*1 to the rela- inadequate record as factual majority on this possible. Even is not A-C tionship Aetna and between discovery determine only to for more plaintiff asked regard In relationship Aetna and A-C. fully between re- very have least, the court should Aetna, at discovery. for further case manded I dissent. Organization, Teachers United
Arrowhead Petitioner-Appellant, v. Employment
Wisconsin Commission, Relations Respondent-Petitioner, party, an interested Arrowhead Petitioner.
Supreme Court Argued September 8, No. 81-1600. 1983. January 31, 1984. Decided (Also reported 709.) in 342 N.W.2d *3 there petitioner, For the Arrowhead Wherry, Mulcahy & M. Loomis and John were briefs Wherry. argument Michael Milwaukee, S.C., oral and argued respondent-petitioner was cause For the general, Bron- attorney Niemisto, with D. assistant John attorney general, the briefs. Follette, on son LaC. petitioner-appellant a brief there was For Neumann, for staff counsel Bruce Meredith and Judith Madison, Council, Education Association the Wisconsin argument by oral Mr. Meredith. and published of a CECI, is a review J. J. This LOUIS reversing judgment appeals decision of the court of Judge County Court Hafold J. Wol- Circuit Waukesha judg- The review action.1 lenzien in an administrative appeals affirm- court of reversed was an which the ment Employment Relations of an order of the Wisconsin ance bargaining clarifying for unit the collective Commission 1 WERC, Teachers v. 109 Wis. 2d Arrowhead United (Ct. App. 1982). N.W.2d negotiations the Arrowhead school district between Organization. The Wis- the Arrowhead United Teachers (hereafter Employment consin Relations Commission commission) unit determined that com- posed “professional part-time of all full-time and employes” ex- of the Arrowhead school district should working university clude students as intern teachers. circuit court unit affirmed commission’s clarifi- cation, matter, the court reversed the directing that the in the interns be included appeals. unit. We reverse court of 5, 1979, On October the Arrowhead school district (hereafter district) petition clarification, filed a for unit requesting that the commission determine whether employed by municipal intern teachers the district were and whether should included in the be professional employe bargaining unit. The Arrowhead Organization United (hereafter union) sought Teachers to include existing intern teachers within the unit. 1979, hearing On December was held before the com- petition, 12, 1980, mission on the and on June the com- mission conjunction issued its decision with an ac- companying memorandum.
The commission found that the teacher interns were “municipal employes” meanig within the of sec. 111.70 (b), (1) Stats., Municipal Employment Relations Act. The commission also found “tempo- that the were rary employees” employes” but not “casual and that the *4 “community interns not have did a of interest” with the full-time part-time professional employes represented by the Because of this lack union. of a com- munity of interest profes- between the interns and the employes represented sional union, the the commission pursuant clarified that to 111.70(4) (d), sec. the bar- gaining unit should not include teacher interns. the petitioned
The union the circuit court for review of the decision, pursuant commission’s to secs. 227.15 and 227.- the petition that asked Stats., July 11, on 1980. finding portion of the commission’s that court reverse employes did professional teacher interns that the community union concurred of interest. The a not share findings The district commission. of the all other with challenged finding that the interns the commission’s temporary than casual em- rather should considered be interns ployes. the teacher Had commission classified the qualify “municipal as employes, they not would as casual (b). 111.70(1) employes” of sec. under the definition requested circuit court that the Therefore, the district contrary employes, classify to as casual the interns finding. commission’s decision, July 3, court its 1981, the circuit issued
