Complaint Process Booklet
Information about the WERC Complaint Process
Published by the
Wisconsin Employment Relations Commission
May 1996; revised: Nov. 1999; Oct. 2003; Dec. 2007; Mar. and Jul. 2008; Apr 2012
PREFACE AND ACKNOWLEDGMENTS
Each year many individuals and organizations become involved as parties in cases involving complaints of unfair labor practices or prohibited practices processed by the Wisconsin Employment Relations Commission (WERC).
This informational booklet has been prepared to help you understand the WERC complaint process. It is designed to answer frequently asked questions and to avoid misunderstandings about the process that can result in unnecessary expenditures of time, effort and other resources by parties and the WERC. This booklet is not intended as a substitute for the legal advice and assistance of an attorney, and it does not constitute a WERC decision or rule with the force of law.
The basic outline and much of the contents of this booklet have been drawn from a more general publication entitled Information About Your Administrative Hearing published by the State Bar of Wisconsin Young Lawyers Division and Government Lawyers Division with the support of a grant from the American Bar Association - Young Lawyers Division through the ABA Fund for Justice and Education. That original text was written by John N. Schweitzer, edited by Cheryl Furstace Daniels with assistance from Paul L. Barnett, Thomas M. Boykoff, and Mary Alice Coan, and with comments by several other State Bar of Wisconsin members.
At WERC, the contents were revised to more specifically describe the WERC complaint process.
For more information contact:
Wisconsin Employment Relations Commission
2418 Crossroads Drive, Suite 1000, Madison, WI 53718-7896
(608) 243-2424 fax (608) 243-2433 e-mail: werc@werc.state.wi.us
website: http:\\werc.wi.gov
1 -- INTRODUCTION
2 -- PARTIES
3 -- YOUR RIGHT TO BE REPRESENTED
4 -- THE COMPLAINT
5 -- SETTLEMENT
6 -- PERSON CONDUCTING HEARING
7 -- COMMUNICATING WITH THE HEARING EXAMINER
8 -- THE ANSWER
9 -- PRE-HEARING CONFERENCE AND RULINGS
10 -- COMPELLING WITNESS TESTIMONY / DOCUMENT PRODUCTION
11 -- AN INTERPRETER OR OTHER ACCOMMODATION
12 -- RESCHEDULING, CONTINUING, ADJOURNING
13 -- THE HEARING
a. Importance of Appearing at the Hearing
b. How a Hearing is Conducted
c. Evidence
d. Closing Arguments
e. Transcript
14 -- THE DECISION
15 -- REVIEW AND APPEAL
16 -- APPENDIX
(Forms)
Complaint Instruction Sheet
Sample Complaints and Answers
Blank Complaint Form
(Guides)
Examples of Conduct Prohibited and Rights Protected by the Acts
Elements of Proof Required in Selected Types of Complaint Cases
Resources for Complaint Case Research
1. INTRODUCTION
The Wisconsin Employment Relations Commission (WERC) is a State agency responsible for promoting labor peace in Wisconsin by administering three statutes regulating labor-management relations. The three statutes WERC administers separately cover the municipal, state and private sectors:
MERA, SELRA and WEPA each identifies a set of rights and obligations of employers, employees and employees acting in concert (i.e., unions). Each law makes the complaint adjudication procedures in Sec. 111.07, Stats., applicable as a means of preventing and remedying violations of those rights or obligations. Examples of prohibited conduct and of the rights of employees and employers and the elements of proof of selected types of complaint cases are listed in the Appendix at the end of this booklet.
WERC is authorized to prevent practices prohibited by those statutes by adjudicating (hearing and deciding) complaints that such practices have been committed. WERC conducts administrative hearings to resolve such complaints.
A WERC complaint hearing is similar to a court trial, though somewhat less formal. A WERC hearing examiner conducts a hearing to establish a record of facts and then applies the applicable law to those facts in a decision concerning the rights and obligations of the parties involved in the dispute. At the hearing, each party is allowed to tell its side of the story.
Chapter 227 of the Wisconsin Statutes is the general law governing the procedural aspects of administrative hearings. WERC complaint procedures are also more specifically governed by Sec. 111.07 of the Wisconsin Statutes. In addition, the Commission has issued administrative rules further detailing the procedures applicable to complaint proceedings. Those rules appear in Chapters ERC 1 and 2 (private sector), 10 and 12 (municipal sector) and 20 and 22 (state sector) of the Wisconsin Administrative Code, and by references in each sector's rules to additional provisions in ss. ERC 18.08.
The Wisconsin Statutes and Wisconsin Administrative Code can be found in public libraries and in booklets that can be obtained at a nominal cost by contacting the WERC Madison office. The Statutes and Rules are also available on the WERC website (http://werc.wi.gov) along with a full-text searchable decisions database and other case-processing resources.
2. PARTIES
A "party" in a case refers to a person or organization entitled to be heard in the case. Unless and until the WERC or its hearing examiner rules otherwise, you are a party if you file a complaint or a complaint is filed against you.
In some cases, other persons referred to as "intervenors" may also participate as a party in a complaint case. The WERC or its hearing examiner may allow intervenors to participate if that party successfully argues that a decision in the matter would specifically affect them such that they should be heard before that decision is made.
3. YOUR RIGHT TO BE REPRESENTED
Each party is responsible for preparing and presenting its own case in WERC complaint hearings. You may choose to be represented by yourself or by an attorney or by an advocate who is not an attorney. If you decide to be represented by someone other than yourself, you must choose your own attorney or other representative. Neither the hearing examiner, nor anyone else at WERC, nor the opposing party's attorney, is allowed to recommend an attorney or other representative. Each party ordinarily pays its own attorney or representative. The WERC awards attorney fees only in very limited circumstances.
If you intend to be represented by an attorney, you should make those arrangements promptly. Many attorneys will not take a legal matter at the last minute.
If you will be represented by someone other than yourself, you or your representative should promptly advise the WERC and all other parties in writing of the name, address and phone number of your selected representative.
