Hearing Examiner Representation Case Manual
by Douglas V. Knudson
Volume 2 of 3*
*This Manual has been separated into three files due to its length. Each 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.)
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
IV EFFECT OF A PENDING COMPLAINT
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
A. Setting A Date
B. Notices, Rooms and Court Reporters
C. Postponements
A. Prior To The Hearing
B. At The Hearing
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
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
XVII ABSENTEE BALLOTS
XVIII OBJECTIONS TO THE CONDUCT OF AN ELECTION/REFERENDUM
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
XXI ELIGIBILITY TO PARTICIPATE IN THE ELECTION
A. Eligibility Date
B. Statutory Criteria
C. Relatives
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.
XII SUBPOENAS
Secs. 227.46(1)(b) and 885.01, and ERB 2.11, 10.14 and 20.14, Stats., empower Examiners in election proceedings to issue subpoenas (Appendix 18) to compel the production of documents or the attendance of witnesses at hearing. The Examiner is responsible for making sure that the subpoena sent to a requesting party 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 5 dollars per day and 20 cents per mile pursuant to Sec. 814.67(1)(a) and (c), Stats.) In the rare event that the Examiner is required to subpoena a witness on the Commission's behalf, the Commission is responsible for the service and the payment of fees. However, in such circumstances, fees need not be paid in advance or at the time of hearing. Instead, such witnesses shall be paid upon submission of a verified voucher to the Commission. (See Sec. 111.07(2)(d), Stats.)
Effective April 1, 1990, attorneys (only) representing parties in Complaint, Election, etc. proceedings will also be able to issue subpoenas. The pertinent portion of 1989 Wisconsin Act 139 states:
SECTION 7. 227.45(6m) of the statutes is created to read:
227.45(6m) 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, etc., to issue subpoenas.
It is the Examiner's responsibility to rule upon any Motion to Quash which may be made as to a subpoena. 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 Sec. 885.12, Stats. 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 the issues of service will arise or 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(s) to reach any necessary understandings as to how best to proceed.
When subpoenas are sent at the request of a party, all other parties should receive a copy of the cover letter which accompanies the subpoenas.
If scheduling changes in the hearing arrangements occur after subpoenas have been issued, the party requesting the subpoenas must communicate those changes to the recipients of the subpoenas.
XIII THE HEARING (M535)
A. Material Needed At The Hearing
1. Copy of Act
2. Copy of Rules and Regulations
3. Copy of Digest of Decisions
4. Copy of Examiner's Manual
5. Blank subpoenas
6. Blank forms:
(a) Petition for Election
(b) Stipulation for Election
(c) Petition for Referendum
(d) Stipulation for Referendum
(e) Stipulation for Election
(f) Petition to Clarify Bargaining Unit
7. Examiner's current calendar in order to ascertain dates available for continuance or adjournments. Court Reporter should also have a calendar available.
8. Some relevant decisions.
B. The Examiner's Responsibilities
The objective of the hearing is to present to the Commission a complete and accurate record so as to enable it to determine the facts and to draw the relevant conclusions with reference to the election case.
The Examiner's duty is to make certain sufficient evidence is in the record to enable the Commission to make proper findings. If you have any doubts concerning rulings and/or how to proceed, recess the hearing and contact the Commission.
The Examiner is the Commission's representative and pursuant to Sec. 227.46, Wis. Stats., has the authority to:
1. Administer oaths and affirmations.
Example - The witness stands and raises right hand while the Examiner says:
"Do you solemnly swear (or affirm) that the testimony you are about to give in this proceeding is the truth, the whole truth and nothing but the truth?"
Witness should answer affirmatively.
2. Issue subpoenas in the name of the Commission.
3. Rule upon offers of proof, receive relevant evidence, and exclude irrelevant, immaterial or unduly repetitious evidence.
4. Call and question witnesses.
5. Take or cause depositions to be taken and determine their scope.
6. Regulate the time, place and the course of the hearing.
7. Dispose of procedural requests or other similar matters.
8. During the course of the hearing hold conferences for the settlement, simplification or adjustment of the issues by consent of the parties.
9. Take any other action necessary under the foregoing or authorized by the rules of the Commission.
10. Make or recommend findings of fact, conclusions of law and decisions to the extent permitted by law.
C. Activities Prior To Opening The Record
1. Prepare physical arrangement for the hearing -- where the court reporter, yourself, the witnesses and the represent-atives of the parties will sit.
2. Obtain the full name and address of all individuals appearing on behalf of the parties, and their titles, if any, and the correct names of the parties for the court reporter.
3. Give each party a copy of the statement of standard hearing procedures (Appendix 19).
4. A discussion of the issues and points of agreement (stipul-ations) prior to the opening of the hearing will serve as a guide to the conduct of the hearing. Such discussion may be initiated as follows:
"Perhaps a discussion prior to the opening of the hearing will expedite the matter. Can we define the matters in issue and those in agreement?"
5. Obtain the positions of the parties on the unit description each believes to be appropriate. If at the hearing the parties appear to be in agreement on an appropriate unit, stay off the record to work out a stipulation. Then enter the stipulation on the record. If the parties disagree as to the appropriate unit, the position of each party should be stated on the record, either by the parties or the Examiner.
