The Revisor of
Statutes has published, in unofficial form, the revised Wisconsin Statutes
including changes enacted in the budget repair law, 2011 Act 10, and the Budget
Law, 2011 Act 32. The Revisor's publication included Chapter 111 in PDF format.
What follows is an unofficial version of the Wisconsin Employment Peace Act (WEPA) in HTML format, produced by WERC Staff Attorney Richard McLaughlin, based on the Revisor's unofficial published version.
CHAPTER 111
EMPLOYMENT RELATIONS
SUBCHAPTER I
EMPLOYMENT PEACE
111.01 Declaration of policy.
111.02 Definitions.
111.04 Rights of employees.
111.05 Representatives and elections.
111.06 What are unfair labor practices.
111.07 Prevention of unfair labor practices.
111.08 Financial reports to employees.
111.09 Rules, orders, transcripts, training programs and fees.
111.10 Arbitration.
111.11 Mediation.
111.115 Notice of certain proposed strikes.
111.12 Duties of the attorney general and district attorneys.
111.14 Penalty.
111.15 Construction of subchapter I.
111.17 Conflict of provisions; effect.
111.18 Limit on payment to health care institutions.
111.19 Title of subchapter I.
SUBCHAPTER I
EMPLOYMENT PEACE
Cross−reference: See also
ERC,
111.01 Declaration of policy. The public policy of the state as to employment relations and collective bargaining, in the furtherance of which this subchapter is enacted, is declared to be as follows:
(1) It recognizes that there are 3 major interests involved, namely: the public, the employee and the employer. These 3 interests are to a considerable extent interrelated. It is the policy of the state to protect and promote each of these interests with due regard to the situation and to the rights of the others.
(2) Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all of these interests. They are largely dependent upon the maintenance of fair, friendly, and mutually satisfactory employment relations and the availability of suitable machinery for the peaceful adjustment of whatever controversies may arise. It is recognized that certain employers, including farmers, farmer cooperatives, and unincorporated farmer cooperative associations, in addition to their general employer problems, face special problems arising from perishable commodities and seasonal production which require adequate consideration. It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations, they should not be permitted, in the conduct of their controversy, to intrude directly into the primary rights of 3rd parties to earn a livelihood, transact business, and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, restraint, or coercion.
(3) Negotiations of terms and conditions of work should result from voluntary agreement between employer and employee. For the purpose of such negotiation an employee has the right, if the employee desires, to associate with others in organizing and bargaining collectively through representatives of the employee’s own choosing, without intimidation or coercion from any source.
(4) It is the policy of the state, in order to preserve and promote the interests of the public, the employee, and the employer alike, to establish standards of fair conduct in employment relations and to provide a convenient, expeditious and impartial tribunal by which these interests may have their respective rights and obligations adjudicated. While limiting individual and group rights of aggression and defense, the state substitutes processes of justice for the more primitive methods of trial by combat.
History: 1985 a. 30 s. 42; 1993 a. 492; 1997 a. 253; 2005 a. 253, 441; 2007 a. 96.
A labor agreement offering special parking privileges to county employees in a
county ramp did not violate this
section. Dane Co. v. McManus, 55
N.W.2d 667 (1972).
This
section does not create substantive rights for employees. Ward v. Frito−Lay, Inc. 95
The application of the open meetings law to the duties of WERC is discussed. 68 Atty. Gen. 171.
111.02 Definitions. When used in this subchapter:
(1) “All−union agreement” means an agreement between an employer and the representative of the employer’s employees in a collective bargaining unit whereby all or any of the employees in such unit are required to be members of a single labor organization.
(2) “Collective bargaining” means the negotiation by an employer and a majority of the employer’s employees in a collective bargaining unit, or their representatives, concerning representation or terms and conditions of employment of such employees, in a mutually genuine effort to reach an agreement with reference to the subject under negotiation.
(3) “Collective bargaining unit” means all of the employees of one employer, employed within the state, except that where a majority of the employees engaged in a single craft, division, department or plant have voted by secret ballot as provided in s. 111.05 (2) to constitute such group a separate bargaining unit they shall be so considered, but, in appropriate cases, and to aid in the more efficient administration of ss. 111.01 to 111.19, the commission may find, where agreeable to all parties affected in any way thereby, an industry, trade or business comprising more than one employer in an association in any geographical area to be a “collective bargaining unit”. A collective bargaining unit thus established by the commission shall be subject to all rights by termination or modification given by ss. 111.01 to 111.19 in reference to collective bargaining units otherwise established under ss. 111.01 to 111.19. Two or more collective bargaining units may bargain collectively through the same representative where a majority of the employees in each separate unit have voted by secret ballot as provided in s. 111.05 (2) so to do.
