Hearing Examiner Complaint Manual
by Lionel L. Crowley and Peter G. Davis
(Caution: Significant portions of this manual have not been updated for several years. Especially for that reason, it is offered as a potentially convenient starting point for research but ought not be relied upon as comprehensive or authoritative. [disclaimer])
A. General Counsel Activity
B. Examiner Assignment
V. ANSWER
VIII. HEARING EXAMINER'S AUTHORITY
A. To Make More Definite and Certain
B. To Dismiss
C. Amendment of Complaint
D. Withdrawal
E. Motion to Stay Proceedings
F. Motion for Delay and Postponement
A. Physical Layout
B. Public Hearing
C. Identification of Counsel and Witnesses
D. Settlement Discussions
E. Failure of a Party to Appear
A. Opening Statement by Examiner
B. Parties' Opening Statement
C. Sequestration of Witnesses
D. Administration of the Oath
E. Off the Record Discussions
F. Burden of Proof
G. Burden of Going Forward
H. Rules of Evidence
I. Control of the Hearing
J. Briefing Schedule
K. Reopening the Record
XVIII.JURISDICTION OVER BREACH OF CONTRACT COMPLAINTS
A. Time for Issuance
B. Format
C. Appeal Rights
D. Remedies
1. Interlocutory Relief
2. Status Quo Ante
3. Posting of Notice
4. Cease and Desist
E. Attorney's Fees and Costs
F. Dismissal
G. Change of Decision by the Examiner
This manual is designed to provide general guidance in the handling of complaints filed under the Wisconsin Employment Peace Act, Municipal Employment Relations Act and State Employment Labor Relations Act. Any material herein cannot supersede the statutes or administrative code. This document should be utilized as a starting point for further research and consideration and may not be cited as authority in any proceeding before the Commission. Examiners should continue to update their manual with future Commission decisions and procedures, prior to receiving updated pages of the manual.
Generally, a complaint case is one alleging an unfair labor practice or prohibited practice in violation of Secs. 111.06, 111.70(3) or 111.84, Stats. The procedures governing a complaint filed under Secs. 111.06, 111.70(3) or 111.84, Stats., are set forth in Sec. 111.07, Stats. and in Wis. Adm. Code sections ERB 2, 10, 12 and 22. A complaint may be filed by any party in interest which may be an employer, a labor organization or an individual whose personal rights are affected. A complaint must be in writing. The Commission supplies complaint forms with instructions for filing complaints. (See Appendices 1 and 2.) The original complaint must be signed and sworn to before any person authorized to administer oaths or acknowledgement, and should contain the following information:
1. The name, address, and affiliation, if any, of the complainant, and of any representative thereof.
2. The name and address of the respondent or respondents, and any other party named therein.
3. A clear and concise statement of the facts constituting the alleged unfair labor or prohibited practice, including the time and place of occurrence of particular acts and the sections of the statute alleged to have been violated thereby.
4. A prayer for specific and general relief.
5. A statement that the filing fee accompanies the complaint.
Sections 111.09(2), 111.71(2) and 111.94(2), Stats. require that a filing fee of $25.00 must be paid at the time of filing the complaint and the complaint will not be considered filed until such date as the filing fee is paid. If a complaint is received without the filing fee, it is generally returned to the party filing it with an explanation that it won't be processed without payment of the filing fee. (See Appendix 3.)
II. COMPLAINT CLASS UNDER CHAPTER 227:
A complaint case is a contested case and in most instances is a Class 3 proceeding under Chap. 227, Stats.
Sec. 227.01(2), Stats., sets forth three classes of proceedings namely:
"(a) A 'class 1 proceeding' is a proceeding in which an agency acts under standards conferring substantial discretionary authority upon the agency. Class 1 proceedings include, but are not restricted to: rate making; price setting; granting of certificates of convenience and necessity; the making, review or equalization of tax assessments; and the grant or denial of licenses.
"(b) A 'class 2 proceeding' is a proceeding in which an agency determines whether to impose a sanction or penalty against one or more parties. Class 2 proceedings include, but are not restricted to, suspensions of, revocations of, and refusals to renew licenses because of an alleged violation of law. Any such proceeding shall be treated as a Class 2 proceeding.
"(c) A 'class 3 proceeding' is any contested case not included in class 1 or 2.
The major distinction between a Class 2 and a Class 3 proceeding is whether a sanction or penalty is sought and can be imposed. Where the Commission is asked and empowered to impose a sanction or penalty, the case must proceed as a Class 2 proceeding.
Examples of sanctions or penalties which could be imposed are found in Secs. 111.07(4), 111.70(2) and ERB 32.16(2).
There are two material differences between class 2 and class 3 proceedings: (1) the notice of hearing in a class 2 proceeding must cite the particular statutory sections involved, whereas in a class 3 proceeding the notice need only cite the general basis of the agency's authority; and (2) discovery rights are more limited in class 3 proceedings.
III. STATUTE OF LIMITATIONS: (M541)
The statute of limitations as set forth in Sec. 111.07(14) is that the right to file a complaint shall not extend beyond one year from the date of the specific act or unfair labor practice (prohibited practice) alleged. However, the statute is tolled in certain circumstances. For instance, in HarleyDavidson Motor Company, Dec. No. 7166 (WERC, 6/65) the Commission held that, where a collective bargaining agreement contains procedures for the voluntary settlement of disputes arising thereunder and the parties have attempted to resolve such disputes under such procedure, a complaint alleging a violation of said agreement does not arise until the exhaustion of the grievance procedure. Thus, the one year period of limitation is computed from the date the grievance procedure is exhausted.