On July judgment 1981. an order and dated followed in- of whether the The court first dealt with the issue employes municipal under sec. terns constituted 111.70 Stats., portion com- (l)(b), and affirmed ques- judge then addressed the decision. The mission’s should in tion of whether or not be included existing bargaining unit on the basis of a antifragmentation provision as of interest and/or 111.70(4) (d)2.a.2 comparing out in After set sec. 111.70(4) (d)'2.a., Stats., reads as follows: Section bargaining appropriate determine the “The commission shall purpose collective and shall whenever unit for maintaining fragmentation units as possible as few avoid municipal keeping work practicable the total the size of with may determination, making the commission force. In such a case, employes in the same whether, particular decide crafts, professions institutions, divisions, departments, or several making occupational groupings a unit. Before other constitute or opportunity may provide for an determination, the commission ballot, determine, by whether secret concerned separate collective established or not desire to be however, decide, shall unit. The commission professional both any the unit includes if unit majority employes, nonprofessional unless a employes and *5 job functions, wages, hours, employ- conditions interns, professional employes ment of and teacher both the circuit court concluded that the had not commission finding no abused its discretion that of in- groups employes. terest existed the between two The antifragmentation provision court then considered the 111.70(4) (d)2.a., observing found in sec. that the lan- guage judge is not absolute. The trial also stated that antifragmentation opinion, in his tempered directive is language 111.70(6), provides of sec. which public promoted by allowing municipal interest is em- ployes opportunity bargain collectively if “so desire.” The court then noted that there was no show- ing that the teacher interns desired to be included the union’s Accordingly, the court unit. con- cluded any statutory that the commission had violated mandate its decision and affirmed the commission’s order. appealed
The union then appeals, asking to the court of the court to reverse the circuit court and the commission respect findings with excluding to their in- teacher professional terns from employe bargaining unit. The any cross-appeal district did not file on the issue the interns’ municipal employes classification as under 111.70(1) (b). sec. lengthy
In a opinion, the court of reversed the judgment circuit court’s upon finding based a commission had past practice deviated from its without satisfactory explanation. The court stated that commission’s determination of what constitutes “com- munity of interest” ais conclusion of law and that professional employes vote for inclusion in the unit. any commission shall not decide that unit if the unit employes majority includes both craft and noncraft unless a of the craft Any vote for inclusion in the unit. vote taken under this subsection shall be secret ballot.” *6 227.20(8), in sec. review is found
proper standard Association, Bangor Citing Education Stats.3 (June 1976'), the the court noted No. 14699 Dec. “ controlling empha- given ‘primary and commission has responsibilities of indi- and the actual duties sis to the ” question.’ 2d at holding position 109 Wis. the in vidual professional the commission had found the 377. Because duties and interns to have similar and teacher appeals that ac- responsibilities, concluded court of the cording past practice, should have the commission to its bargaining groups one unit. within included two deviated had also court further noted the commission fragmentation concerning past practice from its unit statutory ignored express had school districts 111.70(4) (d) upon-its limit discretion as set out sec. upon observations, Based these the court 2.a. that the commission had abused its discretion
concluded unexplained two deviations and reversed these court, directing trial interns be included the teacher within the union’s unit. district,
Both the as an interested commission and the party, appealed from of the court of have the decision appeals. in this There are two issues which concern us They proper review. (1) are: is the for What standard reviewing a from commission decision which deviates prior agency utilizing practice (2) proper stan- dard, failing did the commission abuse its discretion Stats., provides: 227.20(8), Section agency if it “The court reverse to the shall or remand case agency’s range finds that exercise of discretion outside delegated agency law; of discretion is inconsistent with to the agency prior rule, officially agency policy an an or a stated explained agency practice, to the if deviation therefrom is not agency; in viola- satisfaction of the court or is otherwise statutory provision; shall but the court tion of a constitutional or agency judgment issue on an for that of substitute of discretion.” professional employe in the
to include the teacher interns ? unit I. BE STANDARD TO
WHAT THE PROPER IS u IN AN UTILIZED AGENCY REVIEWING
DECISION WHICH DEVIATES FROM THE PRIOR AGENCY’S PRACTICE?