(4) “Commission” means the employment relations commission.
(5) The term “election” shall mean a proceeding in which the employees in a collective bargaining unit cast a secret ballot for collective bargaining representatives or for any other purpose specified in this subchapter and shall include elections conducted
by the commission, or, unless the context clearly indicates otherwise, by any tribunal having competent jurisdiction or whose jurisdiction was accepted by the parties.
(6) (a)
“Employee” shall include any person, other than an independent contractor, working
for another for hire in the state of
(b) “Employee” shall include any individual whose work has ceased solely as a consequence of or in connection with any current labor dispute or because of any unfair labor practice on the part of an employer and who has not:
1. Refused or failed to return to work upon the final disposition of a labor dispute or a charge of an unfair labor practice by a tribunal having competent jurisdiction of the same or whose jurisdiction was accepted by the employee or the employee’s representative;
2. Been found to have committed or to have been a party to any unfair labor practice hereunder;
3. Obtained regular and substantially equivalent employment elsewhere; or
4. Been absent from his or her employment for a substantial period of time during which reasonable expectancy of settlement has ceased (except by an employer’s unlawful refusal to bargain) and whose place has been filled by another engaged in the regular manner for an indefinite or protracted period and not merely for the duration of a strike or lockout.
(c) “Employee” shall not include any individual employed in the domestic service of a family or person at the person’s home or any individual employed by his or her parent or spouse or any employee who is subject to the federal railway labor act.
(7) (a) “Employer” means a person who engages the services of an employee, and includes a person acting on behalf of an employer within the scope of his or her authority, express or implied.
(b) “Employer” does not include any of the following:
1. The state or any political subdivision thereof.
2. Any labor organization or anyone acting in behalf of such organization other than when it is acting as an employer in fact.
(8) The term “jurisdictional strike” shall mean a strike growing out of a dispute between 2 or more employees or representatives of employees as to the appropriate unit for collective bargaining, or as to which representative is entitled to act as collective bargaining representative, or as to whether employees represented by one or the other representative are entitled to perform particular work.
(9) The term “labor dispute” means any controversy between an employer and the majority of the employer’s employees in a collective bargaining unit concerning the right or process or details of collective bargaining or the designation of representatives. Any organization with which either the employer or such majority is affiliated may be considered a party to the labor dispute.
(10) The term “person” includes one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees or receivers.
(11) The term “representative” includes any person chosen by an employee to represent the employee.
(12) The term “secondary boycott” shall include combining or conspiring to cause or threaten to cause injury to a person with whom no labor dispute exists in order to bring that person, against that person’s will, into a concerted plan to coerce or inflict damage upon another, whether by:
(a) Withholding patronage, labor or other beneficial business intercourse;
(b) Picketing;
(c) Refusing to handle, install, use or work on particular materials, equipment or supplies; or
(d) Any other unlawful means.
(13) The term “unfair labor practice” means any unfair labor practice as defined in s. 111.06.
History: 1979 c. 89; 1983 a. 189; 1993 a. 112, 492; 1995 a. 27, 225; 1999 a. 65, 83; 2009 a. 28, 185; 2011 a. 10.
111.04 Rights of employees. Employees shall have the right of self−organization and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection; and such employees shall also have the right to refrain from any or all of such activities.
111.05 Representatives and elections. (1) Representatives chosen for the purposes of collective bargaining by a majority of the employees voting in a collective bargaining unit shall be the exclusive representatives of all of the employees in such unit for the purposes of collective bargaining, provided that any individual employee or any minority group of employees in any collective bargaining unit shall have the right at any time to present grievances to their employer in person or through representatives of their own choosing, and the employer shall confer with them in relation thereto.
(2) Whenever a question arises concerning the determination of a collective bargaining unit, it shall be determined by secret ballot, and the commission, upon request, shall cause the ballot to be taken in such manner as to show separately the wishes of the employees in any craft, division, department or plant as to the determination of the collective bargaining unit.
