriff department.
The District concludes that the Association's grievance should, therefore, be
because "she does not possess a reasonable expectation of regularity of employment, she
an as needed basis with no defined work periods or work hours and is free to turn down
work without consequence."
Next the District argues that even if the employe is not a casual employe, she should
excluded from the bargaining unit as a confidential employe under Sec. 111.70(1)(i), Stats.
District acknowledges that for an employe to be confidential, the employe must deal with the
employer's strategy or position in collective bargaining, contract administration, litigation or
similar matters pertaining to labor relations and grievance handling between the bargaining
representative and employer. Noting the Commission's responsibility to balance an
to engage in concerted activity with an employer's right to conduct labor
relations through employes whose interests are aligned with management, the District
points out that
the Commission considers the amount of confidential work to be performed, the number of
and available confidential employes, and the degree of disruption that would be caused to the
District's operation if confidential work is done by existing confidential staff.
Applying these principles to Ms. Ament's work, the District asserts that the record
much of Ms. Ament's work is confidential and that, since the District's other confidential
are not available to do the work, it would be unduly disruptive to District operations to
to do so. Confidential duties include assembling packets of mostly confidential information
board members, and typing and proofing minutes of board meetings including closed session
The District calculates that Ms. Ament spends approximately 32 hours per month or half of
time on confidential matters. Finally, the District offers that even if the Arbitrator considers
amount of confidential work to be de minimus, the Arbitrator should still find the position
confidential because other confidential staff do not have the time available.
In reply to the Association's brief, the District asserts that the Association has
the Commission's ruling in Elcho School District, Dec. No. 27640-C, (WERC, 4/97) when
Association argued that the Commission has by decision limited the number of confidential
the District may have. The District denies that it is attempting to include an inordinately
of employes as confidential by responsibilities, and asserts it is only working Ms. Ament on
needed basis and those duties necessarily include confidential duties.
Position of the Association
At hearing the District asserted that the grievance was untimely and raised the
arbitrability. Expecting the District to pursue this issue, the Association, in its brief, cites
cases for the proposition that the acts of the District constitute an ongoing violation of the
so that the time limits of the grievance procedure have not been reached. Further, since the
was aware as early as the fall of 1997 of the Association's concern, and since the District
its position regarding the employe's status, the time limits should not apply.
The Association cites Commission cases which define the elements that make an
confidential. When applying those elements to the instant facts, the critical elements are met
in a de minimus manner, and where exposure to confidential materials (in the labor relations
does occur, the tasks could easily be performed by either of the two full time exempt
employe has never costed bargaining proposals, participated in strategy sessions or otherwise
more than incidental contact with labor relations functions.
Regarding the asserted casual status, the Association points out that Ms. Ament
week, an average of two days per week, is the only employe trained to enter information into
specialized computer system, has been issued a key to the school and is the only employe
to help in to assist the Administrator's Secretary and the Financial Assistant.
The employe in question has worked continuously for the District an average of two
week, normally assisting the Administrative Secretary and Financial Assistant with
work that because of workload, they cannot accomplish in the normal work week. She
schedule in conjunction with the office staff.
While the recognition clause of the contract excludes casual employes and the
contains a definition of casual employes, the parties have argued solely Commission
Therefore, I conclude that the parties intend the contract definition to be the same as the
Commission's definition of a causal employe.
The Commission has held that "the determinative factor in deciding whether
regular part-time or casual employes is the regularity of employment rather than the
of hours per week or month." Village of Maple Bluff, Dec. No. 26746 (WERC, 1/91).
"Regularity of employment means that the employment itself, not necessarily the particular
assignment, is regular or recurring; one can have 'regularity of employment' without
having standardized shifts." Village of spring Green, Dec. No. 29334 (WERC, 3/98).
I have considered the District's argument and cases cited regarding on call employes
employes and find that the cited cases are not controlling because in each of those cases there
multiple employes with a resulting uncertainty regarding the assurance of employment for
individual employe. In the instant case Ms. Ament is the only employe who has been hired
to the published job offering, is the only employe who runs the hot lunch computer program,
only employe who assists the Secretary and Financial Assistant in work which, by their
cannot be accomplished in their normal work week and which totals approximately twenty
week. Further, in addition to having a key to the school, Ms. Ament testified that she views
as reporting to Dr. Johnson. She is assured of all the excess work in the office because there
one else that it will be given to. Thus, this is employment unlike that found casual in the
by the District. Ms. Ament can rely on an average of seventeen hours of work per week. If
down hours of work the work will still be hers to do later. She therefore has a reasonable
of regularity of employment.