The petitioner's contention as to what constitutes the appro-priate unit is reflected in the petition. If the description of the unit appears incomplete, inquiry should be made of the petitioner to clarify and complete the description of the desired unit.
At the hearing, when the parties are unable to stipulate to the appropriate unit, the following should be asked: If the Commission should determine that the appropriate unit is other than the unit desired by the petitioner, does the petitioner still want the Commission to conduct an election?
Obtain an organizational chart, if possible, in cases involving a petition for an election. Such a chart is helpful in determining whether the petitioned-for unit is appropriate in view of existing bargaining units and other unrepresented employes. An organization chart also may be useful in clarification cases where the issue involves an expansion of an existing unit, since the Commission should know what, if any, other employes are unrepresented in addition to those covered by the petition.
a. Obtain a list of the employes the employer believes to be both included in and excluded from the petitioned-for unit. The basis for each exclusion should be identified, e.g., supervisory, confidential, casual, professional, managerial, etc. (M535.4) The list of employes should be made an exhibit if a hearing is necessary.
b. The Union has a right to copies of the organization chart and the list of employes. If the employe list can be furnished to the Examiner and the Union prior to the hearing, identification, and even resolution, of the issues is more possible.
The Commission does not require an employer to include the addresses and phone numbers of the employes as a part of a list of the employes in the bargaining unit (the so-called Excelsior list). Milwaukee Board of School Directors, Dec. No. 13787F (WERC, 6/78).
c. The Examiner should raise questions, on behalf of the Commission, concerning inclusion in, or exclusion from, the potential unit, even if such creates additional issues for the hearing.
6. It is usually helpful to get information about the employer's entire organization for the Commission. Such information can be gathered off the record and then entered through exhibits, stipulations and/or testimony.
7. Explore the possibilities of a resolution of some or all of the issues on a voluntary basis. If all issues are resolved without going on the record, the Commission prefers that the parties execute a stipulation for election form, rather than entering the stipulation on the record. If the parties execute a written stipulation on the standard form, or stipulate to an election in the record, then the Direction will be prepared by the Elections Supervisor (Georgann Kramer).
If the parties want to stipulate to an election by agreeing on the appropriate bargaining unit and on the list of eligible voters with some challenged ballots, the Examiner still should take evidence on the disputed positions. If the parties agree, the Commission usually will conduct the election prior to issuing a decision on the disputed positions. A rough guideline for using this approach is that the number of challenges should not exceed 10 percent of the eligible voters.
The Examiner can be fairly aggressive in attempting to settle the matter by relying on prior Commission decisions, since the decision is issued by the Commission rather than the Examiner, unless the Examiner has been given final authority. However, because Examiners have a statutory obligation to conduct themselves in a fair and impartial manner and because it is important that the parties continue to have confidence in the Examiner's impartiality, Examiners must be very careful to make sure that the parties' positions during settlement discussions do not influence the Examiner's demeanor during hearing.
8. If a hearing is necessary because of the issues involved, be sure to get into the record information which is relevant and has been discussed informally either prior to the hearing date or prior to the opening of the record, e.g., the other bargaining units which exist, the number and categories of other employes which are unrepresented. Also, enter in the record any agreements and stipulations reached by the parties, and, the correct names of the parties.
9. Identify and mark exhibits if the parties are willing to do so at that time. (The exhibits may give the Examiner a better background for attempts to resolve the issues.) The exhibits so marked must be identified and received on the record.
10. Establish the order of proceeding. If the parties can not agree, the Examiner should make such a determination. The hearing is not an adversarial proceeding, but rather, is investigatory in purpose so as to provide the Commission with sufficient information to make its decision. Thus, there really is no burden of proof on the petitioner as in a complaint proceeding. The Commission does not consider burden of proof concepts to be an appropriate guide to resolving the issues presented by a non-adversarial election petition. The burden of proof, to the extent one can be said to exist, is on each party to bring forth the information it deems appropriate to guide the Commission in its determination. City of Green Bay, Dec. No. 21210A (WERC, 3/84). In fact, the record is often more orderly when the employer's witnesses testify first, regardless of whether the employer or the union filed the petition.
There are at least two approaches to the taking of testimony from witnesses. One approach is to let the parties call and question witnesses with the Examiner asking additional questions after direct and cross-examination. Another approach when the parties agree that it would be more efficient and do not object to such a process, is to have the Examiner question the witness first and then let the parties ask additional questions, if any. The advantage of the second approach is that it gives the Examiner greater control of the proceeding and the relevant information is frequently obtained in a more condensed form than when the parties ask questions first, especially if one or more of the parties' represent-atives have limited experience with election cases. However, if the parties' representatives are knowledgeable in the information relevant to the issues, then they may resent not being allowed to question their witnesses before the Examiner does so. If the second approach is followed, be sure all parties agree to that approach, except in extraordinary circumstances.
Sequestration should be allowed or imposed where the Examiner believes it will materially assist the production of an accurate record.
