Hearing Examiner Complaint Manual

by Lionel L. Crowley and Peter G. Davis

updated in March 2008 by Marshall Gratz to reflect 2006 Rules revisions

TABLE OF CONTENTS

 

INTRODUCTION - DISCLAIMER

I. COMPLAINT CONTENT - FILING FEE

II. CLASS UNDER CHAPTER 227

III. STATUTE OF LIMITATIONS

IV. SERVICE AND ASSIGNMENT

            A. General Counsel and Conciliation Activity

            B. Examiner Assignment

V. ANSWER

VI. DISCLOSURE

VII. COUNTERCLAIMS

VIII. HEARING EXAMINER'S AUTHORITY

IX. PRE-HEARING MOTIONS

            A. To Make More Definite and Certain

            B. To Dismiss

            C. Amendment of Complaint

            D. Withdrawal

            E. Motion to Stay Proceedings

            F. Motion for Delay and Postponement

X. DEPOSITIONS

XI. SUBPOENAS

XII. CLASS ACTIONS

XIII. CONSOLIDATION OF CASES

XIV. PRE-HEARING CONFERENCE

XV. REMOVAL TO FEDERAL COURT (not applicable in public sector)

XVI. THE HEARING

            A. Physical Layout

            B. Public Hearing

            C. Identification of Counsel and Witnesses

            D. Settlement Discussions

            E. Failure of a Party to Appear

XVII. HEARING RECORD

            A. Opening Statement by Examiner

            B. Parties' Opening Statement

            C. Sequestration of Witnesses

            D. Administration of the Oath

            E. Off-the-record Discussions

            F. Burden of Proof

            G. Burden of Going Forward

            H. Rules of Evidence

            I. Control of the Hearing

            J. Briefing Schedule

            K. Reopening the Record

XVIII. JURISDICTION OVER BREACH OF CONTRACT COMPLAINTS

XIX. DEFERRAL TO ARBITRATION

XX. EXAMINER DECISIONS

            A. Time for Issuance

            B. Format

            C. Notice of Appeal Rights

            D. Remedies

                        1. Cease and Desist

                        2. Notice Posting

                        3. Restoration of the Status Quo Ante

                        4. Order to Bargain

                        5. Order to Abide by Agreement

                        6. Reinstatement

                        7. Back Pay

                        8. Other Make Whole Relief

                        9. Compliance Reporting

            E. Attorney's Fees and Costs

            F. Relief Requested by Respondents

            G. Interlocutory Relief

            H. Dismissal

             I. Change of Decision by the Examiner

 

APPENDICES

 

(Forms and Guides )

APPENDIX 1 -- Text of complaint service letter invoking conciliation

APPENDIX 2 -- Text of complaint service letter not invoking conciliation

APPENDIX 3 -- Notice Of Hearing On Complaint

APPENDIX 4 -- Order Appointing Examiner

APPENDIX 5 -- Preferred Methods of Citations in WERC Cases

APPENDIX 6 -- Text of examiner decision letter of transmittal

 

(Statutes)

WEPA definition of unfair labor practices --  Sec. 111.06, Stats.

WEPA complaint procedures (applicable in all sectors) -- Sec. 111.07, Stats.

MERA definition of prohibited practices -- Sec. 111.70(3), Stats.

SELRA definition of unfair labor practices -- Sec. 111.84, Stats.

 

(Rules)

WEPA complaint case rules: Ch. ERC 2

MERA complaint case rules: Chs. ERC 10, 12 and s. ERC 18.08

SELRA complaint case rules: Ch. ERC 22

 


INTRODUCTION - DISCLAIMER:

This manual is designed to provide general guidance in the handling of complaints filed under the Wisconsin Employment Peace Act, Municipal Employment Relations Act and State Employment Labor Relations Act. Any material herein cannot supersede the statutes, administrative code or WERC case law. This document should be utilized as a starting point for further research and consideration and may not be cited as authority in any proceeding before the Commission.

Parenthetical references in section titles are to applicable subject categories in digests of WERC decisions published by the WERC and by the Wisconsin Association of School Boards.

I. COMPLAINT CONTENT - FILING FEE:

Generally, a complaint case is one alleging an unfair labor practice or prohibited practice in violation of Secs. 111.06, 111.70(3) or 111.84, Stats. The procedures governing a complaint filed under any of those statutes are set forth in Sec. 111.07, Stats. and in Wis. Adm. Code chapters ERC 2, 10, 12 and 22, with references to hearing procedures in s. ERC 18.08. A complaint may be filed by any party in interest which may be an employer, a labor organization or an individual whose personal rights are affected. A complaint must be in writing. The Commission supplies complaint forms with instructions for filing complaints. The original complaint must be signed (or include a signature facsimile) and should contain the following information:

     1. The name, address, phone number and affiliation, if any, of the complainant, and of any representative thereof. Fax numbers and e-mail addresses are to included as well,  if available.  

     2. The name and address and phone number of the respondent or respondents, and any other party named therein. Fax numbers and e-mail addresses are to included as well,  if available.

     3. A clear and concise statement of the facts constituting the alleged unfair labor or prohibited practice, including the time and place of occurrence of particular acts and the sections of the statute alleged to have been violated thereby.

     4. A prayer for specific and general relief.

     5. A statement that the applicable filing fee accompanies the complaint.

Sections 111.09(2), 111.71(2) and 111.94(2), Stats. require that a filing fee must be paid as part of the filing of a complaint, so the complaint will not be considered filed until both the complaint and the filing fee are received at the WERC Madison office.  The complaint filing fee as of January 1, 2008, is $100.00.  If a complaint is received without the filing fee, it is generally returned to the party filing it with an explanation that it will not be processed without payment of the filing fee. 

II. COMPLAINT CLASS UNDER CHAPTER 227:

A complaint case is a contested case and, in most instances, a Class 3 proceeding under Ch. 227, Stats.

Section 227.01(2), Stats., sets forth the following three classes of proceedings:

(a) A "class 1 proceeding" is a proceeding in which an agency acts under standards conferring substantial discretionary authority upon the agency. Class 1 proceedings include, but are not restricted to: rate making; price setting; granting of certificates of convenience and necessity; the making, review or equalization of tax assessments; and the grant or denial of licenses.

(b) A "class 2 proceeding" is a proceeding in which an agency determines whether to impose a sanction or penalty against one or more parties. Class 2 proceedings include, but are not restricted to, suspensions of, revocations of, and refusals to renew licenses because of an alleged violation of law. Any such proceeding shall be treated as a Class 2 proceeding.

(c) A "class 3 proceeding" is any contested case not included in class 1 or 2.

The major distinction between a class 2 and a class 3 proceeding is whether a sanction or penalty is sought and can be imposed. Where the Commission is asked and empowered to impose a sanction or penalty, the case must proceed as a class 2 proceeding.