Initially, point appeal would like to out that we *7 questions and involves mixed of law fact. The review encompasses the 111.70 commission’s construction of sec. (4) Stats., applica- (d)2.a., as well as the commission’s particular of tion the statute the set of involved facts questions Bucyrus- in this case. issues are of Such law. 408, 417, Erie Department, Co. v. ILHR 90 Wis. 2d 280 (1979), N.W.2d 142 and Milwaukee v. WERC, Wis. 2d 71 709, 714, (1976). purely 239 N.W.2d It also involves commission, factual determinations made and obviously these questions determinations are of fact. parties The concede that facts in this case are not disputed. claims,
The appeals agreed, union and the court of that past decisions, in given its primary “the Commission has controlling emphasis respon- to the actual duties holding position ques- sibilities the individual citing tion.” 109 377, Bangor 2d at Wis. Education As- sociation, (June 1976). 9, WERC Dec. No. 14699 See also, Winnebago County (Department Ser- Social vices), (September 5, 1979). WERC Dec. No. 10304-A appeals court of further stated that the commission has never that performing found individuals du- similar ties working under similar conditions did not share a “community of interest.” Because the commission found perform teacher similar duties under teachers, working conditions as do
similar groups both shared a “commu- yet to find that refused interest,” nity the court of concluded that the prior practice. from had deviated commission past decisions, it does we review commission When majority decisions, appear in the of the indeed disputed share a commission has found the individual to unit from interest with sought separated. which the individual has to be Wis Heights District, consin School Dec. No. (August 1979) ; Metropolitan Madison 7, 1977) ; (January WERC Dec. No. 14161-A Kenosha No. School District WERC Dec. No. 18431 Unified (March 11, 1975).4 We then must refer to the,statutory reviewing agency decisions, standards for contained 227.20, Stats., “Scope entitled of review.”5 § Section 227.20(8) provides: “The court shall or reverse remand the case to agency is outside the agency’s if it finds that the exercise of discretion range delegated agency of discretion to the by law; agency rule, inconsistent with an an offi- cially agency policy prior practice, stated agency or a if explained deviation therefrom is not to the satisfaction agency; of the court or is otherwise in violation of *8 a statutory provision; constitutional or the court but judgment agency shall not substitute its for that of
on an issue of discretion.” 4 In Directors, Milwaukee Board WERC Dec. No. of (November 16, 1979), 13737-G the commission found that a (cid:127)group psychologists belong sep to unit should professional arate from that of the within the school district. 5 Sanitary DNR, Landfill, In Inc. 85 2d & v. Wis. Transfer 1, 12, scope (1978), 270 144 this court stated that “the N.W.2d agency Supreme of review of in the Court administrative decisions 2-27.20, given is identical to that to the circuit court sec. Stats.”
589 language 227.20(8) plain states that Thus, sec. which are inconsistent with exercises of discretion agency’s prior practice are if there- not fatal “deviation satisfactorily explained to court. In order from” is satisfactory explanation, what to to determine amounts prior we must direct our attention to case law. 227.20(8) provides an un-
This court noted that sec.
review in Wis. Asso.
usual standard of
Manufacturers
305,
PSC,
300,
v.
& Commerce
100
2d
301 N.W.2d
Wis.
(1981).
Corp.
Comm.,
In Public Serv.
v. Public Serv.
247
256,
(1982),
2d
867
this court also
Wis.
325 N.W.2d
agency’s
dealt with the review of an
decision under sec.
(8).
opinion:
227.20
The court stated in that
recognized
“While this court has
inconsistencies
arising by comparison
proof
in determinations
are not
capriciousness,
arbitrariness or
if the deviation
so un-
is
reasonable as to be without a rational basis or the result
unconsidered,
of an
willful
irrational
choice of con-
duct,
arbitrary
capricious
the decision
an
one.
Transport
Comm.,
Robertson
v.Co.
Public Serv.
39 Wis.
(1968) ;
Rothwell,
2d
Wis. 2d
The court of also found that the commission had prior regarding deviated practice from its anti- fragmentation provision 111.70(4) (d)2.a. found sec. *9 shortly its order after
Although decided commission appro- were units separate case in this Franklin, City WERC provision, despite this priate of again a review 1980), (November 4, once No. 18208 Dec. has past, factor in the reveals decisions of the position within disputed of the inclusion to the led District, Dec. WERC single School unit. Germantown Gateway Dis- 1979) ; VTAE 11, (December No. 19, 1979); (November No. 17449 trict, Dec. WERC (Novem- Maple Dec. No. concerning standard 1979). Therefore, the same 28, ber from applies deviation to this test also rational basis fragmentation concerning practice past units.
