M100 DEFINITIONS
M110 MUNICIPAL EMPLOYER
M111 NATURE
A board managing an auditorium operated by a private corporation and a municipality, the latter having the dominant control and financial responsibility, is a municipal employer within the meaning of Sec. 111.70(1)(a).
Milwaukee Auditorium Board (6543) 11/63
Water Commission established by three separate municipalities found to be a municipal employer within the meaning of Sec. 111.70.
City of Glendale, et al (7158) 5/65
Cooperative Educational Service Agency found to be a municipal employer within the meaning of Sec. 111.70(1)(a).
Cooperative Educational Service Agency No. 6 (9989) 11/70
Hospital and nursing home operated by a city and a county found to be a municipal employer within the meaning of Sec. 111.70(1)(a).
Memorial Hospital and Nursing Home (10094) 1/71
M112 PARTIES ACTING IN MUNICIPAL EMPLOYER’S INTEREST
Where the principal of a school was the highest ranking administrative official of the School Board and such School Board relied upon the principal for information and recommendations with respect to teachers in its employ as well as their supervision, the School Board was responsible for the acts of the principal which affected employes such supervision.
Waunakee Joint District No. 1 et al, (6706) 4/64
Although president of school board had no specific authority to do so, statements made by him in a radio interview relating to the demands of the teacher organization were binding upon the school board, because of his office and his participation in bargaining.
Janesville Board of Education (8791-A) 3/69
M120 EMPLOYE
M121 Supervisor
M121.1 In General
Commission will not consider supervisory employes as falling within the definition of “municipal employes” within the meaning of Sec. 111.70(l)(b), Wisconsin Statutes because of their alignment and relationship with the management.
Outagamie County Hospital (6076) 8/62; City of Milwaukee, 43 Wis 2d 596, 7/69
Since supervisors are agents of the municipal employer, the Commission has excluded them from the eligible in elections conducted among municipal employes for the reason that their inclusion would conflict with their responsibility in performing their management function and would deprive employes of their protected rights free from interference by agents of the municipal employer.
City of Wausau (6276) 3/63; City of Milwaukee (Engineers) (6960) 12/64
Supervisory employes have no protected rights to engage in concerted activity under Sec. 111-70.
Village of West Milwaukee (9845-D) 10/71
Although the statute does not expressly exclude supervisors from the definition of “employes”, the statute does not provide its protection or processes to such individuals or their organizations. however, the municipal employer may voluntarily recognize and bargain with a supervisors’ organization despite the lack of compulsion to do so or the protection of such processes.
Milwaukee County (8219-C) 3/68; City of Cudahy(9321) 12/69
M121.2 DETERMINATION OF SUPERVISORY STATUS
When questions arise over the supervisory status of employes, the Commission will look behind the job titles used by the municipal employers to determine whether the employes are actually super-visors.
Village of Shorewood (6552) 11/63; Rock County (6144-B) 5/68; City of Portage (10318) 5/71
In determining whether an employe is a supervisor, the Commission considers the following factors:
1. The authority to effectively recommend the hiring, promotion, transfer, discipline or discharge of employes.
2. The authority to direct and assign the work force.
3. The number of employes supervised, and the number of other persons exercising greater, similar or lesser authority over the same employes.
4. The level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employes.
5. Whether the supervisor is primarily supervising an activity or is primarily supervising employes.
6. Whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising employes.
7. The amount of independent judgment and discretion exercised in the supervision of employes.
City of Milwaukee (Engineers) (6960) 12/64; Wauwatosa Board of Education (6219-D 9/67; Racine County (8330) 12/67
M122 INDEPENDENT CONTRACTORS
Custodians, custodian-drivers, bus drivers and cooks, who are employed by individual contract with a school district but who work under the control and supervision and at the hours and duties set by the school district, held not to be independent contractors but municipal employes under the act.
Florence County Jt. School District No. 1 (6143) 10/62
Substitute per them teachers held not to be independent contractors but employes within the meaning of Sec. 111.70.
Milwaukee Board of School Directors (8901) 2/69 (Aff. Dane Co. Cir. Ct. 6/70)
M123 RELATIVES OF AGENTS OF MUNICIPAL EMPLOYER
Library clerks who were daughters of library board members not included in bargaining unit of library employes.
City of South Milwaukee (7202) 7/65
M124 MANAGERIAL EMPLOYES
Assistant city attorneys, with the exception of individual on it city bargaining team”, determined not as being “managerial” employes, and therefore are “employes” within the meaning of Sec. 111.70.