(3) Whenever a question arises concerning the representation of employees in a collective bargaining unit the commission shall determine the representatives thereof by taking a secret ballot of employees and certifying in writing the results thereof to the interested parties and to their employer or employers. There shall be included on any ballot for the election of representatives the names of all persons submitted by an employee or group of employees participating in the election, except that the commission may, in its discretion, exclude from the ballot a person who, at the time of the election, stands deprived of the person’s rights under this subchapter by reason of a prior adjudication of the person’s having engaged in an unfair labor practice. The ballot shall be so prepared as to permit of a vote against representation by anyone named on the ballot. The commission’s certification of the results of any election shall be conclusive as to the findings included therein unless reviewed in the same manner as provided by s. 111.07 (8) for review of orders of the commission.
(3m) Whenever an election has been conducted pursuant to sub. (3) in which the name of more than one proposed representative appears on the ballot and results in no conclusion, the commission may, in its discretion, if requested by any party to the proceeding within 30 days from the date of the certification of the results of such election, conduct a runoff election. In such runoff election, the commission may drop from the ballot the name of the representative that received the least number of votes at the original election, or the privilege of voting against any representative when the least number of votes cast at the first election was against representation by any named representative.
(4) Questions concerning the determination of collective bargaining units or representation of employees may be raised by petition of any employee or the employee’s employer, or the representative of either of them. Where it appears by the petition that any emergency exists requiring prompt action, the commission shall act on the petition immediately and hold the election requested within such time as will meet the requirements of the emergency presented. The fact that one election has been held does not prevent the holding of another election among the same group of employees, provided that it appears to the commission that sufficient reason for another election exists.
History: 1983 a. 189 s. 329 (4); 1993 a. 492; 1995 a. 27; 1999 a. 83; 2009 a. 28; 2011 a. 10.
Cross−reference: See also
chs. ERC 3, 7, and 17,
111.06 What are unfair labor practices. (1) It shall be an unfair labor practice for an employer individually or in concert with others:
(a) To interfere with, restrain or coerce the employer’s employees in the exercise of the rights guaranteed in s. 111.04.
(b) To initiate, create, dominate or interfere with the formation or administration of any labor organization or contribute financial support to it, provided that an employer shall not be prohibited from reimbursing employees at their prevailing wage rate for the time spent conferring with the employer, nor from cooperating with representatives of at least a majority of the employer’s employees in a collective bargaining unit, at their request, by permitting employee organizational activities on company premises or the use of company property facilities where such activities or use create no additional expense to the company, provided, however, that it shall not be an unfair labor practice for an employer to become a member of the same labor organization of which the employer’s employees are members, when the employer and the employer’s employees work at the same trade.
(c) 1. To encourage or discourage membership in any labor organization, employee agency, committee, association or representation plan by discrimination in regard to hiring, tenure or other terms or conditions of employment except in a collective bargaining unit where an all−union agreement is in effect. Any all−union agreement in effect on October 4, 1975, made in accordance with the law in effect at the time it is made is valid.
2. It is not a violation of this subchapter for an employer engaged primarily in the building and construction industry where the employees of such employer in a collective bargaining unit usually perform their duties on building and construction sites, to negotiate, execute and enforce an all−union agreement with a labor organization which has not been subjected to a referendum vote as provided in this subchapter.
3. It is not a violation of this subchapter for an employer engaged in the truck transportation of freight in the motor freight industry as a common or contract carrier of property as defined in s. 194.01 (1) and (2) to negotiate, execute and enforce an all−union agreement with a labor organization representing employees in a multi−state bargaining unit which has not been subjected to a referendum vote as provided in this subchapter; except that an election shall be held if a petition requesting such election is signed by 30% of the employees affected.
4. It is not a violation of this subchapter for an orchestra or band leader engaged to provide live musical entertainment to enter into or comply with a policy, practice or contract in which all of the musicians must be members of a labor organization as a condition of hire or employment without such policy, practice or contract being subject to a referendum vote as provided in this subchapter.
Cross−reference: See also ch.
ERC 4,
(d) To refuse to bargain collectively with the representative of a majority of the employer’s employees in any collective bargaining unit with respect to representation or terms and conditions of employment, provided, however, that where an employer files with the commission a petition requesting a determination as to majority representation, the employer shall not be deemed to have refused to bargain until an election has been held and the result thereof has been certified to the employer by the commission.
(e) To bargain collectively with the representatives of less than a majority of the employer’s employees in a collective bargaining unit, or to enter into an all−union agreement except in the manner provided in par. (c).
(f) To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.
