Hearing Examiner Representation Case Manual

by Douglas V. Knudson

Volume 1 of 3*

*This Manual has been separated into three files due to its length. Each file (i.e., volume) begins with a table of contents containing links to all three volumes.

(Caution: Significant portions of this manual have not been updated for several years. For that reason, as noted in the introduction, this manual is offered only as a convenient starting point for research. As noted in the Table of Contents, some of the appendices have not been included.)


TABLE OF CONTENTS

Volume 1 of 3

INTRODUCTION

I TYPES OF PETITIONS

A. Election

B. Unit Clarification

II PRE-SCHEDULING ACTIVITIES (Coordinator/Examiner)

A. Petition For Election - Unrepresented Employes

B. Petition For Election - Raid Or Decertification

C. Petition For A Unit Clarification

III PRE-HEARING CONFERENCES

IV EFFECT OF A PENDING COMPLAINT

V SHOWING OF INTEREST

A. Where Employes Are Not Represented

B. Where The Employes Are Represented By A Labor Organization

VI BARS TO PROCESSING THE PETITION

A. Contract Bar

B. Second Election

C. No Showing Of Interest

D. Existing Unit

E. Pending Complaint Proceeding

F. Concurrent Arbitration Proceeding

G. Pending Court Action

H. Jurisdictional Dispute

I. Alleged Problems With The Petition

VII QUESTIONS CONCERNING REPRESENTATION

VIII SCHEDULING THE HEARING

A. Setting A Date

B. Notices, Rooms and Court Reporters

C. Postponements

IX AMENDMENTS OF PETITION

A. Prior To The Hearing

B. At The Hearing

X FILING OF ANOTHER PETITION

A. Prior To The Hearing

B. At The Hearing

XI MOTIONS TO WITHDRAW PETITION

A. Prior To The Hearing

B. During The Hearing

C. During An Adjournment Of The Hearing

D. After The Election Is Directed


Volume 2 of 3

XII SUBPOENAS

XIII THE HEARING

A. Material Needed At The Hearing

B. The Examiner's Responsibilities

C. Activities Prior To Opening The Record

D. Evidence

E. Opening Statement By The Examiner

F. Intervention

G. Adjournments/Continuances

H. Checklist At Close Of Hearing

XIV POST-HEARING

A. Case Which Settle At Hearing

B. Case Needing Decision

C. Petition For Rehearing

D. Actions Affecting The Direction Of Election

XV THE ELECTION

A. Notice of Election

B. Multiple Voting Groups

C. Conduct Of An On Site Vote

D. Void And Blank Ballots

E. Mail Ballots

F. Run Off Elections

XVI CHALLENGED BALLOTS

XVII ABSENTEE BALLOTS

XVIII OBJECTIONS TO THE CONDUCT OF AN ELECTION/REFERENDUM

XIX CERTIFICATION OF RESULTS

XX APPROPRIATE UNIT UNDER MERA

A. Statutory Criteria

B. Combined Units Of Professional And Nonprofessional Employes

C. Balancing Fragmentation And Employe Interests

D. Factors To Consider

E. Examining The Factors

F. Additional Considerations

G. Supervisory Units

H. Stipulated Units


Volume 3 of 3

XXI ELIGIBILITY TO PARTICIPATE IN THE ELECTION

A. Eligibility Date

B. Statutory Criteria

C. Relatives

D. Confidential Employes

E. Supervisory Employes

F. Managerial Employes

G. Professional Employes

H. Craft Employes

I. Independent Contractors

J. Probationary Employes

K. Newly Hired Employes

L. Seasonal Employes

M. Temporary Employe

N. Part-Time And Casual Employes

O. Terminated Employes

P. Retirees

Q. Elected Officials And Appointed Deputies And Officers

R. Executive Employes

S. Employes On Leave Of Absence

XXII PETITIONER'S STATUS AS A LABOR ORGANIZATION

XXIII SUCCESSOR LABOR ORGANIZATION

XXIV MUNICIPAL EMPLOYER STATUS

XXV CARD CHECKS

XXVI JURISDICTION OF THE COMMISSION UNDER WEPA

XXVII APPROPRIATE UNIT UNDER WEPA

XXVIII REFERENDA

XXIX APPENDICES

1. Letter serving election petition and enclosing stipulation form.

2. Stipulation for election form (one union).

3. Letter serving election petition and requesting a list of employes.

4. Stipulation for election form (more than one union).

5. Letter advising that showing of interest was adequate.

6. Letter concerning an accretion election.

7. Notice of hearing form for election cases.[not currently available]

8. Notice of hearing form for unit clarification cases.

9. Cover letter for a notice of hearing

10. Order appointing examiner with final authority.

11. Order substituting examiner with final authority. [not currently available]

12. Notice of postponement of hearing.

13. Notice of continued hearing.

14. Notice of rescheduling of hearing.

15. Notice of change of hearing. [not currently available]

16. Notice of indefinite postponement of hearing. [not currently available]

17. Notice of hearing - multiple petitions. [not currently available]

18. Subpoena. [not currently available]

19. Standard Hearing Procedures handout.

20. Election case checklist. [not currently available]

21. Handout on absentee ballots. [not currently available]

22. Order of dismissal - election case. [not currently available]

23. Order of dismissal - unit clarification case. [not currently available]

24. Notice of election. [not currently available]

25. Notice of election - professional employes. [not currently available]

26. Ballot on unit determination for professional employes. [not currently available]