In a complaint, the charging party (referred to as the complainant) states the reasons why the complainant claims that an individual or organization (known as the respondent) has committed a prohibited practice (under MERA) or an unfair labor practice (under SELRA or WEPA). The complaint is the formal document that gives the respondent notice of what the respondent must be prepared to defend or to answer. At a minimum, the complaint should contain the following:
Detailed instructions concerning filing a complaint are in the Appendix, along with two sample complaints, corresponding sample answers and a blank complaint form. Additional blank complaint forms can be obtained by photocopying that blank form or by requesting additional forms from the WERC Madison office.
Section 111.07 requires that, to be timely, complaints must be filed not more than one year from the date of the specific act or prohibited (or unfair labor) practice alleged.
Once the WERC receives a complaint and filing fee, it will mail a copy of the complaint to the respondent(s) named in the complaint. After a complaint is mailed to a respondent by the WERC, that person becomes a party to the complaint proceeding.
Many cases are settled by agreement without a hearing. The WERC encourages parties to settle their disagreements in that way if possible.
To assist the parties in exploring settlement, the WERC initially assigns many (but not all) complaint cases to a conciliator. Where a conciliator is initially assigned, that person, who is a member of the Commission's professional staff, will contact the parties' representatives in an effort to help the parties work out a settlement, if possible. The conciliator will not disclose what is said by the parties in settlement discussions to anyone at the WERC who will be involved in deciding your case. You are free at any time to communicate with the WERC conciliator assigned to your case or with the other party's representative to discuss the possibility of settlement.
In cases initially assigned to a conciliator, it is the WERC's practice neither to assign a hearing examiner nor to schedule a hearing while conciliation efforts are continuing. However, if requested by any party, WERC will assign a hearing examiner and a hearing will be scheduled without regard to the status of conciliation efforts. In addition, if requested by any party, the hearing will be scheduled for a date that is within 40 calendar days of the WERC's receipt of that request.
6. PERSON SCHEDULING AND CONDUCTING HEARING
The person who schedules and conducts the hearing is called the hearing examiner. Hearing examiners in WERC complaint cases are employees of the WERC. The hearing examiner is responsible for processing the complaint in a fair and impartial manner and for providing all parties with a full opportunity to be heard regarding all of the issues in the case. The hearing examiner is not responsible for preparing or presenting any party's pleadings, evidence or arguments.
When assigned a complaint case, the hearing examiner will contact the parties' representatives in an effort to schedule the hearing, if possible, for a date, time and location convenient to all parties. Hearings are often conducted at courthouses or other public buildings geographically close to the parties. Hearings are sometimes conducted at the WERC's headquarters in Madison.
The hearing examiner will then ordinarily issue a notice of hearing specifying, among other things, the time, date and location of the hearing and the date by which the respondent(s) are to answer the complaint.
7. COMMUNICATING WITH THE HEARING EXAMINER
You are allowed to contact the hearing examiner or other WERC personnel with questions about how your hearing will be procedurally conducted and about the procedural rules you must follow. However, the hearing examiner cannot privately communicate with you or any party about the facts of the case or how best to present them.
If you write to the hearing examiner, you must also, at the same time, send a copy of your correspondence to the persons representing the other parties and directly to any party who is not represented.
In some cases, if all parties agree, the hearing examiner may mediate settlement discussions to assist the parties in reaching a settlement. Otherwise, settlement discussions are not to be disclosed to the hearing examiner.
If you are a respondent, filing your answer to the complaint involves sending your written response to the hearing examiner assigned to the case and sending a copy to the other persons as directed in the notice of hearing. If meeting the deadline for submitting your answer specified in the notice of hearing presents a problem for you, you should contact the hearing examiner and, if necessary, request an extension of time.
It is important that your answer respond to every numbered paragraph of the complaint. In doing so you may:
You may add any explanation which you think appropriate. You may also raise one or more reasons which constitute a legal defense to the claims asserted in the complaint. Examples of legal defenses to complaints include assertions that the WERC lacks jurisdiction of the parties or the subject matter of the complaint; that the conduct complained of in the complaint does not constitute a prohibited or unfair labor practice; that the complaint has not been filed within the one-year time limit in Sec. 111.07(14), Stats.; that the complainant has waived its right to pursue the complaint by prior agreement or conduct; or that the complainant has failed to exhaust available contractual remedies that the complainant agreed were to be the exclusive method for resolving disputes about the conduct alleged in the complaint. Two sample answers appear in the Appendix.
If you include a complaint of your own (a counter-complaint) with your answer, you must include the applicable filing fee and meet the other requirements for a complaint described in 4, above.
9. PRE-HEARING CONFERENCE AND RULINGS
In some cases, the hearing examiner will conduct at least one pre-hearing conference, by phone or in person. You are required to participate in such a conference if one is scheduled. If you cannot, you must contact the hearing examiner promptly to ask for a rescheduling.
The purposes of a pre-hearing conference include:
If you are uncertain about whether you will need to produce a particular witness or document because, for example, you do not know whether the facts to which that evidence relates are disputed, you or your attorney or other representative may contact the hearing examiner to suggest that the issue be discussed with the parties in a pre-hearing conference.
Hearing examiners are also called upon in some cases to rule on "motions" or requests of parties concerning the nature and scope of the hearing or other procedural matters. Some such issues cannot be ruled upon until the parties have had an opportunity to present evidence or argument. Other motions may or must be ruled upon before a hearing is convened or reconvened. Rulings on motions are ordinarily issued or confirmed in writing to all parties or stated on the record at the hearing.
10. COMPELLING WITNESS TESTIMONY / DOCUMENT PRODUCTION
You may want to have one or more witnesses testify and/or produce specified documents for you at a scheduled hearing. If so, you are responsible for causing the witness(es) to do so. You may arrange for witnesses to appear voluntarily at the hearing. If a person will not agree to appear or will not voluntarily produce documents you need to submit as evidence, you may use a subpoena to cause that person to do so. Your attorney can issue a subpoena or you or your attorney or other representative may request that the hearing examiner do so.
If the hearing examiner supplies you with a subpoena at your request, you must arrange to have the subpoena served on the witness. You can do this yourself as long as you prepare an affidavit of service, or you can have it served by the sheriff's office or a private process-server. Along with a subpoena, you must include payment to the witness of the statutory daily fee (currently $16.00) and mileage (currently 20 cents per mile from home to hearing location and back) for appearing. The applicable fees are those specified in Secs. 814.67(1)(b) and (c) of the Wisconsin Statutes. It is also a good idea to attach a map or directions to the hearing location.