See Guzniczak vs. State of Wisconsin, Dec. No. 26676-B (WERC, 4/91) and Johnson v. AFSCME Council 24, Dec. No. 21980-C (WERC, 2/90) for additional examples where the statute is tolled.
A. General Counsel Activity:
Section 111.07(2)(a), Stats., provides that a hearing on a complaint will be conducted not less than 10 nor more than 40 days after the filing of a complaint and notice must be given to each party in interest by personal service or by mailing the notice of hearing to each party at least 10 days before the hearing.
Once a complaint is filed with the Commission, it is assigned a case number and a copy is served on the named Respondents by mail. The Commission's General Counsel sends a letter with a copy of the complaint indicating that someone from the Commission will contact the parties in an attempt to resolve the complaint without the need for a formal hearing. This letter also indicates that unless the parties request otherwise, any hearing will not be scheduled within 40 days of its receipt by the Commission so settlement discussion can be exhausted first. (See Appendix 4.)
If a party requests that the hearing be scheduled within the 40 day period or if settlement discussions are unsuccessful, the case is assigned to an Examiner.
B. Examiner Assignment:
Upon receipt of the case file, the Examiner should contact the parties and schedule the hearing within the 40 day period unless this has been waived by the parties or the parties agree to a later date. If the parties have not previously waived the 40 day limit and at some point agree to do so, the Examiner should confirm this waiver in writing to the parties. Once a hearing date is established, the Examiner then sends the parties a Notice of Hearing on Complaint as well as a copy of the Order Appointing Examiner. (Appendices 5 and 6.)
V. ANSWER:
If an Answer to the Complaint has not already been filed, the Examiner sets an answer date in the Notice of Hearing. ERB. 2.04 makes the filing of an answer permissive while ERB 12.03 and 22.03 require an answer. See City of Milwaukee, Dec. No. 8017 (WERC, 5/76), Walworth Union High School District, Dec. No. 16550A (Davis, 9/78), and West Allis - West Milwaukee School District, Dec. No. 20922B (Schiavoni, 11/83) as to whether the failure to file an answer has not been considered a waiver of hearing as to the material facts alleged in the complaint against a respondent.
VI. DISCLOSURE:
Examiners should honor the disclosure requirements at Richco Structure v. Parkside Village, Inc., 82 Wis.2d 547 (1978).
As the following excerpts indicate, the standard of disclosure required by the Court is very stringent.
"In order to further the intent of the legislature, the expectation of the parties, and the parties opportunity to make reasonable assessment of an arbitrator's ability, we hold that the neutral arbitrator must disclose at the outset the relationships or transactions he or she has had with the parties or with the representatives of the parties to the arbitration proceeding. The neutral arbitrator must also disclose any facts which might indicate to a reasonable person that the Arbitrator has or might reasonably be supposed to have an interest in the outcome of the arbitration, or which may reasonably support an inference of or the appearance of the existence of bias, prejudice, partiality, or the absence of impartiality. (footnote omitted) Thus we construe "evident partiality" to include proof of a neutral arbitrator's failure to disclose these facts and relationships." Id, pp. 558-559 (emphasis added)
. . .
"We do not intend to require an arbitrator to reveal every facet of his or her life. Nevertheless, the burden falls on the arbitrator to search his or her memory and records to make disclose, erring on the side of more rather than less disclosure."
. . .
"When there is nondisclosure at the outset of arbitration, the test for vacatur on the ground of evident partiality is whether the reasonable person, as a party to the arbitration proceeding, upon being advised of the undisclosed matters, would have such doubts regarding the prospective arbitrator's impartiality that he or she would investigate further, would demand that the arbitration be conducted on terms which would provide checks on the arbitrator's exercise of discretion, or would take other protective measures to assure an impartial arbitration and award." Id at 562 (emphasis added)
It is safe to say that the information which you are required to disclose in order to comply with the Richco Standard goes well beyond simply those relationships which might cause you to recuse yourself. It appears that a regular social relationship with one of the attorneys or representatives must be disclosed, even though there may be no real doubt as to your ability to render an impartial decision in a case involving that individual. If in your judgment such disclosure is warranted, it should be made in the scheduling letter. If you have a relationship with an organization such as a labor union or management law firm which might require regular disclosure, you can have a special scheduling form letter including the disclosure put onto the word processing system.
The following is a sample of the format for disclosure utilized by some staff members:
"The parties may have an interest in knowing of the following relationships. I was previously employed as a business agent for the Roadsters Union in the state of Maine for two years (1977-79). Furthermore, I am acquainted socially with Mr. Smith, who is serving as the Employer's attorney in this matter. In my experience, neither of these relationships bears on my ability to render an impartial decision and I make this disclosure purely for your information. Please contact me if you have any questions."
VII. COUNTERCLAIMS:
If a respondent files an answer which includes a counterclaim, the counterclaim must be treated as a separate complaint with a separate file and will not be deemed filed until the filing fee is received by the Commission. Any respondent filing a counterclaim should be so notified, and if the counterclaim is properly filed as a complaint, it may or may not be consolidated with the original complaint for the purposes of hearing and/or decision as the situation may dictate.
VIII. HEARING EXAMINER'S AUTHORITY:
Hearing Examiners have authority under Sec. 227.46 to:
(a) Administer oaths and affirmations.
(b) Issue subpoenas authorized by law enforce subpoenas under s. 885.12.
(c) Rule on offers of proof and receive relevant evidence.
(d) Take depositions or have depositions taken when permitted by law.
(e) Regulate the course of the hearing.