Examples of sanctions or penalties which could be imposed are a suspension of statutory rights under Sec. 111.07(4), and a suspension of a fair-share agreement under Sec. 111.70(2).

There are two material differences between class 2 and class 3 proceedings: (1) the notice of hearing in a class 2 proceeding must cite the particular statutory sections involved, whereas in a class 3 proceeding the notice need only cite the general basis of the agency's authority; and (2) discovery rights are more limited in class 3 proceedings.

III. STATUTE OF LIMITATIONS: (M541)

The statute of limitations for complaint cases is set forth in Sec. 111.07(14). It provides that "the right to file a complaint shall not extend beyond one year from the date of the specific act or unfair labor [or prohibited] practice alleged."

However, the statute is tolled in certain circumstances. For instance, in Harley Davidson Motor Company, Dec. No. 7166 (WERC, 6/65) the Commission held that, where a collective bargaining agreement contains procedures for the voluntary settlement of disputes arising thereunder and the parties have attempted to resolve such disputes under such procedure, a complaint alleging a violation of said agreement does not arise until the exhaustion of the grievance procedure. In those circumstances, the one year period of limitation is computed from the date the grievance procedure is exhausted.

See State of Wisconsin, Dec. No. 26676-B (WERC, 4/91) and AFSCME Council 24, Dec. No. 21980-C (WERC, 2/90) for additional examples where the statute is tolled.

IV. SERVICE AND ASSIGNMENT:

A. General Counsel Activity and Conciliation:

Section 111.07(2)(a), Stats., provides that a hearing on a complaint will be scheduled for a date not less than 10 nor more than 40 days after the filing of a complaint and that notice must be given to each party in interest by personal service or by mailing the notice of hearing to each party at least 10 days before the hearing.

Once a complaint is filed with the Commission, it is assigned a case number and a copy is served on the named Respondents by mail by the Commission's General Counsel.  The service letter also provides the parties with general information about how and when a deadline will be established for the respondent's filing of an answer to the complaint and about the deadline for the respondent's filing of a motion to make the complaint more definite and certain.

In most, but not all cases, the Commission's General Counsel initially assigns the case to a Commission staff conciliator who, in turn, will contact the parties in an attempt to resolve the complaint without the need for a formal hearing. In such cases, the service letter will also notify the parties that unless any party requests otherwise, the case will not be assigned to a hearing examiner or scheduled for a hearing until settlement discussions with the conciliator have been exhausted.  (See Appendix 1).

If the case is initially assigned directly to a hearing examiner, then the service letter would not include the latter notification. (See Appendix 2).

B. Examiner Assignment:

A complaint case is assigned to an examiner upon any of the following developments: the General Counsel chooses not to initially assign it to a conciliator; a party requests that a hearing be scheduled within the 40 day period; a party requests that a hearing be scheduled without regard to the status of conciliation activities; or conciliation settlement discussions are unsuccessful.

Upon receipt of the case file, the examiner should contact the parties and schedule the hearing. The examiner must offer to schedule the hearing on a date that is within 40 calendar days of the date, if any, on which a party notified the Commission that it is unwilling to waive the 40 day requirement in Sec. 111.07(2)(a).

Once a hearing date is established, the examiner then sends the parties a Notice of Hearing on Complaint as well as a copy of the Order Appointing Examiner. (Appendices 3 and 4). The Notice of Hearing includes provisions about when and upon whom the respondent's answer is to be served and about the time for filing a motion to make the complaint more definite and certain.

V. ANSWER:

If an answer to the complaint has not already been filed, the examiner sets an answer date in the Notice of Hearing. Sections ERC. 2.03 (1), 12.03 (1) and 22.03 (1) require each respondent to file an answer to the complaint in writing. Those rules also provide that affirmative defenses not raised by a timely answer are waived.

An allegation that the complaint was not filed within the one year statute of limitations in Sec. 111.07(14), Stats., constitutes an affirmative defense. State of Wisconsin, Dec. No. 28222-C (WERC, 7/98).

VI. IMPARTIALITY AND DISCLOSURE:

Section ERC 18.08 (3) (c) as applied by ss. ERC 2.05, 12. 05 and 22.05, provides as follows: 

 

Parties have the right to have their case heard and decided by impartial individuals. Commission members and examiners shall recuse themselves from participation in proceedings which they are or become incapable of hearing or deciding without evident partiality or the appearance of partiality. Parties have the right to request by motion, on grounds of lack of impartiality, that a commission member or examiner voluntarily recuse himself or herself from participation in a proceeding. The filing of a recusal request does not necessarily require that the commission member or examiner recuse himself or herself from further participation in the proceeding. Parties dissatisfied with the commission member or examiner’s response to a recusal request have the right to request by motion, on grounds of a lack of impartiality, that the commission remove the commission member or examiner from participation in a proceeding.

In addition, examiners in complaint cases should honor the disclosure requirements for arbitrators described in Richco Structures v. Parkside Village, Inc., 82 Wis.2d 547 (1978). As the following excerpts from that decision indicate, the standard of disclosure required is quite stringent.

In order to further the intent of the legislature, the expectation of the parties, and the parties opportunity to make reasonable assessment of an arbitrator's ability, we hold that the neutral arbitrator must disclose at the outset the relationships or transactions he or she has had with the parties or with the representatives of the parties to the arbitration proceeding. The neutral arbitrator must also disclose any facts which might indicate to a reasonable person that the Arbitrator has or might reasonably be supposed to have an interest in the outcome of the arbitration, or which may reasonably support an inference of or the appearance of the existence of bias, prejudice, partiality, or the absence of impartiality. (footnote omitted) Thus we construe "evident partiality" to include proof of a neutral arbitrator's failure to disclose these facts and relationships."

Id., at 558-559 (emphasis added)

. . .

 

We do not intend to require an arbitrator to reveal every facet of his or her life. Nevertheless, the burden falls on the arbitrator to search his or her memory and records to make disclose, erring on the side of more rather than less disclosure."

 

. . .

 

When there is nondisclosure at the outset of arbitration, the test for vacatur on the ground of evident partiality is whether the reasonable person, as a party to the arbitration proceeding, upon being advised of the undisclosed matters, would have such doubts regarding the prospective arbitrator's impartiality that he or she would investigate further, would demand that the arbitration be conducted on terms which would provide checks on the arbitrator's exercise of discretion, or would take other protective measures to assure an impartial arbitration and award."

 

Id. at 562 (emphasis added).

The Richco disclosure standard goes well beyond simply those relationships which might cause you to recuse yourself. It appears that a regular social relationship with one of the attorneys or representatives must be disclosed, even though there may be no real doubt as to your ability to render an impartial decision in a case involving that individual. If in your judgment such disclosure is warranted, it should be made in the scheduling letter. If you have a relationship with an organization such as a labor union or management law firm which might require regular disclosure, you can have a special scheduling form letter including the disclosure put onto the word processing system.