II. DID THE EXERCISE PROPER COMMISSION BY THE EXCLUDING
DISCRETION THE INTERNS FROM TEACHER EMPLOYES’ PROFESSIONAL UNIT? BARGAINING previously stated, past As have we commission deci- finding “community usually of a sions involve shared responsibili- of interest” where individuals have similar working conditions, ties and are involved the same integrated force, task etc. Kenosha School Dist. Unified No. (March 1975). WERC Dec. No. 13431 To de- cide whether or not the ra- commission has utilized a departure past tional basis from concern- decisions ing “community interest,” we first must determine agency. However, how the term is utilized “community term interest” used in sec. nowhere 111.70(4) (d), pow- which deals with the commission’s Instead, appears ers. accepted concept it be an *10 in the area of collective utilized is often and labor law the term: characterized bargaining. has As one treatise community concept importance of a of this “The of the primarily the fact that may to interests attributed be op- representative all designated must and its chosen unit employees. a Should of for mutual benefit erate dissimilarity the surely exist, then collective of interests single severely bargaining impeded. ... A be would employees agreement bargaining composed of for a únit chaos, unrest, and would lead to with diverse interests Abodeely, disruption production.” R. Ham- possibly of J. Appropriate mer, Bargaining added). and the Sandler, and The NLRB A. 1981) (Rev. (emphasis Unit, p. ed. appeals a commu- concluded that shared The court of nity automatically from similar duties of interest arises working However, re- when this court and conditions. prior the con- views commission decisions that deal with cept interest, to our of two factors come any First, past are not aware of decision we attention. professionals vir- which have dealt with and who tually duties, teachers and identical as do the Thus, appears have teacher interns. instant case to question impression a been first for the commission. Secondly, appears it to the commission’s decisions single group within a unit have individuals solely “community upon not been in- based shared automatically terest” which arises from similar duties working conditions, and as court of believed. Rather, consistently commission has considered following deciding in whether individual em- factors ployes single grouped are to unit: be within sought employes “1. Whether the in the unit share ‘community of interest’ distinct from that of other employes. “2. employes unit duties and skills of in the sought compared as with the and skills of other duties employes. hours, working similarity wages, con- “3. The sought employes compared ditions of the unit wages, working hours, employes. other conditions of sought employes in “4. unit have Whether separate supervision employes. or with all common other sought employes “5. unit Whether the have a place work common with the in said desired place unit or whether share a work with other em-
ployes. sought units. frag- “6. the unit Whether will result in undue *11 bargaining mentation of Bargaining history.” “7. City Franklin, WERC of (November 1980) 4, ; No. Heights Dec. 18208 Wisconsin 7, 1979) ; (August Dec. No. 17182 Kenosha School District No. WERC Dec. No. Unified (March 11, 1975). 13431 We believe that the court of viewed the commis- sion’s simplistically criteria too when it stated that simi- working lar duties and automatically conditions lead to a “community shared of interest.”6 The precisely commission has never articulated what community constitutes a shared among of interest em- ployes. However, reviewing when de- commission’s cisions, appears it concept that the involves similar inter- among ests employes who participate also in a shared purpose through employment. their In Brown County, WERC Dec. No. (January 8, 1231 1974), the commission determined analysts research grouped should be within the same unit as the social workers 6 In N.L.R.B. v. Pride, Inc., (5th Purnell’s 609 F.2d 1156 1980), Cir. the court dealt with concept the NLRB’s use of the community of interest. The court noted that factors such as “bargaining history, operational integration, geographic proximity, supervision, similarity common job function, degree in and employee interchange” only “guidelines are suggest what sort of circumstantial evidence the Board must consider in de ciding proposed appropriate.” whether a unit is
593 psychologists. reaching in commission noted this decision that: analyst performs “The research research functions develops and programs statistics to assess the effectiveness techniques used the social workers and
psychologists sup- Analyst . . . the Research works port engaged program of the same the Social Work- Psychologists.” ers and Id. Thus, appears it concept that the commission utilizes the embody by employes an interest shared whose work purpose. Therefore, by combining involves a common single bargaining these unit, individuals within a collec- tive is not undermined because of restlessness arising widely from dissimilar interests. previously
We stated that the construction of a statute question is a of law and that this court bound interpretation an agency. an utilized Berns v. Wis. Employment Comm., 252, 261, 2d Relations Wis. (1980). Wis. 2d 248 227.20(5), Pursuant to sec. may always questions
court Bucyrus- review of law.7 Erie v. ILHR Co. 2d at Department, Wis. 417. The concept of interest out of arises the com *12 111.70(4) (d)2.a. mission’s construction of sec. of the Municipal Employment Relations also Act. have We “ stated that interpretation ‘. . . the construction and of adopted by a agency charged statute the administrative legislature duty the applying with the of it is entitled ” “ great weight’ only and that it ‘. . in is . when the terpretation agency the administrative is an irra ” reviewing tional one that a court does not to it.’ defer 7 227.20(5), Stats., Section reads as follows: “The modify agency court shall set aside or the action if it agency erroneously interpreted provision finds that has a of interpretation compels particular action, law and a correct or a agency it shall remand the case to the for further action under a interpretation provision correct of the of law.”