The WERC complaint case rules ordinarily limit pre-hearing discovery to circumstances where it is needed to take and preserve evidence with respect to a witness who is beyond the reach of a subpoena, about to go out of state and not return in time for the hearing, or unlikely to be able to attend the hearing due to sickness, infirmity or age. If you intend to pursue pre-hearing discovery in such circumstances, you need to communicate your intent to do so to the hearing examiner and the other parties by means of a motion for pre-hearing discovery under s. ERC 12.04(2)(c) of the WERC rules.
11. AN INTERPRETER OR OTHER ACCOMMODATION
If you need an interpreter to help you or a witness understand or communicate, or if you need some accommodation with regard to a disability, you should contact the hearing examiner. The hearing examiner will attempt to arrange the hearing so that you or a witness can participate fully.
12. RESCHEDULING, CONTINUING, ADJOURNING
Prior to the hearing, if a good reason is shown by either party, the hearing examiner can reschedule the hearing. If you request rescheduling of a hearing, your request should include the reason for the request, alternate dates on which you would be available, and whether any other party objects to your request. Once a hearing has started, the hearing examiner may adjourn and continue it on another day if more time is necessary, or if a witness cannot appear for a good reason. Rescheduling of the hearing may require reissuance of subpoenas with the revised time, date and location for the rescheduled hearing.
13. THE HEARING
a. Importance of Appearing at the Hearing
If your case is not settled or rescheduled, you must appear on the date specified in the notice of hearing. If you fail to appear without adequate excuse and the hearing is conducted and concluded in your absence, you will ordinarily be prevented from questioning the other party's witnesses and from submitting evidence of your own in the matter.
When you appear, the hearing will be conducted similar to a trial, but without a jury. The hearing examiner will conduct the hearing and make rulings on procedure, the evidence which may be presented, and objections. The hearing is open to the public, but only parties are permitted to actively participate. One person will be allowed to speak at a time, and all objections, arguments and requests are to be addressed to the hearing examiner.
Each party may make an opening statement. If you choose to make one, you should briefly summarize your view of the case for the hearing examiner. Each party may then present evidence.
The complainant ordinarily has the burden of proving that the allegations in the complaint are true. Accordingly, the complainant usually presents its evidence first, after which the respondent is offered an opportunity to present evidence.
Evidence presented at WERC complaint hearings is typically in the form of documents or oral testimony from witnesses. Parties should ordinarily have enough extra copies of documents they are offering as evidence so that each of the parties and the hearing examiner will be supplied with a copy at the hearing. Witnesses will be sworn to tell the truth and subject to questioning by all parties in turn: first by the party who calls the witness (direct examination) then by the other party (cross examination). Follow-up questioning by the parties in turn is also permitted (re-direct and re-cross examination). If you are representing yourself in the hearing, you may testify under oath without using questions and answers. You will then be subject to questioning by the other parties. You may also be called as a witness by another party. Unlike sworn testimony, the parties' opening statements are not given under oath and are not evidence.
Some rules of evidence limit what can be made a part of the record. This booklet does not attempt to explain all the rules. However, in general, your evidence should relate to facts that will assist the hearing examiner in deciding the disagreements in the case. Evidence which unduly repeats matters already in the record or which is not relevant to the issues in dispute would merely slow down the hearing and may be objected to by the other party and not allowed by the hearing examiner.
Generally speaking, witnesses can testify only about matters of which they have personal knowledge. Although in some instances the hearing examiner may allow testimony about what a witness was told by someone else, your case will be stronger if you present witnesses who can testify about the facts first-hand.
After all the evidence has been presented, the hearing examiner will permit each party to present closing arguments. The hearing examiner will discuss with the parties whether they wish to make their closing arguments by submitting a written brief or by summing up orally on the record at the hearing.
Closing arguments, in whatever form they are submitted, may summarize or comment on the evidence that has been presented, suggest how much credit or weight should be given to certain testimony, explain evidence that might appear confusing, and argue how the case should be decided. The closing arguments can suggest the factual findings the hearing examiner should make based on the record evidence and the legal conclusions and orders that the hearing examiner should make based on those facts. Closing arguments must relate only to evidence presented during the hearing. Additional evidence cannot be submitted as a part of closing arguments.
Each hearing is recorded by a stenographic reporter who is not a WERC employee but whose services are arranged by the WERC. You may order a copy of the transcript from the reporter. The per page rate charged by the reporter may vary depending on how many parties order a transcript. You will be permitted to discuss the applicable rates with the reporter before you decide whether to order a copy of the transcript.
Once the closing arguments have been submitted, the hearing examiner is responsible for issuing a written decision containing Findings of Fact, Conclusions of Law and an Order. That decision will set out the facts of the case, the law that governs the case, and the application of the law to the facts. If a prohibited (or unfair labor) practice is found to have been committed, the decision will also specify what remedial action(s) the respondent is being required to take to provide relief to the complainant regarding the violation.
The hearing examiner's decision will be mailed to all parties. It will be accompanied by a notice of appeal rights. An appeal may be made by any party who disagrees with any outcome in the decision. The notice will explain how to make an appeal.
15. REVIEW AND APPEAL
The hearing examiner's decision is subject to review and decision by the Employment Relations Commission. Any party may request a Commission review of the examiner's decision or the Commission can choose to review it on its own. The applicable appeal procedures and time limits are set forth in Sec. 111.07 (5), Stats. Although it is not required, it is helpful for a petition for review to identify the aspects of the hearing examiner's decision (factual or legal) or of the hearing examiner's procedural processing of the case that the party petitioning for review is dissatisfied with, giving reasons for that dissatisfaction with citations to the examiner's decision, hearing transcript and exhibits, as appropriate.
In the event the Commission review is timely requested or initiated, the Commission will ordinarily receive and consider additional written arguments from the parties before it decides the case. The review decision of the Commission will be accompanied by a notice concerning rights to petition for a Commission rehearing and to appeal the Commission decision in the courts. The Commission will ordinarily seek enforcement of its review decision in court, if necessary, to obtain compliance and it will ordinarily defend its review decision in court in response to an appeal.