(g) To refuse or fail to recognize or accept as conclusive of any issue in any controversy as to employment relations the final determination, after appeal, if any, of any tribunal having competent jurisdiction of the same or whose jurisdiction the employer accepted.
(h) To discharge or otherwise discriminate against an employee because the employee has filed charges or given information or testimony in good faith under the provisions of this subchapter.
(i) To deduct labor organization dues or assessments from an employee’s earnings, unless the employer has been presented with an individual order therefor, signed by the employee personally, and terminable at the end of any year of its life by the employee giving at least thirty days’ written notice of such termination unless there is an all−union agreement in effect. The employer shall give notice to the labor organization of receipt of such notice of termination.
(j) To employ any person to spy upon employees or their representatives respecting their exercise of any right created or approved by this subchapter.
(k) To make, circulate or cause to be circulated a blacklist as described in s. 134.02.
(L) To commit any crime or misdemeanor in connection with any controversy as to employment relations.
(2) It shall be an unfair labor practice for an employee individually or in concert with others:
(a) To coerce or intimidate an employee in the enjoyment of the employee’s legal rights, including those guaranteed in s. 111.04, or to intimidate the employee’s family, picket the employee’s domicile, or injure the person or property of the employee or the employee’s family.
(b) To coerce, intimidate or induce any employer to interfere with any of the employer’s employees in the enjoyment of their legal rights, including those guaranteed in s. 111.04, or to engage in any practice with regard to the employer’s employees which would constitute an unfair labor practice if undertaken by the employer on the employer’s own initiative.
(c) To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.
(d) To refuse or fail to recognize or accept as conclusive of any issue in any controversy as to employment relations the final determination, after appeal, if any, of any tribunal having competent jurisdiction of the same or whose jurisdiction the employees or their representatives accepted.
(e) To cooperate in engaging in, promoting or inducing picketing that does not constitute an exercise of constitutionally guaranteed free speech, boycotting or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employees of an employer against whom such acts are primarily directed have voted by secret ballot to call a strike.
(f) To hinder or prevent, by mass picketing, threats, intimidation, force or coercion of any kind the pursuit of any lawful work or employment, or to obstruct or interfere with entrance to or egress from any place of employment, or to obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance.
(g) To engage in a secondary boycott; or to hinder or prevent, by threats, intimidation, force, coercion or sabotage, the obtaining, use or disposition of materials, equipment or services; or to combine or conspire to hinder or prevent, by any means whatsoever, the obtaining, use or disposition of materials, equipment or services, provided, however, that nothing herein shall prevent sympathetic strikes in support of those in similar occupations working for other employers in the same craft.
(h) To take unauthorized possession of property of the employer or to engage in any concerted effort to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike.
(i) To fail to give the notice of intention to engage in a strike provided in s. 111.115 (3).
(j) To commit any crime or misdemeanor in connection with any controversy as to employment relations.
(L) To engage in, promote or induce a jurisdictional strike.
(m) To coerce or intimidate an employer working at the same trade of the employer’s employees to induce the employer to become a member of the labor organization of which they are members, permissible pursuant to s. 111.06 (1) (b).
(3) It shall be an unfair labor practice for any person to do or cause to be done on behalf of or in the interest of employers or employees, or in connection with or to influence the outcome of any controversy as to employment relations any act prohibited by subs. (1) and (2).
History: 1971 c. 245; 1973 c. 320; 1975 c. 74, 199; 1983 a. 189 s. 329 (29); 1993 a. 492; 1995 a. 27, 225; 1999 a. 83; 2011 a. 10.
Cross−reference: See also ch.
ERC 2,
A company is not
required to bargain over a decision to use equipment that eliminates jobs, but
it is required to bargain over the effects of the decision on the rights of the
employees to severance pay, seniority, and related issues. Libby, McNeill &
Libby v. WERC, 48
Federal law has
preempted the question of whether a union rule imposing a fine for exceeding
production ceilings constitutes an unfair labor practice. UAW, Local 283 v.
Scofield, 50
The failure to
exhaust the available grievance remedies by an employee who was allegedly
discharged in violation of the contract precluded recourse to the courts absent
a wrongful refusal by the union to process the employee’s grievance. Mahnke v.
WERC, 66
WERC is
authorized by s. 111.06 (1) (L) to determine whether conduct in violation of
criminal law has occurred. Such authorization is not a delegation of judicial
power in violation of Art. VII, s. 2 nor does the procedure violate Art. I, s.
8.
State
jurisdiction was preempted when a secondary boycott violated the federal act.