(f) Hold conferences for the settlement or simplification of the issues by consent of the parties.
(g) Dispose of procedural requests or similar matters.
(h) Make or recommend findings of fact, conclusions of law and decisions to the extent permitted by law.
(i) Take other action authorized by agency rule consistent with this chapter.
IX. PREHEARING MOTIONS: (M543.1.4), (M545.3)
All motions, except those made at the hearing, should be made in writing and shall set forth the grounds for the motion with particularity. Depending on the nature of a particular motion, the Examiner may issue a ruling without any briefs or responses, or may allow the nonmoving party to respond to the motion or may establish a briefing schedule before issuance of a ruling.
A. To Make Complaint More Definite and Certain
By rule, this motion must be made within 5 days after service of the complaint in complaint proceedings under the Municipal Employment Relations Act or the State Employment Labor Relations Act. See ERB. 12.03(3) and ERB 22.03(3).
B. To Dismiss
This motion is generally directed to a failure to comply with the requirements of the statute or rules which can be corrected by an amendment to the complaint and the Examiner should give complainant ample opportunity to amend the complaint. This motion also may be made where the complaint has allegedly been untimely filed. Where the motion to dismiss is for a failure to state a claim, the Examiner has the power to grant a motion to dismiss the complaint if the complaint fails to raise a genuine issue of fact or law. However, because of the dramatic consequences of denying an evidentiary hearing on a motion to dismiss, the complaint must be liberally construed in favor of the complainant and the motion should be granted only if under no interpretation of the facts alleged would the complainant be entitled to relief. Racine Unified School District, Dec. No. 15915B (Hoornstra, 12/77).
C. Amendment of Complaint (M543.1.2)
The Examiner may allow a complainant to amend the complaint by motion before the hearing, during the hearing or at any time prior to the issuance of a final order. A respondent may amend the answer for good cause shown at any time prior to the hearing or may amend the answer where the complaint has been amended. Amendment may not be permitted which is prejudicial to the respondent's rights. Wautoma Jt. School District, Dec. No. 15220A (Malamud, 5/77).
A complainant may be ordered to file an amended complaint which specifically sets forth the statutory sections allegedly violated by respondent. Fox Valley Technical Institute, Dec. No. 16504B, C, 16505B, C (Davis, 8/78, 9/78). Failure to do so by a specified date may be grounds for the dismissal of a complaint. Washington County (Sheriff's Department), Dec. 16848-A (Hawks, 2/79). At the end of a hearing, the complaint may be amended on motion to conform with the evidence as to minor and immaterial variances which might appear in the record.
D. Withdrawal (M543.1.3)
A complaint may be withdrawn at any time prior to the issuance of a final order, upon motion granted by the Commission. After a complaint has been filed and served upon Respondent, the Commission will not permit the Complainant to withdraw the complaint without prejudice except upon good cause shown. City of Green Bay, et.al., Dec. No. 10697A (WERC, 12/71); City of Superior, Dec. No. 10681-A (Fleischli, 12/71).
E. Motion to Stay Proceedings
Where it was evident that Complainant's ability to prevail was contingent to a significant extent on the outcome of proceedings in other forums, there was no merit to proceeding on this case at this time and further proceedings were indefinitely stayed. Racine Unified School District, Dec. No. 15915C (Hoornstra, 1/78).
F. Motion for Delay or Postponement (M545.3)
Although Respondent's counsel claimed that he was not prepared to proceed, he had not requested an extension of time to file an answer, but entered a general denial, and made no motion for a continuance due to "surprise", or for the need to adduce additional evidence, the Examiner's refusal to adjourn the hearing did not deny Respondent due process. Madison Joint School District, Dec. No. 12927B (WERC, 6/76).
The availability of depositions is governed by Secs. 227.45(7), 111.07(2)(b)1 and 101.02(4), Stats., and ERB 10.15 and 20.15.
The Commission will not order that the deposition of any person be taken in a class 1 or 3 proceeding unless "good cause" is shown. Milwaukee Board of School Directors, Dec. No. 22028-B (Crowley, 12/84). Depositions purely for discovery purposes are not permitted absent a good cause showing. Allegations that a party would destroy or vary relevant documents were held to be insufficient to establish good cause. Department of Industry, Labor and Human Relations (DILHR), Dec. No. 16487B (Yaeger, 9/78). The Commission has held that it is necessary to show that without depositions, a hearing would be protracted and the record unduly burdened. Milwaukee Board of School Directors, Dec. No. 18408A (WERC, 10/81).
Section 111.07(2)(b), Stats., empower Examiners in complaint proceedings to issue subpoenas to compel the production of documents or the attendance of witnesses at hearing. The Examiner is responsible for making sure that the subpoena sent to a requesting party specifies both the nature of the proceeding involved and the name and address of the party at whose request the subpoena was issued. The requesting party is responsible for service of the subpoena and the payment of the appropriate fees prior to hearing. (Currently 16 dollars per day and 20 cents per mile pursuant to Secs. 111.07(2)(d), Stats., and 814.67(1)(b)1, Stats.) In the rare event that the Examiner is required to subpoena a witness on the Commission's behalf, the Commission is responsible for the service and the payment of fees. However, in such circumstances, fees need not be paid in advance or at the time of hearing. Instead, such witnesses shall be paid upon submission of a verified voucher to the Commission. (See Sec. 111.07(2)(d), Stats.)