The following is a sample of the format for disclosure utilized by some staff members:

The parties may have an interest in knowing of the following relationships. I was previously employed as a business agent for the Roadsters Union in the state of Maine for two years (1977-79). Furthermore, I am acquainted socially with Mr. Smith, who is serving as the Employer's attorney in this matter. In my experience, neither of these relationships bears on my ability to render an impartial decision and I make this disclosure purely for your information. Please contact me if you have any questions.

VII. COUNTERCLAIMS:

If a respondent files an answer which includes a counterclaim, the counterclaim must be treated as a separate complaint with a separate file and will not be deemed filed until the filing fee is also received by the Commission. Any respondent filing a counterclaim should be so notified.

If and when the counterclaim is properly filed as a complaint, the Commission will determine whether it is to be consolidated with the original complaint for the purposes of hearing and/or decision.

VIII. HEARING EXAMINER'S AUTHORITY:

Hearing examiners have the following authority under s. ERC 18.08 (4).  Section 227.46 contains similar provisions.

(a) Administer oaths and affirmations.

(b) Issue subpoenas in the name of the commission.

(c) Rule on offers of proof, receive relevant evidence and exclude irrelevant, immaterial, or unduly repetitious evidence.

(d) Question witnesses.

(e) Take or cause depositions to be taken and to determine their scope.

(f) Regulate the time, place and course of the hearing.

(g) Dispose of procedural requests or other similar matters.

(h) During the course of the hearing, hold conferences for the settlement, settlement, simplification or adjustment of the issues by consent of the parties.

(i) Take any other action necessary under the foregoing or authorized by law.

IX. PRE-HEARING MOTIONS: (M543.1.4), (M545.3)

Any party may by motion request that the commission or examiner take any action which they are authorized by law to take.  Under ss. ERC 12.04, 2.04 and 22.04, all motions, except those made at the hearing, are to be made in writing and shall set forth the grounds for the motion. Depending on the nature of a particular motion, the examiner may issue a ruling without any briefs or responses, or may allow the nonmoving party to respond to the motion or may establish a briefing schedule before issuance of a ruling. Some common motions include those discussed below.

A. To Make Complaint More Definite and Certain

Under ss. ERC 2.04, 12.04 (2) (b), 22.04, and 12.02 (7), the commission or examiner may require a complainant to clarify its complaint at any time the commission or examiner finds it necessary and appropriate to do so. However, a motion to that effect by a respondent must be filed no later than 10 days after the earlier of the date the notice of hearing was issued or the date, if any, on which the commission notified the parties of that it has received a request that the hearing be scheduled without regard to the status of  conciliation.

B. To Dismiss

If this motion is directed to a failure to comply with the requirements of the statute or rules which can be corrected by an amendment to the complaint, the examiner should give complainant ample opportunity to amend the complaint.

This motion also may be made where the complaint has allegedly been untimely filed.

Where the motion to dismiss is for a failure to state a claim, the examiner has the power to grant a motion to dismiss the complaint if the complaint fails to raise a genuine issue of fact or law. However, under ERC 2.04, 12.04 (2) (f) and 22.04, a motion to dismiss shall not be granted before an evidentiary hearing has been conducted unless the pleadings, viewed in the light most favorable to the complainant, permit no interpretation of the facts alleged that would make dismissal inappropriate.

C. Amendment of Complaint (M543.1.2)

The examiner may allow a complainant to amend the complaint by motion before the hearing, during the hearing or at any time prior to the issuance of a final order. Under ss. ERC 2.02, 12.02 (4) (a) and 22.02, "a motion to amend a complaint shall be granted by the commission or examiner unless the amendment would unduly delay or disrupt the proceeding, or would otherwise result in an injustice to any party." Amendment is not permitted if it prejudicial to the respondent's rights. Wautoma Jt. School District, Dec. No. 15220-A (Malamud, 5/77).

A complainant may be ordered to file an amended complaint which specifically sets forth the statutory sections allegedly violated by respondent. Fox Valley Technical Institute, Dec. No. 16504-B, -C, 16505-B, -C (Davis, 8/78, 9/78), aff'd -H (WERC, 12/80). Failure to do so by a specified date may be grounds for the dismissal of a complaint. Washington County (Sheriff's Department), Dec. 16848-A (Hawks, 2/79).

D. Withdrawal (M543.1.3)

A complaint may be withdrawn at any time prior to the issuance of a final order, upon motion granted by the commission or examiner. Under ss. ERC 2.02, 12.02 (4) (b) and 22.02, "a motion to withdraw shall be granted unless withdrawal would result in an injustice to any party." 

After a complaint has been filed and served upon respondent, the commission will not, over a respondent's objections, permit the complainant to withdraw the complaint without prejudice, except upon a showing that good cause exists for issuing the dismissal without prejudice.  City of Green Bay, et.al., Dec. No. 10697-A (WERC, 12/71); City of Superior, Dec. No. 10681-A (Fleischli, 12/71).

The commission does not refund the filing fee based on a withdrawal of a complaint.

E. Motion to Stay Proceedings

Where it was evident that complainant's ability to prevail was contingent to a significant extent on the outcome of proceedings in other forums, there was no merit to proceeding on this case at this time and further proceedings were indefinitely stayed. Racine Unified School District, Dec. No. 15915-B (Hoornstra, 12/77).

F. Motion for Delay or Postponement (M545.3)

The commission has held that an examiner's refusal to adjourn the hearing did not deny respondent due process where, although respondent's counsel claimed that he was not prepared to proceed, he had not requested an extension of time to file an answer, entered only a general denial, and made no motion for a continuance due to surprise or the need to adduce additional evidence. Madison Joint School District, Dec. No. 12927-B (WERC, 6/76).

X. DEPOSITIONS: (M544.2)

The availability of depositions is governed by Secs. 227.45(7) and 111.07(2)(b)1 and ss. ERC 2.04, 12.04(2)(c) and 22.04.

As noted in II., above, nearly all WERC complaint cases are Class 3 rather than Class 2 in nature. For that reason, s. ERC 12.04(2)(c) and the parallel ss. ERC 2.04 and ERC 22.04 effectively limit pre-hearing discovery in nearly all complaint cases 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; unlikely to be able to attend the hearing due to sickness, infirmity or age; or a member of the Legislature in highly unusual circumstances.

XI. SUBPOENAS: (M544.3)

Section 111.07(2)(b), Stats., empowers examiners in complaint proceedings to issue subpoenas to compel the production of documents or the attendance of witnesses at hearing. Subpoena practice and procedure is covered in the Rules by s. ERC 18.08 (d) made applicable by ss. ERC 2.05, 12.05 and 22.05.