12. The Press and/or the public can attend the hearing, since it is a public proceeding.
13. Failure of a party to appear
If the party has been served with a Notice of the hearing, as evidenced by a certified receipt, and the Examiner's efforts to contact the party prove unsuccessful, the Examiner should proceed. The failure of the party to appear should be noted on the record. Additional hearing may be held if the party subsequently establishes good cause for its failure to appear. Such a party should also be given the right to obtain a copy of the transcript of any hearing and to file written argument.
14. Briefs
You can discourage briefing where you believe it will be of little or no value to you or the Commission, but you should not refuse anyone the opportunity to file if they so desire. You can, however, insist upon a reasonably expeditious (2 weeks) briefing schedule so as to not unduly delay the processing of the petition, especially cases involving an election. A longer briefing schedule in unit clarification cases is not a problem. Your decision in this regard should be communicated to the parties as soon as possible so they can plan accordingly.
If the matter involves an election, in an off-the-record discussion the Examiner should advise the parties that the Commission will determine the mechanics of the election (such as the use of a mail ballot, or the day of the week, date, time and place for an on-site vote), but the Commission will consider their preferences and generally will honor the parties' agreement covering same. If such an agreement is obtained, reference thereto may be made in the record, and entries should also be made on the Election Case Checklist (Appendix 20). If an agreement with regard to said matters cannot be obtained, so note on the record. Advise the parties that the eligibility date will be (?? the ??) date on which the Direction is issued, unless the parties mutually agree on a different date. (See Section XX(A).) Also determine the number of notices of election required by the employer for posting, to assure that all employes eligible have an opportunity to observe same. The employer should receive enough copies to post a notice in each building where eligible employes work or on each bulletin board, if more than one.
The Commission treats all representation cases as "Class 1" contested cases under the Administrative Procedures Act (Chapter 227, Stats.) and as non-adversary proceedings. CESA #12, Dec. No. 20944 (WERC, 8/83) (M535.1). Section 227.45 provides:
227.45 Evidence and official notice. In contested cases:
(1) Except as provided in S. 19.52(3), 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. 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 afforded adequate opportunity to rebut or offer counter-vailing 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, the parties shall be given an opportunity to compare the copy with the original.
(6) A party may conduct cross-examination reasonably required for a full and true disclosure of the facts.
The Examiner is responsible for developing a complete record and may need to call, examine, and cross-examine witnesses and to introduce documentary and other evidence into the record.
Evidence should be received, either in the form or sworn testimony, exhibits or stipulation. The opportunity for cross-examination should be given to all parties. Where appropriate, the testimony of a particular witness may be broken, for cross-examination, redirect, etc., into segments before proceeding to the next category of employes or issues.
The Examiner should state, on the record, that the Commission may take notice of prior Commission election proceedings involving the employer and of any court proceeding.
Witnesses are examined under oath or affirmation.
The Examiner should attempt to keep the record as short as possible and should attempt to solicit stipulations and exclude irrelevant and cumulative evidence. However, each party should be permitted to introduce any relevant testimony and evidence. When the parties have indicated they have nothing further to offer, the Examiner should declare the hearing closed.
Motions
Rulings on motions which seek dismissal of the petition or other substantive disposition of a party's ultimate rights should be reserved for the Commission.
E. Opening Statement By The Examiner
"The hearing will be in order. This is a formal proceeding and hearing before the Wisconsin Employment Relations Commission in the matter of and , Case No. . The Examiner appearing for the Commission is and the Reporter is ."
Each party has received a copy of the statement of standard hearing procedures. (Appendix 19.)
"Will the representatives appearing on behalf of the parties please state their appearances for the record?"
"For the Petitioner (Union) (Employer) (Individual)?"
"For the Employer (Union)?"
"Are there any other appearances?" (If not) - "Let the record show no response."
F. Intervention (M532.3 & M536.6)
It may very well be that a labor organization, individual or party, other than the petitioner, may have an interest in the matter and desires to intervene therein. Such intervention is initiated by a motion, usually made at the outset of the hearing. The Examiner must rule on such motions. If the motion is granted, the intervenor becomes a party to the proceedings and may full participate. If the intervenor indicates an interest in a group apart and unrelated to the unit involved in the petition, intervention should not be permitted and the party attempting to intervene should be advised to file a separate petition.
If the Examiner has any doubt as to the propriety of permitting intervention by any person or labor organization, intervention should be permitted for the time being, making it clear, however, that final decision is being reserved.
Normally the Examiner should elicit the motion to intervene as follows:
"(NAME), you indicated a desire to intervene herein. Will you state on whose behalf such intervention is desired and the basis therefor?"
Permit said individual to make a statement and motion and then inquire,
"What are the positions of the parties with respect to the motion to intervene?"
"The motion of for intervention herein is (granted) (denied)."
Where there is an incumbent labor organization, said organization is allowed to intervene on the basis of its status as the current representative of the employes. Other labor organizations can also intervene: (1) by stating a desire to represent the employes if the employes are presently unrepresented; or, (2) by submitting a 10 percent showing of interest if the employes are presently represented. See Barron County, Dec. No. 11983 (WERC, 6/73).