Effective April 1, 1990, attorneys (only) representing parties in complaint proceedings became able to issue subpoenas. The pertinent portion of 1989 Wisconsin Act 139 states:
SECTION 7. 227.45(6m) of the statutes is created to read:
227.45(6m) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in s. 805.07(4) and must be served in the manner provided in s. 805.07(5). The attorney shall at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the department responsible for conducting the proceeding.
This applies only to attorneys and does not permit other representatives, such as business agents, personnel managers, etc., to issue subpoenas.
It is the Examiner's responsibility to rule upon any Motion to Quash which may be made as to a subpoena. If a party refuses to honor a subpoena which has been properly served, as to which fees have been properly tendered and which the Examiner is satisfied will produce relevant testimony or exhibits, the Examiner should advise the Commission immediately. The Commission will, where necessary and appropriate, commence an action under Secs. 111.07(2)(c), Stats., to enforce the subpoena.
When the Examiner receives a request for subpoena(s), the Examiner should be sensitive to the following considerations:
1. Is the request so close to the hearing that to honor it will disrupt the proceedings because the issues of service will arise or parties will be aggravated.
2. Are the documents sought so voluminous in relation to the timing of the request that they cannot reasonably be supplied prior to or during the scheduled hearing.
3. Is the number of individuals to be subpoenaed so large that it will disrupt the employer's operation unless their appearance times are staggered throughout the day.
4. If the request is made so close to the hearing that a subpoena, sent by mail, would not reach the requesting party in time, the requesting party can have its attorney issue a subpoena pursuant to Sec. 227.45(6m), Stats.
When any of the foregoing considerations are present, an attempt should be made to discuss the matters with the requesting party, and where necessary, the other party(s) to reach any necessary understandings as to how best to proceed.
When subpoenas are sent at the request of a party, all other parties should receive a copy of the cover letter which accompanies the subpoenas.
If scheduling changes in the hearing arrangements occur after subpoenas have been issued, the party requesting the subpoenas must communicate those changes to the recipients of the subpoenas.
The Commission is without power to approve or authorize a complaint as a class action. However where such an action has been commenced and approved in that form in circuit court and then referred to the Commission, the Commission must entertain same. Milwaukee County, Dec. No. 19545D (WERC, 3/85).
XIII. CONSOLIDATION OF CASES: (M544.5)
Where the issues in multiple complaints involving the same respondent employer were sufficiently interrelated, motion to consolidate said complaints for purposes of hearing was granted by the Commission. City of LaCrosse, Dec. No. 16380C, 16431C, 16570B (WERC, 10/79).
The Examiner is permitted in an appropriate case to hold a prehearing conference to define the scope of the hearing, issues to be tried, miscellaneous procedural issues, settlement discussions, stipulations, etc.
A respondent named in a contract enforcement complaint under the Wisconsin Employment Peace Act may file a motion in Federal District Court to remove the matter and such motions are routinely granted by the Court where a hearing has not been held on said complaint. Upon notice of such a motion, the Examiner should indefinitely postpone the complaint pending the District Court's granting the motion. (See Appendix 7.) After the motion is granted by the Federal District Court, the complaint should be dismissed. (See Appendix 8.)
XVI. THE HEARING:
A. Physical Layout.
The Commission makes arrangements for the location of the hearing and the court reporter. Upon arrival, prepare the physical arrangement for the hearingwhere the court reporter, yourself, the witnesses and representatives of the parties will sit.
B. Public Hearing.
Procedural matters relating to the conduct of the hearing are governed by Chapter 227, Stats., and the rules of the WERC. Green County, Dec. No. 16717A (Yaeger, 1/79). The hearing is open to the public and press. The Examiner must not allow the conduct of the public and/or press to interfere with the conduct or decorum of the hearing.
C. Identification of Counsel and Witnesses.
The Examiner should obtain the names and titles of the representatives and the names of the witnesses for the court reporter. This can be done by passing around a sheet for all the principals to affix their names.
D. Settlement Discussions.
Before going on the record, determine whether settlement discussions are desired and if not, whether any matters can be stipulated. Any stipulation should be stated on the record.
E. Failure of a Party to Appear.
Unless good cause is shown, any party failing to appear after due notice shall be deemed to have waived the right to present a case, to admit the accuracy of the uncontradicted evidence adduced by the parties present, and be precluded from introducing evidence controverting any contentions or allegations. When it can be ascertained that a party has received notice of a complaint proceeding and that party fails to appear, the Examiner should make telephonic efforts to contact the missing party. Should such efforts fail, the Examiner may then properly entertain a motion to dismiss for lack of prosecution or may allow a party to proceed ex parte to place facts in the record upon which the Examiner may dispose of the merits of the alleged statutory violation. Prairie Home Cemetery, Dec. No. 22316-B (WERC, 10/85).
XVII. HEARING RECORD: (M545.4)
A. Opening Statement by Examiner
Once the preliminary off the record matters have been accomplished, the hearing should be on the record, i.e., the transcript of the proceeding and exhibits. The Examiner starts the hearing with the opening statement which is as follows:
THE HEARING WILL BE IN ORDER. THIS IS A FORMAL HEARING BEFORE AN EXAMINER APPOINTED BY THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION IN THE MATTER OF A COMPLAINT OF (Private and State Cases: UNFAIR LABOR PRACTICES/ Municipal Cases: PROHIBITED PRACTICES) FILED BY AGAINST . CASE NUMBER . THE EXAMINER IS , AND THE REPORTER IS . WILL COUNSEL PLEASE STATE THEIR APPEARANCES FOR THE RECORD? FOR THE COMPLAINANT? . FOR THE RESPONDENT? . 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 OFFTHERECORD 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 EXAMINER IN (MADISON). AUTOMATIC EXCEPTIONS WILL BE ALLOWED TO ALL ADVERSE RULINGS. IT SHOULD BE CLEAR FROM THE ORDER APPOINTING THE EXAMINER THAT, FOLLOWING THE CLOSE OF THIS HEARING AND THE SUBMISSION OF FINAL ARGUMENTS, THE EXAMINER WILL ISSUE FINDINGS AND ORDERS. SUCH FINDINGS AND ORDERS ARE REVIEWED BY THE COMMISSION AS SET FORTH IN SECTION 111.07(5) OF THE WISCONSIN STATUTES. UNTIL SUCH TIME AS THE EXAMINER ISSUES FINDINGS AND ORDERS, ALL MOTIONS AND ARGUMENTS SHOULD BE DIRECTED TO THE EXAMINER.