With regard to subpoenas issued by the examiner at the request of a party, the examiner is responsible for making sure that the subpoena specifies both the nature of the proceeding involved and the name and address of the party at whose request the subpoena was issued. The requesting party is responsible for service of the subpoena and the payment of the appropriate fees prior to hearing. (currently 16 dollars per day and 20 cents per mile pursuant to Secs. 111.07(2)(d) and 814.67(1)(b)1)

In the rare event that the examiner has occasion to subpoena a witness on the commission's own motion, the commission is responsible for the service and the payment of fees. However, in such circumstances, Sec. 111.07(2)(d) provides that the fees need not be paid in advance or at the time of hearing, but rather that they shall be paid upon submission of a verified voucher to the commission.

In addition, attorneys (only) representing parties in WERC complaint proceedings are authorized by Sec. 227.45 (6m), Stats., to issue subpoenas in complaint cases. That statute and the corresponding rules, s. ERC 18.08 (6) (d) 2. as applied by ss ERC 2.05, 12.05 and 22.05, provide as follows:

A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07(4) and must be served in the manner provided in s. 805.07(5). The attorney shall at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.

This applies only to attorneys and does not permit other representatives, such as business agents, personnel managers, or self-represented non-attorneys to issue subpoenas on their own.

It is the examiner's responsibility to rule upon any motion to quash which may be made as to all subpoenas whether issued by the examiner or by a party's attorney.

If a party refuses to honor a subpoena which has been properly served, as to which fees have been properly tendered and which the examiner is satisfied will produce relevant testimony or exhibits, the examiner should advise the commission immediately. The commission will, where necessary and appropriate, commence an action under Secs. 111.07(2)(c), Stats., and s. ERC 18.08 (6) (d) 3., to enforce the subpoena.

When the examiner receives a request for subpoena(s), the examiner should be sensitive to the following considerations:

1. Is the request so close to the hearing that to honor it will disrupt the proceedings because issues regarding service will arise or because parties will be aggravated.

2. Are the documents sought so voluminous in relation to the timing of the request that they cannot reasonably be supplied prior to or during the scheduled hearing.

3. Is the number of individuals to be subpoenaed so large that it will disrupt the employer's operation unless their appearance times are staggered throughout the day.

4. If the request is made so close to the hearing that a subpoena, sent by mail, would not reach the requesting party in time, the requesting party can have its attorney issue a subpoena pursuant to Sec. 227.45(6m), Stats.

When any of the foregoing considerations are present, an attempt should be made to discuss the matters with the requesting party, and where necessary, the other party(ies) to reach any necessary understandings as to how best to proceed.

When subpoenas are supplied by the examiner at the request of a party, the examiner should send all other parties a copy of the cover letter which accompanies the subpoenas.

If changes in the hearing arrangements occur after subpoenas have been issued, the party requesting the subpoenas or the party's attorney issuing those subpoenas must communicate those changes to the recipients of the subpoenas.

XII. CLASS ACTIONS: (M544.4)

The commission is without power to approve or authorize a complaint as a class action. However where such an action has been commenced and approved in that form in circuit court and then referred to the commission, the commission must entertain same. Milwaukee County, Dec. No. 19545-D (WERC, 3/85).

XIII. CONSOLIDATION OF CASES: (M544.5)

Under ss. 10.05 and parallel provisions of ERC 2.05 and 22.05, the commission may transfer, consolidate, sever or reassign complaint cases where necessary to serve the purposes of the applicable Act, or to avoid unnecessary costs or delay. Cases may be transferred from one examiner to another examiner or to the commission. For example, where the issues in multiple complaints involving the same respondent employer were sufficiently interrelated, a motion to consolidate the complaints for purposes of hearing was granted by the commission. City of LaCrosse, Dec. No. 16380-C, 16431-C, 16570-B (WERC, 10/79).

XIV. PRE-HEARING CONFERENCE:

The examiner has the authority to schedule and conduct hold a pre-hearing conference -- by phone or in person -- to define the scope of the hearing, issues to be tried, miscellaneous procedural issues, settlement discussions, stipulations, etc.

XV. REMOVAL TO FEDERAL COURT: (not applicable in state or municipal sectors)

A respondent named in a contract enforcement complaint under the Wisconsin Employment Peace Act may file a motion in Federal District Court to remove the matter. Such motions, if timely made, are routinely granted by the Court where a hearing has not been held on the complaint. Upon notice of such a motion, the examiner should indefinitely postpone the complaint pending the District Court's granting the motion.  After the motion is granted by the Federal District Court, the complaint should be dismissed.

XVI. THE HEARING:

Procedural matters relating to the conduct of the hearing are governed by Chapter 227, Stats., and the rules of the WERC. Green County, Dec. No. 16717-A (Yaeger, 1/79).

A. Physical Layout

The commission makes arrangements for the location of the hearing and the official reporter. Upon arrival, prepare the physical arrangement for the hearing where the official reporter, yourself, the witnesses and representatives of the parties will sit.

B. Public Hearing

Under s. ERC 18.08 (1), as made applicable by ss. ERC 2.05, 12. 05 and 22.05, the hearing is open to the public and press. The examiner must not allow the conduct of the public and/or press to interfere with the conduct or decorum of the hearing.

C. Identification of Counsel and Witnesses

The examiner should obtain the names and titles of the representatives and the names of the witnesses for the official reporter. This can be done by passing around a sheet for all the principals to affix their names.

D. Settlement Discussions

Before going on the record, determine whether settlement discussions are desired and if not, whether any matters can be stipulated. Any stipulation should be stated on the record.

E. Failure of a Party to Appear

When a party has been duly sent a notice of a complaint proceeding and that party fails to appear, the examiner should make telephonic efforts to contact the missing party. Should such efforts succeed, the missing party should be allowed to explain the nonappearance.  Should such efforts to contact the missing party fail, or if the missing party's explanation reveals that the failure to appear was intentional or repetitive, the examiner may then properly proceed ex parte on the record to receive a respondent's motion to dismiss for lack of prosecution or may allow a complainant to present evidence upon which the examiner may dispose of the merits of the alleged statutory violation. See generally, Prairie Home Cemetery, Dec. No. 22316-B (WERC, 10/85).

Under s ERC 18.08 (3) (b) as applied by ss. ERC 2.05, 12. 05 and 22. 05, unless good cause is shown, any party failing to appear and participate after due notice waives all rights to present evidence and all rights to be heard in the matter except the right to submit closing arguments in writing within a time period after the hearing specified for that purpose by the commission or examiner. In those circumstances, the commission and examiner may rely on the record as made at the hearing.

XVII. HEARING RECORD: (M545.4)

A. Opening Statement by Examiner

Once the preliminary off-the-record matters have been accomplished, the hearing should go on the record. The examiner begins the hearing with the opening statement which is as follows:

The hearing will be in order. This is a formal hearing before an examiner appointed by the Wisconsin Employment Relations Commission in the matter of a complaint of (in private and state sector cases:) unfair labor practices (in municipal cases:) prohibited practices filed by __________ against _________. Case number _____________.