City of Milwaukee (8100) 7/67 (Aff. 42 Wis 2d 596, 7/69)
M125 MEMBERS OF POLICE, SHERIFF OR COUNTY TRAFFIC OFFICER DEPARTMENTS
Elevator operators and custodial and maintenance employes employed in police department held not to constitute “police” or “police officers” and, therefore, constitute “employes” within the meaning of Sec. 111-70(l)(b) since they were not clothed with powers of arrest.
City of Milwaukee (Police Department) (8605) 7/68
Radio dispatchers employed in police department having no power of arrest not considered “police officers” within the meaning of Sec. 111-70(l)(b).
Village of Fox Point (9959-A) 2/71
M126 REGULARITY OF EMPLOYMENT
Temporary, casual, seasonal, occasional, as well as regular employes are considered employes within the definition of the term set forth in Section 111-70(l)(b).
Wauwatosa Board of Vocational and Adult Education (8158) 8/67
Ml27 SOURCE OF FUNDS AS AFFECTING EMPLOYE STATUS
The fact that funds for the payment of teachers were provided by the federal government pursuant to the Manpower Development and Training Act did not exclude teachers of vocational schools from unit of other teachers in employ of said School Board since all teachers were under same supervision. Their pay was comparable, and a.11 participated in the Wisconsin Teacher Retirement Fund.
Superior Vocational School (7479) 2/66; Milwaukee Board of Vocational and Adult Education (6343-A) 11/69
The participation of the State of Wisconsin with respect to the operation and function of a county welfare department does not deprive those who are employed in said county department of their employe status under Sec. 111.70.
Outagamie County (7868) 1/67
The fact that salaries of certain Social Work and Lay Aides are from funds provided by state or federal funds does not provide a basis for their exclusions from units of such employes, the salaries of whom are from funds of the school district.
Milwaukee Board of School Directors (9000) 4/69
While Circuit Court reporters are eligible for life insurance under a county plan, may participate in the county retirement system, and receive approximately 6% of their salary from the county, they are employes of the State since they are appointees of Circuit Judges, they serve at the pleasure of such judges, and their vacation, sick leave and holiday benefits are provided by the State.
Milwaukee County (9621) 4/70
M130 LABOR ORGANIZATION
M131 NATURE
Any employer organization, whose purpose is to represent municipal employes in conferences and negotiations with their municipal employer on matters pertaining to wages, hours and conditions of employment, is a labor organization within the meaning of Sec. 111.70. A local affiliate of the Wisconsin Education Association was so found.
Milwaukee Board of Vocational and Adult Education (6343) 5/63; West Allis School Dist. No. 1 (6544) 11/63; Waunakee Jt. School Dist. No. 1 (6706) 4/64
Independent employe organization which represents employes in conferences and negotiations with their municipal employer on wages, hours and conditions of employment is a bona fide labor organization within the meaning of Section 111.70.
City of Sheboygan (7665) 7/66; Milwaukee Sewerage Commission (8564) 6/68
M132 EFFECT OF SUPERVISORY ACTIVITY
The active participation by supervisory employes in the affairs of an employe organization could result in impeding and defeating the primary purpose of the employe organization — that of representing municipal employes in conferences and negotiations concerning their wages, hours and conditions of employment.
City of Milwaukee (Engineers) (6960) 12/64; Kenosha Board of Education (6986-C) 2/66
M140 REPRESENTATIVE
The fact that the labor organization requesting recognition also admitted to its membership individuals in the employ of another municipal employer, and the fact that the principal representative of such labor organization might not be in the employ of the municipal employer involved, would not affect the right of the employes to select such organization as their representative.
Menasha Joint School District No. 1 (6680) 3/64
Local affiliate of Wisconsin Education Association, which had among its members the school superintendent, and other supervisors and principals, held not to be an employer-dominated labor organization since membership of supervisors alone will not establish domination. Board will consider other factors such as number and ratio of supervisors, positions in labor organization they occupy, and the extent to which they formulate its policies and program.
West Allis Jt. School District No. 1 (6544) 11/63
Election conducted by the Commission to determine whether municipal employes desire to be represented in conferences and negotiations with their municipal employer is for the purpose of designating an exclusive representative for all the employes in appropriate unit.
