Hearing Examiner Representation Case Manual
by Douglas V. Knudson
Volume 3 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.
XXI ELIGIBILITY TO PARTICIPATE IN THE ELECTION
A. Eligibility Date
Normally the Commission establishes the eligibility date as the date on which the Commission issues its Direction of Election. However, where the parties agree on a specific date, the Examiner should call this to the attention of the Commission in a cover memo with the Direction of Election. Where there is an issue as to eligibility date based on unusual circumstances, and not merely the whim any party, the Examiner should take evidence with respect to the matter.
The Employer is expected to provide the eligibility list. The list does not have to include the addresses of the voters. Milwaukee Board of School Directors, Dec. No. 13787F (WERC, 6/78).
B. Statutory Criteria
1. Section 111.02(6), in defining the term "employe", excludes independent contractors, executives and supervisors as well as any individual employed by a parent or spouse.
2. Section 111.70(1)(i) reads as follows:
(i) "Municipal employe" means any individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial or executive employe.
3. Section 111.81(7) reads as follows:
7) "Employe" includes:
(a) Any state employe in the classified service of the state, as defined in s. 230.08, except limited term employes, sessional employes, project employes, supervisors, management employes and individuals who are privy to confidential matters affecting the employer-employe relationship, as well as all employes of the commission.
(b) Program, project or teaching assistants employed by the university of Wisconsin system, except supervisors, management employes and individuals who are privy to confidential matters affecting the employer-employe relationship.
C. Relatives (M123)
In order to be excluded from the eligibles the individual must be either employed by his parent or spouse or closely related to such a management agent. Develop the record by way of testimony to determine the following:
What is the nature of the relationship?
How much interest does the parent or spouse have in the business?
If stock corporation, what percentage of stock is owned by the parent or spouse?
Is the parent or spouse active in the day-to-day operation of the business or operation?
Exs. - (1) Cousin of mayor eligible to vote. City of Medford, Dec. No. 13609 (WERC, 5/75).
(2) Wife and daughter of Superintendent not eligible to vote. Richland County, Dec. No. 11484 (WERC, 12/72).
(3) Wife of sheriff not eligible to vote. Douglas County, Dec. No. 18209A (WERC, 9/81).
(4) Daughter of sheriff not eligible to vote. Sawyer County, Dec. No. 19219 (WERC, 12/81).
D. Confidential Employes (M334)
1. For an employe to be considered confidential there must be a showing that an employe has sufficient access to, knowledge of, or participation in confidential matters relating to labor relations. In order for such information to be considered confidential for such purposes it must be of the type that:
a. Deals with the employer's strategy or position in collective bargaining, contract administration, litigation or other matters pertaining to labor relations; and
b. Is not available to the bargaining representative or its agents. City of Cudahy, Dec. No. 21887 (WERC, 8/84); Jefferson Water and Electric Department, Dec. No. 20511 (WERC, 4/83); Northwood School District, Dec. No. 20022 (WERC, 10/82).
2. The confidential exclusion protects a municipal employer's right to conduct its labor relations through employes whose interests are aligned with those of management, rather than risk having confidential information handled by people with conflicting loyalties who may be subjected to pressure from fellow bargaining unit members. Cooperative Education Service Agency No. 9, Dec. No. 23863A (WERC, 12/86). However, we have said that an employer clearly cannot be allowed to exclude an inordinately large number of employes by spreading the work of a confidential nature among such employes or giving them occasional tasks of a confidential nature. We have also held that the physical proximity of confidential and non-confidential employes or the effect of a finding of a confidential status or non-confidential status on the sociometry of the work place are not appropriate consider-ations in make a determination of whether employes are confidential employes. Marshfield Joint School District No. 1, Dec. No. 14575A (WERC, 7/76).
Notwithstanding the actual amount of confidential work conducted, but assuming good faith on the part of the employer, an employe may be found to be confidential where the person in question is the only one available to perform legitimate confidential work and, similarly, where a management employe has significant labor relations respons-ibility, the clerical employe assigned as her or his secretary may be found to be confidential, even if the actual amount of confidential work is not significant, unless the confidential work can be assigned to another employe without undue disruption of the employer's organization. Village of Saukville, Dec. No. 26170 (WERC, 9/89); City of Kaukauna (Utility Commission), Dec. No. 17149B (WERC, 2/80).
3. Sample Duties
Costing of bargaining may be a sufficient basis to find an employe to be confidential. Howard-Suamico School District, Dec. No. 22731A (WERC, 9/88).
The accessibility to personnel files is not in itself sufficient. Door County, Dec. No. 7859A (WERC, 5/85); Kenosha County (Sheriff's Department), Dec. No. 21909 (WERC, 8/84).
The occasional replacement of a confidential employe is not in itself sufficient. West Salem School District, Dec. No. 22514A (WERC, 8/89); Adams-Friendship Area Schools, Dec. No. 11881 (WERC, 5/73).
The mere keeping of absenteeism records is not confidential. City of Greenfield, Dec. No. 18304C (WERC, 3/82).
The following types of information are not confidential: (1) the preparation of grievance responses which are given to the employes and/or the union; (2) records of disciplinary actions which are placed in personnel files and/or are given to employes; and (3) negotiating proposals which the employer always presents to the union in contract negotiations.
Where the employe's duties are closely related to an activity which could lead to discipline of a bargaining unit employe, then the employe may be confidential. The question remains then of how involved is the employe in the disciplinary process. (Example: Does the employe recommend discipline for excessive absenteeism? If so, is the recommendation based on a standard policy?) Milwaukee County (Sheriff's Department), Dec. No. 22519 (WERC, 4/85); Walworth County, Dec. No. 18846 (WERC, 7/81); City of Milwaukee (Department of Public Works, Dec. No. 16987 (WERC, 4/79).
Frequently the confidentiality of an employe is closely related to the involvement in labor relations matters of said employe's supervisor. Does the employe handle and/or prepare correspondence concerning collective bargaining negotiations, some of which deals with the employer's strategy, such as alternative proposals?
Is the position a new position or a continuing position? The question then arises of whether the duties are anticipatory or newly assigned duties. If anticipatory, is such a change the result of a reorganization of the employer's bargaining responsibilities? If the duties are newly assigned, who previously performed such duties City of Appleton, Dec. No. 12917B (WERC, 9/82). Another question to examine is whether other confidential employes are available to do the work assigned to the employe in question. As part of the information look at the number of existing bargaining units with which the employer negotiates. Also determine the number of positions and titles which are already excluded from collective bargaining units as confidential.
Keep in mind that a de minimis exposure is not sufficient to exclude an employe. Madison Area VTAE District No. 4, Dec. No. 16456E (WERC, 11/87); Appleton Area School District, Dec. No. 22338-B (WERC, 7/87); Wisconsin Heights School District, Dec. No. 17182 (WERC, 8/79).
4. Sample Questions
Develop the record by way of testimony to determine the duties of the alleged confidential employe as well as the nature of the confidential material with which they are concerned. The following questions are suggested to develop the record:
a. What is your name, title, department? How many years have you had that position in that department?
b. Who is your supervisor and do you prepare work for anyone else? Is so, for whom and what is that person's title?
c. Describe your duties?
d. Do you participate in the development of bargaining proposals? If so, describe your participation? (Example: discussion and/or costing of possible proposals, surveying other employers concerning wage rates, benefits, etc., researching arbitration awards, or typing.) To whom do you give the information?
1. Have you ever been involved in the development of possible alternative bargaining proposals not all of which were presented to the labor organization? If so, when? Describe.
2. If you do costing, what is involved? (Examples: compiling previous year's expenditures; projections based on percentage increases; costing union proposals.)