The examiner is ______, and the reporter is ______ .

Will counsel please state their appearances for the record, for the complainant . . .  for the respondent? . . .

The official reporter prepares the only official transcript of these proceedings, and all citations in briefs and arguments must refer to the official record. All matter that is spoken in the hearing room is recorded by the reporter while the hearing is in session. In the event that any of the parties wish to make off-the-record remarks, requests to make same should be directed to the examiner and not to the reporter. Any party desiring to order a copy of the transcript of these proceedings should so notify the reporter now or before the close of the hearing. Any party ordering a copy of the transcript will be billed directly by the reporter for the reporter's actual per page fee.

After the close of the hearing one or more of the parties may desire to have corrections made in the record. All such proposed corrections, either by way of stipulation or motion, should be forwarded to the examiner.

Automatic exceptions will be allowed to all adverse rulings. It should be clear from the order appointing the examiner that, following the close of this hearing and the submission of final arguments, the examiner will issue findings and orders. Such findings and orders are reviewed by the commission as set forth in section 111.07(5) of the Wisconsin Statutes. Until such time as the examiner issues findings and orders, all motions and arguments should be directed to the examiner.

Next, the examiner should read or otherwise receive into the record any stipulations by the parties and identify exhibits agreed to by the parties and admit them into evidence. Any other preliminary matters agreed to by the parties should also be stated on the record.

B. Parties' Opening Statements

The complainant may make an opening statement followed by respondent's opening statement. The respondent may also opt to wait until complainant has completed the presentation of its case before making an opening statement.

C. Sequestration of Witnesses

Any party's request for sequestration of witnesses should be granted where it will materially assist in the production of an accurate record. The witnesses to be sequestered should be instructed not to discuss their testimony with any other witness and not to discuss any other witnesses' testimony.

D. Administration of the Oath

Under s. ERC 18.08 as applied by ss. ERC 2.05, 12. 05 and 22. 05, witnesses in a complaint proceeding are sworn. An oath or affirmation is set forth in Sec. 906.03, Stats. as follows:

(1) Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

(2) The oath may be administered substantially in the following form: Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God?

(3) Every person who shall declare that he has conscientious scruples against taking the oath, or swearing in the usual form, shall make his solemn declaration or affirmation, which may be in the following form: Do you solemnly, sincerely and truly declare and affirm that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth; and this you do under the pains and penalty of perjury.

(4) The assent to the oath or affirmation by the person making it may be manifested by the uplifted hand.

E. Off-the-record Discussions

Off-the-record discussions are frequently requested by a party's principal representative or by the examiner to consider procedural matters such as the order of calling witnesses or to clear up matters to avoid cluttering the record. Requests to discuss substantive matters off the record can be overused and should be denied unless a verbatim transcript is clearly unnecessary or will serve no apparent purpose.

Any decision or agreement that results from off-the-record discussion should be summarized on the record and confirmed by the principal representatives of the parties.

F. Burden of Proof (M211)

Section 111.07(3), Stats. provides that "the party on whom the burden of proof rests shall sustain such burden by a clear and satisfactory preponderance of the evidence. "

The Legislature has provided only that single standard of proof for all allegations of unfair labor practices and prohibited practices, whether or not the unfair labor practice or prohibited practice alleged could also be prosecuted in another forum as a crime. Layton School of Art and Design, 82 Wis.2d 324 (1978).

G. Burden of Going Forward (M211)

Generally, the party on whom the burden of proof rests also has the burden of going forward first to present evidence in support of its position.

However, in cases asserting that the employer has violated the a collective bargaining agreement by acting without just cause, the complainant's burden of going forward is limited to establishing a prima facie violation of the contract. School District of Tomahawk , Dec. No. 18670-D (WERC, 8/86).

H. Rules of Evidence (M201)

Section 111.07(3), Stats., generally provides that all complaint proceedings shall be governed by the rules and evidence prevailing in courts of equity. Administrative proceedings are not bound by the same strict rules of evidence that govern trials. While hearsay evidence is therefore ordinarily admissible in administrative proceedings, in at least some circumstances, uncorroborated hearsay evidence alone will not be sufficient to support an ultimate finding of fact, especially if it is controverted by first-hand testimony. Gehin v. Wisconsin Group Ins. Bd., 278 Wis.2d 111 (2005).

Section ERC 18.08 (6) (c) as applied by ss. ERC 2.05, 12.05 and 22.05 specifically makes applicable the rules of evidence and official notice provided in s. 227.45, which provides as follows:

(1) Except as provided in ss. 19.52(3) and 901.05, an agency or hearing examiner shall not be bound by common law or statutory rules of evidence. The agency or hearing examiner shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. The agency or hearing examiner shall give effect to the rules of privilege recognized by law. Basic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

(2) All evidence, including records and documents in the possession of the agency or hearing examiner of which the agency or hearing examiner desires to avail himself or herself, shall be duly offered and made a part of the record in the case. Every party shall be offered adequate opportunity to rebut or offer countervailing evidence.

(3) An agency or hearing examiner may take official notice of any generally recognized fact or any established technical or scientific fact; but parties shall be notified either before or during the hearing or by full reference in preliminary reports or otherwise, of the facts so noticed, and they shall be afforded an opportunity to contest the validity of the official notice.

(4) An agency or hearing examiner shall take official notice of all rules which have been published in the Wisconsin administrative code or register.

(5) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

(6) A party may conduct cross-examinations reasonably required for a full and true disclosure of the facts.

I. Control of the Hearing

The examiner must make sure the parties are given a fair opportunity to develop their respective cases while at the same time making sure that their conduct does not become personal and unprofessional. The examiner may ask questions of witnesses to clarify the record or to make the record complete.

Principal representatives occasionally engage in tactics which produce animosity in opposing principal representatives and emulation of such conduct. Tempers may flare, in which case, the examiner should go off-the-record and admonish one or both principal representatives, as appropriate, and/or take a recess. The examiner must ensure that the record is properly developed and should be aware that constant bickering or bantering between principal representatives can result in a confusing and obfuscated record. If problems continue, the examiner may have to admonish the principal representative(s) on the record. If problems still continue, the sanctions provisions in ERC 18.08 (11), as applied by ss. ERC 2.05, 12.05 and 22.05 are available.

J. Briefing Schedule (M545.6)

Under s. ERC 18.08 (9) as applied by ss. ERC 2.05, 12.05 and 22.05, any party at the close of the hearing shall be entitled to file a written brief within a time period set by the examiner or commission. The examiner may set the time for filing of briefs, but usually the parties reach agreement as to the time in which to file briefs and reply briefs as well as the order of briefing, i.e., simultaneous exchange or sequential briefs. The late filing of briefs by one party does not operate to remove the commission's jurisdiction in a complaint case. Tomahawk Unified School District, Dec. No. 18670-B (Houlihan, 7/82).