The Examiner may continue the hearing from day to day, or adjourn to a later date or to a different place. If an adjournment is granted, an appropriate announcement should be made on the record. Subsequently, a notice of continued hearing should be issued. Where there are outstanding subpoenas, the notice should contain a sentence that the parties are responsible for advising individuals they have under subpoena of the continued hearing.
Prior to consenting to adjourn, the Examiner should make every possible effort to avoid an adjournment/continuance because speed is of the essence in election cases and needless adjournments cause additional expense for the agency.
H. Checklist At Close Of Hearing
1. Have a list of eligible voters.
2. Have a list of the disputed employes.
3. Obtain parties' suggestions on the voting arrangements (place, time of day and day(s) of week).
4. Were all exhibits received into the record?
5. Were all stipulations entered into the record?
6. Ask each party if it wants a copy of the transcript.
7. Were briefing arrangements entered into the record?
8. Give each party a handout on absentee ballots. (See Appendix 21.)
9. Have all the information necessary for the Election Case Checklist.
XIV POST-HEARING
A. Cases Which Settle At Hearing
1. Draft Order of Dismissal for Commission. See Appendix 22 for election petitions and Appendix 23 for unit clarification cases.
2. Complete the case information sheet in file.
1. Watch for timely receipt of transcript and briefs.
2. You are to immediately advise the General Counsel when an election petition case becomes ready to write so that the Commission can anticipate when a draft will become ready for consideration. At that time you should also discuss with the General Counsel any concerns you may have about your ability to meet the 30 day deadline.
3. Draft a decision for the Commission and attach a cover memo which highlights the issues and the basis for your decision. (Remember the guidelines for drafts to be given to the Commission are 30 calendar days for election cases and 60 calendar days for unit clarification cases following the close of the record. Those time periods include typing time.)
4. When Commission decisions are appealed to the Courts, we are required to certify the record before the Commission for the Court's consideration. The record includes briefs. Thus, if you mark up briefs when preparing a decision or draft, please make an extra copy for that purpose so that a clean copy is available in the file for the Court's use.
C. Petition For Additional Hearing (M535.6)
Additional hearing may be held if the record is inadequate or if an interested party was not aware of the hearing, or for the presentation of newly discovered evidence.
D. Actions Affecting The Direction Of Election
1. Option to set aside the direction (M536.4) based on an opportunity for petitioner to withdraw since the unit determined by the Commission to be appropriate for election was different than the unit sought in the petition.
2. Request to hold direction in abeyance (M536.5) denied where it was speculative whether anticipated changes in employer's operation would occur.
3. Motion to intervene (M536.6) denied where granting of request would delay the election. Janesville Joint School District No. 1, Dec. No. 13617A (WERC, 5/75).
4. Request to be removed from ballot (M536.7) denied where request was received only five days prior to the balloting. Commission policy has been to deny such requests if the notices have already been sent for posting.
5. Direction to set aside (M536.8) where Commission learned that the agreed upon unit was inappropriate.
6. Direction to set aside where petitioner requests to be removed from the ballot and there is no other labor organization on the ballot.
XV THE ELECTION
A. Notice of Election
The Commission's policy is that the Employer is required to post Notices for at least 15 calendar days prior to the election in locations which will enable all eligible voters to see the notices. If the employes work in several buildings, e.g., a school district, then a notice should be posted in each building. In a large facility, e.g., a health care center, it may be necessary to post notices in several locations, e.g., bulletin boards or time clocks. Appendix 24 is a sample Notice.
B. Multiple Voting Groups
1. Professionals and non-professionals or craft and non-craft (see Section XIX, B) (M537.2) (Appendix 24 is a sample Notice.)
Usually the unit determination ballots (Appendix 26) are counted first and then the representation ballots (Appendix 27) are counted.
2. Other combinations (M537.3).
C. Conduct Of An On Site Vote
1. Voting lists. A prohibition against the maintenance of said lists by a party is appropriate only insofar as it is reasonably necessary to avoid the potential fear of reprisal on the voter's part. In our view such a fear can be generated if a voter observes the recording of their names outside the polling place and thus outside the aura of legitimacy and fair play conveyed by the presence of our election agent in the polling place. Thus, outside the polling place, it is improper for a party to record in any manner the identity of those who have voted or are about to vote. However, it is not inappropriate for the parties respective representatives (observers) in the polling place to use a copy of our official eligibility list to record the names of the employes who have voted. The information obtained from the copy of our list can be used for "get out the vote" activity so long as such activity occurs outside the polling place or the immediate vicinity thereof. Fox Valley VTAE District, Dec. No. 25357A (WERC, 11/88).
2. See Appendix 28 for the procedures for conducting an election.
D. Void and Blank Ballots (M351.2)
1. Blank ballots are not valid.
2. Ballots are counted if secrecy is preserved and voter's intent is clear.
E. Mail Ballots (M537.4)
1. The Commission reserves the right to conduct an election by mail ballots, rather than by an on-site vote. Mail ballots may be used in situations involving small numbers of voters, multiple work sites, multiple shift operations, school district employes in the summer, and/or an absence of a convenient site for balloting.