If no Commission review is timely requested or initiated, the decision of the examiner becomes the decision of the Commission by operation of law. However, the WERC takes the position that a party cannot file a petition for judicial review pursuant to Sec. 227.53, Stats., unless that party has exhausted its administrative remedy by filing a petition for review with the Commission.
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Ce/Cw/MP/PP(S) Detailed Instructions 02/07 |
STATE OF WISCONSIN WISCONSIN EMPLOYMENT RELATIONS COMMISSION 2418 Crossroads Drive, Suite 1000, Madison 53718-7896phone: 608-243-2424 fax: 608-243-2433 e-mail: werc@werc.state.wi.us |
Detailed Instructions For Filing A
COMPLAINT
Alleging Unfair Labor Practices or Prohibited Practices Under
Chapter 111, Wis. Stats.
The rules of the Commission provide that complaints alleging unfair labor practices or prohibited practices may be filed by any party in interest and require that they must be in writing. The complaint must be signed or include a signature facsimile. If the complaint is filed in paper form, a total of three copies of the complaint shall be included, together with one additional copy for each named respondent.
The rules also require that certain material must be included in each complaint. It is suggested that in the first paragraph of the complaint there be included a statement as to the full name, address, phone number, e-mail address (if any), and fax number (if any) of the person or persons making the complaint. The second paragraph of the complaint should contain the same information for the person or persons against whom the complaint is made. It will help us process the complaint if you number each paragraph of the complaint.
In as many additional paragraphs as are required, the complaint should contain a clear and concise statement of the facts constituting the unfair labor practices or prohibited practices. It must include the time and place of occurrences of the particular acts and the names of the person involved. This means, of course, that it is not sufficient to merely allege that some person or organization is committing an unfair labor practice or prohibited practice in violation of the statute. Rather, the complaint must state the actions that constitute the unfair labor practice or prohibited practice. In addition, the complaint needs to identify what part of the applicable statute defining unfair or prohibited practices are alleged to have been violated. Private sector unfair labor practices are defined in Sec. 111.06, Wis. Stats.; municipal sector prohibited practices are defined in Sec. 111.70(3), Wis. Stats., and state sector unfair labor practices are defined in Sec. 111.84, Wis. Stats. Each of those provisions contains various parts. Your complaint should state which part or parts of the applicable statute you allege have been violated. The Commission also asks that you state in your complaint what relief or remedy you are seeking.
Your complaint will not be considered filed until the Commission also receives the appropriate statutory filing fee. If you have any questions concerning the above information you can call (608) 266-1381.
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
------------------------------------------------
John Doe, Complainant
v.
XYZ Corporation, Respondent
-------------------------------------------------
1. John Doe is an individual residing at 123 Sycamore Street, Smithtown, Wisconsin 53200. John Doe's telephone number is (414) 555-1234. John Doe's e-mail address is jdoe@aol.com. John Doe's fax number is unknown.
2. XYZ Corporation is an employer doing business in Southtown, Wisconsin and with offices at 987 Elm Road, Southtown, Wisconsin 53400. XYZ Corporation's personnel director is Jane Jones whose business phone number is (414) 555-4321. Her e-mail address is jane.jones@xyz.com, and her business fax number is (414) 555-4322.
3. For several years prior to January 2, 1995, John Doe was employed by XYZ Corporation at its Southtown, Wisconsin facility.
4. For several weeks preceding January 2, 1995, John Doe was engaged in lawful concerted activities for mutual aid and protection of himself and several other XYZ employees. These activities included encouraging the employees to form a labor organization and speaking up on behalf of other employees in discussions with XYZ supervisors about work-related grievances on November 2, December 8 and December 11, 1994.
5. As of January 2, 1995, XYZ supervisors Joe Smith and Fred James had personally observed John Doe engaging in the activities described in 4, above.
6. On January 2, 1995, XYZ Corporation discharged John Doe from his employment with the firm.
7. XYZ Corporation's discharge of John Doe was motivated, at least in part, by John Doe's having previously engaged in lawful concerted activities on behalf of himself and other employees of XYZ.
8. By its discharge of John Doe, XYZ Corporation committed an unfair labor practice in violation of Secs. 111.06(1)(c)1 and (1)(a) of the Wisconsin Statutes.
9. As the remedy for the unfair labor practices noted above, the Wisconsin Employment Relations Commission should declare that XYZ Corporation has committed the unfair labor practices alleged above and order XYZ to: cease and desist from such violations in the future; post a notice to that effect; offer to reinstate John Doe to a position equivalent to that which he held immediately prior to his discharge; and make John Doe whole financially for the losses of pay and benefits he has experienced by reason of the discharge.
10. The required filing fee accompanies this complaint.
I declare that I have read the contents of this complaint and that the statements it contains are true to the best of my knowledge and belief.
_____/s/ John Doe_______ Date: ___12-12-95____
[Sample Answer to Sample Complaint #1]
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
------------------------------------------------
John Doe, Complainant
v.
XYZ Corporation, Respondent
-------------------------------------------------
ANSWER OF XYZ CORPORATION TO JOHN DOE'S COMPLAINT DATED 10-10-95
XYZ Corporation, in answer to John Doe's complaint dated 12-12-95:
1. Admits paragraphs 1, 2 and 3 of the complaint.
2. Denies paragraphs 4 and 5 of the complaint except alleges that it does not know whether John Doe encouraged employees to form a labor organization at any time preceding January 2, 1995 and admits that John Doe spoke on behalf of other employees in discussions with XYZ supervisors about work-related grievances on December 8, 1994.
3. Admits paragraph 6 of the complaint.
4. Denies paragraphs 7 and 8 of the complaint.
5. Denies that XYZ Corporation has engaged in conduct that would warrant the relief requested in paragraph 9 of the complaint.
6. Does not know whether paragraph 10 of the complaint is true.
I declare that I have read the contents of this answer and that the statements it contains are true to the best of my knowledge and belief.