K. Reopening the Record (M547.2)

Under s. ERC 18.08 (8), as applied by ss. ERC 2.05, 12.05 and 22.05, "Once the commission or examiner declares the taking of evidence completed, no additional evidence may be submitted except on motion for good cause."  The standards for reopening a hearing were set forth in Gehl Company, Dec. No. 9474-G (WERC, 5/71), and require the moving party to show:

(a) That the evidence is newly discovered after the hearing, (b) that there was no negligence in seeking to discover such evidence, (c) that the newly discovered evidence is not cumulative, (d) that it is reasonably possible that the newly discovered evidence will affect the disposition of the proceeding and (e) that the newly discovered evidence is not being introduced solely for the purpose of impeaching witnesses.

 

XVIII. JURISDICTION OVER BREACH OF CONTRACT COMPLAINTS:

The commission's longstanding policy regarding breach of contract allegations has been not to assert jurisdiction to determine the merits of breach of contract 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). This issue is generally raised by the respondent, and its failure to raise the issue can constitute a waiver. Milwaukee County (Sheriff's Department), Dec. No. 24027-A (Schiavoni, 1/87) aff'd Dec. No. 24027-B (WERC, 6/87).

XIX. DEFERRAL TO ARBITRATION: (M434.2.2, M434.2.4)

Where the complaint alleges a violation of the Act and the collective bargaining agreement provides that the alleged activity may also constitute a violation of the collective bargaining agreement, the examiner should consider the following when determining whether to exercise jurisdiction or to defer to final and binding arbitration upon appropriate motion:

(1) the parties must be willing to arbitrate and renounce technical objections which would prevent a decision on the merits by the arbitrator;

(2) the collective bargaining agreement must address itself to the dispute; and

(3) the dispute must not involve important issues of law or policy.

Brown County, Dec. No. 19314-B (WERC, 6/83); Cadott School District, Dec. No. 27775-C ( WERC, 06/94 ).

Where the examiner defers resolution of the dispute to arbitration pursuant to the above criteria, the examiner should hold the statutory proceeding in abeyance instead of dismissing the complaint, to ensure that the arbitration award ultimately issued is not inconsistent with statutory policy.

XX. EXAMINER DECISIONS

A. Time for Issuance

Section 111.07(4), Stats., provides that the commission shall make and file its Findings of Fact, Conclusions of Law and Order within 60 days after hearing all testimony and arguments.  However, that provision has been held to be directory and not mandatory. Muskego-Norway School District No. 9, 32 Wis.2d 478 (1967); Green Bay Joint School District, Dec. No. 9095-E (WERC, 9/71), aff'd (CirCt Brown, 12/72.).

The WERC's administrative time target for examiner decision issuance is 60 days after the submission of final arguments.

B. Format

Section 227.47, Stats. provides as follows:

Every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include a list of the names and addresses of all persons who appeared before the agency in the proceeding who are considered parties for purposes of review under s. 227.53.

There is no prescribed rigid structure for examiner decisions. Generally, the first page contains the caption with the case numbers and the appearances. The appearances as noted above require the names of the principal representatives and their addresses. There should be an opening paragraph indicating that complainant filed the complaint on a certain date alleging a violation of the statute, the date of appointment of the examiner, the date(s) of hearing, and the date briefing was completed whereupon the record was closed. The decision should be divided into Findings of Fact, Conclusions of Law and an Order as well as an accompanying memorandum.

The Findings of Fact should be brief and should include specific findings on all major facts in issue without going into unnecessary detail. The Findings of Fact must include any "jurisdictional" or other "necessary" findings related to the identity of the parties and the origin of the dispute as well as the "ultimate" findings on the factual issues in dispute. It is often difficult to separate an "ultimate" finding of fact from a conclusion of law. This distinction is very important for the purposes of the scope of court review. An example of a distinction between an "ultimate" finding of fact and a conclusion of law is a factual finding that an employer was discriminatorily motivated in discharging an employee and a conclusion of law that the employer has violated the statute by so discharging the employee. As noted above, the findings of fact should be brief but discuss all the important facts in issue. The examiner may lay out the facts in the memo in a more detailed fashion and should discuss all the important evidentiary questions such as resolution of credibility disputes that led to the ultimate findings of fact. Footnotes may be used for citations of authority or necessary clarifications.

Citations in the Memorandum and footnotes should follow the format set forth in Appendix 5.

C. Notice of Appeal Rights

The letter transmitting an examiner's order which is the final disposition of the complaint must include a notice to the parties regarding the procedure and time limit for appealing that decision to the commission. The format for that letter is set forth in Appendix 6.  As noted in the concluding paragraph in that letter format, 

It is the position of the Wisconsin Employment Relations Commission that you cannot file a petition for judicial review pursuant to Sec. 227.53, Stats. unless you have exhausted your administrative remedy by filing a petition for review with the Commission.

D. Remedies (M700 et seq.)

Section 111.07(4), Stats., sets forth the examiner's general remedial authority as follows:

 

. . . the commission shall make and file its findings of fact upon all of the issues involved in the controversy, and its order, which shall state its determination as to the rights of the parties. . . Final orders may dismiss the charges or require the person complained of to cease and desist from the unfair labor practices found to have been committed, suspend the person’s rights, immunities, privileges or remedies granted or afforded by this subchapter for not more than one year, and require the person to take such affirmative action, including reinstatement of employees with or without pay, as the commission deems proper. Any order may further require the person to make reports from time to time showing the extent to which the person has complied with the order.

 

Section 111.70(4) gives the Commission substantial discretion when determining what remedy best meets the purposes of the Act. See, WERC v. City of Evansville, 69 Wis.2d 140 (1975).

 

Remedies are typically intended to declare that certain conduct violated the Act, to prevent the respondent(s) from committing such conduct in the future, to provide relief to affected persons in order to eliminate the adverse effects of the violation, and/or to restore conditions to those in effect prior to the violation.

 

Remedies issued by examiners in complaint cases commonly include the following:

1. Cease and Desist

An order to stop now and in the future whatever conduct constituted the violation of the Act.

2. Notice Posting

An order that the respondent notify affected employees of the disposition of the complaint by posting a notice in a conspicuous place for a specified period.

3. Restoration of the Status Quo Ante

An order requiring that the respondent take steps to restore conditions to those in effect prior to the unlawful action.

4. Order to Bargain

An order that respondent, at the request of the complainant, bargain collectively with the complainant concerning one or more mandatory subjects of bargaining.

5. Order to Abide by Agreement

An order that the respondent comply with a substantive provision of a collective bargaining agreement, submit a grievance to final and binding arbitration, or abide by the terms of a grievance arbitration award.

6. Reinstatement

Requiring an employer to offer employment to an employee adversely affected by the violation.  Reinstatement is typically ordered to the employee's former position or to an equivalent position Reinstatement is also typically ordered to be without loss of seniority or other rights and privileges. 