594 67, 43, 242 2d WERC, 73 Wis. v. Asso. Education Beloit standard, qualified (1976). have We 231 N.W.2d is stating question involved that where though, agency’s accord impression, the court will of first one determining appropriate weight interpretation due weight- great construction, rather than statutory Employ- Berns v. Wis. interpretation standard. rational great Comm., at 261. The 2d ment Relations 99 Wis. applies weight-rational interpretation in situa- standard interpretation reflects a the “commission’s where tions substantially ‘long continued, uni- practice position or challenge by governmental authorities form and without ” citing County Id., v. Bd. Voca- courts.’ Wood and of 606, 618, Ed., A. 2d tional, & 60 Wis. N.W.2d T. (1973). determining
Although question a whether community interest exists between students shared and professionals identical duties who have almost working question impression for conditions of first general commission, we determina believe that appli tion of an unit involves the expertise. requires cation of MERA and the commission’s application inter We find that the of the concept long-standing practice est does indeed reflect determining appropriate of the commission in District, Heights units under MERA. Wisconsin School 7, 1979); (August No. Madison Met WERC Dec. ropolitan Dec. No. 14161-A (January 7, 1977); No. Kenosha School District Unified 1, (March 1975). WERC Dec. No. 13431 11, Section 111.70(4) (d)2.a., Stats., was created ch. Laws November, 1971, apparently effective has applied consistently by been The record commission. previous challenges application does not indicate to the *13 concept. this v. Blackhawk Federation Teachers’ App. (Ct. WERC, 2d 326 N.W.2d 109 Wis. interpretation given 1982). Therefore, we hold that the through (d)2.a., 111.70(4) de- the commission’s to sec. application community velopment of the of interest great weight-rational concept, basis is entitled to the standard.
Invoking review, standard of we fur- this deferential concept ther hold that commission’s use of in- this 111.70(4) (d)2.a. proper interpretation a volves of sec. provides The statute that the commission shall determine determining appropriate unit. In may unit, the statute states the commission employes decide whether in “the same or several . . . professions occupational groupings or other a constitute employes unit.” The statute does not mandate that with grouped single similar duties must be within a unit. commission, therefore, concept a which embodies utilizes working similar interests shared toward purpose common in order to decide whether should single constitute a unit. We believe that the commis- concept sion’s use of interest consti- tutes a interpretation rational basis for the of sec. 111.70 (4) (d)2.a., charges duty which the commission with the determining appropriate bargaining units. finding
After concept that the commission’s use of the proper interpretation involves a 111.70(4) (d)2.a., of sec. we then must determine whether or not the commission’s departure prior utilizing from practice concept sustained a rational basis. When we review the rec- ord in the case, pursuant 227.20(1), instant to sec. Stats.,8 we find that the commission relied on the follow- 227.20(1), Stats., Section reads as follows: “The jury review shall be conducted the court without except shall record, alleged be confined to the in cases of irregularities procedure agency, testimony before thereon *14 making found decision.9 The commission
ing facts in only by employed district for one the is that each intern during term receiving stipend $2,000 this semester, a reality stipend’s in reduced value is employment. The registered as students by interns are the fact the colleges respective for the pay at their and must tuition only internship. they during their receive credits days’ five sick receive are which the interns benefits leave. internship position for are selected
Students Program, program admin- Improvement a the Wisconsin internship University An is of Wisconsin. istered may ways in fulfill one of two which the students teaching their requirement in order to obtain of student Although teaching the district interviews credentials. any they reject applicants, the intern students.10 seldom employed are each semester Six or seven interns right discipline the district assumes the to district. The although any arise, none had at interns should such need the time case was commenced. The interns receive training, no formal attend same orientation and but beginning regular “in-service” as Each has teachers. cooperating supposed teacher to function as who performance “mentor” his and evaluates for the intern’s college. supervising or her Each intern has instruc- also college supposed tors from the dis- who are to visit spent trict. The actual time their co- interns with operating supervising appears teachers and instructors vary widely to pattern. and to have no consistent may granted and, be taken in the to take such court if leave is testimony, depositions may interrogatories be taken and written prior proper hearing provided to the if date set for in ch. 804 cause is shown therefor.” formally Although these facts were not included reasonably fact,” may “findings inferred be commission’s appear from the in the commission’s memorandum. record and 1 0 testimony concerning appears There to be a conflict applicant. rejected more than one intern has the district whether regular not are certified as teachers and The interns teaching licenses.” These possess “intern licenses do work, their and the commission noted little dif- restrict responsibilities their ference between those of assigned regular Interns are fewer classes teachers. supervisory periods, than teachers and to more *15 study Therefore, they spend halls, are able as such etc. during day preparation in of more time the school classes. physical Interns who teach art education classes are and spending elementary option allowed the of time at grades they may schools, kinder- so that be certified for garten through Regular 12. are not allowed this teachers option. for Interns also receive time off to interview employment in other school districts. eighty-
The record indicates that the has district hired part-time regular began nine full- and teachers since it utilizing only year, teacher in interns the 1973-74 school testimony seven of which had served as interns. The also that testimony shows the school that administrator’s primary purpose participating the district’s for in the internship program is to use interns to teach its stu- dents, while the educational benefits incurred secondary interns are to the district. employed
The commission are concluded interns primary teaching purpose the district for the of stu- regular in dents much the same manner as teachers and function However, as such. the commission concluded from the hiring district’s track record in fill students to positions regular expectation teachers that a low employment among continued existed Ac- interns. cordingly, groups the commission concluded that the two community shared no of interest.
The trial Metropolitan court noted that in Madison School (January 7, WERC Dec. No. 14161-A 1977), the community commission found a shared of in- upon terest based “job wages, similar functions, hours employment.” conditions of comparing After these teachers, objective for factors trial concluded that the commission had abused court finding community discretion no of interest based its groups. upon between two dissimilarities agree We with the trial court. also We believe dissimilarities, conjunction these when considered following commission, pro- with the factor noted departure vide the rational basis for the commission’s prior practice finding from a shared interest: they perform “While similar work under similar con- ditions, presumably aspirations teachers, group, of the as a are career-length employ- directed toward a ment; regardless interns, but the purposes for expected them, which the District hires can be to have centering opportunities interests training, practice concerns on learning, on their for hire elsewhere, and eventual and their logically collective would focus subjects.” elemental and (Emphasis short-term
added.) unique centering The interests of the interns around opportunities through the educational to them available internship namely, the program, opportunity the to ob- teaching credentials, clearly tain their prevent them from sharing regular of interest with teach- spite ers. In employing in- district’s reason for 11 appeals Metropolitan The court of that in Madison noted District, 7, 1977), School (January WERC Dec. 14161-A No. temporary replacement commission found that teachers under composed regular contracts should be included within the unit However, temporary teachers. because are teachers students, bearing feel we that this has little on the instant Stoughton case. The court of also referred to Joint (March 1979), School District WERC No. Dec. No. 15458-A teachers, which dealt with or whether resident those enrolled teaching program, a master’s been mem should have treated as regular they taught bers of the teachers’ unit when completing require- the area school district while their master’s Therefore, primarily