After this the Examiner should read into the record any stipulations by the parties and identify exhibits agreed to by the parties and admit them into evidence. Any other preliminary matters agreed to by the parties should also be stated on the record.
B. Parties' Opening Statements
The complainant may make an opening statement followed by respondent's opening statement. The respondent may also wait until complainant has completed the presentation of its case before making an opening statement.
C. Sequestration of Witnesses
Sequestration of witnesses should be granted upon request by a party or parties where it will materially assist in the production of an accurate record. The witnesses should be instructed not to discuss their testimony with any other witness nor to discuss any other witnesses' testimony.
D. Administration of the Oath
Pursuant to ERB 2.16, 10.16 and 20.16, witnesses in a complaint proceeding are sworn. An oath or affirmation is set forth in Sec. 906.03, Stats. as follows:
(1) Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.
(2) The oath may be administered substantially in the following form: Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God?
(3) Every person who shall declare that he has conscientious scruples against taking the oath, or swearing in the usual form, shall make his solemn declaration or affirmation, which may be in the following form: Do you solemnly, sincerely and truly declare and affirm that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth; and this you do under the pains and penalty of perjury.
(4) The assent to the oath or affirmation by the person making it may be manifested by the uplifted hand.
E. Off the Record Discussions
Requests for off the record discussion are frequently requested to consider procedural matters such as the order of calling witnesses or to clear up matters so as not to clutter up the record. Off the record discussions can be overused on substantive matters and these requests should be denied unless a verbatim transcript is clearly unnecessary or will serve no apparent purpose. Any decision or agreement that results from off the record discussion should be summarized on the record and confirmed by counsel.
F. Burden of Proof (M211)
Section 111.07(3), Stats. provides that the burden of proof is a clear and satisfactory preponderance of the evidence. The legislature has provided one standard of proof for all allegations of unfair labor practices (prohibited practices), whether or not the unfair labor practice (prohibited practice) alleged could also be prosecuted in another forum as a crime. Layton School of Art and Design, 82 Wis.2d 324 (1978).
G. Burden of Going Forward (M211)
Generally, the party on whom the burden of proof rests also has the burden of going forward. However, in cases asserting the employer has violated the contract by acting without just cause, the complainant's burden of going forward is limited to establishing facie violation of the contract. School District of Tomahawk , Dec. No. 18670D (WERC, 8/86).
H. Rules of Evidence (M201)
Section 111.07(3), Stats., provides that all complaint proceedings shall be governed by the rules and evidence prevailing in courts of equity. While administrative proceedings are not bound by the same strict rules of evidence that govern trials, hearsay evidence not within an exception to the hearsay rule should not be received over objection while direct testimony to the same facts are available. State v. McFarren, 62 Wis.2d 492 (1974).
Section 227.45, Stats., provides as follows:
(1) Except as provided in ss. 19.52(3) and 901.05, an agency or hearing examiner shall not be bound by common law or statutory rules of evidence. The agency or hearing examiner shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. The agency or hearing examiner shall give effect to the rules of privilege recognized by law. Basic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.
(2) All evidence, including records and documents in the possession of the agency or hearing examiner of which the agency or hearing examiner desires to avail himself or herself, shall be duly offered and made a part of the record in the case. Every party shall be offered adequate opportunity to rebut or offer countervailing evidence.
(3) An agency or hearing examiner may take official notice of any generally recognized fact or any established technical or scientific fact; but parties shall be notified either before or during the hearing or by full reference in preliminary reports or otherwise, of the facts so noticed, and they shall be afforded an opportunity to contest the validity of the official notice.
(4) An agency or hearing examiner shall take official notice of all rules which have been published in the Wisconsin administrative code or register.
(5) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.
(6) A party may conduct crossexaminations reasonably required for a full and true disclosure of the facts.
I. Control of the Hearing
The Examiner is responsible for the conduct of the hearing to ensure that proper decorum and respect for the process is maintained. Opposing counsel occasionally engage in tactics which produce animosity in opposing counsel and emulation of such conduct. Tempers may flare, in which case, the Examiner should go off the record and admonish counsel or take a recess. The Examiner must ensure that the record is properly developed and should be aware that constant bickering or bantering between counsel can result in a confusing and obfuscated record. If problems continue, the Examiner may have to admonish counsel on the record. The Hearing Examiner must make sure the parties are given a fair opportunity to develop their respective cases while at the same time making sure that their conduct does not become personal and unprofessional. The Examiner may ask questions of witnesses to clarify the record or to make the record complete.
J. Briefing Schedule (M545.6)
Any party at the close of the hearing shall be entitled to a reasonable period for oral argument or to file a written brief. The Examiner may set the time for filing of briefs but usually the parties reach agreement as to the time in which to file briefs and reply briefs as well as the order of briefing, i.e., simultaneous exchange or serial briefs. The late filing of briefs by one party does not operate to remove the Commission's jurisdiction in a complaint case. Tomahawk Unified School District, Dec. No. 18670B (Houlihan, 7/82).