27. Representation ballot. [not currently available]

28. Election procedures manual. [not currently available]

29. Notice of hearing on challenged ballot. [not currently available]

30. Notice of hearing on objections to election. [not currently available]

31. Certification of election results. [not currently available]

32. Direction of elections - professional and non-professional units. [not currently available]

33. Petition for election for supervisory law enforcement or fire fighting personnel. [not currently available]

34. Stipulation for election involving supervisory fire fighting or law enforcement personnel. [not currently available]

35. Agreement to conduct card check. [not currently available]

36. Recognition agreement following card check. [not currently available]

37. Certification of card check results. [not currently available]

38. Instructions for WERC staff when conducting an election.

39. Letter dealing with showing of interest issues.


[Volume 1 Text]

INTRODUCTION

This manual is designed to provide general guidance in the handling of the petitions involving elections, unit clarifications and, to some extent, referenda. The emphasis of the manual is heavily weighted towards the municipal sector and references to sections of the Digest of MERA decisions are frequently made, e.g., (M535.2). Any material herein can not supercede the statutes or administrative code. References to Commission decisions should be utilized only as a starting point for additional research. Examiners should continue to update their manual in keeping with future Commission decisions, prior to receiving updated pages of the manual.

I TYPES OF PETITIONS

A. Election

The Commission conducts elections among employes in an appropriate bargaining unit to determine either whether the employes therein desire to be represented for the purposes of collective bargaining or whether the employes desire to continue to be so represented by a labor organization. Such a proceeding may be initiated by a petition filed by an employe organ-ization, or the employer, or the employe(s), or by stipulation executed by an employer and an employe organization. An individual employe may be a proper party for filing purposes (M532.2). When a petition is filed, the Commission designates a member of its staff to be an Examiner and to conduct a hearing in the matter. The purpose of the hearing is to take evidence with respect to issues involving the appropriateness of the bargaining unit and other issues, such as whether certain employes may be managerial, supervisory, or confidential, whether the petition was timely filed, e.g., whether there is an existing agreement which bars a present election, etc.

B. Unit Clarification

With respect to the unit clarification process, concerning either a certified or a voluntarily recognized unit, the Commission has stated the following regarding both its authority to conduct such a process and the purpose of such a process:

Unit clarification proceedings are not specifically referred to in the Municipal Employment Relations Act, but are conducted by the Commission as an adjunct of our jurisdiction over representation disputes under Section 111.70(4)(d), to provide an orderly impartial proceeding for the review of collective bargaining units. This is done in order to relieve labor organizations and Municipal Employers of an area of dispute. City of Green Bay, Dec. No. 12682 (WERC, 5/74).

When there is an issue between an employe organization and an employer as to whether a position or positions should or should not be included in an existing collective bargaining unit, either party* may file a petition with the Commission requesting the Commission to determine the matters in issue. When a petition is filed, the Commission designates a member of its staff to be an Examiner and to conduct a hearing in the matter. The purpose of the hearing is to take evidence with respect to the issues involved. Both parties should be prepared to present evidence relating to the duties and responsibilities of the positions in issue as well as on any other issues which may have arisen.

* NOTE: The Commission does not accept unit clarification petitions filed by individual employes. City of Green Bay, Dec. No. 12682 (WERC, 5/74).

The Commission has held that neither an existing collective bargaining agreement and the associated question of timeliness nor the original certification of the unit bars clarification proceedings. Walworth County, Dec. No. 11686 (WERC, 3/73).

In determining the supervisory or confidential status of a position, neither the wishes of the individuals involved, nor the bargaining history, if any, surrounding the unit status of the position are relevant. City of Delevan, Dec. No. 12185A (WERC, 8/88).

Parties have litigated, and the Commission has adjudicated, cases involving unit inclusion/exclusion issues as declaratory rulings. Such cases were more frequent in the past, however, and the Commission has stated a preference not to treat matters raising unit clarification type issues as declaratory rulings. City of Milwaukee, Dec. No. 10835A (WERC, 12/72).