XYZ Corporation, by Jane Jones, Personnel Director
_____/s/ Jane Jones_______ Date: ___2-3-96____
[Sample Complaint #2]
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
------------------------------------------------
Ed Doe, Complainant
v.
ABC Union and Elm Area School District, Respondents
-------------------------------------------------
COMPLAINT
1. Ed Doe is an individual residing at 123 Sycamore Street, Smithtown, Wisconsin 53200. Ed Doe's telephone number is (414) 555-1234. Ed Doe's e-mail address is edoe@charter.com. Ed Doe has no fax number.
2. Elm Area School District is a municipal employer with offices at 543 Main Street, Elm, WI 55555, and a business phone of (414) 999-4444. Elm Area School District's personnel director is Ann Smith. Ann Smith's business e-mail address is asmith@elm.k12.wi.us. Ann Smith's business fax number is (414) 999-4445.
3. ABC Union is a labor organization with offices at 1413 Edgarville Road, Columbia, WI 53700 and a phone number of (608) 555-7777. Terry Williams is the president and business agent of ABC Union. His business e-mail address is terry.williams@abcunion.org. His business fax number is (608) 555-7778.
4. For several years prior to January 2, 1995, ABC Union has represented a bargaining unit of non-supervisory custodial and maintenance workers at Elm Area School District. The District and Union are parties to a series of collective bargaining agreements including the latest one covering calendar years 1995 and 1996. The agreement prohibits discharges of bargaining unit employees without just cause and contains a multi-step grievance procedure ending in final and binding grievance arbitration.
5. For several years prior to January 2, 1995, Ed Doe was employed by Elm Area School District as a custodian in the bargaining unit represented by ABC Union.
6. On January 2, 1995, Elm Area School District discharged Ed Doe from his employment there without just cause and in violation of the 1995-96 agreement.
7. By its discharge of Doe, the District committed a prohibited practice in violation of Sec. 111.70(3)(a)5 and 1 of the Wisconsin Statutes.
8. Doe filed a grievance claiming that the discharge violated the just cause requirement of the 1995-96 agreement. That grievance was denied by the District at all pre-arbitration steps of the agreement grievance procedure.
9. Since February 8, 1995, ABC Union has failed and refused to submit Doe's grievance to the final and binding arbitration procedure set forth in the 1995-96 agreement.
10. ABC Union's refusal to submit Doe's grievance to arbitration is arbitrary, capricious and in bad faith. As such it constitutes interference with Doe's MERA rights and a prohibited practice violative of Sec. 111.70(3)(b)1 of the Wisconsin Statutes.
11. Because ABC Union has unlawfully refused to submit Doe's grievance to arbitration, the Commission should decide the merits of the grievance without deferring to the results reached in the grievance procedure.
12.
As the remedy for the prohibited practices noted above, the Wisconsin
Employment Relations Commission should declare that the respondents have
committed the prohibited practices alleged above and should order both
respondents to cease and desist from such violations in the future and to post
notices to that effect. The Commission should also order the District to offer
to reinstate Ed Doe to a position equivalent to that which he held immediately
prior to his discharge, and to make Ed Doe whole financially for the losses of
pay and benefits he has experienced by reason of the discharge.
13. The required filing fee accompanies this complaint.
I declare that I have read the contents of this complaint and that the statements it contains are true to the best of my knowledge and belief.
_____/s/ Ed Doe_______ Date: ___12-12-95____
[Sample Municipal Employer Answer to Sample Complaint #2]
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
------------------------------------------------
Ed Doe, Complainant
v.
ABC Union and Elm Area School District, Respondents
-------------------------------------------------
MUNICIPAL EMPLOYER'S ANSWER
Respondent Elm Area School District answers Ed Doe's 10-10-95 complaint by:
1. Admitting paragraphs 1-5 of the complaint.
2. Denying paragraphs 6-8 of the complaint. Alleging that Doe was discharged for cause and hence not in violation of the collective bargaining agreement or of MERA.
3. In response to paragraph 9 of the complaint, admitting that ABC Union has not submitted Doe's grievance to the final and binding arbitration procedure set forth in the 1995-96 agreement.
4. Denying paragraphs 10 and 11 of the complaint in all respects.
5. Asserting that by reason of ABC Union's decision not to submit the grievance to arbitration, the grievance is deemed settled on the basis of the District's denial thereof. The Commission should defer to that result reached in the exclusive grievance procedure contained in the parties' 1995-96 agreement. In the alternative, the Commission should order the parties to submit the grievance to arbitration rather than deciding its merits.
6. Denying that any of the relief requested in paragraph 13 of the complaint is appropriate.
7. Alleging that it does not know whether the required filing fee accompanied the complaint.
8. Requesting that the complaint be dismissed in its entirety.
I declare that I have read the contents of this answer and that the statements it contains are true to the best of my knowledge and belief.
Elm Area School District, by Ann Smith, Personnel Director
_____/s/ Ann Smith___ Date: ____12-12-95____
MP/PP/Ce/Cw 01/08
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WISCONSIN EMPLOYMENT RELATIONS COMMISSION 2418 Crossroads Drive, Suite 1000, Madison 53718-7896 phone: 608-243-2424 fax: 608-243-2433 e-mail: werc@werc.state.wi.us |
Instructions: Please provide the following information in numbered paragraphs. Use additional sheets as needed. If the filing is in paper form, submit a total of 3 copies of the complaint, plus one additional copy for each named respondent. Complaint filing is not complete until the Commission has received both the complaint and the required $80.00 ($100 effective 1-2-08) filing fee. For more detailed complaint filing instructions, see Form WERC-06A.
_______________________________________________________________________
____________________________________
____________________________________
Complainant,
vs.
____________________________________
____________________________________
Respondent.
A. What is the name, address, phone number, e-mail address (if any) and fax number (if any) of the person/party making the complaint?
B. What is the name, address, phone number, e-mail address (if any) and fax number (if any) of the person/party against whom the complaint is being made?
C. What are the facts which constitute the alleged unfair labor or prohibited practices?
D. What part or parts of the applicable statute defining unfair labor or prohibited practices are alleged to have been violated?
E. What remedy do you seek?
I declare that I have read the contents of this complaint and that the statements it contains are true to the best of my knowledge and belief.
