WERC STAFF MEETING
DECEMBER 6,1999
RECENT COMMISSION CASES
Outline Prepared by
Peter Davis
WERC General Counsel
[Statute and Rule changes and other agency developments are summarized on attached announcements sheet.]
RACINE UNIFIED SCHOOL DISTRICT, DEC. NO. 29450-A (WERC, 4/99)
Objections to the conduct of an election based on employer’s written campaign propaganda.
Legal standard: Did the Y propaganda make it improbable that the voters could freely cast their ballots. Was the propaganda so misleading as to prevent free choice?
Result: Exaggerations and name calling, particularly in the context of the union’s written responses during the campaign, were not sufficient to warrant conduct of a new election.
MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 29494-A (WERC, 3/99)
Complaint dismissed for lack of prosecution when Complainant failed to appear.
Legal standard: Was there a justifiable excuse for the failure to attend?
Result: A verifiable and likely successful effort to obtain legal counsel constitutes a justifiable excuse for seeking a postponement of the hearing and for failing to appear when the request for postponement is denied. Complaint reinstated.
MILWAUKEE PUBLIC SCHOOLS, DEC. NO. 29462-B (WERC, 5/99)
Complaint dismissed for lack of prosecution based on Examiner belief that Complainant had indicated he would not appear at any future days of hearing.
Legal standard: Did transcript establish Complainant’s refusal? If so, was dismissal appropriate at that point?
Result: No. No.
NOTE: A request for reconsideration was filed based on alleged threatening conduct by Complainant during the hearing. In DEC. NO. 29482-C (WERC, 6/99), the Commission indicates that sale of a complaint is warranted if hearing becomes unmanageable due to a disorderly, threatening or disrespectful conduct. Commission of law enforcement services at the site of the hearing.
EAU CLAIRE SCHOOL DISTRICT, DEC. NO. 29626 (WERC, 5/99)
Must an employer bargain over a proposal which prohibits use of pan-time employees to perform bargaining unit work?
Legal Standard: Does the impact on wages, hours and job security interests predominate over the restriction on the employer’s managerial interests?
Result: Yes-so long as the employer remains free to decide what services it will provide and when it will provide them.
WSEU, DEC. NO. 29177-C (WERC, 5199) Hempe dissents.
Are attorneys’ fees and costs ever available to respondents in complaint cases?
Legal standard: Does WERC have such authority?
Result: No. Clarifying STATE OF WISCONSIN, DEC. NO. 29093-B (WERC, 11/98), Commission majority holds that fees and costs are only available as part of a remedy and, even then, are rarely appropriate.
NEW BERLIN SCHOOL DISTRICT, DEC. NO. 29665 (WERC, 8199)
Did teacher union and school district reach agreement on 2 two-year contracts or an illegal three-year contract? If agreement was reached on 2 two year contracts, does the law require that each two-year agreement be separately ratified?
Two 2-year contracts were reached and need not be separately ratified.
BROWN COUNTY, DEC. NO. 29094-B (WERC, 11199)
Did the Examiner correctly conclude that statutory rules of evidence apply to WERC complaint cases? Yes.
Did the Examiner properly apply the hearsay rules of evidence? Yes.
Where the alleged employee misconduct at issue in a complaint case is criminal or involves moral turpitude, is application of a higher evidentiary standard such as "clear and convincing" correct? No. The statutory standard of "clear and satisfactory" is applicable.
In a duty to bargain violation of the status quo complaint case involving alleged lack of just cause for discipline, is it correct to require that the responding party bear the burden of proof? Not decided.
VERNON COUNTY, DEC. NO. 29685 (WERC, 8199)
Was the parties’ mid-term dispute over the wages for a position subject to interest
arbitration?
No. The union had already had one opportunity to bargain/arbitrate the issue when bargaining the overall contract.
WERC Announcements -- January 2000
WERC NEWS UPDATES VIA E-MAIL -- The WERC is developing a list of e-mail addressees interested in receiving updates like this one via e-mail. Anyone interested in receiving such e-mails from WERC in the future should send an e-mail to that effect to Georgann Kramer at georgann.kramer@werc.state.wi.us.
PRE-1999 Interest Awards on CD-ROM -- The WERC is now shipping copies of its new 3-disk set consisting of Wisconsin municipal sector interest arbitration awards issued prior to 1999 (police-fire since 1971; general employee since 1978; including voluntary impasse procedure awards submitted to the WERC; but not including consent awards). This product has been designed for and tested with Windows-based computers. It is produced in searchable indexed PDF format with case lists and Acrobat Search software. This CD-ROM set also includes a separately searchable index of WERC interest award summaries covering July 1986 through June 1994. [price: $200.00]
1999 INTEREST AWARDS ON WERC WEBSITE -- Non-consent interest awards issued in Wisconsin municipal sector cases involving police-fire and general employee bargaining units are now made available in PDF format on the WERC website. Additional awards files are posted monthly and accessible from a linked list located at http://werc.wi.gov/interest_awards_1999.htm. Free Adobe Acrobat Reader software is needed to view and print the PDF format awards. Interest awards on the WERC website are not multi-file searchable on-line.
CUSTOMER SATISFACTION SURVEY RESULTS -- In order to better serve its customers, and as part of the ongoing State of Wisconsin strategic planning process, the WERC conducted a customer satisfaction survey during the period January-June, 1999, in an effort to learn what is important to its customers and how well the Commission and its staff are performing. Some 1200 copies of the survey document were mailed to union, management and neutral groups and involved in WERC cases and activities, and the WERC received a total of 374 completed surveys. The survey results are contained in a 30-page summary showing raw total responses to each multiple-choice question with percentage breakdowns of the responses to each of those questions from union and management responders, respectively. A 240-page table has also been prepared listing responders' comments to the open-ended questions on the survey. Those documents have been prepared in a manner that maintains responder anonymity. Both the Summary and the Comments Table are now available in PDF format on the WERC website at http://werc.wi.gov/survey_intro.htm, and in hard copy form upon request from the WERC Madison office. [hard copy price: $5.00 plus postage].