A unit clarification petition, standing alone, is not treated as a request for an election. City of Waukesha, Dec. No. 21034 (WERC, 10/83).

In a unit clarification, the Commission does not consider prohibited practice allegations. Milwaukee Board of School Directors, Dec. No. 23592A (WERC, 5/88).

In a unit clarification proceeding, the Commission will not alter the voluntarily agreed-upon composition of a bargaining unit over the objection of one of the parties to said agreement unless:

1. The position(s) in dispute did not exist at the time of the agreement; or

2. The position(s) in dispute were voluntarily included or excluded from the unit because the parties agreed that the position(s) were or were not supervisory, confidential, etc.; or

3. The position(s) in dispute have been impacted by changed circumstances which materially affect their unit status; or

4. The existing unit is repugnant to the Act.

City of Sheboygan, Dec. No. 7378-A (WERC, 5/89).

Cases involving the above factors:

1. Edgerton School District, Dec. No. 18856A (WERC, 5/90); Dane County, Dec. No. 15696-A (WERC, 12/88); Tomahawk Unified School District No. 1, Dec. No. 12483A (WERC, 5/74).

2. Dane County, Dec. No. 22976 (WERC, 10/85); City of Cudahy, Dec. Nos. 19451-A, 19452A, (WERC, 12/82); CESA #4, Dec. No. 14177A (WERC, 7/80).

3. City of Milwaukee, Dec. No. 6960J (WERC, 5/89); West Allis - West Milwaukee School District, Dec. No. 16405C (WERC, 1/89); Manitowoc County, Dec. No. 13434 (WERC, 3/75).

4. Waukesha County, Dec. No. 14830 (WERC, 8/76); Walworth County, Dec. No. 9394A (WERC, 3/73).

Voluntarily agreed-upon bargaining units include both units established through voluntary recognition and units certified by the Commission pursuant to an election following a stipulation to the unit description by the parties, in contrast to unit descriptions established in a Commission decision following a formal hearing on the issue of the appropriate unit.

If accretion of certain unrepresented employes to an existing unit through a unit clarification petition is not appropriate, then the Union can expand the existing unit, if a community of interest exists, by means of either:

(1) a timely filed election petition including both the employes in the existing unit and the unrepresented employes; or

(2) an election petition in a residual unit of all currently unrepresented employes, which unit could be merged with the existing unit if the Union is selected as the bargaining representative by a majority of the employes who vote. Stevens Point Board of Education, Dec. No. 7713A (WERC, 8/89); Sheboygan County (Unified Board), Dec. No. 23031A (WERC, 4/86); School District of Coleman, Dec. No. 21569 (WERC, 4/84).

A position was accreted through a unit clarification since the position was neither in existence at the time of voluntary recognition, nor, specifically excluded by the language of the agreement. School District of Phillips, Dec. No. 22905 (WERC, 9/85).

The Commission refused to accrete a position, even though said position was created subsequent to the granting of voluntary recognition to the existing unit, because there were other unrepresented employes with the same community of interest. Walworth County Handicapped Children's Education Board, Dec. No. 17129 (WERC, 7/79).

Cases where employes were accreted. Milwaukee Area Vocational, Technical and Adult Education District, Dec. No. 6343D (WERC, 10/89); Madison Metropolitan School District, Dec. No. 20836A (WERC, 11/83).

II PRE-SCHEDULING ACTIVITIES (COORDINATOR/EXAMINER)

A. Petition For Election - Unrepresented Employes

1. Send a letter (see Appendix 1) enclosing a copy of the petition to the employer if not previously sent. 1 Enclose a set of 4 stipulation forms to the employer and send one copy to the petitioner. (See Appendix 2.) Usually you can have the unit description typed on the forms, so that the description includes the terms preferred by the Commission, e.g., all regular full-time and regular part-time non-professional employes, excluding supervisory, managerial, professional and confidential employes.

2. Follow up the letter with phone calls, starting with the employer to discuss the process (emphasize that employes get a secret ballot vote whether the election occurs through a stipulation or a hearing) and try for a stipulated election. Try to determine any exclusions it desires and the basis for those exclusions, and, any other issues, such as the bargaining unit description. Find out what other bargaining units exist and what other employes (by classification and numbers) are unrepresented. It may be helpful to check the closed cases docket books to see what units already exist and to see if there was a previous election in the unit covered by the petition. If necessary, send for those old files. Also discuss dates available for a hearing. Then contact the petitioner to discuss the same information, to explore the possibility of a stipulation, and, to establish a hearing date, if necessary.