Clarkin v. Dingeldein, 107
Federal
preemption of labor relations is discussed. Machinists v. WERC, 427
Duty to bargain over decision to mechanize operations. Boivin, 55 MLR 179.
Duty to bargain basic business decisions prior to implementation. 1971 WLR 1250.
111.07 Prevention of unfair labor practices. (1) Any controversy concerning unfair labor practices may be submitted to the commission in the manner and with the effect provided in this subchapter, but nothing herein shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction.
(2) (a) Upon the filing with the commission by any party in interest of a complaint in writing, on a form provided by the commission, charging any person with having engaged in any specific unfair labor practice, it shall mail a copy of such complaint to all other parties in interest. Any other person claiming interest in the dispute or controversy, as an employer, an employee, or their representative, shall be made a party upon application. The commission may bring in additional parties by service of a copy of the complaint. Only one such complaint shall issue against a person
with respect to a single controversy, but any such complaint may be amended in the discretion of the commission at any time prior to the issuance of a final order based thereon. The person or persons so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the notice of hearing. The commission shall fix a time for the hearing on such complaint, which will be not less than 10 nor more than 40 days after the filing of such complaint, and notice shall be given to each party interested by service on the party personally or by mailing a copy thereof to the party at the party’s last−known post−office address at least 10 days before such hearing. In case a party in interest is located without the state and has no known post−office address within this state, a copy of the complaint and copies of all notices shall be filed with the department of financial institutions and shall also be sent by registered mail to the last−known post−office address of such party. Such filing and mailing shall constitute sufficient service with the same force and effect as if served upon the party located within this state. Such hearing may be adjourned from time to time in the discretion of the commission and hearings may be held at such places as the commission shall designate.
(b) 1. The commission shall have the power to issue subpoenas and administer oaths. Depositions may be taken in the manner prescribed by s. 103.005 (13) (c). No person may be excused from attending and testifying or from producing books, records, correspondence, documents or other evidence in obedience to the subpoena of the commission on the ground that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a penalty or forfeiture under the laws of the state of Wisconsin; but no individual may be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it; provided,
that an individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
2. The immunity provided under subd. 1. is subject to the restrictions under s. 972.085.
(c) Any person who shall willfully and unlawfully fail or neglect to appear or testify or to produce books, papers and records as required, shall, upon application to a circuit court, be ordered to appear before the commission, there to testify or produce evidence if so ordered, and failure to obey such order of the court may be punished by the court as a contempt thereof.
(d) Each witness who appears before the commission by its order or subpoena at the request of the commission on its own motion shall receive for his or her attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the chairperson of the commission and charged to the appropriation under s. 20.425 (1) (a). Each witness who appears before the commission as a result of an order or subpoena issued by the commission at the request of a party shall receive for his or her attendance the fees and mileage as provided for witnesses in civil cases in courts of record, which shall be paid by the party requesting the order or subpoena in advance of the time set in the order or subpoena for attendance.
(3) A full and complete record shall be kept of all proceedings had before the commission, and all testimony and proceedings shall be taken down by the reporter appointed by the commission. Any such proceedings shall be governed by the rules of evidence prevailing in courts of equity and the party on whom the burden of proof rests shall be required to sustain such burden by a clear and satisfactory preponderance of the evidence.
(4) Within 60 days after hearing all testimony and arguments of the parties the commission shall make and file its findings of fact upon all of the issues involved in the controversy, and its order, which shall state its determination as to the rights of the parties. Pending the final determination by it of any controversy before it the commission may, after hearing, make interlocutory findings and orders which may be enforced in the same manner as final orders. Final orders may dismiss the charges or require the person complained of to cease and desist from the unfair labor practices found to have been committed, suspend the person’s rights, immunities, privileges or remedies granted or afforded by this subchapter for not more than one year, and require the person to take such affirmative action, including reinstatement of employees with or without pay, as the commission deems proper. Any order may further require the person to make reports from time to time showing the extent to which the person has complied with the order.
(5) The commission may authorize a commissioner or examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last−known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed or modified by such commissioner or examiner within such time. If the findings or order are set aside by the commissioner or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last−known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside or modify such findings or order, in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order it may extend the time another 20 days for filing a petition with the commission.
(6) The commission shall have the power to remove or transfer the proceedings pending before a commissioner or examiner. It may also, on its own motion, set aside, modify or change any order, findings or award, whether made by an individual commissioner, an examiner, or by the commission as a body, at any time within 20 days from the date thereof if it shall discover any mistake therein, or upon the grounds of newly discovered evidence.