2. In the future, we will count as valid any late mail ballots which are received prior to the actual commencement of the ballot count. In mail ballots, as indicated by the facts of this case, it is our general practice to count the ballots the day after the deadline for ballot receipt. Thus, application of this new policy to our general practice would allow us to count any ballots received in the morning of the day after the deadline. Flambeau School District, Dec. No. 26238A (WERC, 5/90).
3. Absentee ballots (see Article XVII).
F. Run Off Election (M537.6)
In a situation involving more than two choices on the ballot, e.g., two labor organizations and no union, and where no choice received a majority of the votes cast, the Commission may conduct a run off election in which the choice receiving the least number of votes is removed from the ballot, if such an election is requested within the 30 day period following the Commission's certification of the initial results. Sec. 111.70(4)(d)4, Stats.
In City of Greenfield, Dec. No. 18303B (WERC, 2/81), a run off was not conducted when all employes voted and each of two unions received an equal number of votes with the choice of no representation receiving zero votes.
XVI CHALLENGED BALLOTS (M537.5)
ERB 21.08 states that any observer or Commission agent conducting the election may challenge for good cause the eligibility of any person to vote in the election. The challenged ballots are impounded.
If the challenged ballots may affect the result of the election, a hearing concerning the eligibility of the voters, whose ballots were challenged, will be scheduled. Appendix 29 is a sample notice of hearing.
In some cases where the number of voters subject to challenge is small in comparison to the number of eligible voters (ex. - 2 of 50), in order to expedite the election, the Commission, usually with the agreement of the parties, will not conduct a hearing on the eligibility of the potential challenges, but rather, first will conduct the election. Challenged voters will be allowed to cast ballots. If the challenged ballots do not affect the results of the election, the Commission will proceed to certify the election results. A unit clarification petition on said positions may be filed after the election and certification if the Union wins and the parties are unable to voluntarily resolve the status of the challenged voters. In one case involving 50 eligible voters, the Commission directed an election, even though one party objected because a ruling had not been made on the eligibility of one employe. Fond du Lac School District, Dec. No. 17638A (WERC, 6/84). If at the hearing the parties want to stipulate to an election and agree to take some ballots by challenge, the Examiner still should conduct the hearing to take evidence concerning the reasons for the challenges. The decision on the eligibility of the challenged voters can then be made, if necessary, after the election is conducted without further delay. Such a procedure avoids the necessity of the Examiner making two trips for the same case.
Normally the Commission will challenge a ballot which an employe attempts to cast without being present at the polling site (ex. - brought in by another employe in a sealed envelope), unless the ballot is cast in accordance with the Commission's policies on absentee ballots.
XVII ABSENTEE BALLOTS
The Commission has a policy of permitting absentee ballots under the following circumstances:
POLICY ON ABSENTEE BALLOTS
Absent agreement between the parties, mail ballots will not be provided, except on the basis of an affidavit executed by the individual employe, establishing that a mail ballot is justified, e.g., the employe is ill, on vacation outside the community, or is otherwise absent from the community. Such affidavit must be filed sufficiently in advance in order that the Commission will have time to forward a mail ballot and receive same in its offices, or in care of the local Postmaster, in order for the Commission's agent to obtain same prior to the opening of the polls.
City of Columbus (Police Department), Dec. No. 16967B (WERC, 7/79).
The following is sent to an employer for posting with the Election Notices:
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
POLICY ON ABSENTEE BALLOTS
Mail ballots will not be provided, except on the basis of a signed statement executed by the individual employe in the presence of a notary public, establishing that a mail ballot is justified, e.g., the employe is ill, or will be on vacation outside the community, or otherwise absent from the community on the day of the election. Such statement must be received by the Commission in Madison at least ten (10) days prior to the election and must include the employe's home address so that the ballot can be mailed to the employe. Any questions regarding the application of this policy should be referred to the Elections Supervisor.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
P.O. Box 7870
Madison, Wisconsin 53707-7870
(608) 266-5866
XVIII OBJECTIONS TO THE CONDUCT OF AN ELECTION/REFERENDUM (M352 & M537.7)
The filing of objections is governed by ERB 3.05 and 4.05 (WEPA), ERB 11.10 and 15.12 (MERA), and ERB 21.10 (SELRA). Such objections must be timely filed (within 5 days after the tally of ballots has been furnished, excluding Saturdays, Sundays and holidays). City of Wauwatosa, Dec. No. 21145A (WERC, 1/84).