a. Consider the following possibilities for a stipulation: (1) a residual unit, i.e., all unrepresented employes excluding statutory exclusions; (2) accretion of a voting group to an existing unit i.e., if the employes covered by the petition vote for representation and the petitioner already represents the existing unit, then accretion may be proper. (In such a case, modify the stipulation forms by replacing the words "collective bargaining unit" with the words "voting group" in #2, #3, and #4 therein.) Generally, accretion to the unit does not result in the accreted employes being covered by the existing contract, unless bargaining produces such a result. School District of Chetek , Dec. No. 19206 (WERC, 12/81). However, interest arbitration does apply to situations where the parties are negotiating the wages, hours and conditions of employment for positions newly accreted to the bargaining unit. Wausau School District, Dec. No. 25972 (WERC, 4/89), rev'd Dec. No. 900152 (Ct.App III, 7/90); (3) accretion without a vote; or (4) the unit set forth in the petition is inappropriate and that the petition may be dismissed.

b. It may help to send the parties, prior to hearing, some decisions relating to the issues which appear to be involved.

B. Petition For Election - Raid Or Decertification

1. Send a letter requesting the employer to furnish both a list of employes in the bargaining unit set forth in the petition and a copy of a contract, if any exists. 2 (See Appendix 3.) Enclose with the letter a copy of the petition to both the employer and the incumbent union. The petitioner would receive a copy of your letter only.

2. Upon receipt of the list of employes from the employer, xerox a copy and use the copy to check to see if the petitioner has a sufficient showing of interest (30% minimum) (see Article V). The showing of interest, as well as any marked list revealing same, is put in a manila envelope in the file and is marked "confidential", since it must not be seen by any of the parties.

3. Check the pending cases docket book or with the parties to see if there is either an interest arbitration petition or a prohibited practice complaint pending which could block the election petition. (See Sections IV and VI(A)(2)e.)

4. Check the contract to see if the petition appears to be timely filed. (See Section VI(A).)

a. If a question of timeliness appears to exist, advise the petitioner of that fact to see if it wishes to withdraw the petition and refile it at the appropriate time.

b. If the petitioner does not withdraw and one of the other parties raises the timeliness issue, and, if there are no other issues concerning the description of the bargaining unit or voter eligibility, see if the parties can agree to have the Commission rule on the timeliness issue based only on a stipulation of facts and written briefs without a hearing.

5. If there is no timeliness issue, contact the parties to see if a stipulation for election is possible (especially if the Commission has held a previous hearing on the unit--check closed and pending docket sheets). Send stipulation forms. (See Appendix 4.) You may want to send the stipulation forms to the employer first with copies to the other parties and have it attach a list of the eligible voters. Or you can either xerox copies of the list of bargaining unit members received from the employer for checking the showing of interest or have that list retyped. (Never send copies of the list on which the showing of interest results are shown.) The attach the list to the stipulation forms and send four sets to the incumbent union and one set each to the employer and the petitioner. (See Appendix 5.) Then follow the process described in A.2. The advantage of the latter approach is that you learn quickly whether the incumbent union, which is the party most likely to try to delay the proceeding, will stipulate to an election.

a. If this is a friendly raid, e.g., LEER or LAW replacing a local police association, where the local does not wish to be on the ballot or to continue to represent employes, get a letter to that effect and furnish copies to the other parties. The local association still should sign the stipulation forms, but the ballot would contain only one union choice rather than two union choices. (M351.3)

C. Petition For A Unit Clarification (M539.1)

1. Serve the petition on the other party. 3

2. Check the docket books to get the prior certification and prior clarification decisions, if any. If certified, send for the old file, unless it already has been reopened.

3. Review the prior decision(s) obtained from docket books to determine the unit description and which, if any, job classifications were litigated, either in the initial or in subsequent proceedings.

4. If the unit was voluntarily recognized, review the Commission decisions to see if clarification appears to be an appropriate procedure. City of Sheboygan, Dec. No. 7378A (WERC, 5/89); Madison VTAE, Dec. No. 8382A, (WERC, 1/80). Generally, if the disputed position(s) involve a statutory exclusion, e.g., supervisory, managerial or confidential issue, then the voluntarily recognized status of the unit will not bar the petition.

5. Contact the parties re: 1. Hearing dates. 2. Settlement (discuss previous Commission decisions involving similar situations, positions, and/or issues - send copies of decisions if that will help). Possible resolutions:

a. Voluntary accretion without a vote.

b. Residual unit accretion election. (See Appendix 6.)

c. Overall unit vote, including the unrepresented positions.

d. Position(s) remain excluded.

III PRE-HEARING CONFERENCES

If you conduct a formal pre-hearing conference, you must draft a memorandum summarizing that conference pursuant to Sec. 227.44(4)(b), Stats. An alternative approach would be to conduct an informal settlement conference.