3. Does the employe attend executive sessions in which labor relations matters are discussed?
4. Does the employe have access to files relating to the employer's strategy in collective bargaining negotiations?
5. Is the employe involved in the preparation of reports pertaining to changes in programs which could affect bargaining unit employes, e.g., layoffs, subcontracting, etc.?
6. Describe the involvement in labor negotiations of your supervisor. (Example: a member of a negotiating team and/or the spokesperson.) Do you open and see correspondence concerning collective bargaining? If so, does some of the correspondence deal with the employer's strategy, i.e., information to which the union does not have access? Do you type notes concerning labor relations strategy? If so, explain in detail the contents of the notes and the frequency of such preparation.
e. Have you ever performed the investigation of an employe's behavior which might result in discipline? If so, when? Describe both the investigation and the resulting discipline, if any. Is such discipline the result of a standard policy, such as a set action based on a certain number of unexcused absences? Who determined the appropriate discipline?
f. Do you participate in the development of answers to grievances or the settlement of grievances? If so, when? Describe your participation. Are the answers tentative or alternative responses for the employer's consideration, versus a formal response to be given to the employe and/or the union?
g. Have you ever participated in the preparation of arbitration cases or other litigation of labor relations cases? If so, describe.
h. Do you participate in the development of work rules? If so, describe your participation.
i. Roughly how much of your time is spent in the foregoing activities: Development of bargaining proposals, investigation of misconduct, answers to grievances, development of work rules and development of arbitration or litigation strategy?
j. Does any other employe perform any of the duties you perform?
E. Supervisory Employes (M121 & M335)
In determining a position's supervisory status under Sec. 111.70(1)(o), the Commission considers the following factors:
1. The authority to effectively recommend the hiring, promotion, transfer, discipline, or discharge of employes;
2. The authority to direct and assign the work force;
3. The number of employes supervised, and the number of other persons exercising greater, similar or lesser authority over the same employes;
4. The level of pay, including an evaluation of whether the alleged supervisor is paid for his skills or for his supervision of employes;
5. Whether the alleged supervisor is primarily supervising an activity or is primarily supervising employes;
6. Whether the alleged supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employes; and
7. The amount of independent judgment exercised in the supervision of employes.
Not all of the above factors need be present when the Commission determines a position's supervisory status, but if a sufficient number of these factors are present the Commission will find the position to be supervisory. Somerset School District, Dec. No. 24968A (WERC, 3/88).
Areas to Explore
1. Title? Department? How long in that position? Previously held positions with the same employer?
2. The number of employes supervised and the types of positions occupied by those employes. The duties performed by those employes. One part-time subordinate was sufficient to find an employe to be a supervisor, City of Ashland, Dec. No. 18808A (WERC, 7/86).
3. The title of the person to whom the alleged supervisor reports.
a. How many levels of supervision exist above the contested position. (An organizational chart would be very helpful.)
4. The employe's rate of pay in comparison to the rates of pay for that person's subordinates. Do the subordinates get overtime pay or compensatory time off?
a. If higher, is the difference due to skills, experience, length of service or supervisory responsibilities?
b. How many hours a week do you work? Do you work overtime? If so, do you receive additional pay or compensatory time off? Are your hours of work flexible?
5. Duties of the position. (A job description may help.)
a. How much time is spent doing work similar to that performed by the employes being supervised (Example: If a police officer, does the alleged supervisor perform patrol, and if so, is the patrol in a given area as opposed to anywhere in the employer's jurisdiction?).
b. Other duties.
6. How much authority in the following areas does the alleged supervisor exercise? (Does the alleged supervisor exercise independent judgment, rather than following pre-established policies and procedures in making decisions?)
a. The direction of employes and the assignment of work (routine or varied activities).
b. The authority to change work assignments. Explain with examples.
c. The ability to change hours of work or work schedules.
d. The authority to authorize overtime (with or without anyone's approval).
e. The authority to call in additional and/or replacement employes.
f. The authority to grant requests for time off, e.g., vacations, sick leave, compensatory time, leaving work early, leave without pay, etc.
g. Does any other person exercise day-to-day supervision over the same employes or is anyone else available to do such supervision?
h. Are there guidelines, such as policies to follow in authorizing overtime, calling in employes, granting time off requests, etc.? If so, what are the guidelines and how did you receive them?
i. Do you need approval from anyone before acting on items a. through h.? If so, specify the actions and the approval process (who, how, when, etc.).
7. Involvement in the hiring process. If any of the following are answered affirmatively, get specifics on the instances.
a. Does the alleged supervisor interview or participate in the interviewing of applicants?
1. If interview applicants alone, does the alleged supervisor rank the applicants and recommend the one to be offered the position?
2. Does the alleged supervisor check references?
3. Are the alleged supervisor's recommendations followed and if so, how frequently?
4. Who makes the decision on which applicant is offered the position? What is the alleged supervisor's role in that decision?
5. If part of an interview panel, what other employes (by position title) are on the panel; how is a decision reached by the panel (consensus); is the alleged supervisor's involvement solely for the purpose of checking the applicant's job skills? (Example: a professional or craft employe.)
6. Is the alleged supervisor involved in all interviews?
7. How long has the alleged supervisor been performing interviewing duties?
8. Is there a list of standard questions which are asked of all applicants? If so, who creates the list? Who evaluates the responses?
b. Frequency and recent examples of involvement in interviewing and hiring duties.
1. How many employes have been hired for positions under your direction during the time you have held your current position?
2. Give the most recent instance of the hiring of one of your subordinates? Describe your role in the hiring process.
c. If no subordinates have been hired during the time you have held your current position, do you know what your involvement in the hiring process would be? Who informed you of your involvement or authority? Was the information in writing?
8. Disciplinary authority.
a. Have you ever disciplined a subordinate? When was the last time? Has your supervisor ever disciplined one of your subordinates?
1. Describe your part in that discipline.
2. Did anyone have to approve that discipline? If so, who? What information did you give to that approving person? How do each of you share in the decision to discipline?
3. How do you know that you have this authority to discipline? (Were you given oral or written authorization? If so, by whom?)
4. What levels of discipline can be issued?
a. Oral reprimand. (Are reports of the reprimand then placed in the employe's personnel file?)
b. Written warnings.
c. Suspensions.
d. Discharge.
5. Get specific examples of disciplinary actions identifying when the discipline occurred, to whom the discipline was administered, the type of discipline and the conduct for which the discipline was administered.
6. The frequency of disciplinary actions.
7. Have you ever recommended discipline which was not effectuated or was altered?
8. Have you investigated conduct or incidents resulting in discipline? If so, was a report prepared and to whom was it given? Give examples.
9. Do you complete performance evaluations of your subordinates? If so, for all of them?
a. How often are the evaluations done?
b. How long has the evaluation system been in operation?
c. Are the evaluations written? Is there a standard form (get a copy)? To whom are copies given?
d. Are the evaluations discussed with the affected employes, and if so, by whom?
e. Do you prepare the evaluations alone?
f. Are the evaluations reviewed by anyone else prior to the evaluation being released to the affected employe?
g. How are the evaluations used?
1. For merit raises?
2. For deciding whether or not to retain probationary employes?
3. What other actions result from good or bad evaluations, e.g., promotions, demotions, etc.?
10. Authority to Promote and Reward
a. Have you ever promoted or rewarded an employe? If so, when was the last time and what was the promotion or reward involved?
b. Who had to approve of that promotion or award?
c. What information did you give to the approving person?
d. Has your recommendation for a promotion ever been rejected?
e. Do you share the authority to promote or reward with anyone? If so, how is that authority shared?
f. Why do you believe that you have this authority to reward or promote? (Who gave you either oral or written directive?)
g. Are promotions and wage increases controlled by a collective bargaining agreement?