City of Milwaukee 23 Wis 2d 303, 3/64; Madison Jt. School Dist. No. 8 37 Wis 2d 483, 12/67; Milwaukee Board of School Directors Wis 2d 637, 7/69; Ashland Unified School District No. 1 52 Wis 2d 625, 11/71
M150 CRAFT
M151 GENERALLY
To constitute a “craft” employe within the meaning of Section 111.70(4) (d) the individual must have a substantial period of apprenticeship or comparable training. Employes will be considered to be engaged in a single craft when they are a distinct and homogeneous group of skilled journeymen craftsmen working as such together with their apprentices and/or helpers.
Winnebago County Hospital (6043) 7/62
M152 EMPLOYES FOUND NOT TO CONSTITUTE CRAFT EMPLOYES
M152.1 Bakers
Bakers employed in county hospital found not to have necessary training and experience to qualify as a craft employe.
Dodge County Hospital (6067) 7/62
M152.2 Blacksmith
Blacksmith held not to be a craft employe because of lack of apprenticeship or equivalent training, and because his wage did not reflect pay for alleged craft skills when compared to rates of other employes.
Lincoln County (6200) 1/63
M152.3 Cooks
Cooks in employ of county hospital did not have the training or experience necessary to qualify as craft employes.
Dodge County Hospital (6067) 7/62
M152.4 Electrical Aides
Two years’ experience in repair and maintenance of electric equipment required for Electrical Aides does not represent a substantial period of apprenticeship or comparable training relative to the apprenticeship program established for electricians and linemen, those crafts most closely related to the Electrical Aide.
City of Wauwatosa (6156) 11/62
M152.5 Heavy Equipment Operators
Heavy equipment operators, because of their lack of apprenticeship or equivalent training, and because their wages did not reflect pay for alleged craft skills when compared to rates of other employes held not to be craft employes.
Lincoln County (6200) 1/63
M152.6 Maintenance Employes
Maintenance employes of municipal employer, who are “Jack-of-all-trades” and don’t confine work to a single craft, held not craft employes.
School District No. 1, Village of Whitefish Bay (6047) 6/62; Manitowoc Board of Education (6856) 9/64
M152.7 Mechanics
Mechanics, because of their lack of apprenticeship or equivalent training, and because their wages did not reflect pay for alleged craft skills when compared to rates of other employes, found not to be craft employes.
Lincoln County (6200) 1/63
Maintenance mechanics, notwithstanding their specialties of exclusively maintaining plumbing and heating systems held not to be craft employes since they served no apprenticeships or had formal training which would be the equivalent thereto and because their work did not present the opportunity to exercise the gamut of skills of the plumber craft.
Joint School District No. 1, City of Green Bay, et al. (8667) 8/68
M152.8 Utility Linemen
First Class Linemen and apprentice positions in employ of municipal utility found not to be craft employes, although they spent a considerable portion of their time maintaining lines, poles and equipment, since they were not licensed electricians and had no formal electrical training.
City of Hartford (10645) 11/71
M152.9 Utility Maintenance Man
Utility Maintenance Man, although a licensed plumber, since he rarely practiced the plumbing craft duties and since the position did not require that it be filled by a plumber, held not to be a craft employs.
City of Middleton (10381) 6/71
M153 EMPLOYES FOUND TO CONSTITUTE CRAFT EMPLOYES
M153.1 Beautician
Beautician employed in county hospital, because of her training, and the fact that she must be licensed and must have fulfilled either a two-year apprenticeship or else graduated from an accredited school of cosmetology, held to be a craft employs.
Winnebago County Hospital (6043) 7/62
M153.2 Cabinet Maker
Cabinet Maker, who performs skilled carpentry work 90% of time, and has engaged in occupation for years, held craft employs.
School District No. 1, Village of Whitefish Bay (6047) 6/62
M153.3 Carpenter
Maintenance carpenter position, requiring cabinet making, building of partitions, shelving and carpentry repairs, filled by journeyman carpenter, held to be a craft position.
Wausau Board of Education (7471) 2/66
M153.4 Craft Inspectors
Building, Electrical and Plumbing Inspectors, requiring journeymen status of at least five years’ experience in respective fields, found to be craft employes.
City of Kenosha (7529-A) 6/66
M153.5 Painters
Painter, who paints 90% of time and has engaged in occupation for years, held craft employe.
School District No. 1. Village of Whitefish Bay (6047) 6/62
M153.6 Sheet Metal Workers
Sheet metal worker, performing lay-out, assembling, forming fabricating, installing and repairing of pipe, equipment and accessories made from light-gauge metals, screen and metal substitutes, and who was employed in private industry as a sheet metal worker for seven or eight years, and who was apprenticed and became a journeyman, held to be a craft employs.