7. Back Pay

Requiring the respondent to make whole an adversely affected employee for wages and benefits lost because of the violation.  A back pay order typically requires payment of an amount of money the employee would have earned in wages and benefits but for the violation, less the amount of any earnings that the person would not have received but for the violation. Back pay calculation issues were discussed in some depth in Brown County, Dec. No. 20857-D (WERC, 5/93).

Back pay orders ordinarily include interest at the statutory rate. The interest rate to be applied is that set forth in Sec. 814.04(4), Stats., in effect at the time the complaints were initially filed with the agency. See, Wilmot Union High School, Dec. No. 18820-B (WERC, 12/83), citing, Anderson v. LIRC, 111 Wis.2d 245 (1983), and Madison Teachers, Inc., v. WERC, 115 Wis.2d 623 (CtApp, 1983)

8. Other Make Whole Relief

An order that the respondent correct a specific wrong by, for example, advancing the employee on the salary schedule, correcting a seniority list, reimbursing an employee for an expense wrongfully incurred, allowing employees some activity previously forbidden, deducting fair share retroactively, etc.

9. Compliance Reporting

Remedial orders routinely direct the respondent to advise the commission within 20 days of the date of the order as to what steps have been taken to comply with the order.

E. Attorney's Fees and Costs

Regarding attorney's fees, the Commission has long construed this remedy to be limited to certain duty of fair representation cases and to cases where an extraordinary remedy is appropriate. Clark County, Dec. No. 30361 (WERC, 11/03) citing Madison Metropolitan School District, Dec. No. 16471-D (WERC, 5/81), aff'd in pertinent part, MTI v. WERC, 115 Wis.2d 623 (Ct. App. 1983); University of Wisconsin-Milwaukee (Guthrie), Dec. No. 11457-F (WERC, 12/77); Department of Employment Relations (UW Hospital and Clinics), Dec. No. 29093-B (WERC, 11/98). Attorney's fees for the breach of contract portion of the case should be awarded as part of make whole relief in cases where a breach of the duty of fair representation is found. University of Wisconsin-Milwaukee (Guthrie), Dec. No. 11457-H (WERC, 5/84) and Milwaukee Public Schools, Dec. No. 31602-C ( WERC, 1/07 ).

 

Section 111.70(7m)(e) and s. ERC 32.16 (2), mandates attorney's fees and reimbursement of other award enforcement costs as remedies if it is established that a party failed to implement a Sec. 111.70(4)(cm) interest arbitration award without good cause.

 

In Monroe County, Dec. No. 31346-B (WERC, 1/06), Note 3 at 5, the Commission stated that ". . . the law is so clear and well founded that costs and attorneys fees will likely be awarded pursuant to Sec. 227.483 (b), Stats. in any future [refusal to arbitrate] case [in which the respondent's only defenses are procedural, e.g., timeliness of grievance processing] because as provided in that statutory provision:

 

(b) . . . the party or the party’s attorney knew, or should have known, that the . . . defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for a . . . reversal of existing law.

F. Relief Requested by Respondents

The Commission has held that it is without statutory authority to grant respondents relief such as costs and attorneys' fees. Milwaukee Area Technical College, Dec. No. 30254 (WERC, 1/02) at 4 citing State of Wisconsin, Dec. No. 29177-C (WERC 5/99).

G. Interlocutory Relief (M546)

Section 111.07(4) also provides, in part, that "Pending the final determination by it of any controversy before it the Commission may, after hearing, make interlocutory findings and orders which may be enforced in the same manner as final orders." 

However, under ss. 2.07, 12.07 and 22.07, interlocutory relief is only available from the commission, and not from an examiner.

H. Dismissal

Where the parties have resolved a complaint after the examiner has been appointed, the examiner will issue an order of dismissal in his/her own name. If the examiner has not been appointed, then the order should be drafted for the commission to issue.

An order of dismissal should include the following:

1. A description of the nature of the alleged unfair or prohibited practice, together with reference to the statutory sections alleged to have been violated.

2. A statement whether hearing has been scheduled and, if not, a statement as to the reason for lack of such scheduling - e.g. "and hearing in the matter not having been scheduled pending efforts of the parties to resolve the matters in issue."

3. Reference to the manner in which the commission was advised that the parties had resolved the matters in issue and to the date on which the complainant or its representative requested the dismissal of the complaint.

I. Change of Decision by the Examiner

Implementing Sec. 111.07(5), s. ERC 12.08 and the parallel ss. ERC 2.08 and 22.08, authorize an examiner to modify or set aside his or her decision within the 20 day period following its issuance "if any mistake is discovered in the decision or on grounds of newly discovered evidence, provided that no petition for review of an examiner’s findings, conclusions and order has been filed with the commission."

If within that 20 day period no order is issued setting aside, modifying, changing or reversing the findings of fact, conclusions of law and order and no petition for review of an examiner’s findings, conclusions and order has been filed, then the examiner’s findings, conclusions and order becomes the commission’s by operation of law under Sec. 111.07 (5), Stats., and the commission issues a notice to that effect.


 

APPENDIX 1 -- [Text of complaint service letter invoking conciliation]

 

Enclosed is a copy of a complaint filed on _____ by _____ alleging that _____ has committed _____prohibited practices within the meaning of the _____________ Act.

 

Conciliator ________ (phone: _________), a member of the Commission's staff, will contact you or your representative and the Complainant in the near future to ask whether the parties are willing to participate in settlement discussions.  Any settlement discussions will be held in strict confidence and thus will not be communicated to the Examiner who would be assigned to hear and decide the case if settlement does not occur or to the Commissioners who review any Examiner decision.

 

If you or the Complainant do not wish to have settlement discussions delay the scheduling of a hearing, you or the Complainant should write me and ask that a hearing be scheduled.  A hearing is generally scheduled on a date that is mutually convenient for the Examiner and the parties.  However, if any party wishes to invoke the provisions of Sec. 111.07(2)(a), Stats., which provide “The commission shall fix a time for hearing . . . not less than 10 nor more than 40 days after the filing of such complaint . . .” it may do so by sending a written request to me.  Absent a written request for hearing, it will be assumed that all parties agree that a hearing should not be scheduled until settlement efforts have ended.

 

Before a hearing on the complaint is conducted, each party complained of will be required to file a written answer.  The answer can be filed at any time, but it must be filed no later than a due date that will be specified in the formal notice of hearing when and if issued.  If a complaint is alleged to be so indefinite as to hinder a party in the preparation of its answer to the complaint, the party may, by motion, request the commission or examiner to order the complainant to file a statement supplying specified information to make the complaint more definite and certain.  A party intending to file a motion to make the complaint more definite and certain is encouraged to do so promptly.

 

If either party requests that a hearing be scheduled while the parties are engaged in settlement discussions, the Commission will notify the parties of that request and any motion by a party to make the complaint more definite and certain must be filed within 10 days of the date of that notice.

