County of Eau Claire v. AFSCME Local 2223

• Citation: 190 Wis.2d 298,526 N.W.2d 802
• Decision Date: 20 December 1994
• Docket Number: No. 94-1482,94-1482
• Parties: , 148 L.R.R.M. (BNA) 2304 COUNTY OF EAU CLAIRE, d Plaintiff-Respondent, v. AFSCME LOCAL 2223, Defendant-Appellant, Wisconsin Employment Relations Commission, Defendant.
• Court: Court of Appeals of Wisconsin

Page 802

526 N.W.2d 802

190 Wis.2d 298, 148 L.R.R.M. (BNA) 2304

COUNTY OF EAU CLAIRE, ^d Plaintiff-Respondent, v. AFSCME LOCAL 2223, Defendant-Appellant Wisconsin Employment Relations Commission, Defendant.

No. 94-1482.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 21, 1994.

Opinion Released Dec. 20, 1994.

Opinion Filed Dec. 20, 1994.

On behalf of defendant-appellant, the cause was submitted on the briefs of Bruce F. Ehlke of Lawton & Cates, S.C. of Madison.

On behalf of plaintiff-respondent, the cause was submitted on the brief of Keith R. Zehms, corp. counsel, of Eau Claire.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

AFSCME Local 2223, the County employees union and the exclusive bargaining agent for the employees in the offices of the Eau Claire County Clerk of Court and Register of Deeds, appeals a declaratory judgment exempting these employees from the terms of the collective bargaining agreement between the County and the union. The clerk and the register deputized virtually every employee in their respective offices. The circuit court decided that the employees were exempt from the contract negotiated pursuant to the Municipal Employment Relations Act (MERA), § 111.70, STATS., because the elected officials deputized the employees pursuant to express statutory authority. ¹ The court concluded that our decision in Crawford County v. WERC, 177 Wis.2d 66, 501 N.W.2d 836 (Ct.App.1993), controlled the outcome here. That case held that an irreconcilable conflict existed between the County's power to bargain collectively with the union on various subjects of employment and the power of the clerk of court and register of deeds to appoint and discharge deputies. Id. We distinguish Crawford on its facts because it apparently involved a union exclusion of only a single chief deputy in each office. We conclude that deputized employees, apart from the chief deputy, are exempt from MERA coverage only to the extent that they in fact function as managerial or supervisory employees, as that term has been defined by case law. We therefore reverse the judgment and remand for a factual determination as to which of the deputies so qualify.

BACKGROUND

The County and the union stipulated to a detailed statement of facts consisting of some seventy-eight pages, attached exhibits included. What follows is a recitation of only those facts as are necessary to a resolution of this appeal. These two parties have been bound by a collective bargaining agreement, negotiated pursuant to § 111.70, STATS., since 1972, and the current agreement covers the employees in the offices of the clerk of court and the register of deeds. The contract includes a requirement that the employer discharge only for just cause, and a four-step employee grievance process ending with binding arbitration with a Wisconsin Employment Relations Commission (WERC) arbitrator. It also includes an employee posting procedure that controls hiring practices.

A. Clerk of Court

The Eau Claire County clerk of circuit court's office is staffed by the elected clerk and a chief deputy clerk, which is a non-union position. The chief deputy is deputized by the clerk and, in the absence of the clerk, assumes the duties, responsibilities and authority of the office. The office also employs sixteen union employees, each of whom is necessary for the clerk to fulfill her duties. Although none of the union employees has the job title of deputy clerk, each of them was deputized by the clerk, ostensibly pursuant to § 59.38(1), STATS.

In addition to the elected clerk and the chief deputy, the "Position Description Review Log" allocates three fiscal clerks, three clerk I/II's, three terminal operators and seven judicial clerks. The written job descriptions for each of these positions state that none of them involves the exercise of supervision or direction of others. According to the same documents, all of these positions are supervised by the "Deputy Clerk of Courts or Clerk of Courts."

Shirley Ives was hired in 1989 by the clerk of court and signed and filed an oath of office as a deputy clerk of court at that time and after each biennial election. Her deputizations were not formally approved by the majority of the circuit judges of the county as contemplated by § 59.38(1), STATS. ² Her deputization was on file with the Federal Passport Agency, which enabled her to process and sign passport applications. It was also on file at an unspecified office in Madison, which enabled her to authenticate and certify court records relating to vital statistics. Ives was directly supervised by the chief deputy clerk of court. Ives at the time of her discharge was working principally as a receptionist, and was fired in April 1993, allegedly for unsatisfactory work performance. The union president filed a grievance on Ives' behalf, alleging a termination without just cause. The County personnel committee denied the grievance, a petition for arbitration was filed with WERC and a hearing date was set before an arbitrator. The parties eventually agreed to indefinitely postpone the arbitration after the County filed this declaratory judgment action.

B. Register of Deeds

The Eau Claire County register of deeds office is staffed by the elected register and a chief deputy register, which is a non-union position, and four full-time union positions. All of the office employees are deputized by the register save one, who will be as soon as the register determines she has received sufficient training and experience. None of the union employees is titled deputy register, but each is responsible for performing the duties of the register in her absence, and each aids in the performance of her statutory duties. The deputizations were ostensibly made pursuant to § 59.50, STATS.

The position of correspondence clerk in the register's office became vacant, and the opening was posted pursuant to the collective bargaining agreement. A number of union employees signed the posting, evincing an interest in the job. The register appointed a part-time employee in her office to fill the vacancy, although two union employees who signed the posting appeared to be qualified and had more seniority than the person appointed.

The union filed a grievance objecting on grounds that it violated the seniority rights of the bargaining agreement. The parties also agreed to hold this grievance in abeyance pending the outcome of this litigation.

The circuit court applied the holding in Crawford to resolve the dispute here in favor of the County. We have examined the appellate briefs and appendices in Crawford, now located in the archives of the state law library. We observe that the respective appointments by the clerk and the register in Crawford were limited to a single chief deputy in each office.

Crawford acknowledged that Glendale Professional Policemen's Ass'n v. Glendale, 83 Wis.2d 90, 264 N.W.2d 594 (1978), pronounced the general rule: A collective bargaining agreement under § 111.70, STATS., must, where possible, be harmonized with other statutory provisions....