(7) If any person fails or neglects to obey an order of the commission while the same is in effect the commission may petition the circuit court of the county wherein such person resides or usually transacts business for the enforcement of such order and for appropriate temporary relief or restraining order, and shall certify and file in the court its record in the proceedings, including all documents and papers on file in the matter, the pleadings and testimony upon which such order was entered, and the findings and order of the commission. Upon such filing the commission shall cause notice thereof to be served upon such person by mailing a copy to the last−known post−office address, and thereupon the court shall have jurisdiction of the proceedings and of the question determined therein. Said action may thereupon be brought on for hearing before said court upon such record by the commission serving 10 days’ written notice upon the respondent; subject, however, to provisions of law for a change of the place of trial or the calling in of another judge. Upon such hearing the court may confirm, modify, or set aside the order of the commission and enter an appropriate decree. No objection that has not been urged before the commission shall be considered by the court unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact made by the commission, if supported by credible and competent evidence in the record, shall be conclusive. The court may, in its discretion, grant leave to adduce additional evidence where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing before the commission. The commission may modify its findings as to facts, or make new findings by reason of such additional evidence, and it shall file such modified or new findings with the same effect as its original findings and shall file its recommendations, if any, for the modification or setting aside of its original order. The court’s judgment and decree shall be final except that the same shall be subject to review by the court of appeals in the same manner as provided in s. 102.25.
(8) The order of the commission shall also be subject to review under ch. 227.
(10) Commencement of proceedings under sub. (7) shall, unless otherwise specifically ordered by the court, operate as a stay of the commission’s order.
(11) Petitions filed under this section shall have preference over any civil cause of a different nature pending in the circuit court, shall be heard expeditiously, and the circuit courts shall always be deemed open for the trial thereof.
(12) A substantial compliance with the procedure of this subchapter shall be sufficient to give effect to the orders of the commission, and they shall not be declared inoperative, illegal, or void for any omission of a technical nature in respect thereto.
(13) A transcribed copy of the evidence and proceedings or any part thereof on any hearing taken by the stenographer appointed by the commission, being certified by such stenographer to be a true and correct transcript, carefully compared by the stenographer with the stenographer’s original notes, and to be a correct statement of such evidence and proceedings, shall be received in evidence with the same effect as if such reporter were present and testified to the fact so certified.
(14) The right of any person to proceed under this section shall not extend beyond one year from the date of the specific act or unfair labor practice alleged.
History: 1971 c. 228 s. 44; 1973 c. 90; 1977 c. 42; 1977 c. 187 ss. 60m, 134; 1977 c. 273; 1989 a. 122; 1993 a. 492; 1995 a. 27, 225.
Cross−reference: See also ch. ERC 2, Wis. adm. code.
WERC’s limiting of “parties in interest” to those engaged in a controversy as to employment relations and defining such controversies as involving an employer and employees, or a union representing the employees or seeking to represent them, was reasonable. Chauffeurs, Teamsters & Helpers v. WERC, 51 Wis. 2d 391, 187 N.W.2d 364 (1971).
Since the NLRB has no jurisdiction to require collective bargaining with a one−employee unit, WERC may do so. WERC v. Atlantic Richfield Co. 52 Wis. 2d 126, 187 N.W.2d 805 (1971).
The grant of authority to WERC by s. 111.70 (4) (a), to prevent the commission of prohibited labor practices incorporates the provisions of s. 111.07 (4) for procedural and substantive remedial purposes. WERC v. City of Evansville, 69 Wis. 2d 140, 230 N.W.2d 688 (1975).
Sub. (8) provides that WERC orders may be reviewed under sub. (7) or under ch. 227 procedure. WERC v. Teamsters Local No. 563, 75 Wis. 2d 602, 250 N.W.2d 696 (1977). Overturned on other grounds. City of Madison v. Madison Professional Police Officers Association, 144 Wis. 2d 576, 425 N.W.2d 8 (1988).
111.08 Financial reports to employees. Every person acting as the representative of employees for collective bargaining shall keep an adequate record of its financial transactions and shall present annually to each member within 60 days after the end of its fiscal year a detailed written financial report thereof in the form of a balance sheet and an operating statement. In the event of failure of compliance with this section, any member may petition the commission for an order compelling such compliance. An order of the commission on such petition shall be enforceable in the same manner as other orders of the commission under this subchapter.