K. Reopening the Record (M547.2)
ERB 10.19 and 20.19 provide that a "hearing may be reopened on good cause shown." The standards for reopening a hearing were set forth in Gehl Company, (9474G) 5/71, and require the movant to show:
(a) That the evidence is newly discovered after the hearing, (b) that there was no negligence in seeking to discover such evidence, (c) that the newly discovered evidence is not cumulative, (d) that it is reasonably possible that the newly discovered evidence will affect the disposition of the proceeding and (e) that the newly discovered evidence is not being introduced solely for the purpose of impeaching witnesses.
XVIII. JURISDICTION OVER BREACH OF CONTRACT COMPLAINTS:
The Commission's longstanding policy regarding breach of contract allegations has been not to assert jurisdiction to determine the merits of breach of contract allegations where the parties' collective bargaining agreement provides for final and binding arbitration of such disputes and such procedure has not been exhausted. Joint School District No. 1, City of Green Bay, et. al., Dec. No. 16753-A, B (WERC, 12/79); Board of School Directors of Milwaukee, Dec. No. 15825-B, C (WERC, 6/79); Oostburg Joint School District, Dec. No. 11196A, B (WERC, 12/79). This issue is generally raised by the respondent and its failure to raise the issue can constitute a waiver. Milwaukee County (Sheriff's Department), Dec. No. 24027A (Schiavoni, 1/87) aff'd Dec. No. 24027B (WERC, 6/87).
XIX. DEFERRAL TO ARBITRATION: (M434.2.2, M434.2.4)
Where the complaint alleges a violation of the statute and the collective bargaining agreement provides that the alleged activity may also constitute a violation of the collective bargaining agreement, the Examiner should consider the following when determining whether to exercise jurisdiction or to defer to arbitration upon appropriate motion:
(1) the parties must be willing to arbitrate and renounce technical objections which would prevent a decision on the merits by the arbitrator;
(2) the collective bargaining agreement must address itself to the dispute; and
(3) the dispute must not involve important issues of law or policy. Brown County, Dec. No. 19314-B (WERC, 6/83).
Where the Examiner defers resolution of the dispute to arbitration pursuant to the above criteria, the Examiner should hold the statutory proceeding in abeyance instead of dismissing the complaint to ensure that the arbitration award ultimately issued is not inconsistent with statutory policy.
XX. EXAMINER DECISIONS
A. Time for Issuance
Section 111.70(4), Stats., which provides that Commission shall make and file its Findings of Fact, Conclusions of Law and Order within 60 days after hearing all testimony and arguments, is directory and not mandatory. MuskegoNorway School District No. 9, 32 Wis.2d 478 (1967); Green Bay Joint School District, Dec. No. 9095E (WERC, 9/71), aff'd (Brown County Circuit Court, 12/72.).
B. Format
Section 227.47, Stats. provides as follows:
Every proposed or final decision of an agency or hearing examiner following a hearing and every final decision of an agency shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact without recital of evidence. Every proposed or final decision shall include a list of the names and addresses of all persons who appeared before the agency in the proceeding who are considered parties for purposes of review under s. 227.53.
There is no prescribed rigid structure for Examiner decisions. Generally, the first page contains the caption with the case numbers and the appearances. The appearances as noted above require the names of counsel and their addresses. There should be an opening paragraph indicating that complainant filed the complaint on a certain date alleging a violation of the statute, the date of appointment of the Examiner, the date(s) of hearing, and the date the briefing schedule was completed whereupon the record was closed. The decision should be divided into Findings of Fact, Conclusions of Law and an Order as well as an accompanying memorandum.
The Findings of Fact should be brief and should include specific findings on all major facts in issue without going into unnecessary detail. The Findings of Fact must include any "jurisdictional" or other "necessary" findings related to the identity of the parties and the origin of the dispute as well as the "ultimate" findings on the factual issues in dispute. It is often difficult to separate an "ultimate" finding of fact from a conclusion of law. This distinction is very important for the purposes of the scope of court review. An example of a distinction between an "ultimate" finding of fact and a conclusion of law is a factual finding that an employer was discriminatorily motivated in discharging an employe and a conclusion of law that the employer has violated the statute by so discharging the employe. As noted above, the findings of fact should be brief but discuss all the important facts in issue. The Examiner may lay out the facts in the memo in a more detailed fashion and should discuss all the important evidentiary questions such as resolution of credibility disputes that led to the ultimate findings of fact. Footnotes should be used for citations of authority or necessary clarifications.
Citations in the Memorandum and footnotes should follow the format set forth in Appendix 9.
C. Appeal Rights
An Examiner's Order which is the final disposition of the complaint should carry a footnote which sets forth the procedure for an appeal to the Commission. The 20 day appeal period commences the day after the decision is mailed. It is the Examiner's responsibility to modify the footnote if the decision is not mailed the same day it is signed. (See Appendix 9.)
D. Remedies
Section 111.07(4), Stats., sets forth the general Examiner's remedial authority. Generally speaking, the remedy is intended to restore the status quo ante and effectuate the purposes of the statute. See WERC v. Evansville, 69 Wis.2d 140 (1974) and Somerset Schools, Dec. No. 26742-B (WERC, 4/92). The following are types of remedies issued by the Commission:
1. Interlocutory Relief (M546)
Interlocutory relief is only available from the Commission.