11. Authority to Transfer, Lay Off and Recall
a. Have you ever transferred, laid off or recalled an employe? If so, who, when and how were the selections made? Are these actions controlled by a collective bargaining agreement?
b. Did anyone else have to approve the transfer, lay off or recall? If so, who?
c. What information did you give that approving person?
d. Has your recommendation ever been rejected?
e. Do you share the authority to transfer, lay off or recall with anyone? If so, how is that authority shared?
f. Why do you believe that you have this authority to lay off, transfer or recall? (Who gave you oral or written directive?)
12. Authority to Adjust Grievances
a. Do you have the authority to adjust grievances? (Or employe complaints if no labor agreement covering the employes.)
b. If so, when was the last time you made such an adjustment? Give details of that adjustment? Prior instances.
c. Why do you believe that you have such authority? (Were you given oral or written directive?)
d. Are you award that anyone else beside you has the authority to adjust the grievances of your subordinates? If so, explain.
13. Miscellaneous
a. Do you attend supervisory and/or management meetings? What other individuals (titles) attend? What is discussed? How often are the meetings held?
b. Do you conduct meetings of your subordinates? Who attends? What is discussed? How often are the meetings held?
c. Who replaces you when you are absent?
d. How were you informed of your supervisory authorities in the foregoing area? Oral or written form? By whom?
e. Occasions when you have substituted for your immediate supervisor, with reasons for the substitution, frequency and duration.
Note: In all cases where an authority is claimed, specific examples of the exercise of authority should be requested.
Questions For The Alleged Supervisor's Superior
1. What have you told this employe regarding the authority to hire, discipline, promote, transfer, lay off, assign work, create schedules and the authority to adjust grievances? Have you ever given written directive regarding this person's authority?
2. What is your role in review of this employe's decision regarding those items above?
3. Have you ever exercised authority to hire, discipline, promote, transfer, lay off, create schedules or adjust grievances regarding this employe's subordinates on your own initiative without a recommendation from this employe?
F. Managerial Employes (M124 & M337)
In determining whether a position is managerial and thus excluded from the definition of the term "municipal employe" contained in Sec. 111.70(1)(b) of the Municipal Employment Relations Act, the Commission has stated:
Managerial employes have been excluded from MERA coverage on the basis that their relationship to management imbues them with interest significantly at variance with those of other employes. In that managerial employes participate in the formulation, determination and implementation of management policy, they are unique from their co-workers. In addition, managerial status may be related to a position's effective authority to commit the employer's resources. Managerial employes do not necessarily possess confidential information relating to labor relations or supervisory authority over subordinate employes. City of Cudahy, Dec. No. 18502 (WERC, 3/81).
The power to commit the employer's resources involves the authority to establish an original budget or to allocate funds for differing program purposes from such an original budget. By comparison, the authority to make expenditures from certain accounts to achieve those program purposes is ministerial, even though some judgment and discretion are required in determining when such expenditures should be made. Thus, the authority to spend money from a certain account for a specified purpose is not a managerial power, even though managerial employes also have that authority. Shawano County, Dec. No. 15257 (WERC, 3/77).
The participation in the formulation, determination and implementation of policy must be of a significant degree or at a relatively high level of responsibility. Village of Jackson, Dec. No. 25098 (WERC, 1/88). Effective authority to commit the employer's resources means authority to take actions which significantly affect the nature and direction of the employer's operations. Ibid. Examples of such authority include the ability to determine: the kind and level of services to be provided; the kind and number of employes to be utilized in providing the services; the kind and number of capital improvements to be made; and, the systems by which the services will be provided, including whether to use outside contractors. Jackson County, Dec. No. 17828B (WERC, 10/86).
The Examiner must gain sufficient information to determine whether the employe has discretion in policy and/or budget matters, rather than exercising a mere compliance with established policies and procedures. The employe must have effective input into the decision making process rather than a role of merely giving advice to the decision makers and performing duties of an advisory and ministerial nature. City of Whitewater, Dec. No. 24354 (WERC, 3/87).
Areas to Explore
1. Participation in the Formulation, Determination and Implement-ation of Management Policy (Identify specific programs and/or services).
a. Do you develop and establish programs and/or policies for the employer? If so, describe. (Examples: develop and enforce a city building code, an inventory control procedure or a long-term maintenance program, or establish work project priorities for a unit, determine the level of service to be provided for patients, discretion to arrange payment schedules of bills, purchase equipment, transfer funds between accounts within a budget, direct recreation programs, establish training programs, develop curriculum, operate a food service program.)
b. With whom do you discuss these programs or policies? Are your recommendations and input different from those of other employes?
c. What guidelines do you use in establishing these programs or policies?
d. What person or body must approve these programs or policies that you establish?
e. Have any of your recommendations been denied or modified by the approving person or body? When?
f. Are you responsible for the general management, admini-stration and/or day-to-day operation of the programs and services? Town of Pewaukee, Dec. No. 20759 (WERC, 6/83).
g. Do you have the discretion to determine what activities will occur or to determine what fees will be charged for activities or services?
h. Are you responsible for determining levels of service (Example: the formulation and revision of individual plans of patient health care)? Northwoods Guidance Center, Dec. No. 20728A (WERC, 5/85); Kenosha County, Dec. No. 19435 (WERC, 3/82).
i. Can you independently make changes in programs, policies, operations or the administration of those items?
j. Is your authority limited to the provision of options to other individuals for selection purposes?
k. Are your duties and/or procedures statutorily defined?
2. Authority to Commit the Employer's Resources
a. Do you create a budget (or part of a budget) for the employer? Do you evaluate budget priorities, calculate the cost of those priorities, and make effective recommendations on the services which can be provided within the ultimate dollar limits set by the employer? Town of Pewaukee, Dec. No. 20759 (WERC, 6/83).
b. What guidelines do you use in creating that budget? Do you simply project revenues and expenses based on a percentage or on past experience? Jackson County, Dec. No. 17828B (WERC, 10/86).
c. To whom do you recommend this budget for approval?
d. What happens to the budget after you make your recommendation?
e. Has any budget or any part of it been denied or modified by the approving body? If so, give examples.
f. Give specific examples of your budget-making process.
g. Do you take formal bids? Can you enter into contracts on behalf of the employer?
h. Can you choose between alternative providers of goods and services?
i. Can you spend monies from funds not allocated or move funds between different accounts of the budget without additional approval?
j. Can you expend funds within a budget account without additional approval? When you do, are there budget or other guidelines to determine whether you are within your authority? Are there dollar limits on your ability to spend money without approval by someone else? If so, what are the limits? Are your recommendations for larger expenditures followed? (Give examples.)
k. Do you prepare applications for grants and/or other sources of revenue?
l. How much of the budget consists of employe salaries? Do you have any control over those salaries?
m. Do your actions impact on the employer's revenues? Rusk County, Dec. No. 14713D (WERC, 9/86).
G. Professional Employes (M161, M162, M163, M343.1, M343.2.16, M345.3, M345.4.8, M345.5.9 & M345.7.2)
1. Statutory Definition
111.70(1)(L) "Professional employe" means:
1. Any employe engaged in work:
a. Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work;
b. Involving the consistent exercise of discretion and judgment in its performance;
c. Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;
d. Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a pro-longed course of specialized intellectual instruction and study in an institution of higher education or a hospital, as disting-uished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical process; or
2. Any employe who:
a. Has completed the courses of specialized intellectual instruction and study described in subd. 1. d;
b. Is performing related work under the supervision of a professional person to qualify himself to become a professional employes as defined in subd. 1.