 

Very truly yours,

           

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

            

_____

General Counsel

 


 

APPENDIX 2 -- [Text of complaint service letter not invoking conciliation]

 

            Enclosed is a copy of a complaint filed on _____ by _____ alleging that _____ has committed _____prohibited practices within the meaning of the _____ Act.

 

            The complaint will be assigned to an Examiner, who will contact the parties in the near future to discuss matters such as scheduling a hearing and whether the parties wish to engage in settlement discussions.  A hearing is generally scheduled on a date that is mutually convenient for the Examiner and the parties.  However, if any party wishes to invoke the provisions of Sec. 111.07(2)(a), Stats., which provide “The commission shall fix a time for hearing . . . not less than 10 nor more than 40 days after the filing of such complaint . . .” it may do so by sending a written request to me. 

 

            Before a hearing on the complaint is conducted, each party complained of will be required to file a written answer.  The answer can be filed at any time, but it must be filed no later than a due date that will be specified in the formal notice of hearing when and if issued.  If a complaint is alleged to be so indefinite as to hinder a party in the preparation of its answer to the complaint, the party may, by motion, request the commission or examiner to order the complainant to file a statement supplying specified information to make the complaint more definite and certain.  A party intending to file a motion to make the complaint more definite and certain is encouraged to do so promptly.

 

            If either party requests that a hearing be scheduled while the parties are engaged in settlement discussions, the Commission will notify the parties of that request and any motion by a party to make the complaint more definite and certain must be filed within 10 days of the date of that notice.

 

Very truly yours,

                                                                             

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

            

_____

General Counsel

 


 

APPENDIX 3

NOTICE OF HEARING ON COMPLAINT

 

            The above‑named Complainant(s) having filed with the Commission a complaint, alleging that the above‑named Respondent(s) has violated one or more provisions of Ch. 111, Wis. Stats.

 

            The parties are directed to take notice that:

 

            1.  A hearing on said complaint shall be held on _____ at _______.

 

            2.  In addition to being controlled by procedural requirements in Ch. 111, Wis. Stats., this proceeding also is a class 3 proceeding within the meaning of Ch. 227, Wis. Stats.

 

            3.  The legal authority and jurisdiction under which this hearing is to be held are Secs. 111.07, and _____, Wis. Stats.

 

            4.  The pleadings on file are deemed to state the matter asserted with specificity, except as otherwise may be determined on the motion of a party or by notice and/or order of the hearing examiner or the Commission. To be timely, a party's motion to make the complaint more definite and certain shall be received by the commission within 10 days after the earlier of the date this notice of hearing was issued or the date the commission notified the parties that the commission received a request that the hearing be scheduled prior to the conclusion of conciliation.

           

            You are further notified that the person or organization complained of herein shall file an answer to the complaint with the Wisconsin Employment Relations Commission. Affirmative defenses not raised by a timely answer are waived. The answer shall be in writing and shall bear the signature or a facsimile of the signature of the party or representative filing the answer. The answer shall be served on the Commission by physical delivery, mail, fax or e-mail, as set forth in s. ERC 10.06 (1), Wis. Adm. Code. If the answer is filed in paper form, a total of 3 copies shall be provided to the Commission.  The answer shall be served on the Commission on or before ________ and on the same date a copy thereof shall be served, as set forth in s. ERC 10.07 (1), Wis. Adm. Code, on: 

 

___________

___________

___________

 

Dated at Madison, Wisconsin, this _____ day of _____

 

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

 

_______________________

Examiner

 


 

APPENDIX 4

 

ORDER APPOINTING EXAMINER

 

            The above Complainant, having filed a complaint of prohibited practices with the Wisconsin Employment Relations Commission, alleging that the above Respondent had committed prohibited practices within the meaning of Sec. 111.___, Stats.;

 

            NOW, THEREFORE, it is

ORDERED

 

            That _____, an examiner on the Commission’s staff, is hereby authorized to conduct the hearing on said complaint, and to make and issue Findings of Fact, Conclusions of Law and Order in the matter as provided in Secs. __________ and 111.07, Stats.

 

Given under our hands and seal at the City of Madison, Wisconsin, this __ day of ____

 

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

 

[Commissioners signatures]


 

APPENDIX 5

 

Preferred Methods of Citations in WERC Cases

WERC prefers that cases be cited as follows:

  • Examiner Decisions:
    • City of Milwaukee, Dec. No. 12345-A (Jones, 12/94)
    • City of Milwaukee, Dec. No. 12345-A (Jones, 12/94) aff'd by operation of law -B (WERC, 1/95)
  • Commission Decisions: City of Milwaukee, Dec. No. 12345-B (WERC, 5/95)
  • Circuit Court Decisions: City of Milwaukee, CV 1224-94-345 (CirCt Milwaukee, 9/95)
  • Court of Appeals Decisions: City of Milwaukee v. WERC, 120 Wis.2d 345 (CtApp, 6/96)
  • Supreme Court: City of Milwaukee v. WERC, 131 Wis.2d 345 (1997)

WERC prefers that statutes and administrative rules be cited as follows:

  • Wisconsin Statutes: 111.70(4)(d)2.a., Stats.
  • WERC Administrative Rules: Ch. ERC 32.04 WIS. ADM CODE

APPENDIX 6 -- [Text of examiner decision letter of transmittal]

            Please find enclosed a copy of the examiner decision issued by the undersigned in the above-entitled matter.

 

            Any party may file a petition for review with the Commission by following the procedures set forth in Sec. 111.07(5), Stats.

 

            Section 111.07(5), Stats. provides:

 

(5) The commission may authorize a commissioner or examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last‑known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed or modified by such commissioner or examiner within such time. If the findings or order are set aside by the commissioner or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last‑known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside or modify such findings or order, in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order it may extend the time another 20 days for filing a petition with the commission.

 

This decision was placed in the mail on the date of issuance (i.e. the date appearing immediately above the Examiner's signature).

 

To be timely filed with the Commission, a petition for review must be received in the Commission’s Madison offices no later than 4:30 p.m. on the 20th calendar day following the date the Examiner’s decision was issued.  If the 20th calendar day falls on a Saturday, Sunday or State holiday, then a petition for review is timely if received on the next day the Commission's offices are open.

 

A petition for review can be mailed to the Commission at P.O. Box 7870, Madison, Wisconsin 53707-7870, physically delivered to the Commission at 18 South Thornton Avenue, Madison, Wisconsin 53703, faxed to the Commission at (608) 266‑6930, or emailed to the Commission at werc@werc.state.wi.us.

 

It is the position of the Wisconsin Employment Relations Commission that you cannot file a petition for judicial review pursuant to Sec. 227.53, Stats. unless you have exhausted your administrative remedy by filing a petition for review with the Commission.

 

Very truly yours,

 

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

 

 

______________________

Examiner