City of Milwaukee (Fire Dept.) (7885) 1/67
Employe who has 15 years experience as a sheetmetal craftsman and who spends 75% of his time specializing in sheetmetal work, such as repairs on roof flashing and gutters and repairing and extending ventilating systems, as well as fabricating and repairing flashing, ventilators and exhausters, found to be a sheetmetal craft employe and, therefore, not to be included in a voting group of maintenance employes.
Joint School District No. 1 City of Green Bay, et al. (8667) 8/68
M16O PROFESSIONAL EMPLOYES
M161 GENERALLY
Professional employes shall be considered falling within the definition of the term “craft” within the meaning of Section 111-70(4)(d) of the Wisconsin Statutes where such employes have a substantial period of study and training to qualify for their professional status. Matters to be taken into consideration in determining whether or not an employe is a professional will be determined on a case-to-case basis. The nature of the profession, training and duties performed by the employes will be considered as well as the extent to which the skills performed by them differ from the duties performed by other employes of the municipal employer.
Winnebago County Hospital (6043) 7/62; City of Wausau (6276) 3/63
M162 EMPLOYES FOUND NOT TO BE PROFESSIONAL EMPLOYES
M162.1 Assessors
Assessors employed in city department of finance determined not to constitute professional employes although city desired employes with college degrees with a major in accounting, finance, taxation or engineering.
City of Kenosha (7529-A) 6/66
City Assessors, who are not licensed, who have no degrees or formal training, found not to be professional employes.
City of Green Bay (10474) 8/71
M162.2 Collector-Investigators
Collector-Investigators in Department of Institutions (Administration) held not professional employes, even though said employes had extensive skills and technical knowledge, their functions were not necessarily related to or learned during their academic training and because they were appointed from eligibility lists also utilized in the Department of Public Welfare case workers, a distinctly different position requiring distinctly different information and skills.
Milwaukee County (8705) 10/68
M162.3 Licensed Practical Nurses
Licensed practical nurses of county hospital held neither to be professional nor “craft” employes although they receive one year’s training since they were trained for, and capable of, performing only simple patient care.
Winnebago County Hospital (6043) 7/62
In light of the statutory definition of the practice of practical nursing and the requirements of the licensing of LPN’S, where only the more experienced LPN’s exercised somewhat more skills than the less experienced employes in the same classification, all under the direction and supervision of the registered nurses and physicians, the Commission concluded that the LPN’S, while possessing special training and exercising special skills, were not professional employes within the meaning of Section 111.70.
Marinette General Hospital (7569) 4/66; Kenosha County (8637) 7/68
Ml62.4 Occupational Therapist
Employe holding classification of occupational therapist in county hospital, whose primary duties are recreational therapy, and did not require any extended professional or medical training, and who was a high school graduate who had completed only a three months’ course in occupational therapy, found not to possess qualifications to qualify as a professional employs, and therefore was not a “craft” employs, and was eligible to participate in election.
Dodge County Hospital (6067) 7/62
Ml62.5 Technicians
Laboratory technicians employed in sewerage plant held not to be professional and therefore not craft employes within the meaning of Sec. 111.70(4)(d), since no college education or equivalent experience, although desirable, was required for the position.
City of Waukesha (6152) 10/62
Engineering Technician II and I positions employed in Pumping Division of Water Department found not to have skills or training necessary to qualify as professional employes.
City of Milwaukee (6960-C) 7/66; Outagamie County (7868) 1/67
Radio Technologists in employ of hospital found to be neither a craft or professional employs.
Marinette General Hospital (9926) 9/70
Ml63 EMPLOYES FOUND TO BE PROFESSIONAL EMPLOYES
Ml63.1 Case Workers
Case worker positions in county welfare department, requiring post graduate credits in social work and equivalent experience, found to be professional employes and thus must constitute a separate unit.
Douglas County (7831) 11/66; Dunn County (9232) 9169
Ml63.2 Engineers
Civil Engineer I and II positions requiring performance of professional civil engineering duties cannot be included in unit of other employes not engaged in the same profession.
City of La Crosse (7833) 12/66
Ml63.3 Occupational Therapist-Registered
“Occupational therapist — registered” in employ of county hospital, who possessed a bachelor of science degree and fulfilled a year’s internship, and who also passed an examination administered by the American Occupational Therapy Association, and who exercised creative thought and creative judgment in carrying out her duties, was found to be a professional employs.