The use of a pre-hearing conference on a separate day or trip than the hearing should be of an infrequent nature. Unless the number of issues is unusually large, normally an informal discussion prior to opening the record of the hearing is the best approach. If a separate pre-hearing conference is held, it is recommended that the conference be on the day preceding the hearing date to avoid additional travel.

IV EFFECT OF A PENDING COMPLAINT (M326 & M537.1)

A. The Commission generally will not process an election petition where a prohibited practice complaint has been filed with the Commission: (1) which contains any allegation, the facts of which, if proven, would constitute a basis for filing objections to any election which might be directed; and (2) where either party filed a motion that the complaint bars the Commission from processing the election petition. In certain instances, the election can proceed if the party who filed the complaint waives the right to assert that those matters alleged in the complaint affect the results of the election. Where a motion to bar processing is filed and no waiver is obtained, then the election proceeding will be held in abeyance pending the disposition of the complaint proceeding. See Marinette County, Dec. No. 22102 (WERC, 11/84) and Platteville School District, Dec. No. 21645A (WERC, 6/84). If the Commission has recently issued an order with respect to an unfair labor practice and a party is required to cease and desist from certain activity and to take affirmative action to remedy same, the Commission will not proceed in the election matter until it is satisfied that the Commission order has been complied with and the atmosphere is such that a free and unfettered election may be had. Also see Menominee County, Dec. No. 26236 (WERC, 11/89).

V SHOWING OF INTEREST (M312 & M533.1)

The fact that some employes who previously executed a showing of interest in support of the petition may have changed their support does not constitute a basis for negating their original intent. In any event, the showing is merely to justify the further processing of the proceeding. The showing of interest herein was sufficient. The final intent of the employes as to their choice of representative can be reflected by their secret ballots cast in an election conducted by the Commission. Waukesha County Technical Institute, Dec. No. 19751 (WERC, 7/82).

A. Where Employes Are Not Represented

1. Where employes are not currently represented by a labor organization the Commission does not require the petitioner in an election case to submit proof that it represents any particular number of the employes involved. The petitioner's claim that it represents employes in the alleged appropriate bargaining unit raises a question concerning representation and is a sufficient showing of interest.

B. Where The Employes Are Represented By A Labor Organization

The adequacy of a showing of interest in support of a petition for election is determined administratively by the Commission to keep secret the identity of the employes involved and is not subject to review or litigation by the parties. Waukesha County Technical Institute, Dec. No. 19751 (WERC, 7/82).

1. Petition Filed By Another Labor Organization Or By An Employe

The Commission normally requires a petition by a different labor organization to be supported by signatures from at least 30% of the employes in the petitioned-for bargaining unit. * Those signatures can be on separate authorization cards or on sheets of paper, with a heading that makes it clear the employes understood that their signatures supported the election petition. Preferably, only one employe should sign the actual petition to minimize the number of parties receiving copies of correspondence. The showing of interest must be timely filed under the same standards as the petition. City of Green Bay (City Hall), Dec. No. 21210 (WERC, 11/83). If another labor organization (other than the incumbent) intervenes, it must provide a 10% showing of interest. (Brown County, Dec. No. 11983 (WERC, 6/73)). The Commission may afford the Intervenor an appropriate period of time following the hearing to furnish such a showing of interest.

* In City of Racine, Dec. No. 12918 (WERC, 8/74) when the Commission had certified separate craft and professional units and the parties then combined those units into one unit for bargaining purposes, a 30% showing of interest is not required for the combined unit, but rather, is required only in the certified units which are appropriate.

See Appendix 39 which discusses: (1) how the showing of interest is handled under the public records policy; (2) the administrative determination of the adequacy of the showing of interest; and (3) the return of the original showing of interest documents to the petitioner.

2. Petition Filed By Employer

An employer petitioning for an election in an existing unit must demonstrate to the Commission at the hearing, by objective considerations, that is has reasonable cause to believe that the incumbent organization has lost its majority status since its certification or the date of voluntary recognition. This objective evidence must not have been obtained by the employer through prohibited means. Wauwatosa Board of Education, Dec. No. 8300A (WERC, 2/68).

The fact that fewer than one-half of the members of a bargaining unit had authorizations for dues check-off on file with the employer, where there was no evidence the number of such authorizations had decreased, did not meet the objective considerations standard. Black Earth School District No. 1, Dec. No. 9719 (WERC, 6/70).

In Barron County, Dec. No. 18005 (WERC, 8/80) the Commission indicated that a mere claim without additional evidence, by a labor organization that the employes in a bargaining unit had voted to switch their affiliation to it from a different labor organization which represented those employes would not constitute a sufficient basis for an employer to reasonably believe the incumbent labor organization had lost its majority status.