111.09 Rules, orders, transcripts, training programs and fees. (1) The commission may adopt reasonable and proper rules and regulations relative to the exercise of its powers and authority and proper rules to govern its proceedings and to regulate the conduct of all elections and hearings. The commission shall, upon request, provide a transcript of a proceeding to any party to the proceeding for a fee, established by rule, by the commission at a uniform rate per page. All transcript fees shall be credited to the appropriation account under s. 20.425 (1) (i).
(2) The commission shall assess and collect a filing fee for filing a complaint alleging that an unfair labor practice has been committed under s. 111.06. The commission shall assess and collect a filing fee for filing a request that the commission act as an arbitrator to resolve a dispute involving the interpretation or application of a collective bargaining agreement under s. 111.10. The commission shall assess and collect a filing fee for filing a request that the commission act as a mediator under s. 111.11. The commission shall assess and collect a filing fee for filing a request that the commission initiate arbitration under s. 111.10. For the performance of commission actions under ss. 111.10 and 111.11, the commission shall require that the parties to the dispute equally share in the payment of the fee and, for the performance of commission actions involving a complaint alleging that an unfair labor practice has been committed under s. 111.06, the commission shall require that the party filing the complaint pay the entire fee. If any party has paid a filing fee requesting the commission to act as a mediator for a labor dispute and the parties do not enter into a voluntary settlement of the labor dispute, the commission may not subsequently assess or collect a filing fee to initiate arbitration to resolve the same labor dispute. If any request for the performance of commission actions concerns issues arising as a result of more than one unrelated event or occurrence, each such separate event or occurrence shall be treated as a separate request. The commission shall promulgate rules establishing a schedule of filing fees to be paid under this subsection. Fees required to be paid under this subsection shall be paid at the time of filing the complaint or the request for mediation or arbitration. A complaint or request for mediation or arbitration is not filed until the date such fee or fees are paid. Fees collected under this subsection shall be credited to the appropriation account under s. 20.425 (1) (i).
(3) The commission may provide training programs to individuals and organizations on private sector collective bargaining, and on areas of management and labor cooperation directly or indirectly affecting private sector collective bargaining, and may charge a reasonable fee for participation in the programs.
Cross−reference: See also ch. ERC 50, Wis. adm. code.
History: 1973 c. 90; 1981 c. 20; 1983 a. 27; 1991 a. 39; 1995 a. 27; 2003 a. 33.
Cross−reference: See also ch. ERC 2, Wis. adm. code.
111.10 Arbitration. Parties to a dispute pertaining to the meaning or application of the terms of a written collective bargaining agreement may agree in writing to have the commission serve as arbitrator. Parties to a labor dispute may agree in writing to have the commission act or name arbitrators in all or any part of such dispute, and thereupon the commission shall have the power so to act. The commission shall appoint as arbitrators only competent, impartial and disinterested persons. Proceedings in any such arbitration shall be as provided in ch. 788.
History: 1979 c. 32 s. 92 (15); 1995 a. 27.
Cross−reference: See also ch. ERC 5, Wis. adm. code.
A grievance was arbitrable under the “discharge and nonrenewal” clause of a bargaining agreement when the contract offered by the board was signed by the teacher after deleting the title “probationary contract” and the board did not accept this counteroffer or offer the teacher a 2nd contract. Joint School District No. 10, City of Jefferson v. Jefferson Education Association, 78 Wis. 2d 94, 253 N.W.2d 536 (1977).
WERC’s power to participate in dispute settlement arbitration is liberally construed. Thus, when parties to a collective bargaining agreement select an arbitrator from a list provided by WERC, this section applies. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218 (1978).
Municipal labor arbitration is within the scope of ch. 788. Milwaukee District Council 48 v. Milwaukee Sewerage Commission, 107 Wis. 2d 590, 321 N.W.2d 309 (Ct. App. 1982).
The res judicata standard of confirmed arbitration awards in Wisconsin. 1987 WLR 895.
111.11 Mediation. The commission may appoint any competent, impartial, disinterested person to act as mediator in any labor dispute either upon its own initiative or upon the request of one of the parties to the dispute. It shall be the function of such mediator to bring the parties together voluntarily under such favorable auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the commission shall have any power of compulsion in mediation proceedings. The commission shall provide necessary expenses for such mediators as it may appoint, order reasonable compensation not exceeding $10 per day for each such mediator, and prescribe reasonable rules of procedure for such mediators.