remain students. terns, the interns necessarily they the short-term bene- concerned with are regular internship offers, while the teach- fits which the long-term career- with the benefits of ers are concerned length very employment. fact that are long-term employment Ar- outside the concerned with working prevents them from rowhead school district purpose as toward the same teachers. We directly internship also believe that the related their program, opposed interests, educational as to economic stipend they receive, as is indicated the low as well supplied by program as the fact are coordi- University They nated also remain Wisconsin. registered during internship. as students It is our view that academic interests are alien em- to the usual ployment relationship, which centers around economic interests. We believe that these academic would interests easily not fall process, within the collective mainly career-length which would be concerned with ob- jectives benefits, such wages, retirement, There- etc. fore, required we explanation find the satisfactory pur- 227.20(8), Stats., suant to sec. for the commission’s prior from practice concerning deviation the interns’ unique keeping (10), interests. This is in with sec. 227.20 which, along logic, with dictates that the commission’s experience concerning in matters the determination of appropriate bargaining given weight.12 units be due ment. decision, Since this was an. arbitration and not a com- decision, mission case, we do not find this relevant to the instant determining due to the fact collective bargaining unit is within the exclusive domain of the commission. See, Metropolitan Madison No. .14161- Dec. (January 7, 1977). *17 A 227.20(10), provides: Section Stats., “Upon weight experience, such review due shall be accorded specialized knowledge competence, agency technical of the involved, discretionary authority upon as well as conferred it. focusing deviation as on the union attacks this positions,
“subjective” of the as characteristics interns’ wages “objective” such as opposed to characteristics employment, the union claims has of which conditions past However, focus. it is clear been the commission’s subjective charac- this concentration on to us disputed position individual’s has been teristics of the past. in In Madison the commission considered (Decem- Joint School No. 14814-A Dec. 7, 1976), the commission determined that clerical ber employes and secretarial had a of interest separate and of mainte- distinct from that custodial and reaching employes. conclusion, nance In the com- this determining mission stated that bar- gaining 111.70(4) (d)2.a., unit under sec. it was aware ensuring unique of “the need for a interests of given group employes will not be subordinated to the interests another unit.” The commission further need, stated that because of this the commission particular looks to the facts of case to determine what appropriate bargaining is the unit. The commission has consistently held and, recently May, to view as following: stated the interpreted “This 111.70(4) Commission has Section (d)2.a. to mean that at times there for a mix need employes opportu- units which afford nity represented to by organiza- be in workable units choosing, may reasonably tions of their own which be expected to be unique concerned with the interests and aspirations in said units.” Madison Employees Water Utilities Association, No. WERC Dec. 19584, p. (May 10, 1982; added). emphasis operates The National Labor Board under a Relations provision somewhat similar MERA.13 to Wisconsin’s 13 29 159(b) provides: U.S.C. sec. “The whether, Board shall decide in each case order to employees rights assure exercising fullest freedom in
601
graduate
issue of whether
with the
The NLRB has dealt
teaching
teaching
research and
assistants at
students
community
colleges
with the
interest
share
their
faculty. The board found that the students’ em-
full-time
graduate
depended on
ployment
their status as
students
faculty
Al-
no
and that
students received
benefits.
the.
though
different
the fact situation involved
somewhat
from the case at hand because the Arrowhead interns
days’
graduate
receive five
sick leave
are not
stu-
teaching
colleges,
dents
at their
we
that the facts
believe
enough
In
are similar
to merit our
consideration.
instance,
although
NLRB concluded
students
faculty,
out
carried
some of the same duties as did the
primarily
and, therefore,
remained
students
did not
share a sufficient
lead
interest
to
to their
single
Adelphi University,
inclusion within
unit.
195
(1972).
Hospital
N.L.R.B.
also,
See
St. Clare’s
Center,
and Health
(1977).
