231 Wis. 607 | Wis. | 1939
This action was brought to enforce compliance by the school board and the city service commission of the city of Milwaukee with sec. 16.765, Stats, (enacted as ch. 107, Laws of 1937), which provides:
“All officers and employees of the school board of any city of the first class with the exception of superintendents, assistant superintendents, principals, teachers and substitute teachers, actually engaged in teaching, shall be selected and have their tenure and employment status determined in accordance with the provisions of sections 16.45 to 16.76 and in accordance with the rules adopted thereunder and the charter ordinance applying to the board of city service commissioners of each such city.”
Under the practice heretofore followed by the school board, the engineer-janitor in each of the one hundred five public school buildings was hired under the civil-service statutes. In addition, some three hundred twenty-two men and
On this appeal the school board contends that the material portions of the court’s findings and conclusions are unsupported and erroneous; that the three hundred twenty-two janitorial helpers, — as well as certain concerns (whose business is the washing of windows and who' are engaged to wash windows at some of the schools) and their employees,— were all engaged by and are employees of the engineer-janitors, and are not city employees; and that sec. 16.765, Stats., properly construed, does not make janitorial helpers city employees or the positions which they hold city positions. In support of those contentions the school board claims that the contracts between it and the engineer-janitors are a special type of independent contract, under which the engineer-janitor’s status is in the nature of that of an independent contractor; that such contracts are not prohibited by law and are valid; and that under them the janitorial helpers are not city employees subject to its Civil Service Act.
Before proceeding to consider those contentions, it must be noted that there is no controversy in relation to employees of the concerns engag'ed in the business of washing-windows. The petitioners do not claim that they are employees of the school board, or subject to appointment under the civil-service laws; and no determination was made by the trial court
“All engineer-janitors shall be under the general supervision and control of the supervising engineer-janitor.
“The engineer-janitor shall be at all times under the immediate direction of the principal. . . .
“He shall report at the school building not later than 7 a. m., but earlier, if necessary, on school days, and be in constant attendance during the entire day, including' the dinner hour, unless, with the principal’s consent, some responsible assistant is left in charge, for whose acts the engineer-janitor shall be responsible. . . .
“The method of sweeping and cleaning, tools and apparatus for the same, and formulas for cleaning and sweeping mixtures, shall be prescribed by the supervising engineer-janitor from time to time. No materials for sweeping and cleaning other than those furnished by the board shall be used by the engineer-janitor. . . .
“Whenever additional outside washing is ordered by supervising engineer-janitor, additional compensation shall be paid, according to the basis provided in the salary schedule.
“The supervising engineer-janitor shall make special provisions covering the cleaning of inaccessible places as skylights, flues, air shafts, and painted walls. . . .
“The engineer-janitor shall . . . report any tampering with the heat regulating apparatus to the supervising engineer-janitor. . . .
*613 “Operation of the ventilating apparatus shall be ill accordance with instructions that shall be issued from time to time by the supervising engineer-janitor. . . .
“Vacation periods not to exceed twenty-one days shall be arranged for with the supervising engineer-janitor. . . . The engineer-janitor shall be subject to such special regulations relative to care of building and supplies during vacation periods as may be issued from time to time by the supervising engineer-janitor. . . .
“Engineer-janitors shall perform such other duties usually attendant upon janitorial service, not inconsistent with those above defined, as may be deemed necessary by the principal or supervising engineer-janitor. . . .
“Principals shall see that these rules are strictly complied with and report any violation thereof to the supervising engineer-janitor.”
Furthermore it appears that the engineer-janitors frequently consulted Emil J. Horn, the supervising engineer-janitor, as to how the work was to be performed, and when a principal’s report showed janitorial work to be unsatisfactory, Horn investigated and if he found that a new helper needed coaching he gave the necessary orders. Sometimes Horn would tell an engineer-janitor to get rid of a helper who did not “fit into the picture.” Principals also gave orders directly to the helpers concerning odd jobs which the principal wanted done around the school. Where a helper was on duty in a building used for social-center purposes during the evening, the engineer-janitor was present only occasionally, and the principal gave most of the orders to the helper, who carried out the principal’s orders. In the monthly reports, which the engineer-janitors had to file, the school board required them to state the name and address and duties of every helper, his hours per day, and rate per hour, and the total amount paid to him, and to have his signed receipt therefor. The board kept records of “rates of compensation paid engineer-janitors’ helpers,” and in Janu
The appointment of the engineer-janitors by the school board, and its supervision and control over them and the performance of all janitorial services, as stated above, was clearly authorized by and entirely in accord and consistent with the provisions in sec. 7, ch. 4S9, Laws of 1907, that,—
“. . . The board [of school directors] shall also have the power, subject to the powers and regulations of the city service commission, to employ all janitors necessary in the schoolhouses of their city and to fix their compensation, but the principal of each school shall be custodian of all buildings and rooms occupied by the school over which he presides and shall have the general supervision over the same, and shall direct the janitor thereof in relation to the keeping and care of such buildings and rooms.”
The relationship thus authorized in respect to “all janitors necessary in the schoolhouses” is characterized as one of employment, — as distinguished from that of an independent contractor, — by the provisions that the board’s power “to employ” is subject to the city service commission’s powers and regulations; that the board shall have the power to^ “employ all janitors” and to “fix their compensation,” — not contract with them as independent contractors; and that the school “principal . . . shall have the general supervision over . . . and shall direct the janitor thereof in relation to the keeping and care of such buildings and rooms.” Under and in accordance with those provisions the board has, in fact, been employing the engineer-janitors under the regulations of the
By the Court. — Judgment affirmed.