Employes are entitled to an election climate free of conduct or conditions which would improperly influence them and a climate fair to any party on the ballot. St. Croix County, Dec. No. 8932E (WERC, 9/87); WERC v. Evansville, 69 Wis.2d 140 (1975); Washington County, Dec. No. 7694C (WERC, 9/67). Where the secrecy of the voting process itself is maintained, there is a strong presumption that the ballots actually cast reflect the true wishes of the employes participating. Fox Valley Vocational, Technical and Adult Education District, Dec. No. 25357A (WERC, 3/89). The Commission has refused to certify election results where it is established in a post-election objections proceeding that the employes were unable to freely express their choice through a secret ballot as a result of either employer or union misconduct. Town of Weston (Water Utility), Dec. No. 16499B (WERC, 2/79). Such can occur through the granting of benefits (See Dec. No. 16499B) during the pendency of an election proceeding, unless the grant of benefits either resulted from a commitment prior to knowledge of the organizational activity or reflected a practice of effectuating a customary change. Fond du Lac County, Dec. No. 16096B (WERC, 9/78). Threats of reprisals and promises of benefits resulted in a new election. Town of Mercer, Dec. No. 22826C (WERC, 5/86). Promises. St. Croix County, Dec. No. 8932E (WERC, 7/87).
In a raid situation, the contingent scheduling of an initial bargaining session between the County and AFSCME (the incumbent union), the communication of the existence of said session to employes prior to the election, and the conduct of said initial bargaining session shortly after balloting was completed, did not render it improbable that the employes in question were able to freely cast their ballots. Sawyer County, Dec. No. 25681A (WERC, 3/89).
Campaign propaganda will not be a basis for overturning the election unless it is either a statement which is so misleading as to prevent a free choice by the employes or one which contains a promise of benefit or a threat. (See Dec. No. 16096B above.)
The Commission has not placed restrictions on whom the parties select to be election observers (elected officials, supervisors or union representatives), so long as the secrecy of the balloting process itself is maintained and no electioneering occurs. Village of Jackson, Dec. No. 24595B (WERC, 10/87).
Captive audience meetings within 24 hours of an election or referendum are prohibited and are cause to set aside the election or referendum results. Doyle Lithographing & Printing Co., Dec. No. 8126C (WERC, 5/68). However, the 24 hour rule does not apply to written communications (See Dec. No. 16096B above).
Only parties to elections may file objections to the conduct of the election. Individual employes may not file objections. Town of Allouez, Dec. No. 14553C (WERC, 1/77).
See Appendix 30 for a sample Notice of Hearing.
XIX CERTIFICATION OF RESULTS (M538)
Appendix 31 is a sample.
ERB 11.09 reads as follows:
If challenged ballots are insufficient in number to affect the results, and if no run-off election is to be held, and no timely objections are filed as provided below, the commission shall forthwith issue to the parties a certification of the results of the election, either a certification of a collective bargaining unit or a certification of representatives, or both where appropriate.
Certifications are infrequently set aside.
XX APPROPRIATE UNIT UNDER MERA (M340-345 & M421)
A. Statutory Criteria
Section 111.70(1)(b) of MERA defines a collective bargaining unit as the "the unit determined by the Commission to be appropriate for the purpose of collective bargaining."
In determining whether the unit sought is appropriate, the Commission must consider Section 111.70(4)(d)2.a. of MERA, which provides as follows:
The commission shall determine the appropriate bargaining unit for the purpose of collective bargaining and shall whenever possible avoid fragmentation by maintaining as few units as practicable in keeping with the size of the total municipal work force. In making such a deter-mination, the commission may decide whether, in a particular case, the employes in the same or several departments, divisions, institutions, crafts, professions or other occupational groupings constitute a unit.
B. Combined Units Of Either Professional And Non-professional Employes, Or Craft and Non-craft Employes (M537.2)
Professional employes cannot be included in a unit with non-professional employes, unless a majority of the professional employes vote for inclusion in the same unit with non-professional employes. The same requirement applies to the inclusion of craft employes in a unit with non-craft employes.
In election cases involving two voting groups, one consisting of non-professional employes and the other consisting of professional employes, where the professional employes are voting on whether they desire to be included in a single bargaining unit with the non-professional employes, the bargaining unit description in the direction of election for the non-professional employes should read in pertinent part as follows:
. . ., conditionally excluding professional employes, and fully excluding . . . (See Appendix 32 as an example.)
If the parties stipulate to such a vote, the following voting procedure is utilized:
The professional employs will be given two ballots. One ballot will determine whether they wish to be represented by the Union. The other ballot will determine whether they wish to be included in either (a) a separate unit of professional employes or (b) a combined unit of professional and non-professional employes.
The non-professional employes will receive one ballot which will determine if they wish to be represented by the Union.
The first ballots to be counted will be those of the professionals on the issue of whether they wish to be included in a combined unit of professional and non-professional employes, or to be a separate unit of professional employes. If a majority of the eligible professional employes vote to be a separate unit of professional employes, then the Commission will count separately the representation ballots of the two groups, i.e., professional and non-professional. If the majority of the voting professional employes vote to be represented by the Union, then the Union will be certified as the repre-sentative of the professional unit. If the majority of voting non-professional employes vote to be represented by the Union, then the Union will be certified as the representative of the non-professional unit.
If a majority of the eligible professional employes vote to be included in a unit with the non-professionals, then the Commission will comingle the representation ballots of both the professional and non-professional employes to determine if the majority of the voting employes (professional and non-professional combined) desire to be represented by the Union.