The court of also found that the commission had prior concerning fragmen- deviated practice from its bargaining tation of stated, units. weAs have when we guaranteed toy [Act], purposes the unit for employer unit, collective unit, shall be the craft plant unit, rights or subdivision .” thereof. . . to which this section provides: refers are set out in 29 sec. which U.S.C. “Employees right self-organization, form, have shall to to join, bargain collectively or through assist organizations, labor representatives choosing, engage their own and to in other , right concerted . . activities . and shall also have the to refrain any from Gorman, or such See, all of . .” Basic activities. . R. Text (1976). on Labor Law 68 appears has decisions, it that the commission past
review avoiding separate units. inclined toward been Dec. No. 17494 Germantown School *19 1979) ; Gateway (December 11, WERC VTAE 1979) ; Maple Dis- (November School Dec. No. 17449 28, 1979). (November This trict, Dec. No. 17463 WERC antifragmentation provision of 111.70 is due to sec. provides that the commission (4) (d)2.a., Stats., which fragmentation by main- possible avoid “shall whenever taining keeping practicable in with the as few units as municipal work force.” The commission size of the total interpreted provision has this as follows: statutorily antifragmentation policy “This mandated necessarily preclude does not in cases the creation all policy separate Rather, providing that this units. possible,’ implicitly be followed statute ‘whenever acknowledges separate that can be un- units established der certain circumstances.” Kenosha District No. Dec. No. Unified 1975). (March 11, above, statutory provision
As we stated this became effective in and November 1971. The court applied the union have made it clear that it has been con- commission, sistently and the record does challenged government indicate that it has been or Teachers’ Federation v. courts. Blackhawk WERC, great weight- Therefore, 2d at 423. Wis. applies provision. rational basis standard also to this Utilizing standard, agree we must with the com- interpretation provision. plain mission’s of the The lan- guage 111.70(4) (d)2.a. of sec. that the com- indicates possible” fragmentation. mission “shall whenever avoid single It does not mandate inclusion of within a unit circumstances, all has not and the commission past agree Rather, acted in the as if it has. with the we “implicitly acknowledges” commission that statute separate that units are special situations. given also We believe the same reasons for the finding of a lack of of interest between regular provide teachers intern teachers a rational basis for departure prac- the commission’s past from its concerning fragmentation. tice pri- are marily students, academic, concerned with the rather economic, than employment by benefits of their the dis- trict. Their interests have been characterized as “short- term” grouped the commission. If are within single consisting teachers, unit of the their special clearly minority interests would be in the may go potentially unrecognized. We, therefore, find provided the commission has a rational for its basis *20 concerning fragmentation deviation units. It kept must be in mind 111.70(4) (d), that under sec. legislature given has the commission discretion to determine the bargaining. for units collective recognized This court has that the exercise of discre- agency tion an making simply involves more than choice between stating alternatives without the reasons behind Reidinger the choice. Optometry Examining v. Board, 292, 81 297-98, Wis. 2d (1977). 260 270 N.W.2d We further stated: process are “This depend must on that facts are of record or that reasonably derived inference from the record and a logical conclusion on based rationale upon legal founded proper pointed standards. As we
out in State v. Hutnik (1968), 754, 764, 39 Wis. 2d 733, 159 N.W.2d ‘. . . there should in the be evidence record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth.” Id., citing McCleary v. State, 49 Wis. 2d N.W.2d (1971). that case, that is evidence we find there
In this shown in fact exercise its discretion did commission in memorandum. the facts set forth properly summary, the commission we hold that In excluding the teacher its discretion exercised employes’ bargaining unit. We professional from the explained satisfactorily that commission also hold 227.20(8), prior practice sec. its deviation from under Stats., primarily by finding remained the interns students, corresponding students, interests of with the responsi- notwithstanding the duties and fact their The similar those of teachers. bilities were reversing appeals decision of the court of circuit opinion reversed, is court is the circuit court’s affirmed.
By decision of the court of Court. —The judgment reversed; affirmed. of the circuit court is ABRAHAMSON, (concurring SHIRLEY S. J. dissenting part, 111.70(4) (d)2.a. part). man- Sec. possible that the “shall whenever avoid dates commission fragmentation by maintaining prac- as few units as keeping municipal ticable in with of the total the size findings fact, force.” The commission’s conclusions of law, totally and memorandum decision in this case are fragmentation. legislature silent on the issue of commission, court, has mandated the to consider fragmentation. By deciding this issue this court intrudes on the responsibilities commission’s and exceeds its jurisdiction. I com- would remand this matter to the *21 mission. BABLITCH, (dissenting).
WILLIAM A. I dis- J. I case, sent. conclude that in this the commission de- parted prior practice defining applying from its “community determining of interest” standard in I unit. also conclude there Therefore, deviation. I no rational basis for this appeals. affirm the decision of the court would Wisconsin, Plaintiff-Respondent, State
v. Hecht, Defendant-Appellant-Petitioner. Steven R.
Supreme Court Argued No. 82 - 769-CR. December 1983. January 31, Decided 1984.
(Also reported 721.) in 342 N.W.2d