________________________________________
Complainant’s Signature or Signature Facsimile
Examples of Conduct Prohibited and Rights Recognized
by Wisconsin Labor Relations Statutes
[bracketed statutory references are to MERA, SELRA and WEPA, respectively]
Practices employers are prohibited from engaging in include:
- interference, restraint, coercion of employees in exercise of their rights, by, for example:
- threats of reprisal
- interrogation
- promises of benefit
- surveillance
[Secs. 111.70(3)(a)1.; 111.84(1)(a); 111.06(1)(a), Stats.]
- discrimination based at least in part on union attitudes or activities
[Secs. 111.70(3)(a)3. 111.84(1)(c); 111.06(1)(c), Stats.]
- failure to bargain in good faith with majority representative
- refusal to meet at reasonable times and places
- refusal to deal with designated representative(s)
- refusal to discuss mandatory subjects of bargaining
- refusal to reduce agreements reached to writing
- unilateral changes in status quo mandatory subjects, absent valid defense
- bypassing the union by bargaining with employees individually
- totality of conduct demonstrating lack of good faith in bargaining
[Secs. 111.70(3)(a)4.; 111.84(1)(d); 111.06(1)(d), Stats.]
- violation of collective bargaining agreement including:
- refusal to submit grievances to final and binding arbitration
- refusal to comply with final and binding grievance arbitration award
- noncompliance with other terms of a collective bargaining agreement
[Secs. 111.70(3)(a)5.; 111.84(1)(e); 111.06(1)(f) or (g), Stats.]
- failure to implement a lawfully made Sec. 111.70(4)(cm), Stats. interest award
[Sec. 111.70(3)(a)7., Stats.]
Practices employees or unions are prohibited from engaging in include:
- restraint or coercion of employees in the exercise of their rights
[Secs. 111.70(3)(b)1.; 111.84(2)(a); 111.06(2)(a), Stats.]
- failure of majority representative to bargain in good faith with employer
- refusal to meet at reasonable times and places
- refusal to deal with designated representative(s)
- refusal to discuss mandatory subjects of bargaining
- refusal to reduce agreements reached to writing
- unilateral changes in status quo mandatory subjects, absent valid defense
- totality of conduct demonstrating lack of good faith in bargaining
[Secs. 111.70(3)(b)3.; 111.84(2)(c), Stats.]
- failure of majority representative to fairly represent employees
[Secs. 111.70(3)(b)1.; 111.84(2)(a); 111.06(2)(a), Stats.]
- majority representative violation of collective bargaining agreement including:
- refusal to submit grievances to final and binding arbitration
- refusal to comply with final and binding grievance arbitration award
- noncompliance with other terms of a collective bargaining agreement
[Secs. 111.70(3)(b)4.; 111.84(2)(d); 111.06(2)(c) or (d), Stats.]
- failure to implement a lawfully made Sec. 111.70(4)(cm), Stats., interest award
[Secs. 111.70(3)(b)6., Stats.]
- strikes in state sector
[Secs. 111.84(2)(e), Stats.]
- (strikes in municipal sector are, instead, subject to court injunction/penalties)
[Secs. 111.70(7) and (7m), Stats.]
Employee rights include:
- to join, form, assist labor organization
- to bargain collectively about mandatory subjects of bargaining through representatives selected by majority of employees
- to engage in other lawful concerted activities for mutual aid and protection (including the right to strike for private sector employees)
- to refrain from such activities
[Secs. 111.70(2); 111.82; 111.04, Stats.]
Employer rights include:
- to make level of service and various other key decisions regarding the management and direction of the governmental unit or other employer free of mandatory bargaining about the decisions themselves (and subject only to the duty to bargain about the impact of those decisions on employee wages, hours or other conditions of employment)
- to have management interests balanced against employee interests in determining whether employee rights are being interfered with, examples:
- no solicitation rules;
- right to representation in investigative interviews.
- to exercise free speech (but not including threats of reprisal or promises of benefit)
[Secs. 111.70(1)(a); 111.90, Stats.]
Elements of Proof Required in Selected Types of Complaint Cases
(The examples below involve cases arising under MERA. The governing case law principles would be the same under the parallel provisions of SELRA and WEPA, except as regards the standards for determining mandatory, permissive and prohibited subjects of bargaining.)
Section 111.70(3)(a)1, Stats., makes it a prohibited practice for a municipal employer "[t]o interfere with, restrain or coerce municipal employees in the exercise of their rights guaranteed in sub. (2)." Under Section 111.70(2), Stats., the rights protected by Sec. 111. 70(3)(a)1, Stats., include, among others, "the right of self-organization, and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .
The Commission has held that allegations of independent violations of Sec. 111.70(3)(a)1, Stats., are to be analyzed by use of the four-part test outlined below regarding violations of Sec. 111.70(3)(a)3, Stats., "in cases . . . where the essence of the violation lies in the employer's motive for taking adverse action against one or more employees, such as claims of retaliation. In such cases, if lawfully motivated, adverse actions will not be found violative of (3)(a)1 "simply because it could be perceived as retaliatory." Clark County, Dec. No. 30361-B (WERC, 11/03) at 15.
For other claimed violations of Sec. 111.70(3)(a)1, Stats., a prohibited practice occurs when employer conduct has a reasonable tendency to interfere with, restrain or coerce employees in the exercise of their Sec. 111.70(2) rights. WERC v. Evansville, 69 Wis.2d 140 (1975). If after evaluating the conduct in question under all the circumstances, it is concluded that the conduct had a reasonable tendency to interfere with the exercise of Sec. 111.70(2) rights, a violation will be found even if the employer did not intend to interfere and even if the employee(s) did not feel coerced or was not in fact deterred from exercising Sec. 111.70(2) rights. Beaver Dam Schools, Dec. No. 20283-B (WERC, 5/84); City of Brookfield, Dec. No. 20691-A (WERC, 2/84); Juneau County, Dec. No. 12593-B (WERC, 1/77). However, exceptions to that general rule have been recognized by the Commission in prior cases. For example, in recognition of the employer's free speech rights and of the general benefits of "uninhibited" and "robust" debate in labor disputes, employer remarks which inaccurately or critically portray the employee's labor organization and thus may well have a reasonable tendency to "restrain" employees from exercising the Sec. 111.70(2) right of supporting their labor organization generally are not violative of Sec. 111.70(3)(a)1, Stats., unless the remarks contain implicit or express threats or promises of benefit. Ashwaubenon Schools, Dec. No. 14474-A (WERC, 10/77); Janesville Schools, Dec. No. 8791 (WERC, 3/69).