The mechanics of the above procedure are as follows:
1. When distributing the ballots, those employes in the group that will be voting on unit inclusion as well as union representation, will receive two color-coded ballots (one for each question). The Commission agent will give the following instructions:
a. The ballot concerning unit inclusion should be marked, folded once, and kept separate from the other ballot.
b. The ballot concerning union representation should be marked, folded, and sealed in a plain white unmarked envelope.
c. The unit inclusion ballot and the sealed envelope (containing the representation ballot) should both be dropped into the ballot box.
2. Those employes in the group who are voting only on the question concerning representation will be given the one representation ballot (as usual), which will be the same color as the representation ballots for the other group.
Professional employes will be given an opportunity to vote on whether to be included with non-professional employes only if such a request is made by the labor organization, not by the employer. Brown County, Dec. No. 11862 (WERC, 5/73).
C. Balancing Fragmentation and Employe Interests
This Commission has interpreted Section 111.70(4)(d)2.a. to mean that at times there is a need for a mix of bargaining units which afford employes the opportunity to be represented in workable units by organizations of their own choosing, which may reasonably be expected to be concerned with the unique interests and aspirations of the employes in said unit.
Therefore, the Commission has the obligation to strike a balance between stability on one hand with an "eye on the antifragmentation proscription of the statute", and the need for ensuring that the unique interests of a given group of employes will not be subordinated to the interest of another overall bargaining group. It is for that reason that the Commission examines the facts of each case to determine the appro-priateness of a particular bargaining unit petitioned to be separate. City of Green Bay, Dec. No. 21210A (WERC, 3/84).
D. Factors To Consider (M345.1)
In applying the above statutory criteria in establishing appropriate bargaining units, the Commission has considered the following factors:
1. Whether the employes in the unit sought share a "community of interest" distinct from that of other employes.
2. The duties and skills of employes in the unit sought as compared with the duties and skills of other employes.
3. The similarity of wages, hours and working conditions of employes in the unit sought as compared to wages, hours and working conditions of other employes.
4. Whether the employes in the unit sought have separate or common supervision with other employes.
5. Whether the employes in the unit sought have a common workplace with the employes in said desired unit or whether they share a workplace with other employes.
6. Whether the unit sought will result in undue fragmentation of bargaining units.
7. Bargaining history. (M342)
See Benton School District, Dec. No. 24147 (WERC, 12/86); Boyceville Community School District, Dec. No. 20598 (WERC, 4/83).
E. Examining The Factors
1. Duties and Skills
a. What are the duties and skills of the employes in the unit sought as compared to the duties and skills of other employes?
b. Do the employes in the unit sought serve the same people or clients as other employes?
c. Does the employer have other employes performing similar duties using similar skills? (The Commission tries to avoid placing similar jobs in different units.)
1) Do these two groups of employes work with each other?
2) Is there any interchange between these two groups of employes? (For example, can these employes substitute for each other during an absence?)
2. Wages, Hours and Conditions of Employment
a. What are the hours of work of these employes? How do they compare with other employes?
b. What are the employe's wages? How do they compare with other employes?
c. What are the employes' fringe benefits? (Such as vacation, holidays, insurance benefits, sick leave, overtime and longevity.) How do they compare with other employes' fringe benefits?
3. Supervision
(Obtain an organizational chart)
a. Who is the immediate supervisor of the employes in the unit sought?
b. To whom does that supervisor report?
c. Are any other employes supervised by either of these two supervisors? If so, who are they?
4. Work Site
a. Where doe these employes work?
b. Do any other employes share the same work place?
c. Do these employes share a common area such as a lounge, cafeteria or clean-up area with any other employes?
d. If these employes work outside the employer's main work place such as the courthouse or annex, do any other employes work outside the main work place at the same or different locations?
5. Undue Fragmentation
a. How many other represented units does this employer have? Get a general description of those units, including the number of employes in each unit?
b. How many other employes does the employer have who are not currently represented but would probably be eligible employes within the meaning of the act? Are those employes professional or non-professional? Get job titles.
c. How many employes does the employer have that are probably excluded as not eligible within the meaning of the act?
6. Bargaining History
Is there any history of these employes being grouped with any other employes for purposes of wages, hours and conditions of employment?
F. Additional Considerations
1. Law Enforcement employes with the power of arrest (M345.4.4, M345.5.6, M345.6.2 & M345.8.1). To date, these employes have been placed in units separate from other employes without the power of arrest, even other law enforcement employes. Manitowoc County, Dec. No. 25851 (WERC, 1/89); County of Waukesha, Dec. No. 14830 (WERC, 8/76).*
2. Firefighters (M343.1.9 & M345.6.3). The Commission has found firefighters to be craft employes. Milwaukee County, Dec. No. 7135 (WERC, 5/65). Firefighters have been given separate units.*
* The establishment of separate units for these groups is strongly supported by the exclusion of law enforcement and firefighting personnel from the interest arbitration procedure (Sec. 111.70(4)(cm), Stats., originally med/arb) available to other municipal employes. If such separate units were not established, groups of employes could be commingled in one bargaining unit and under one contract, even though the groups had to utilize different impasse procedures to resolve negotiation deadlocks.