It would appear that an employer's petition may be processed if the employer can demonstrate:

(1) a reorganization which affects multiple bargaining units, Green County, Dec. No. 21453 (WERC, 2/84); Portage County, Dec. No. 18792 (WERC, 6/81);

(2) the existence of a schism, Durand Jt. School District No. 1, Dec. No. 13552 (WERC, 4/75);

(3) that at least 30% of the bargaining unit desire a change possibly based on petitions from the employes, School District of Delavan-Darien, Dec. No. 21159 (WERC, 11/83); or,

(4) that the incumbent labor organization became defunct, City of Milton, Dec. No. 13442 (WERC, 3/75).

Affiliation with another Union.

3. Racine Unified School District, Dec. No. 10095B (WERC, 12/88). In determining whether a merger or affiliation raises a question of representation, the Commission is guided by (1) considering the degree of continuity between the predecessor organization and the successor organization; and (2) recognizing and giving effect to the desires of the employes which is determined by a procedure which safeguards the free and unfettered choice of said employes. No. (2) is measured by the following due process requirements:

(a) adequate notice of the affiliation vote to all members;

(b) an adequate opportunity for members to discuss affiliation; and

(c) reasonable precautions are taken to maintain ballot secrecy.

VI BARS TO PROCESSING THE PETITION (M320)

A. Contract Bar (M321)

A party to the proceeding may raise the contention that there is a collective bargaining agreement in effect which bars the present conduct of an election. Request the party making such contention to state its position in writing with copies to the other parties. Have the other parties respond in writing. The parties may agree to let the Commission make a ruling without a hearing.

If this issue arises at the hearing have the party put its contention on the record and then obtain the positions of the other parties with regard thereto. Request the parties to place a copy of the contract in evidence as an exhibit. Develop the record by way of testimony concerning items such as how the contract is negotiated, is the contract reduced to writing, are copies of the contract given to the employes, etc.

Usually questions of length of contract, recognition agreements, members only contracts, contracts lacking substantial details and conditions of employment, contracts for inappropriate units and premature extensions are solved by the contract itself. Other issues can only be determined from additional evidence adduced during the hearing.

The following factors will be considered by the Commission to determine whether or not the alleged contract constitutes a bar to a present election:

1. The term of the agreement. A contract with a duration in excess of three years may very well not constitute a bar for the entire duration of the contract. In Clayton School District, Dec. No. 20698 (WERC, 5/83) a four year contract was a bar for only three years.

2. Timeliness of petition (M321.3, .4 & .5)

a. A petition filed after an agreement has been automatically renewed is not timely filed and will be dismissed by the Commission.

b. An agreement without a reopener date may not constitute a bar depending on such factors as; the period in which to initiate negotiations, the budgetary deadline, the collective bargaining history, and other factors which affect the stability of the relationship between the employes, their bargaining agent and the employer. Village of Shorewood, Dec. No. 14262 (WERC, 1/76). City of Green Bay, Dec. No. 6558 (WERC, 11/63).

c. Contract contains a reopening date--Petition must be filed within the 60 day period preceding the reopening date. Menominee County, Dec. No. 23352 (WERC, 3/86).

1. Exception - If the reopening date is more than six months prior to the budgetary deadline of the employer, then the petition must be filed in the 60 day period preceding the six month period which precedes the budgetary deadline date. Modified Wauwatosa policy City of Milwaukee, Dec. No. 8622 (WERC, 7/68).

2. Showing of interest by the petitioner must also be filed within the 60 day period. City of Green Bay, Dec. No. 21210 (WERC, 11/83).

d. An indefinite extension of a contract does not constitute a bar to a petition filed after the regular term of the contract has expired. Dunn County, Dec. No. 17861 (WERC, 6/80).

e. A reopener clause on a limited number of items in a multi-year contract does not create a 60 day period in which an election petition could be timely filed. Douglas County, Dec. No. 20608 (WERC, 5/83).

f. Interest Arbitration Petition Pending (M324 & M328). An election petition filed subsequent to an interest-arbitration petition is generally barred by the int/arb petition, City of Prescott, Dec. No. 18741 (WERC, 6/81), unless the time period covered by the int/arb final offers has already expired Oconto County, Dec. No. 21847 (WERC, 7/84), or the petition is filed during the 60 days after the issuance of the int/arb award if the award is issued during or after the 60-day period prior to the reopener date in the agreement. Mukwonago Schools, Dec. No. 24600 (WERC, 6/87).

g. An election petition filed after the parties reach tentative agreement on a successor contract is untimely. City of Appleton, Dec. No. 9511 (WERC, 2/70).

3. Form of contract - This factor goes to whether there is an agreement actually in existence. Where an employe handbook was adopted unilaterally by employer, it was not a contract. Rock County, Dec. No. 9066 (WERC, 6/69).