It is also established that employer conduct which may well have a reasonable tendency to interfere with employee exercise of Sec. 111.70(2) rights will generally not be found violative of Sec. 111.70(3)(a)1, Stats., if the employer had a valid business reason for its actions. E.g., Brown County, Dec. No. 28158-F (WERC, 12/96); Cedar Grove-Belgium Schools, Dec. No. 25849-B (WERC, 5/91); City of Brookfield, Dec. No. 20691-A (WERC, 2/84); see generally, Waukesha County, Dec. No. 14662-A (Gratz, 1/78) at 22-23, aff'd -B (WERC, 3/78) and Kenosha Schools, Dec. No. 6986-C (WERC, 2/66) (In relation to a claim of interference, "[r]ules established by a municipal employer in effectuation of its public function, which regulate, on a non-discriminatory basis, the activities of its employes and their representatives on the employer's time and premises, and which may arguably limit the rights and protected activities of employes, as established in Section 111.70, Wisconsin Statutes, shall be presumed valid. Whether said rules constitute . . . prohibited practices, will depend on the facts in each case. The rights of the employes and their representatives must be balanced with the obligation and duties of the municipal employer. . . ." Id. at 22-23).
Section 111.70(3)(a)3, Stats., makes it a prohibited practice for a municipal employer: "3. To encourage or discourage a membership in any labor organization by discrimination in regard to hiring, tenure, or other terms or conditions of employment; but the prohibition shall not apply to a fair-share agreement." Under the four-part test to establish a violation of Sec. 111.70(3)(a)3, Stats., it must be proved by a clear and satisfactory preponderance of the evidence that the municipal employee was engaged in protected, concerted activity; that the municipal employer's agents were aware of that activity; that the municipal employer, or its agents, were hostile towards that activity; and that the municipal employer's actions toward the municipal employee were motivated, at least in part, by its hostility toward the municipal employee's protected, concerted activity. Muskego-Norway Schools v. WERB, 35 Wis.2d 540 (1967); Employment Relations Department v. WERC, 122 Wis.2d 132 (1985).
With regard to alleged unilateral change refusals to bargain violative of Section 111.70(3)(a)4., Stats., that section provides, in relevant part, that it is a prohibited practice for a municipal employer, "To refuse to bargain collectively with a representative of a majority of its employees in an appropriate collective bargaining unit."
In Washburn Public Schools, Dec. No. 28941-B (WERC, 6/98), the Commission stated:
It is well settled that during a contract hiatus, absent a valid defense, a municipal employer violates Sec. 111.70(3)(a)4, Stats., if it takes unilateral action as to mandatory subjects of bargaining in a manner inconsistent with its rights under the dynamic status quo. St. Croix Falls School Dist. v. WERC, 186 Wis.2d 671 (1994) affirming Dec. No. 27215-D (WERC, 7/93); Racine Education Association v. WERC, 214 Wis.2d 352 (1997); Village of Saukville, Dec. No. 28032-B (WERC, 3/96); Mayville School District, Dec. No. 25144-D (WERC, 5/92) aff'd Mayville School District v. WERC, 192 Wis.2d 379 (1995); Jefferson County v. WERC, 187 Wis.2d 647 (1994) aff'g Dec. No. 6845-B (WERC, 7/94); City of Brookfield, Dec. No. 19822-C (WERC, 11/84). The dynamic status quo is defined by relevant language from the expired contract as historically applied or as clarified by bargaining history, if any. City of Brookfield, supra; School District of Wisconsin Rapids, Dec. No. 19084-C (WERC, 3/85); Village of Saukville, supra. (at pp. 5-6)
Under MERA*, the standard for determining mandatory or permissive status with respect to subjects of bargaining is whether the subject matter is primarily related to wages, hours and conditions of employment or whether it is primarily related to the formulation an choice of public policy; the former subjects are mandatory and the latter permissive. City of Brookfield v. WERC, 87 Wis.2d 819 (1979); Unified School District No. 1 of Racine County v. WERC, 81 Wis.2d 89 (1977); and Beloit Education Association v. WERC, 73 Wis.2d 43 (1976).* In West Bend Education Assn. v. WERC, 121 Wis.2d 1, 7-9 (1984), the Wisconsin Supreme Court concluded
As applied on a case-by-case basis, this primarily related standard is a balancing test which recognizes that the municipal employer, the employees and the public have significant interests at stake and that their competing interests should be weighed to determine whether a proposed subject for bargaining should be characterized as mandatory. If the employees’ legitimate interest in wages, hours and conditions of employment outweighs the employer’s concerns about the restriction on managerial prerogatives or public policy, the proposal is a mandatory subject of bargaining. In contrast, where the management and direction of the school system or the formulation of public policy predominates, the matter is not a mandatory subject of bargaining. In such cases, the professional association may be heard at the bargaining table if the parties agree to bargain or may be heard along with other concerned groups and individuals in the public forum. Unified School District No. 1 of Racine Co. v. WERC, supra, 81 Wis.2d at 102; Beloit Education Assoc., supra, 73 Wis.2d at 50-51. Stating the balancing test, as we have just done, is easier than isolating the applicable competing interests in a specific situation and evaluating them.