Given the foregoing, I find this work to have that degree of regularity such that it
considered casual under the definition in Article VIII, Section E of the collective bargaining
agreement or Commission precedent.
The remaining question is whether the employment in question is exempt as
defined by Commission interpretation of Chapter 111.70, Wis. Stats. The parties agree that
to that definition is that the employment must have more than a de minimus component of
relations and/or contract administration work.
The job description (Union 4) for the position is as follows:
Elcho School District
Direct Supervisor: Elcho School District
Administrative Assistant Secretary
Qualifications: High School
Diploma or Equivalent
Experience as Secretary in
Business or Education
Must Be Proficient in the
Use of the Typewriter, Calculat6or, and Other
The ability to communicate
effectively; work with others; organize and
maintain appropriate records.
A working knowledge of
bookkeeping, record keeping, and general office
Shall be responsible for
providing the support and clerical services needed for
effective district office administration.
Shall assist both the district
Office Secretary and District Financial Assistant
in fulfilling their duties and will take over those responsibilities in their
Shall assist in confidential
district matters including the maintenance of
personnel files and preparation of materials for collective negotiations.
Shall coordinate the
financial accounting and collections for the cafeteria
Shall perform general office
duties in the absence of the administrative
secretary such as during scheduled breaks.
Shall be responsible for
confirming all deliveries other than food service or
custodial deliveries. Shall be responsible for ordering teacher and district
Shall be responsible for
screening calls and visitors who wish to see the
Shall be responsible for the
word processing and duplication of central office
Shall provide input to the
District Administrator concerning matters relative
to the improvement of services to the Elcho School District.
Shall assist the District
Administrator with any other program related
Shall be responsible for the
collection and accounting of cafeteria monies.
Other duties as assigned by
the District Administrator.
The work actually performed by Ms. Ament includes the
has filled in for student school secretary [Tr. p. 20, ln 3]
has been trained on and is the sole operator of the computerized food
[Tr. p 22, ln 6-12]
has substituted for a teacher's aide [Tr. p 25, ln 11-20]
has worked in food service program [Tr. p 27, ln 25]
has substituted for Ms. Sue Schuster for all of March, 1998
has maintained personnel records including social security numbers,
immunization shots, and
has created files for new hires and closed files for employes who leave [Tr. p 31, ln 22-25;
p 32, ln 1-10]
has worked on the packet for monthly board meeting including typing,
collating and delivering the packet to board members [Tr. p 38 ln 14]
has seen minutes for both open and closed board meetings [Tr. p 39, ln
has worked on workmen's compensation files [Tr. p 39, ln 21-23]
has opened mail including that marked confidential [Tr. p 40, ln 3]
While the job description references preparation of materials for collective bargaining,
testified that she has never prepared information for teacher collective bargaining or for the
staff collective bargaining. [Tr. p 31, ln 6-9] Ms. Ament considers that much of her work
confidential information [Tr. p 38-40, 41-42] and estimates that she spends more than half of
work time on such matters. That work involves confidential
information in the ordinary sense of the phrase including workmen's compensation,
confidential mail, and personal financial information. Some of the material in school board
would be of a confidential nature in the ordinary sense of the word, as contrasted to
information relative to labor relations.
In determining whether employment is confidential, we look to see its labor relations
contract administration components. In this record, there is very little of that kind of work.
material regarding labor relations or contract administration that would go into the board
might qualify. Ms. Ament has never been solely responsible for the board packet.
I conclude from the record that Ms. Ament's responsibilities and work contain at
minimus amount of confidential work as defined by Sec. 111.70(1)(I), Stats., and I reject the
that limiting her assignments to non confidential work will unduly disrupt the District's
perform its administrative functions.
Having determined that the position is not confidential, it is not necessary to answer
question of whether Elcho School District, Dec. No. 27640-C (WERC, 4/97) limits the
of confidential employes the District may have.
The grievance is sustained. The District shall immediately recognize the Association
exclusive bargaining representative of the Administrative Assistant Secretary and commence
deduct union dues pursuant to the collective bargaining agreement.
Dated at Madison, Wisconsin this 3rd day of March, 1999.
James R. Meier, Arbitrator