4. Schism, loss of membership, or disaffiliation from the contracting labor organization - A schism occurs when some of the employes in the bargaining unit become dissatisfied with the organization representing them and they turn to another organization for such purpose. If a schism exists, then an election may be directed. Durand Unified Schools, Dec. No. 13552 (WERC, 4/75) and Dec. No. 13552A (WERC, 7/75).

5. (M533.7) Defunctness of contracting labor organization - If the contracting organization is unable or unwilling to represent the employes for the duration of the existing collective bargaining agreement, then the agreement will not constitute a bar to a present election. Evidence of defunctness should be adduced; whether dues are being paid, whether stewards are functioning, whether meetings are being held, whether grievances are being processed, and whether the conditions set forth in the agreement are being enforced, e.g., check-off, fair share, etc.

B. Second Election (M322)

Where a valid election is conducted and the employes do not elect to be represented for the purposes of collective bargaining, the Commission will not normally entertain a petition for a subsequent election until one year after the date of the conduct of the original election. Where a valid election is conducted and a bargaining representative is certified, the Commission will not normally entertain a petition for a subsequent election until one year after the date of the certification of results of the election. Village of Deerfield, Dec. No. 26168 (WERC, 9/89).

C. No Showing Of Interest

See Section V.

D. Existing Unit (M323)

An improper existing bargaining unit (e.g., inclusion of professional employes with non-professional employes where professional employes were not given a unit vote) is not a bar to an election petition. City of Appleton, Dec. No. 11784 (WERC, 4/73). The same is true of craft employes. Green Bay Public School District, Dec. No. 23263A (WERC, 8/86).

E. Pending Complaint Proceeding (M316 & M326)

See Section IV.

F. Concurrent Arbitration Proceeding

Where a grievance was pending concerning the bargaining unit status of certain positions, the Commission held in abeyance a subsequent unit clarification petition, concerning the same positions, pending completion of the arbitration process. Madison Metropolitan School District, Dec. No. 6746G (WERC, 12/89).

The Commission favors the arbitration of disputes as to whether the parties have agreed to include certain positions in the bargaining unit, unless the inclusion of the positions contravenes MERA. Stoughton Area School District, Dec. No. 15995 (WERC, 12/77).

Also see Edgerton School District, Dec. No. 18856-A (WERC, 5/90); Milwaukee Public Schools, Dec. No. 25143 (WERC, 2/88).

G. Pending Court Action (M327)

The Commission will not automatically defer action on an election petition, but will evaluate each case to determine whether the outcome of the court proceedings could have a dramatic impact on voter eligibility. Hortonville Schools, Dec. No. 13076A (WERC, 11/74).

H. Jurisdictional Dispute (M325)

The Commission did not hold an election proceeding in abeyance where a jurisdictional dispute between two unions existed.

I. Alleged Problems With The Petition

1. Failure to receive a copy of the Petition (M533.2)

Not grounds for dismissal, but may cause an adjournment of the hearing if the party was not aware of the hearing.

2. Failure to designate a local organization (M533.3)

A parent organization does not have to designate a local on the petition.

3. Failure to clearly state nature of unit (M533.4)

Petition may still be valid even if the description of the unit sought is not clear.

4. Previous decision on identical issue (M533.8)

The petition will be processed, if the filing party alleges a change in circumstances.

VII QUESTION CONCERNING REPRESENTATION (M313)

The failure of the petitioner to make a request for recognition prior to the filing of the petition is not grounds for dismissing the petition. The filing of the petition is sufficient to raise the question of representation. (M311) Village of Brown Deer, Dec. No. 6650 (WERC, 2/64).

VIII SCHEDULING THE HEARING

The purpose of the hearing is to take evidence with respect to the issues involved. All parties should be prepared to present evidence relating to the duties and responsibilities of the positions in issue as well as on any other issues which may have arisen.

A. Setting A Date

1. Elections

For an election petition, the hearing should be set within 30 days of your assignment to the case, unless both parties are willing to set a later hearing date, in which case an indication of same should be reflected in the introductory paragraph of the decision. You should determine, upon your receipt of the petition, if more than one (1) day of hearing will be necessary, and if so, the days of hearing should be scheduled consecutively, when possible.

2. Unit Clarifications

For a unit clarification petition, the hearing should be set within 45 days of your assignment to the case, unless both parties are willing to set a later hearing date, in which case an indication of same should be reflected in the introductory paragraph of the decision. You should determine, upon your receipt of the petition, if more than one (1) day of hearing will be necessary, and if so, the days of hearing should be scheduled consecutively, when possible.