When it is asserted that a proposal is a prohibited subject of bargaining* because collective bargaining generally or a specific proposal/contract provision irreconcilably conflicts with statutory provisions, the question to be resolved is whether bargaining over the specific proposal/contract provision can be harmonized with other relevant statutory provision(s) (in which case the proposal/provision is not a prohibited subject of bargaining) or whether there is an irreconcilable conflict (in which case the proposal/provision is a prohibited subject of bargaining). City of Janesville v. WERC, 193 Wis.2d 492 (Ct. App. 1995; Fortney v. School District of West Salem, 108 Wis.2d 169 (1982); Glendale Prof. Policeman's Assoc. v. Glendale, 83 Wis.2d 90 (1978); WERC v. Teamsters Local No. 563, 75 Wis.2d 602 (1977). Any conflict with the U.S. or Wisconsin Constitution would render a proposal/contract provision a prohibited subject of bargaining.*
Section 111.70(3)(a)5., Stats., makes it a prohibited practice for a municipal employer "to violate any collective bargaining agreement previously agreed upon by the parties with respect to wages, hours and conditions of employment affecting municipal employees. . . ."* Prior cases have recognized that a grievance settlement agreement may be a collective bargaining agreement within the meaning of Sec. 111.70(3)(a)5, Stats. E.g., City of Madison, Dec. No. DEC. NO. 20656-C (WERC, 9/84) Waupaca County, Dec. No. 32001-B (WERC, 11/07).
The commission's longstanding policy regarding violation of collective bargaining agreement allegations has been not to assert jurisdiction to determine the merits of such allegations where the parties' collective bargaining agreement provides for final and binding arbitration of such disputes and such procedure has not been exhausted. Joint School District No. 1, City of Green Bay, et. al., Dec. No. 16753-A, (Yaeger, 12/79) aff'd -B (WERC, 6/81); Oostburg Joint School District, Dec. No. 11196-A, -B (Torosian, 11/72) aff'd -B (WERC, 12/72). Exceptions to that policy have been made where resort to the contractual procedure has been rendered futile either by the respondent's repudiation of that procedure or by the majority representative's failure to fairly represent the grievant with regard to the claimed contract violation.
Regarding the duty of fair representation exception, the Wisconsin Supreme Court's decision in Mahnke v. WERC, 66 Wis.2d 524 (1975), relying on the U.S. Supreme Court's decision in Vaca v. Sipes, 386 U.S. 171, 190 (1967), the Wisconsin Court held that: (1) where the contract grievance procedure has not been exhausted, in order for the complaining employee to bring suit against the employer for a breach of contract claim the union must be shown to have breached its duty of fair representation in refusing to process the grievance; (2) such a breach of the duty of fair representation "occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith;" and (3) "a union has considerable latitude in deciding whether to pursue a grievance through arbitration," however, in exercising its discretion "a union must, in good faith and in a nonarbitrary manner, make decisions as to particular grievances." 66 Wis.2d at 531-32.
Section 111.70(3)(b)1, Stats. provides: "(b) It is a prohibited practice for a municipal employee, individually or in concert with others: 1. [t]o coerce or intimidate a municipal employee in the enjoyment of the employee's legal rights, including those guaranteed in sub. (2)." (The pertinent sub. (2) language is quoted above.) The reference in Sec. 111.70(3)(b)1, Stats., to "a municipal employee . . . in concert with others" has historically been interpreted to extend the prohibitions in Sec. 111.70(3)(b)1, to labor organizations. Racine Unified School District, Dec. Nos. 14308-D, 14389-D, 14390-D (WERC, 6/77). Section (3)(b)1 has also been held to incorporate a labor organization's duty to fairly represent those in the bargaining unit for which it serves as the exclusive collective bargaining representative. E.g., Milwaukee Public Schools, Dec. No. 31602-C (WERC, 1/07). As noted above, to prove a violation of that duty of fair representation, it is necessary to show, by a clear and satisfactory preponderance of the evidence, that the "union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." In that regard, "a union has considerable latitude in deciding whether to pursue a grievance through arbitration," however, in exercising its discretion "a union must, in good faith and in a nonarbitrary manner, make decisions as to particular grievances." E.g., Mahnke, supra, 66 Wis.2d at 531-32.
Under Secs. 111.70(3)(a)5. and (3)(b)4., Stats. ,Wisconsin law with respect to enforcing an agreement to arbitrate is well-settled.* In Denhart v. Waukesha Brewing Company, Inc., 17 Wis.2d 44 (1962), the Wisconsin Supreme Court adopted the U.S. Supreme Court's view, expressed in its decisions in the "Steelworker's Trilogy" (Steelworkers v. American Mfg. Co., 363 U.S. 564 ; Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 ; and Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593) , that in determining arbitrability, the court (or other arbitration agreement enforcement forum such as WERC) has a limited function. In its decision in Jt. School District No. 10, City of Jefferson v. Jefferson Education Association, 78 Wis.2d 94 (1977) the Wisconsin Supreme Court explained that limited function as follows:
"When the court determines arbitrability it must exercise great caution. The court has no business weighing the merits of the grievance. It is the arbitrators' decision for which the parties bargained. . . . The court's function is limited to a determination whether there is a construction of the arbitration clause that would cover the grievance on its face and whether any other provision of the contract specifically excludes it."
Id. 78 Wis.2d at 111.
The Court went on to adopt the test formulated by the U.S. Supreme Court in its decision in Warrior & Gulf, supra, at 583, that: "An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Id. 78 Wis.2d at 112.
It has long been settled law in Wisconsin that procedural defenses such as the timeliness of the submission of a grievance to arbitration are to be litigated before the arbitrator and thus are not a legal basis for refusing to arbitrate a grievance. Dunphy Boat Corp. v. WERB, 267 Wis. 316, at 327 (1954). See also, Oostburg Jt. School Dist. No. 14 (WERC, 12/72). Where the respondent's only defense to arbitration is procedural, the Examiner should order the respondent to proceed to arbitration. Monroe County, Dec. No. 31346-B (WERC, 1/06). In contrast, where it is asserted that a grievance is not substantively arbitrable because the parties have not agreed in the contract to arbitrate the matter, the employer can insist that the merits of this type of defense be resolved by the Commission or the courts before it proceeds to arbitration. Jt. School Dist. No. 10, City Of Jefferson v. Jefferson Ed. Assoc. 78 Wis.2d 94 (1977); Milwaukee Board of School Directors, Dec. No. 30590-B (WERC, 5/04).
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*For state and municipal employees other than transit and public safety, 2011 Wisconsin Acts 10 and 32 prohibited collective bargaining on all subjects except base wages up to the cost of living, and limited collective bargaining agreements to one year.
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-Decisions search (WERC examiners, commission and related court)
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