2. Sample Questions
a. What work do you do? Describe.
b. Does this position require advanced specialized study? If so, describe. (What degree must be earned? How long is the course of study? What kind of an institution can provide this training or degree?)
c. How does the required advanced specialized study relate to the nature of the employ's work?
d. What decisions or judgments must you make in your work?
e. What guidelines do you use in making these decisions?
f. What intellectual background or knowledge do you use in making those decisions?
g. How closely are your decisions reviewed by a superior? How often does your superior revise your decisions?
h. Does each unit of your work (for example: Case, file, bid or draft) take roughly the same amount of time? If not, what are the variables?
H. Craft Employes (M151-153, M343.1, M345.3 & M345.4.8)
1. Statutory Definition
111.70(1)(d) "Craft employe" means a skilled journeyman, craftsman, including his apprentices and helpers, but shall not include employes not in direct line of progression in the craft.
2. Sample Questions
a. Have these employes completed an apprenticeship program leading to skilled journeyman status? If so, describe, e.g., length, classes, etc.
b. Do these employes work primarily with other alleged craft employes, their apprentices and helpers in their craft? Do they have separate supervision? Does the supervisor have the same craft training?
c. Do they work separately from other employes, not in the same alleged craft? Is there any transfer of work or employes with other operations of the employer?
d. Rate of pay compared to other employes of the employer?
e. Duties performed - include any non-craft work?
I. Independent Contractors (M122)
1. The test of whether a person is an employe or independent contractor is that of the "right to control." Essentially, a person is an employe rather than an independent contractor if the employer for whom the services are performed reserves the right to control the manner and means by which the job is accomplished. In applying the above test to the facts of a particular case, the Commission has looked to the amount of control exercised by the employer over the person involved in the manner and means used to carry out the job function. Consequently, where an employer exerted substantial control over the work functions the Commission has found persons to be employes rather than independent contractors. Northern Pines Unified Services Center, Dec. No. 17590 (WERC, 2/80).
2. Areas to Explore
a. What is the individual's work? Specific activities.
b. How frequently does the employer give the individual directions and order? In what manner? (For example: meetings, written directives, or informal encounters.)
c. How frequently does the employer evaluate the individual's performance?
d. Can the employer terminate or abrogate the alleged contract at any time? If not, what constraints exist?
e. Can the individual hire a replacement without approval of the employer?
f. How is the individual's rate of pay computed? (By the job hour, day, week or month?) If the individual deems the work completed, is pay lost for leaving early without completing a certain number of hours?
g. Who determines whether the work will be performed? Is the individual on a schedule fixed by the employer?
h. Can the individual maximize profit through efficiency or ability? If so, how?
i. Who owns the materials, tools and equipment used by the individual?
j. Where is the work performed?
k. Does the individual provide a similar service for other employers?
J. Probationary Employes (M331.4)
The Commission has held that probationary employes are eligible to participate in an election where they have a reasonable expectation of continued employment. City of Monroe, Dec. No. 11580 (WERC, 2/73).
K. Newly Hired Employes (M331.7)
Normally, newly hired employes are eligible to vote if employed as of the eligibility date in the direction of election.
L. Seasonal Employes (M331.3)
Employes who have a reasonable expectation of returning to seasonal employment the following season are usually included in the bargaining unit.
Relevant questions:
How many employed?
Length of the season?
Nature of the work?
Hours, wages, benefits and working conditions compared to regular employes?
Are they offered employment for the next season?
Rate of turnover from season to season?
How long have seasonal employes been utilized?
M. Temporary Employes (M331.2 & M331.6)
The Commission has defined a temporary employe as one who lacks an expectation of continued employment and it has excluded such employes from voting eligibility because, as a result of their tentative employment status, they do not have the requisite community of interest with other employes. Manitowoc County, Dec. No. 15250B (WERC, 9/77).
The Commission has determined that the source of funding is not a sufficient ground for the exclusion of a position from a bargaining unit (ex. - a federally funded program). (M127)
Look at the work performed. Does it consist of duties which are not normally performed by the employer's regular employes? Is it possible that the employer may continue to employ the employe even if the outside funds are discontinued? Can the funding be renewed?
If the employes were employed specifically either in response to an unusual and temporary situation, or, to a special job, then the employes may be ineligible to vote in an election, even though their positions are included in the bargaining unit. Pittsville School District, Dec. No. 21806 (WERC, 6/84); Pierce County, Dec. No. 12316 (WERC, 12/73).
If an employe has resigned or informed the employer of an intent to resign, the employe may be a temporary employe, City of Middleton, Dec. No. 10381 (WERC, 7/71).
Teachers - (M333) - Teachers with temporary contracts have been included in a bargaining unit with regular teachers. Madison Metropolitan School District, Dec. No. 14161A (WERC, 1/77). However, on-call substitute teachers generally have been excluded from a unit of regular teachers.
Areas to explore:
Is the employe hired for a specific task or job?
Is there a date on which the employment is expected to end?
What did the employer tell the employe about the period of employment?
When does the employer expect to release the employe?
Has the employe been rehired?
How frequently does the employer utilize temporary employes?
Where does the employer obtain its temporary employes?
Do temporary employes have reasonable expectations of becoming regular employes? Have any temporary employes moved into regular employment with the employer?
What duties do the temporary employes perform?
How do the wages, hours, fringe benefits and working conditions of temporary employes compare to regular employes, both full and part-time, e.g., health insurance, holidays, overtime, union dues, etc.?
N. Part-time And Casual Employes (M126, M331.1 & M331.5)
In determining whether less than full-time employes share a sufficient community of interest with regular full-time employes to be included in the same bargaining unit, the Commission has con-sidered a variety of factors including commonality of supervision, similarity of duties and responsibilities, similarity of wages, benefits and working conditions, frequency and regularity of employ-ment, and whether the employe has the right to reject the work the employer makes available.
Generally, the Commission has concluded that employes who are employed on a regular part-time basis have a community of interest in wages, hours and conditions of employment with employes employed on a full-time basis.
The Commission has long held that the determinative factor, in deciding whether an employe is casual or regular part-time, is the regularity of employment, rather than the number of hours worked. Flexibility as to working time does not automatically determine that an employe is a casual employe. Even employes working on an as-needed basis can constitute regular part-time employes where the need of the Employer for services has been regular. Tomahawk School District, Dec. No. 22495 (WERC, 3/85). However, employes who are on-call, only work irregularly and sporadically, and, have the ability to reject assignments often are found to be casual. City of Phillips (Police Department), Dec. No. 26151 (WERC, 9/89).
What duties do the part-time employes perform? Differences, if any, from the duties performed by the full-time employes?
Who supervises them and assigns their duties? How different from full-time employes?
How do their working conditions differ from those of full-time employes?
When do they work? Ex. - specific days or shifts. How are they scheduled? How many hours a day or week do they work? Examine their work patters over a period of time, one year if possible. How many pay periods have they worked? Are they expected to fill unassigned shifts? Do they have the right to refuse a call-in? Is work reserved for them?
How long has the employer been using part-time employes? How long have the current employes been employed? Have previous part-time employes moved to full-time vacancies?
How do the wages and fringe benefits differ between part-time and full-time employes?
In a law enforcement agency, are there differences between the part-time and full-time employes in the carrying of weapons, the uniforms work, manner of patrolling (alone or with a partner), filing of reports, etc.
O. Terminated Employes (M331.8)
Employes who are terminated before the election are not eligible to vote. Juneau County (Pleasant Acres Infirmary), Dec. No. 12814 (WERC, 8/74).
P. Retirees (M126)
Former employes who are retired are not eligible to vote. However, the receipt of Social Security benefits by a regular part-time employe does not exclude the employe form the unit. City of Brillion, Dec. No. 12915 (WERC, 8/74).