2. Status Quo Ante
Make whole for any lost wages or benefits. Back pay should include interest at the statutory rate, Sec. 814.04(4), Stats.
3. Posting of Notice
Notify employes of the disposition of the complaint by posting a notice in a conspicuous place for a specified period.
4. Cease and Desist
To stop now and in the future whatever conduct constituted the violation of the statute.
In addition to these general remedies, the Examiner has authority to order specific relief to correct the wrong, for example, advancing the employe on the salary schedule, correcting a seniority list, reimbursing an employe for an expense wrongfully incurred, allowing employes some activity previously forbidden, deducting fair share retroactively, etc. In drafting a remedial order the Examiner should direct the respondent to advise the Commission within 20 days of the date of the order as to what steps have been taken to comply with the order.
E. Attorney's Fees and Costs
Attorney's fees are generally not available unless the requesting party can establish the position of the opposing party is frivolous. Wisconsin Dells School District, Dec. No. 25997-C (WERC, 8/90) An exception to this general rule is that attorney's fees for the breach of contract portion of the case should be awarded as part of make whole relief in cases where a breach of the duty of fair representation is found. University of WisconsinMilwaukee Housing Department, Dec. No. 11457H (WERC, 5/84).
Pursuant to ERB 32.16(2), attorney's fees are also available if it is established a party failed to implement a Sec. 111.70(4)(cm) interest arbitration award without good cause.
F. Dismissal
Where the parties have resolved a complaint after the Examiner has been appointed, the Examiner will issue an order of dismissal in his/her own name. If the Examiner has not been appointed, then the order should be drafted for the Commission to issue.
An order of dismissal should include the following:
1. A description of the nature of the alleged unfair or prohibited practice, together with reference to the statutory sections alleged to have been violated.
2. A statement whether hearing has been scheduled and, if not, a statement as to the reason for lack of such scheduling - e.g. "and hearing in the matter not having been scheduled pending efforts of the parties to resolve the matters in issue."
3. Reference to the manner in which the Commission was advised that the parties had resolved the matters in issue and to the date on which the named Complainant had requested the dismissal of the complaint. See Appendix 11.
G. Change of Decision by the Examiner
Pursuant to Sec. 111.07(5), Stats., the Examiner, on his or her own motion, may set aside, modify, or reverse any findings of fact, conclusions of law and order at any time within 20 days of the mailing of the decision.
Pursuant to Sec. 111.09(2) of the Wisconsin Employment Peace Act or Sec. 111.71(2) of the Municipal Employment Relations Act or Sec. 111.94(2) of the State Employment Relations Act, complaints filed with the Wisconsin Employment Relations Commission must be accompanied by a filing fee of $25.00. The complaint filed by you involving the above-named Respondent(s) was not accompanied by such fee, and therefore, we are returning same to you since the statute considers the complaint to be filed on the date such fee is received.
At such time as it is refiled, accompanied by the filing fee, the Commission shall initiate the processing of same.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
APPENDIX 4
Enclosed is a copy of a complaint filed on __________________________ by ______________________________________________________________________________ alleging that ________________________________________________________________ has committed unfair labor practices within the meaning of the Wisconsin Employment Peace Act or prohibited practices within the meaning of the Municipal Employment Relations Act or unfair labor practices within the meaning of the State Employment Labor Relations Act.
_________________, a member of the Commission's staff, will contact you or your representative and the Complainant(s) in the near future to ask whether the parties are willing to participate in settlement discussions. Any settlement discussions will be held in strict confidence and thus will not be communicated to the Examiner who would be assigned to hear and decide the case if settlement does not occur or to the Commissioners who review any Examiner decision.
The parties have a right to a hearing within 40 days of the filing of the complaint. If you or the Complainant(s) do not wish to have settlement discussions delay the scheduling of a hearing, you or the Complainant(s) should write me and ask that a hearing be scheduled. If I do not receive such a written request, it will be assumed that all parties agree that a hearing should not be scheduled until settlement efforts have ended.
Very truly yours,
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
General Counsel
APPENDIX 5
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
:
___________________________, : NOTICE OF HEARING
: ON COMPLAINT
Complainant, :
:
vs. : Case @
: No. @
___________________________, : @
:
Respondent. :
:
The abovenamed Complainant(s) having filed with the Commission a complaint, alleging that the abovenamed Respondent(s) has violated one or more provisions of Ch. 111, Wis. Stats.
The parties are directed to take notice that:
1. A hearing on said complaint shall be held on ______________________ ___________________________________________________________________.
2. In addition to being controlled by procedural requirements in Ch. 111, Wis. Stats., this proceeding also is a class 3 proceeding within the meaning of Ch. 227, Wis. Stats.
3. The legal authority and jurisdiction under which this hearing is to be held are Secs. 111.07, and ________________________, Wis. Stats.
4. The pleadings on file are deemed to state the matter asserted with specificity, except as otherwise may be determined on the motion of a party or by notice and/or order of the hearing examiner or the Commission.
You are further notified that the person or organization complained of herein shall file an answer to the complaint with the Wisconsin Employment Relations Commission. The original shall be signed and verified and four (4) copies of such answer shall be served on the Commission on or before _________________ and on the same date a copy thereof shall be served on:
_____________________________
Dated at Madison, Wisconsin this @ day of @.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By
@, Examiner
APPENDIX 6
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
:
@ :
:
Complainant, :
: Case @
vs. : No. @ @
: Decision No. @
@ :
:
Respondent. :
:
-
ORDER APPOINTING EXAMINER
@, having filed a complaint of prohibited practices with the Wisconsin Employment Relations Commission, alleging that @, Wisconsin has committed a prohibited practice within the meaning of Sec. 111.70, Stats.;
NOW, THEREFORE, it is
ORDERED
That @, an examiner on the Commission's staff, is hereby authorized to conduct the hearing on said complaint, and to make and issue Findings of Fact, Conclusions of Law and Order in the matter as provided in Secs. 111.70(4)(a) and 111.07, Stats.