Winnebago County Hospital (6043) 7/62
Ml63.4 Psychologists
Psychologists employed in Welfare Department are professional and therefore constitute a single and distinct unit.
Milwaukee County (8530) 5/68
Ml63.5 Registered Nurses
Registered and graduate nurses found to be professional employes because of their training and duties and therefore are excluded from an overall unit because of their “craft” status.
Outagamie County Hospital (6076) 8/62; Eau Claire County Home (6183) 12/62; Middle River San. (6332) 5/63; City of Milwaukee (6252) 4/64; Monroe County (8166) 9/67
Ml63.6 Teachers
Teachers engaged in the performance of their profession held to be craft employes within the meaning of Sec. 111.70(4)(d).
Milwaukee Board of Vocational & Adult Education (6343) 5/63
M170 COLLECTIVE BARGAINING
M171 GENERALLY
The duty imposed in Sec. 111-70 to confer and negotiate does not deprive a municipal employer of its legislative discretion since it is not required to surrender same nor come to an agreement.
Madison School Board 37 Wis 2d 483, 12/67
The right to be established as the exclusive collective bargaining representative is not to be confused with the constitutional right of citizens to petition their government (Wis. Constitution, Art. T, Sec. 4). However, representatives of minority organizations are not entitled to this right if they attempt to influence a school board at a hearing on its budget, which includes matters negotiated by the majority organization.
Milwaukee Board of School Directors 42 Wis. 2d,637, 7/69
M172 SUBJECTS OF BARGAINING
School calendar, in-service days, teacher conventions, whether considered in-service days or school days, together with questions concerning compensation, therefore, are either the statutorily defined area of negotiation or “wages, hours and conditions of employment”.
Ashland School Dist. No. 1, 52 Wis. 2d 625, 11/71
M200 EVIDENCE
M210 BURDEN OF PROOF
M211 In General
Burden of proving that a municipal employer has committed prohibited practices rests upon the complaining party. In a discharge case the respondent municipal employer need not establish that the discharges were for cause.
Greenfield School District No. 6 (6195) 12/62; Wood County (9437-A) 1/71
Party contending that concerted activity is the motivating factor of alleged discrimination against employe must establish same by the clear and satisfactory preponderance of the evidence.
Kenosha School Board, 39 W’s. 2d 197, 6/68
A complaint alleging interference and discrimination based upon Union membership must be supported by a clear and satisfactory preponderance of the evidence, that such action was motivated by anti-Union animus and that the Employer had knowledge of the employers Union status and attitudes.
Wauwatosa Board of Education (8319-B) 6168 and (8319-C)
7/68; Elmbrook School District No. 21 (9163-C) 2/70
Activity of employer which is likely to interfere with rights of employes as set forth in Sec. 111.70(2) does not require a finding of anti-union animus.
City of Milwaukee (8420) 2/68; Crandon Jt. School Dist. No. 1 (10271-A & 10271-C) 10/71
M220 WEIGHT AND SUFFICIENCY
M221 In General
Inferences that may be drawn from established facts in the record which reasonably support them are properly within the discretion of the Board.
Rock County, Rock Co. Cir. Ct., 7/64
Commission is the judge of the credibility of witnesses and the reviewing court cannot substitute its Judgment for that of the Commission.
Muskego-Norway School District No. 9, 35 Wis. 2d 540, 6/67; Kenosha School Board 39 Wis. 2d , 6/68
M230 PRESUMPTIONS
Rules established by a municipal employer, in effectuation of its public function, which regulate, on a non-discriminatory basis, the activities of its employes and their representatives on employer’s time and premises, and which may arguably limit the rights and protected activities of employes, shall be presumed valid. Those challenging the rules must establish that they were adopted for the purpose of affecting the employes’ free choice in an election, or for the purpose of interfering with lawful organizational interruption of the normal municipal function.
Kenosha Board of Education (6986-C) 2/66
M300 INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES
M310 RAISING OF THE QUESTION CONCERNING REPRESENTATION
M311 DEMAND FOR RECOGNITION BY UNION
Labor organization need not make a demand upon municipal employer for recognition prior to the filing of a petition with the Commission. The petition in itself constitutes a claim that the petitioner represents a majority of the employes in an alleged appropriate unit.