Q. Elected Officials and Appointed Deputies and Officers (M129)
1. Deputies: The fact that employes are appointed as deputies by elected officials does not automatically preclude those employes from being placed in a bargaining unit. Oconto County, Dec. No. 12970A (WERC, 3/75); Kewaunee County, Dec. No. 13185 (WERC, 11/74); Ashland County, Dec. No. 7214 (WERC, 7/65).
2. Elected Officials: Apparently, the Commission had never issued a decision involving the unit status of elected officials.
R. Executive Employes (M128 & M338)
An executive employe also has managerial and/or supervisory responsibilities, but further possesses overall responsibility and authority for an agency or major department. City of Oak Creek (Fire Department), Dec. No. 17633 (WERC, 3/80).
S. Employes on Leave of Absences (M332)
Employes on leave of absence are eligible to vote.
XXII PETITIONER'S STATUS AS A LABOR ORGANIZATION (M130, M140 & M532)
Section 111.70(1)(h), Stats., reads
(h) "Labor organization" means an employe organization in which employes participate and which exists for the purpose, in whole or in part, of engaging in collective bargaining with municipal employes concerning grievances, labor disputes, wages, hours or conditions of employment.
It is significant to note that the Legislature did not see fit to impose any formal requirements on a labor organization, such as a requirement that it have a constitution or by-laws, or that it admit employes to formal membership, or that it charge employes dues. The only requirement set out, other than the requirement that the organization have the necessary intent to deal with the employer on matters concerning wages, hours and working conditions, is that employes participate; there is no requirement that the nature of the participation by any more formal than that desired by the employes themselves. Manitowoc County, Dec. No. 10899 (WERC, 3/72).
An individual can be designated as a representative by employes and can be a petitioner. A petition for election may be filed by an employe, labor organization or employer, or the representative of any of them. The labor organization need not necessarily be affiliated with any other organization. It may only be a group of employes who have banded together to deal with their employer in collective bargaining. Normally the Commission does not question the claimed purpose of a labor or employe organization unless there may be reason to doubt same. If the status and/or purpose of any labor or employe organization participating in the proceeding is questioned, said organization, in order to properly participate in the proceeding in any capacity, should be prepared to prove that it exists for the purpose of representing employes to deal with the employer on matters concerning wages, hours and conditions of employment, and that employes participate in the organization.
Areas to Explore:
Identity and position of representative.
Does the organization claim to represent employes for the purpose of collective bargaining?
Are meetings of the employes held?
How do employes participate in the organization?
Does the organization have a name, officers, by-laws, dues, membership, etc.?
Is the organization affiliated with any other groups? If so, what groups.
What is the purpose of the organization?
The desire to improve the quality of the present representation does not qualify a group as a labor organization. An unfulfilled intent to form a labor organization does not qualify a group as an existing labor organization. City of Milwaukee (Museum Board), Dec. No. 14819 (WERC, 8/76).
XXIII SUCCESSOR LABOR ORGANIZATION (M539.3)
In Hamilton Jt. School District, Dec. No. 15765 (WERC, 8/77), the Commission stated:
". . . .successorship constitutes more than what amounts to a name change. Successorship should be determined by: (1) considering the degree of continuity between the predecessor organization and the successor organization; and (2) recognizing and giving effect to the desire of the employes which is determined by a procedure which safeguards the free and unfettered choice of said employes."
Factors to consider:
1. Did the new organization retain the same affiliations as the previous organization had held?
2. Were there changes in the service organization and personnel?
3. Were the procedures involved in effectuating the change democratic, in accordance with the constitutions and by-laws of the organization, and, able to adequately inform the employes as to the consequences of the change?
4. What there any substantial opposition by the employes to the change?
Also see Racine Unified School District, Dec. No. 10095-B, (WERC, 12/88).
XXIV MUNICIPAL EMPLOYER STATUS (M110-M113 & M532.4)
Section 111.70(1)(j) reads
(j) "Municipal employer" means any city, county, village, town, metropolitan sewerage district, school district, or any other political subdivision of the state which engages the services of an employe and includes any person acting on behalf of a municipal employer within the scope of his authority, express or implied.
The term "municipal employer" refers to an entity with the power to bargain collectively and negotiate an agreement. City of Milwaukee (Fire Department), Dec. No. 15131 (WERC, 12/76); City of Oconomowoc, Dec. Nos. 6982A (WERC, 10/89) and 6982-B (WERC, 12/89).
In determining whether an employer is separate from another employer, the Commission has considered several factors, including: the source and control of revenues and budget; separation of the personnel function; involvement of the parent municipality in the affairs of the other employing entity; and the "critical areas" of the locus of decision-making as to the wages, hours and working conditions of the employes, and locus of authority to hire and fire employes. Door County, Dec. No. 24106A (WERC, 3/88); Sheboygan County (Unified Board), Dec. No. 23031A (WERC, 4/86). See also, CESA #14, Dec. No. 17235 (WERC, 8/79); City of Waukesha (Street and Parks Department), Dec. No. 21034 (WERC, 10/83); City of Superior (Public Library), Dec. No. 23318A (WERC, 2/86); City of Cudahy, Dec. No. 21887 (WERC, 8/84).
Areas to explore:
Sources of revenue. If the body has income, does such revenue remain under its control? Ex. - water and sewer taxes, or grants.
How is the body's budget established and by what group? What group has final approval of the budget and can alter it?
What discretion does the body have in allocating its revenue to various accounts or projects?
What happens to budgeted funds not spent by the end of the budget period?
Was the body created pursuant to the statutes, ex. - utilities or library boards? Which statute?
Is there any interchange of personnel and/or equipment with other municipal bodies? If so, does any payment result from such interchange? Frequency of such occurrences.
Does the body share services, e.g., payroll or computer work, with other municipal bodies? Describe the arrangements.
How are the employes hired? Who supervises, pays, disciplines and terminates the employes? Who decides whether to add or delete positions?
Who establishes the wages, hours, fringe benefits, personnel policies and working conditions of the employes? How do those items compare to those received by other employes of the alleged common employer? Are the employes covered by separate insurance plans? If not, how are the premiums paid?
What is the composition of the governing body? How many members? How are members selected? Are any members from the City Council, Village Board or County Board?
Does the body maintain separate offices, garage space, equipment and/or vehicles? If not, what is the financial arrangement?
Responsibilities and purposes of the governing body?
How and by whom are records, accounts and audits maintained?
Who makes policy and major operating decisions?
On appropriate bargaining units, see Section XX, F(7).
XXV CARD CHECKS
Occasionally the Commission has been requested to conduct a card check by comparing individually executed cards, authorizing a labor organization to represent the employes in collective bargaining with an employer, to a payroll list of the employes to determine if a majority of the employes have executed such cards. The Commission will conduct a card check only if the parties execute the forms which are Appendices 35 and 36. The results of the card check are placed on the form labeled Appendix 37.
The Commission does not certify the results of a card check as it does for an election. Thus, if the parties want a formal certification, an election must be conducted.
Requests for a card check usually are received from parties in the private sector.
XXVI JURISDICTION OF THE COMMISSION UNDER WEPA
The jurisdiction of the WERC under the Act extends to all employers located and doing business in the State of Wisconsin. However, its jurisdiction is affected by the National Labor Relations Act as it pertains to employers whose volume of business meets the jurisdictional standards established by the NLRB for the exercise of jurisdiction by the latter agency. The federal act specifically authorizes states to exercise jurisdiction over employers whose volume of business does not meet the NLRB jurisdictional standards. (Sec. 14(c), effective 11-13-59)
The Commission does exercise jurisdiction over all one employe units, because the NLRB lacks statutory jurisdiction over such units irrespective of the employer's business volume. WERC v. Atlantic Richfield Co., 52 Wis.2d 126 (1970).