Given under our hands and seal at the City of Madison, Wisconsin this @ day of @
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By
APPENDIX 7
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
:
@ :
:
Complainant, :
: Case @
vs. : No. @ @
: Decision No. @
@ :
:
Respondent. :
:
-
ORDER POSTPONING INDEFINITELY
COMPLAINT OF UNFAIR LABOR PRACTICES UPON RESPONDENT'S
PETITION FOR REMOVAL TO FEDERAL DISTRICT COURT
_________________________________ having, on ______________________, filed a complaint with the Wisconsin Employment Relations Commission alleging that _________________________________________________ had committed certain unfair labor practices within the meaning of Sec. 111.06(1)(f) of the Wisconsin Employment Peace Act by the Respondent - __________________ refusal to fairly represent him and by the Respondent - Company's wrongfully discharging him; and the Commission having, on __________________, appointed _____________________, a member of its staff, as Examiner to make and issue Findings of Fact, Conclusions of Law and Order pursuant to Section 111.07, Stats.; and the Examiner having scheduled the matter for hearing to be held on _______________ at the City Hall in ______________, Wisconsin; and prior to any further action by the Examiner, Respondent - _____________________, by Counsel, having, on ________________________, filed a Petition for Removal of the proceedings to the United States District Court, Western District of Wisconsin alleging therein that the Respondent may remove, as a matter of right, the proceeding before the Commission to the Federal District Court pursuant to 28 U.S.C., subsection 1441; and Respondent - ______________________ having joined in said Petition for Removal; and the Examiner being satisfied that hearing on the instant complaint should now be postponed indefinitely, and ultimately dismissed at a time when Respondents perfect removal before the District Court;
NOW, THEREFORE, it is
ORDERED
That the hearing on the complaint filed in the instant matter be, and the same hereby is, postponed indefinitely.
Dated at Madison, Wisconsin, this ________ day of _______________, 19__.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By ______________________________________
, Examiner
APPENDIX 8
ORDER DISMISSING COMPLAINT OF UNFAIR LABOR PRACTICES UPON
RESPONDENT'S PERFECTING REMOVAL TO FEDERAL DISTRICT COURT
___________________ having, on ________________, filed a complaint with the Wisconsin Employment Relations Commission alleging that _______________________ had committed certain unfair labor practices within the meaning of Sec. 111.06(1)(f) of the Wisconsin Employment Peace Act by the Respondent -________________ refusal to fairly represent him and by the Respondent - Company's wrongfully discharging him; and the Commission having, on ________________, appointed ______________________, a member of its staff, as Examiner to make and issue Findings of Fact, Conclusions of Law and Order pursuant to Section 111.07, Stats.; and the Examiner having scheduled the matter for hearing to be held on ____________________, at the City Hall in ___________, Wisconsin; and prior to any further action by the Examiner, Respondent - ____________, by Counsel, having, on ________________, filed a Petition for Removal of the proceedings to the United States District Court, Western District of Wisconsin alleging therein that the Respondent may remove, as a matter of right, the proceeding before the Commission to the Federal District Court pursuant to 28 U.S.C., subsection 1441; and Respondent - _______________ having joined in said Petition for Removal; and the Examiner being satisfied that the Respondents perfected such removal of the proceedings to the Federal District Court and further being satisfied that this Commission is ousted from jurisdiction in the instant proceedings with the commencement of a Sec. 301 action in Federal District Court, involving matters complained of in this proceeding, pursuant to 28 U.S.C., Sec. 1441;
NOW, THEREFORE, it is
ORDERED 1/
That the complaint of unfair labor practices filed herein be, and the same hereby is, dismissed.
Dated at Madison, Wisconsin, this ________ day of _______________, 19__.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By ______________________________________
, Examiner
APPENDIX 9
1/ Any party may file a petition for review with the Commission by following the procedures set forth in Sec. 111.07(5), Stats.
Section 111.07(5), Stats.
(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.
This decision was placed in the mail on the date of issuance (i.e. the date appearing immediately above the Examiner's signature).
APPENDIX 11
STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION
:
@ :
:
Complainant, :
: Case @
vs. : No. @ @
: Decision No. @
@ :
:
Respondent. :
:
-
ORDER DISMISSING COMPLAINT
__________________________________________ having, on ____________________, filed a complaint with the Wisconsin Employment Relations Commission alleging that __________________________________________________________________________ had committed ____________________________________________ within the meaning of Section(s) ____________________ of the _______________________ by __________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________; _______________________________________________________________________________ _______________________________________________________________________ and the _____________________________ having, on _______________________, in writing, advised the Commission _________________________________________________________ ________________________________________________________________________________ and further having requested that the complaint filed herein be _______________; and the Examiner being satisfied that the complaint should be dismissed;
NOW, THEREFORE, it is
ORDERED
That the Complaint filed in the instant matter be, and the same hereby is, dismissed.
Dated at Madison, Wisconsin, this ________ day of ___________, 19__.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
By ______________________________________
, Examiner
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This page is a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is {http://werc.wi.gov/hearing_examiner_complaint_manual.htm}. Last modified on 12 AUG 1998.
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