3. One employe units have been found to be appropriate. City of Whitefish Bay, Dec. No. 6160 (WERC, 11/62).
4. Overall units
a. All employes (professional and non-professional). Such units were more common, and some still exist, in the past, particularly in Social Service Departments. Now these units are most frequent in libraries (M345.5.5).
The Commission did not find appropriate a unit combining teachers (professionals) and non-professional support staff. Benton School District, Dec. No. 24147 (WERC, 12/86).
b. All professional and/or craft employes (M345.3).
1) Such a unit may be appropriate when there are only a few employes involved. Grant County, Dec. No. 21063 (WERC, 10/83); City of Cudahy, Dec. No. 19507 (WERC, 3/82).
2) The Commission normally includes other pro-fessionals employed by a school district in the same bargaining unit with teachers (M345.7.2). Madison Metropolitan School District, Dec. No. 6746-D (WERC, 4/77).
c. All non-professional, non-craft employes (M345.4.2, M345.4.6, M345.5.2 & M345.7.1).
City of Elkhorn, Dec. No. 24790 (WERC, 8/87); City of Green Bay , Dec. No. 21210A (WERC, 3/84); Taylor County, Dec. No. 17603 (WERC, 2/80).
5. Units of less than all unrepresented employes.
a. Employes of one profession or craft (M343.1, M345.5.9 & M345.7.2). For example, registered nurses, Chippewa County, Dec. No. 26126 (WERC, 8/89), or attorneys, Milwaukee County, Dec. No. 12571 (WERC, 3/74).
b. Employes in a separate department (M343.2). These units were very common until MERA was revised on November 11, 1971 wherein the Commission is instructed to avoid fragmentation (M345.1 & M345.5.4).
Employes in Health Care institutions frequently have a separate unit (M345.4.3 and M345.5.3).
c. Blue collar or white collar units of non-craft and non-professional employes. Shawano-Gresham School District, Dec. No. 21265 (WERC, 12/83).
1) Blue collar (M345.4.1, M345.5.1 & M345.6.1). City of Seymour, Dec. No. 25201 (WERC, 2/88); Village of Pewaukee, Dec. No. 17771A (WERC, 4/81).
2) White collar (M345.4.2 & M345.5.2). City of Franklin, Dec. No. 18208 (WERC, 11/80); La Crosse County, Dec. No. 10910 (WERC, 4/72).
d. Groups with similar duties - These units are most common in school districts. Examples are clerical and/or aides, or food service, or custodial or bus drivers (M345.7.1). Appleton Area School District, Dec. No. 18203 (WERC, 11/80); Watertown Unified School District, Dec. No. 17404 (WERC, 11/79); Lodi Jt. School District #1, Dec. No. 16667 (WERC, 11/78).
In Edgerton School District, Dec. No. 18856A (WERC, 5/90), the Commission excluded from a unit of aides a secretarial position which the employer erroneously had included in the unit.
6. Residual units of all unrepresented employes.
a. Determine what other units already exist.
b. Get names and position titles of the unrepresented employes.
Waukesha County, Dec. No. 26020A (WERC, 9/89); West Allis - West Milwaukee School District, Dec. No. 16405A (WERC, 9/89).
c. The residual voting group may be merged with an existing unit. See Sheboygan County (Unified Board), Dec. No. 23031A (WERC, 4/86); Joint School District No. 1, Towns of Minoqua, Hazelhurst and Lake Tomahawk, Dec. No. 19381 (WERC, 2/82); School District of Chetek, Dec. No. 19206 (WERC, 12/81); Milwaukee County (Institutions), Dec. No. 18685 (WERC, 5/81).
7. Separate employers. Most common for libraries and water and electric utilities. (See M345.4.1, M345.4.5 & M345.5.5.)
8. Moving a position from one bargaining unit to a different bargaining unit. The Commission will not alter the composition of a bargaining unit agreed upon by the parties by excluding positions over the objection of one of the parties 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.
Eau Claire Area School District, Dec. No. 17124A (WERC, 4/90).
G. Supervisory Units
Section 111.70(8) allows law enforcement or firefighting supervisors to form bargaining units. See Appendix 33 for a sample of the petition form and Appendix 34 for a sample of the stipulation form to be used for such units.
1. Law Enforcement (M346.2)
2. Firefighters (M346.3)
However, the ability to form a bargaining unit does not confer on supervisors the statutory rights of other municipal employes. City of Green Bay, Dec. No. 25868A (WERC, 3/89); City of Milwaukee, Dec. No. 12742A (WERC, 4/75).
H. Stipulated Units (M336.1 & M345.2)
1. The Commission may not honor an agreement of the parties to exclude otherwise eligible employes from a bargaining unit. City of Middleton, Dec. No. 10381 (WERC, 7/71).
2. The Commission will not direct an election in a stipulated unit unless the unit is appropriate. La Crosse County , Dec. No. 10910 (WERC, 4/72); Eau Claire Public Library, Dec. No. 10789 (WERC, 2/72).
[Representation Manual Table of Contents]
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_2_of_ 3.htm}. Last modified on 14 AUG 1998.
Comments, questions and suggestions.