The Commission set aside a Direction of Election when the NLRB asserted jurisdiction. Cedar Lake Home For The Aged, Dec. No. 9770A (WERC, 7/70).
The Examiner should become generally acquainted with the NLRB jurisdictional standards and its precedent cases with regard thereto in order to make certain that the facts material for determination of the issue are presented in the record. However, if no objection is raised to the Commission's jurisdiction during the course of the hearing and the Examiner can reasonably conclude that Commission jurisdiction is at least arguably present, it may be assumed that all parties accept the jurisdiction of the Commission and the Examiner need not be concerned with the matter of jurisdiction.
If any party question the jurisdiction of the Commission, usually such party may make a preliminary motion to dismiss on the grounds that the WERC has no jurisdiction over the employer because the volume of business of the employer affects interstate commerce to such an extent that the NLRB, if requested, would assert its jurisdiction to determine the collective bargaining representative.
If the jurisdiction of the WERC is questioned, commerce data must be incorporated into the record through an employer witness. If the parties fail to solicit the necessary commerce facts by the questioning of witnesses, the Examiner should then question the witnesses to produce the pertinent facts pertaining to the issue. It may be that at the time of the hearing the employer is not prepared to furnish the necessary evidence as the volume of his business, particularly as it may pertain to his relationship with other employers. The Examiner should then suggest that the parties prepare a stipulation containing the additional information and subsequently submit same to the Commission, otherwise the hearing may be adjourned in order to give the parties an opportunity to obtain the proper evidence.
If, after the receipt of evidence, the Examiner is satisfied that the volume of the employer's business meets the NLRB jurisdictional standards, unless the parties agree otherwise, the matter should be adjourned pending a determination of the motion to dismiss by the Commission. If the Examiner is uncertain as to whether the evidence establishes NLRB jurisdiction, motion to dismiss should be referred to the Commission and the hearing should be continued. Said ruling should be stated as follows:
"Your motion to dismiss for lack of jurisdiction, (name), will be referred to the Commission and we will now continue with the hearing."
XXVII APPROPRIATE UNIT UNDER WEPA
Sec. 111.02(3) of the Act defines "collective bargaining unit" as consisting of all employes of the employer, except where a majority of the employes engaged in a single craft, division, department or plant have voted by secret ballot to constitute such group a separate bargaining unit, they shall be so considered.
If any party to the proceeding objects to the desired unit on the basis that its consists of less than all employes of the employer or that the employe classifications included in the desired unit do not constitute a single craft, division, department or plant of the employer, advise the parties that the Commission's function in the matter is limited to determining whether the desired unit consists of employes in a separate craft, division, department or plant, and if such be the case, the employes therein are permitted to determine for themselves, by secret ballot, as to whether they desire to constitute a unit separate and apart from other employes of the employer.
Many of the Commission's cases involve units of one employe, since the NLRB does not have jurisdiction over such units, whereas the Commission does.
XXVIII REFERENDA
A. Under 111.06 WEPA, for an all-union agreement.
ONly necessary where the bargaining representative has not been certified in a representation election by either the WERC or the NLRB.
B. Under 111.70, MERA, for a fair-share agreement, a referendum is not required for implementation, thus the Commission will conduct such a referendum only by stipulation of the parties to the contract. (M441 & M551)
If the referendum is over the continuation of a fair-share agreement, the petitioner, i.e., either the employer or the labor organization, must submit a 30 percent showing of interest with the petition.
C. Under 111.80, SELRA, for a fair-share or maintenance of membership agreement, the procedures are established by 111.85. A referendum is required for implementation.
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.
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.
12. Notice of postponement of hearing.
13. Notice of continued hearing.
14. Notice of rescheduling of hearing.
15. Notice of change of hearing.
16. Notice of indefinite postponement of hearing.
17. Notice of hearing - multiple petitions.
18. Subpoena.
19. Standard Hearing Procedures handout.
20. Election case checklist.
21. Handout on absentee ballots.
22. Order of dismissal - election case.
23. Order of dismissal - unit clarification case.
24. Notice of election.
25. Notice of election - professional employes.
26. Ballot on unit determination for professional employes.
27. Representation ballot.
28. Election procedures manual.
29. Notice of hearing on challenged ballot.
30. Notice of hearing on objections to election.
31. Certification of election results.
32. Direction of elections - professional and non-professional units.
33. Petition for election for supervisory law enforcement or fire fighting personnel.
34. Stipulation for election involving supervisory fire fighting or law enforcement personnel.
35. Agreement to conduct card check.
36. Recognition agreement following card check.
37. Certification of card check results.
38. Instructions for WERC staff when conducting an election.
39. Letter dealing with showing of interest issues.
APPENDICES
(Date)
(Employer)
Re: Petition for Election
Dear
Enclosed please find a copy of the petition filed in this matter and a set of Stipulation for Election forms. If a stipulation is acceptable, please sign the forms* and attach a list of eligible voters. The forms and list then should be sent to (Union Representative) , who, should sign the forms and return the forms and list to the undersigned. A copy of the signed form will be returned to each party.
If a stipulation is not acceptable, plesae advise the undersigned so that a hearing can be scheduled.
If you have any questions concerning the above procedure, feel free to call the undersigned.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Douglas V. Knudson
Coordinator of Elections
DVK/
Enclosure
cc (Union)
* Note: You can modify the letter to have the employer complete and sign the stipulation forms, if blank forms are sent.
WERC-3 STATE OF WISCONSIN
STIP WISCONSIN EMPLOYMENT RELATIONS COMMISSION
STIPULATION FOR ELECTION
IT IS AGREED, between and
(Employer)
THAT:
(Labor Organization)
1. The following circumstances exist and the above named parties hereby request the Wisconsin Employment Relations Commission, pursuant to Chapter 111, Wis. Stats., to determine whether the employes in the bargaining unit desire to be represented by a labor organization by conducting an election, without a previous hearing, in accordance with the rules and procedures of the Commission and at a time and place to be determined by the Commission, among the employes in the collective bargaining unit stated below and to certify to the parties the results of such election.
2. The collective bargaining unit agreed upon as being appropriate for such election is as follows: (Specify inclusions and exclusions)
3. Check the appropriate space if the above described collective bargaining unit includes any craft or professional employes.
4. The individuals listed on the Eligibility List, attached hereto and made a part hereof, constitute all of the employes in the above agreed to collective bargaining unit who are eligible to participate in the election, unless any of those employes quit or are discharged for cause prior to the election. Unless mutually agreed otherwise, any new employes hired in positions in the above-described bargaining unit prior to the date on which the Commission issues the Direction of Election in this matter will be eligible to vote.
5. It is suggested that the election be conducted on ,
(Day or Days
of Week)
at , at .
(Voting Times) (Location)
EMPLOYER By: Date:
LABOR ORGANIZATION By: Date:
(Date)
(Employer)
Re:
Case
Dear
(Petitioner) has filed a petition with the Commission requesting that an election be conducted among the employes in the bargaining unit described on the attached petition. In said petition the Petitioner alleges that (Incumbent Union) may have an interest in the matter.
Said petition was supported by a number of employes. In order to determine whether at least 30% of the employes support the petition, it is necessary that you immediately furnish us a list, in alphabetical order, of the names of the employes who are in the bargaining unit involved and their job titles. If, after an administrative determination, the Commission is satisfied that the showing of interest is sufficient, the Commission may set hearing in the matter. If there is presently a collective bargaining agreement in effect, will you please forward a copy of same to the Commission. If no such agreement exists, will you please so advise.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Douglas V. Knudson
Coordinator of Elections
DVK/
Enclosure
cc
Petitioner (letter only)
Incumbent Union (send a copy of petition)
WERC-2 STATE OF WISCONSIN
STIP WISCONSIN EMPLOYMENT RELATIONS COMMISSION
03/92
STIPULATION FOR ELECTION
IT IS AGREED, between and
(Employer)
and
(Labor Organization #1)
THAT:
(Labor Organization #2)
1. The following circumstances exist and the above named parties hereby request the Wisconsin Employment Relations Commission, pursuant to Chapter 111, Wis. Stats., to determine whether the employes in the bargaining unit desire to be represented by a labor organization by conducting an election, without a previous hearing, in accordance with the rules and procedures of the Commission and at a time and place to be determined by the Commission, among the employes in the collective bargaining unit stated below and to certify to the parties the results of such election.