B. Notices, Rooms and Court Reporters

The Examiner schedules the matter for hearing by serving a Notice of Hearing on the parties (Appendix 7 for elections and Appendix 8 for unit clarifications. Appendix 9 accompanies either notice.) If the Commission appoints you as an Examiner with authority to issue a final decision, then Appendix 10 accompanies the Notice of Hearing. Appendix 11 is used for a substitution, if necessary. Give a completed Notice of Hearing form to word processing for them to prepare a formal Notice of Hearing, to make a calendar entry, to arrange a hearing room, if necessary, and to arrange for a court reporter. The Examiner must be sure to notify the court reporter if the hearing postpones or cancels.

Any party wishing a copy of a transcript shall make their request directly to the court reporter. (It is suggested that the Examiner, at the close of the hearing, ask the parties if they want copies.) The reporter will prepare the party's copy, mail it directly to the party, and bill the party for the cost of that copy. The Commission will pay for the cost of the original transcript (which the Commission receives), the reporter's appearance fee, and any other reporter expenses.

If a party does not order a copy of the transcript, but later wishes to review the transcript, the party may come to the Commission's offices and review the Commission's copy of the transcript.

C. Postponements

Requests to postpone or reschedule an election or unit clarification hearing or other changes in hearing arrangements should be in writing and addressed to the Examiner. Copies of such requests should be served on all other parties having an interest in the matter. Such request should be filed as soon as possible and after the party requesting same has attempted to obtain an agreement from the other parties with respect to the desired changes, including an alternative hearing date within 10 days of the original date and should state the position of each of the other parties on the requested postponement. Postponements will not be granted except for good cause or upon agreement of all parties. If changes in the hearing are made, the Examiner must serve the parties with the appropriate notice. (See Appendices 1216.)

In Sawyer County, Dec. No. 25681 (WERC, 9/88), the Commission denied a requested postponement where the request did not provide good cause for a postponement.

Hearings are scheduled between the hours of 8:00 a.m. - 5:00 p.m. on Mondays through Fridays. Hearing on petitions involving school districts can be delayed to a week day which is not a student contact day (e.g., in-service, vacations, summer breaks, etc.), unless such scheduling causes a major delay on an election petition.

IX. AMENDMENT OF PETITION (M533.5)

A. Prior To The Hearing

Advise other parties and serve a copy of the amended petition on all other parties. If the intent to amend is expressed in a telephone call, said intent should be confirmed by the petitioner in a letter to the Examiner with copies to the other parties. If time does not permit such written notification, the Examiner should notify the other party(s) by telephone of the intended amendment.

B. At The Hearing

The amendment can be expressed orally on the record. If possible, obtain consent of parties to motion to amend. If no agreement, obtain position of the parties with respect to the motion and if opposed, the reasons.

If the proposed amendment is substantial, exercise care to determine that the granting of the motion and then proceeding with the hearing will cause no prejudice to any interested persons or organizations. Consider awareness of the parties of any new issues and their preparedness to proceed on the new issues.

If necessary, grant motion to amend and adjourn to a new date on which all interested persons or organizations will have adequate notice of the hearing and of the newly raised matters.

X FILING OF ANOTHER PETITION

A. Prior To The Hearing

Serve copies on other parties. In election cases a Notice of Hearing should be issued. For example, see Appendix 17. In unit clarification cases, a second formal Notice of Hearing is not necessary. Rather, the parties can be notified by telephone or by letter that the petition will be heard at the hearing already scheduled for the previously filed petition.

B. At The Hearing

The Examiner may accept such petition at the hearing (on the record) if it should be heard simultaneously with the pending petition.

XI MOTIONS TO WITHDRAW PETITION (M533.6)

A. Prior To The Hearing

1. Do not open hearing and reduce motion to writing.

2. Advise the petitioners that the Commission will issue a formal order of dismissal, or, if withdrawal is not approved, proceed with the hearing.

B. During The Hearing

1. The motion may be made orally on the record, or in writing and introduced as an exhibit.

2. Advise the petitioners that the Commission will issue a formal order of dismissal, or, if withdrawal is not approved, continue the hearing.

C. During An Adjournment Of The Hearing

1. Call to the Commission's attention for ruling and disposition prior to the scheduled resumption of hearing.

D. After The Election Is Directed

1. If the employes were unrepresented, the election generally would not be conducted if the petitioning union withdrew its petition. Stoughton Area School District, Dec. No. 26405A (WERC, 5/90).

2. If the election involved a decertification with only the incumbent union on the ballot, the election would generally not be conducted.

3. If the election involved more than one union, the Commission generally would deny a request by one union to be removed from the ballot if such a request was made after the notices of election had been distributed and the ballots printed, because granting the request would necessitate the posting of revised notices and the printing of new ballots, thereby postponing the election.


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This page is a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is {http://werc.wi.gov/hearing_examiner_representation_case_manual_vol_1_of_3.htm}. Last modified on 14 AUG 1998. Comments, questions and suggestions.