STATUTORY CHANGES IN STATE BUDGET ACT AFFECTING WERC -- The newly-enacted State Budget contains several provisions relating to the WERC and the laws it administers. The changes include modifications of the definitions of "economic issue," "qualified economic offer" and "issues subject to arbitration" regarding school district professional employee bargaining (each of which takes effect for periods of time beginning after June 30, 2001), and a modification of Sec. 118 concerning the date of commencement of public school terms. The language of those changes and the provisions related to their effective dates appear in 1999 Wisconsin Act 9, Secs., 2033r, 2034, 2035m, 2036m, 2037c, 2066m and 9316. The text of those changes is available in PDF format on the WERC website at http://werc.wi.gov/statute_changes_1999.pdf and on the Revisor of Statutes' website at http://www.legis.state.wi.us/1999/data/acts/99Act9. When they are published, revised statute booklets will be available for sale from the WERC Madison office. [booklet price: $7.00].
RULES REVISIONS CHANGE COMPLAINT FILING FEE TO $40.00 -- On October 4, 1999, the Commission issued an order revising various of its Rules relating to filing fees and transcript fees. The changes parallel existing agencies policies and procedures except that the filing fee payable by the complainant at the time a complaint is filed has been increased from $25 to $40. The Rule changes will take effect on December 1, 1999, which is the day after the changes will be formally published by the Revisor of Statutes in the Administrative Code Register. The text of the Commission's Rules revision Order is available on the WERC website at http://werc.wi.gov/rules_changes_1999.htm. The Commission's filing fee policy description has been revised accordingly; it appears on the WERC website at http://werc.wi.gov/filing_fees_and_related_policies.htm. When they are published, revised WERC Administrative Rules booklets will be available for sale from the WERC Madison office. [booklet price: $7.00].
GRIEVANCE ARBITRATION FORM REVISED TO INCLUDE AD HOC PANEL REQUESTS -- December, 1999 revisions of the Request to Initiate Grievance Arbitration Form enable parties to use it to request a panel of Ad Hoc grievance arbitrators as well as to request designation of a single WERC commissioner or staff member or to request a panel of WERC commissioners/staff arbitrators. Except when requesting an Ad Hoc panel, the form must be accompanied by the requesting party's $125 share of the filing fee and by copies of the grievance, the employer's response to the grievance, and the entire collective bargaining agreement involved. A copy of the revised form is attached. It is also downloadable in word processing format from the WERC website at http://werc.wi.gov/forms_list.htm. The revised form should be used for all future grievance arbitration requests.
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Please direct your questions, comments and suggestions about the CD-ROM and Internet matters above to Marshall Gratz, WERC, 4449 North Maryland Avenue, Shorewood, WI 53211; voice 414-963-4695; fax 414-936-4922; e-mail werc@werc.state.wi.us.
Please direct any other questions, comments and suggestions about the matters discussed above to the WERC, 18 South Thornton Avenue, Madison, WI 53707-7870, Madison, WI; voice 608-266-1381; fax 608-266-6930; e-mail werc@werc.state.wi.us.
A/MA/SA (12/99)
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
18 SOUTH THORNTON AVENUE
P.O. BOX 7870
MADISON, WI 53707-7870
(608) 266-1381
REQUEST TO INITIATE GRIEVANCE ARBITRATION
(Pursuant to Sec. 111.10 of WEPA or Sec. 111.70(4)(c)2 of MERA or Sec. 111.86 of SELRA)
1. Requested by:
____ Employee Organization
____ Employer
____ Joint
EFFECTIVE 1/1/96, THE FILING FEE FOR EACH GRIEVANCE IS $250 SPLIT EQUALLY BETWEEN BOTH PARTIES. PROCESSING BEGINS WHEN A REQUEST AND $125 IS RECEIVED. AT THAT TIME THE OTHER PARTY IS BILLED BY THE WERC FOR THE REMAINING $125.
2. Identity of Parties Involved:
___________________________________________
___________________________________________
Employee Organization
___________________________________________
Representative
___________________________________________
Street/Mailing Address
___________________________________________
City and Zip Code
___________________________________________
Telephone Number
___________________________________________
___________________________________________
Employer
___________________________________________
Representative
___________________________________________
Street/Mailing Address
___________________________________________
City and Zip Code
___________________________________________
Telephone Number
3. Nature of Grievance(s) Involved __________________________________________________________
______________________________________________________________________________________
(ATTACH A COPY OF THE GRIEVANCE, THE EMPLOYER’S RESPONSE THERETO AND THE ENTIRE
COLLECTIVE BARGAINING CONTRACT INVOLVED)
4. Number of Employees Involved. _____
5. The requesting party(ies) request(s) the appointment or submission of one of the following to issue a final and binding arbitration award: (Check the appropriate line)
____ A WERC commissioner or staff member to serve as the sole arbitrator
____ A WERC commissioner or staff member to serve as the chair of an arbitration board
____ A panel of WERC commissioners/staff arbitrators (No. of panel members requested is ___)
____ A panel of Ad Hoc arbitrators (No. of panel members requested is ____ )
(NO FILING FEE OR COLLECTIVE BARGAINING AGREEMENT REQUIRED)
6. Date this form mailed to the WERC _____________________________.