2. The collective bargaining unit agreed upon as being appropriate for such election is as follows: (Specify inclusions and exclusions)
3. Check the appropriate space if the above described collective bargaining unit includes any craft or professional employes.
4. The individuals listed on the Eligibility List, attached hereto and made a part hereof, constitute all of the employes in the above agreed to collective bargaining unit who are eligible to participate in the election, unless any of those employes quit or are discharged for cause prior to the election. Unless mutually agreed otherwise, any new employes hired in positions in the above-described bargaining unit prior to the date on which the Commission issues the Direction of Election in this matter will be eligible to vote.
5. It is suggested that the election be conducted on ,
(Day or Days
of Week)
at , at .
(Voting Times) (Location)
EMPLOYER By: Date:
LABOR ORGANIZATION #1 By: Date:
LABOR ORGANIZATION #2 By: Date:
(Date)
(Incumbent Union)
Re:
Case
Dear
The Commission has determined that the petition in the captioned matter was accompanied by a sufficient showing of interest. Therefore, the petition will be processed. If the parties are unable to stipulate to an election, please sign the enclosed stipulation forms and forward the forms and lists to . After signing the forms, should send the forms and lists to , who should sign the forms and return the forms and lists to the undersigned. A copy of the signed form will be returned to each party.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Enclosures
cc
Employer
Petitioner
(Date)
(Employer)
Re:
Dear
Enclosed please find a copy of the petition filed by , which petition seeks an election among the residual group of the employer's unrepresented employes. In such an election, if a majority of the voting employes vote for representation by the Petitioner, then the voting group will be merged with the existing bargaining unit represented by the Petitioner.
If there are no issues concerning such matters as voter eligibility, a hearing can be avoided by utilizing the enclosed stipulation forms. Please complete item no. 5, attach a list of eligible voters, sign the forms and send the forms and list to , who should sign the forms and send the forms and lsit to the undersigned. A copy of the signed forms will be furnished to you.
If you have any questions concerning the foregoing, feel free to contact the undersigned.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Douglas V. Knudson
Coordinator of Elections
DVK/
Enclosure
cc (Petitioner)
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
-
:
In the Matter of the Petition of :
: NOTICE OF HEARING
:
: Case
Involving Certain Employes of : No.
:
:
:
- -
The abovenamed petitioner(s) having filed with the Commission a petition, requesting that the Commission .
The parties are hereby notified that:
1. A hearing will be held on , commencing at in , Wisconsin.
2. This is a class proceeding.
3. The legal authority and jurisdiction under which this hearing is to be held are Ch. 227, Stats., and Sec. , Stats.
4. The petition, which is hereby incorporated by reference, is deemed to state the matters asserted with specificity.
Dated at Madison, Wisconsin this day of .
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By
, Examiner
/(Initials)
(Document Name)
cc PLEASE LIST CC'S ON BACK OF FORM
(Date)
(Addresses)
Re:
Case
Dear
Enclosed please find a copy of the Notice of Hearing issued in the above entitled matter. We are enclosing two copies of said Notice to the Employer in order that it may post one of the copies where notices to employes are usually posted.
Arrangements will be made to have a court reporter present. Should either party desire a copy of the transcript, arrangements should be made with the reporter during the course of the hearing. There is a charge for a copy of the transcript.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Examiner
Enclosure
cc -
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
:
In the Matter of the Petition of :
:
: Case
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Involving Certain Employes of : Decision No.
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ORDER APPOINTING EXAMINER TO
CONDUCT HEARING AND ISSUE FINAL DECISION
having on filed a petition for clarification in the aboveentitled matter; and the Commission being satisfied that the matter be treated as a class 1 proceeding within the meaning of Sec. 227.01(2), Stats., and that an Examiner be appointed to conduct a hearing and issue a final decision in accordance with the provisions of Sec. 227.09(3)(a), Stats.;
NOW, THEREFORE, it is
ORDERED
That pursuant to Sec. 227.09(3)(a), Stats., of the Commission's staff, is hereby appointed Examiner for the purpose of conducting a hearing and issuing a final decision on behalf of the Wisconsin Employment Relations Commission in accordance with the provisions of Sec. 227.09(3)(a), Stats., with respect to the issues raised in the instant matter.
Given under our hands and seal at the City of Madison, Wisconsin this day of .
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By
A. Henry Hempe, Chairperson
Herman Torosian, Commissioner
William K. Strycker, Commissioner
No.
FORM #26 BZNOT01.FT
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
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: NOTICE OF POSTPONEMENT
: OF HEARING
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: Case
: No.
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PLEASE TAKE NOTICE that the public hearing scheduled by the Wisconsin Employment Relations Commission in the above-entitled matter for is hereby postponed to commencing at . The hearing will be held , Wisconsin.
Dated at Madison, Wisconsin this day of .
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By
, Examiner
/(Initials)
(Document Name)
cc
FORM #27 BZNOT03.FT
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
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: NOTICE OF CONTINUED
: OF HEARING
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: No.
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PLEASE TAKE NOTICE that the public hearing scheduled by the Wisconsin Employment Relations Commission in the above-entitled matter has been continued to at . The hearing will be held at , Wisconsin.
Dated at Madison, Wisconsin this day of .
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By
, Examiner
/(Initials)
(Document Name)
cc
FORM #28 BZNOT04.FT
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
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: NOTICE OF RESCHEDULING
: OF HEARING
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: No.
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PLEASE TAKE NOTICE that the public hearing scheduled by the Wisconsin Employment Relations Commission in the above-entitled matter has been rescheduled for commencing at . The hearing will be held , Wisconsin.
Dated at Madison, Wisconsin this day of .
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By
, Examiner
/(Initials)
(Document Name)
cc
STANDARD HEARING PROCEDURES
The official reporter prepares the only official transcript of these proceedings, and all citations in briefs and arguments must refer to the official record. All matter that is spoken in the hearing room is recorded by the reporter while the hearing is in session. In the event that any of the parties wish to make off-the-record remarks, requests to make same should be directed to the Examiner and not to the reporter. Any party desiring a copy of the transcript of these proceedings should so notify the reporter now or before the close of the hearing. Any party ordering a copy of the transcript will be billed directly by the reporter.
After the close of the hearing one or more of the parties may desire to have corrections made in the record. All such proposed corrections, either by way of stipulation or motion, should be forwarded to the Commission in Madison.
Statement of reason in support of motions or objections should be as concise as possible. Objections and exceptions may, upon appropriate request, be permitted to stand to an entire line of questioning. Automatic exceptions will be allowed to all adverse rulings.
The sole objective of the Examiner is to ascertain the respective positions of the parties and to obtain a full and complete factual record upon which the Commission may discharge its duties under the Wisconsin Statutes. It may be necessary for the Examiner to ask questions, to call witnesses, and to explore avenues with respect to matters not raised or only partially raised by the parties. The services of the Examiner are equally at the disposal of all parties to the proceeding.
Revised 4-15-94
INSTRUCTIONS FOR WERC STAFF WHEN CONDUCTING AN ELECTION
1. Before leaving for election, be sure to have an "election packet" with you. This will include colored pens, pencils, ink pens, challenged ballots envelopes, an elections manual, etc. Also take with you a voting booth and a ballot box with a lock on it.