History: 1995 a. 27, 225.
Cross−reference: See also ch. ERC 6, Wis. adm. code.
111.115 Notice of certain proposed strikes. (1) In this section, “strike” includes any concerted stoppage of work by employees, and any concerted slowdown or other concerted interruption of operations or services by employees, or any concerted refusal of employees to work or perform their usual duties as employees, for the purpose of enforcing demands upon an employer.
(3) Where the exercise of the right to strike by employees of any employer engaged in the state of Wisconsin in the production, harvesting or initial off−farm processing of any farm or dairy product produced in this state would tend to cause the destruction or serious deterioration of such product, the employees shall give to the commission at least 10 days’ notice of their intention to strike and the commission shall immediately notify the employer of the receipt of such notice. Upon receipt of such notice, the commission shall take immediate steps to effect mediation, if possible. In the event of the failure of the efforts to mediate, the commission shall endeavor to induce the parties to arbitrate the controversy.
History: 1995 a. 27, ss. 3789b, 3789bc; 1999 a. 83; 2011 a. 10.
111.12 Duties of the attorney general and district attorneys. Upon the request of the commission, the attorney general or the district attorney of the county in which a proceeding is brought before the circuit court for the purpose of enforcing or reviewing an order of the commission shall appear and act as counsel for the commission in such proceeding and in any proceeding to review the action of the circuit court affirming, modifying or reversing such order.
111.14 Penalty. Any person who shall willfully assault, resist, prevent, impede or interfere with any member of the commission or any of its agents or agencies in the performance of duties pursuant to this subchapter shall be punished by a fine of not more than $500 or by imprisonment in the county jail for not more than one year, or both.
111.15 Construction of subchapter I. Except as specifically provided in this subchapter, nothing therein shall be construed so as to interfere with or impede or diminish in any way the right to strike or the right of individuals to work; nor shall anything in this subchapter be so construed as to invade unlawfully the right to freedom of speech. Nothing in this subchapter shall be so construed or applied as to deprive any employee of any unemployment benefit which the employee might otherwise be entitled to receive under ch. 108.
History: 1993 a. 492.
111.17 Conflict of provisions; effect. Wherever the application of the provisions of other statutes or laws conflict with the application of the provisions of this subchapter, this subchapter shall prevail, except that in any situation where the provisions of this subchapter cannot be validly enforced the provisions of such other statutes or laws shall apply.
History: 1995 a. 27; 2011 a. 10.
111.18 Limit on payment to health care institutions. (1) In this section:
(a) “Health care institution” includes hospitals, psychiatric hospitals, tuberculosis hospitals, nursing homes, kidney disease treatment centers, free−standing hemodialysis units, ambulatory surgical facilities, health maintenance organizations, limited service health organizations, preferred provider plans, community−based residential facilities that are certified as medical assistance providers under s. 49.45 (16) or that otherwise meet the requirements for certification, home health agencies and other comparable facilities. “Health care institution” does not include facilities operated solely as part of the practice of an independent practitioner, partnership, unincorporated medical group or service corporation as defined in s. 180.1901 (2).
(b) “Proportional share” means the annual revenue of a health care institution received in the form of medical assistance reimbursement or public employee insurance from the state, divided by the total annual revenue of the health care institution.
(2) (a) 1. Any health care institution found by the national labor relations board to have committed an unfair labor practice under 29 USC 158 or found by the employment relations commission to have committed a prohibited practice under s. 111.70 (3) that includes payment to any person for services rendered with respect to concerted activity engaged in by its employees for purposes of collective bargaining shall return to the state a proportional share of the amount paid to the person for the activity that constituted the unfair labor practice.
2. Any group of employees of a health care institution subject to subd. 1. may commence an action in circuit court to enforce the provisions of this subsection.
3. Reasonable costs and attorney fees incurred in enforcing a return of funds to the state under this section may be awarded to successful plaintiffs.
(b) Paragraph (a) does not apply to:
1. Attorney fees for services rendered after the union is certified as a collective bargaining agent under this chapter or under the national labor relations act, 29 USC 151 to 169.
2. Attorney fees for services at an administrative agency or court proceeding or in preparation for the proceeding.
3. Salary paid to a full−time employee of a health care institution’s personnel department.
History: 1981 c. 361; 1983 a. 27; 1985 a. 29; 1989 a. 303.
111.19 Title of subchapter I. This subchapter may be cited as the “Employment Peace Act”.