2. Arrive at the polling place at least 15-20 minutes prior to the scheduled opening of the polls. Observers for the parties are instructed to meet with you 15 minutes before the polls open.
3. Meet with parties' observers and present them with a copy of the eligibility list. In the file there will be one copy for each party as well as an extra copy for your use if you so desire. The top copy is the original and should be used as the official checkoff list. Instruct the observers to look over the list and to advise you of any changes to that list. All parties must agree to any changes made on the list. The parties should be instructed to checkoff on the original list using a colored pen (a different color for each party) and placing a checkmark either in front of or after the name of the person voting. The copy of the list given to each observer is for them to keep and do whatever they want with it.
At this time you will also advise the observers that if they wish to challenge the ballot of any voter they must advise you of that fact when the voter presents him/herself to vote.
4. If there are any mail ballots in the file, at this time, advise the observers which employes voted by mail, have the observers check the voters name on the eligibility list. Open the envelopes which contain the ballot, remove the ballot and deposit it in the ballot box.
5. As each voter comes into vote, they should identify themself to you and the other observers at the table. Once the voters name has been checked off on the list, present them with the ballot and instruct them on marking the ballot, folding the ballot and placing it in the ballot box when they are finished.
6. When the voting is completed, have each observer sign the bottom of the eligibility list using the colored pen they checked off with. This copy is then returned with the file to the office. Open the ballot box and begin to count the ballots, segregating any challenged ballots. When you have completed counting, fill out the tally sheet. There are three copies of the tally sheet and the original (the top copy). Fill out the original and one copy for each party involved. Have the observers sign each copy. The original is returned with the file to the office. Each party is presented with one executed copy. (Most of the time you will have one extra copy.) If the employer does not have an observer, write "No Representative" on the line for the employer's signature. Complete a copy for the employer and leave it with "someone important" or "someone important's secretary" before leaving the premises.
7. When completing the tally sheet be sure to complete all the lines, i.e., challenged ballots, void ballots and blank ballots. The total number eligible to vote is the number of employes listed on the eligibility list, the number of ballots cast is the number of ballots actually in the ballot box, including challenged ballots. Total number of valid ballots counted is the number of ballots cast minus challenged ballots, void ballots and blank ballots.
8. If you have a challenged voter, complete the front of the challenged ballot envelope, instruct the voter to mark their ballot, place it in the small envelope, seal it and place it in the larger challenged ballot envelope. Seal that envelope and place it in the ballot box. Mark that person's name on the eligibility list with a "C" as well as the marks made by the observers.
9. The original of the tally sheet, eligibility list and all of the ballots should be returned to the office in the file.
10. PACK UP AND GO HOME!
March 24, 1986
Mr. Steve Pieroni
Wisconsin Education
Association Council
101 West Beltline Highway
P.O. Box 8003
Madison, WI 53708
Mr. Timothy E. Hawks
Shneidman, Myers, Dowling,
Blumenfield & Albert
Attorneys at Law
P.O. Box 442
Milwaukee, WI 53201-0442
Ms. Susan Sheeran
Employment Relations Specialist
Department of Employment Relations
Division of Collective Bargaining
137 East Wilson Street
P.O. Box 7855
Madison, WI 53707-7855
Re: Department of Employment Relations
(Education)
Case 230 No. 35810 SE-91
Dear Ms. Sheeran, Mr. Pieroni and Mr. Hawks:
The Commission has considered Mr. Hawks' request dated November 18, 1985 for the forms of the language of showing of interest proofs submitted by WEAC in the above matter, for any WEAC correspondence to the Commission concerning the petition for election or the submission of showing of interest proofs, for the list supplied by the State against which the WERC compared those WEAC proofs, and for documentation of the total number of individuals upon which WEAC based its claimed showing of interest.
The Commission has also requested and considered the parties' written arguments, the latest of which was received on December 30, 1985, concerning the disposition the Commission should make of Mr. Hawks' request. In that regard, the Commission has also considered WEAC's request in its written arguments for immediate return of the showing of interest proofs submitted by it in this matter.
The Commission is persuaded, by reason of Sec. 19.35, Stats., that the WEAC correspondence, WEAC form language, and State-supplied list are public records to which access cannot be denied.
With respect to Mr. Hawks' request for "any records in the possession of the Commission which compute the total number of individuals upon which (WEAC) justified its showing of interest in this matter", we acknowledge that the Commission possesses a document which could be copied in such a way as to wholly avoid identification of the particular individuals included as a part of WEAC's showing of interest, while still revealing the total number of such individuals as requested by Mr. Hawks. In our opinion, however, such a document, even if so modified, would not be a record which we are required to make public under Sec. 19.35, Stats. Accordingly, we are hereby denying Mr. Hawks' request for such document for the following reasons.
The Wisconsin Supreme Court has held that "the general presumption of our law is that public records shall be open to the public . . . unless there is an overriding public interest in keeping the public record confidential." 1
In our view, revelation of the document requested would violate an overriding public policy underlying the Municipal Employment Relations Act. More specifically, Section 111.70(2), Stats., grants municipal employes the right to form, join or assist labor organizations and to bargain collectively through representatives of their own choosing. Section 111.70(4)(d)2.a. Stats., provides that any vote taken in a representation or self-determination vote under that subsection shall be by secret ballot.
In our opinion, the Commission's making available to the public documents in its possession which reflect the results of a showing of interest taken by other than the secret ballot mechanism provided for by law might well be viewed by employes as an official certification or at least an official agency indication that the organization submitting the claimed showing of interest has or does not have majority representative status within the bargaining unit involved. Such impressions could affect voter attitudes and thereby be harmful to the laboratory conditions for a secret ballot election which Commission decisions have long sought to maintain. Indeed, Commission decisions and those of other similar agencies have gone so far as to set aside elections in which voters might have been given the impression that the WERC favored one outcome over another in the secret ballot vote. 2
The foregoing harm from revelation outweighs any benefit the public might derive from the Commission disclosure of such a document to the public. The Commission has long held that the adequacy of validity of a showing of interest is not a matter subject to adjudication in a pending representation proceeding. 3 Rather, the Commission has uniformly treated the showing of interest requirement as one properly to be conducted strictly on a non-administrative basis within the agency, without revelation of the precise extent of the showing but only with disclosure of whether the requisite showing of interest has been supplied. The showing of interest requirement is designed to limit situations in which the Commission's election machinery is utilized and in which an ongoing collective bargaining relationship is disrupted to those instances wherein it is shown administratively to the Commission's satisfaction that the requisite interest on the part of the affected employes exists. If a showing is deemed adequate, a secret ballot election will eventually be directed wherein the preferences of the eligible employes voting will be conclusively expressed.
Therefore, we have granted WFT's request in part and denied it in part as noted above. Copies of the documents being supplied herewith to Mr. Hawks are being simultaneously forwarded to Ms. Sheeran and Mr. Pieroni, as well. We would emphasize that our decision herein is not intended and should not be understood as a determination of the admissibility of the documents herewith disclosed in the pending representation proceeding.
In addition, we have granted WEAC's request for a return of the showing of interest proof submitted by it to this extent: we are returning the originals of the proofs submitted, but retaining photocopies of each such document.
Pursuant to Sec. 19.35(4)(b), Stats., we hereby inform Mr. Hawks that since his request was made in writing, our determination herein to deny part of his request is subject to review by mandamus under Sec. 19.37(1), Stats., or upon application to the attorney general or a district attorney.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Herman Torosian
Chairman
Enclosures
HT/dtm
E5517E.01
[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_3_of_3.htm}. Last modified on 13 AUG 1998. Comments, questions and suggestions.