Village of Brown Deer (6650) 2/64
Where election proceeding was originally initiated by an individual employe seeking decertification of the existing bargaining representative, and where, prior to hearing, petition was amended, seeking a new election by an independent employe organization, which made no demand upon the employer for representation, did not constitute a basis for dismissing the proceeding since the amended petition served as such demand, and further since there was no evidence of any prejudice suggested by the conversion of the petition’s objective.
Milwaukee Sewerage Commission (8564) 6/68
M312 NECESSITY OF SHOWING OF INTEREST IN SUPPORT OF PETITION
M312.1 Original “No Showing of Interest” Policy
Labor organization petitioning for an election among municipal employes need not demonstrate any substantial interest among employes in order for the Commission to process the petition.
Eau Claire County Home (6183) 12/62; Lincoln County (6200) 1/63;Brown County (7954) 3/67
WERC rejected proposal that petitioning organization, other than one previously certified, should be required to administratively demonstrate at least a 40% showing of interest for new election and continued its policy of not requiring any showing of interest.
Milwaukee Board of School Directors (8030) 5/67; Kenosha Board of Education (8031) 5/67
Commission rejected proposal that it require a 50 per cent showing of interest by petitioner, which previously had been rejected by the bargaining representative.
City of Green Bay (8098) 7/67
M312.2 “Wauwatosa” Policy
Where there presently exists a recognized or certified bar-gaining representative: (1) Any election petition filed by a rival labor organization or employes must be accompanied by applications for membership or some form of authorization to seek such election, signed and currently dated, by at least 30 per cent of the employes in the existing unit. (2) Where the petition is filed by the Employer, the Employer at the hearing must demonstrate, by objective considerations, reasonable cause to believe that the incumbent organization has lost its majority status either in the existing unit or in a different claimed appropriate unit. The objective evidence must not have been obtained by the Employer through prohibited means.
Wauwatosa Board of Education (8300-A) 2/68 (Aff. Dane Co. Cir. Ct., 8/68)
Where a properly recognized or certified bargaining unit exists, and where a petition is filed by a labor organization seeking a severance from the existing unit on the claim that the unit sought constitutes a separate craft, division, department or plant, the petitioner must administratively demonstrate to this agency at the time of filing that at least 30 per cent of the employes in the proposed smaller unit desire to be represented by the petitioning organization in the smaller unit. Where the employes file a petition seeking merely to sever themselves from the existing unit without any representation, such petitioners must administratively demonstrate to the Commission at the time of filing that at least 30 per cent of the employes in the claimed separate craft, division, department or plant desire to constitute themselves a unit separate and apart from the employes in the existing unit. When such a petition is filed by an Employer, the Employer must demonstrate at the hearing by objective considerations that it has reasonable cause to believe that the employes in the claimed separate craft, department, division or plant desire to constitute themselves a separate collective bar-gaining unit.
Wauwatosa Board of Education (8300-A) 2/68 (Aff. Dane Co. Cir. Ct., 8/68)
Where there existed a certified bargaining representative, the fact that less than one-half of the employes in the unit had authorized dues check-off, without any evidence that such authorizations had diminished following the conduct of the original election, did not constitute a demonstration by objective means on the part of the petitioning municipal employer so as to constitute a sufficient showing of interest to warrant the processing of a petition for a second election.
Black Earth School Dist. No. 1 (9719) 6/70
Where there exists no certified or recognized bargaining representative, no showing of interest is required.
Wauwatosa Board of Education (8300-A) 2/68 (Aff. Dane Co. Cir. Ct., 8/68); Pewaukee School District No. 1 (8559) 5/68; City of Milwaukee (Police Department)(8605) 7/68; Dodge county (Clearview Home) (8734) 10/68
The Commission will not redetermine the showing of interest where the voting group established contains no substantial departure from the unit requested in the petition where the showing of interest was adequate for the initial processing of the petition.
City of Milwaukee (8622) 7/68
M313 LACK OF QUESTION CONCERNING REPRESENTATION
Where individual filed a petition requesting an election to sever custodial employes from larger existing unit, and where at the same time said individual sought to be unrepresented, Commission dismissed the petition, finding that no question of representation existed.
South Milwaukee Board of Education (10555) 10/71
M314 EFFECT OF VOLUNTARY RECOGNITION
Commission dismissed election petition upon being advised at the hearing that the municipal employer had agreed to grant the petitioning organization exclusive recognition.
Kenosha Park Commission (7036) 2/65
Commission dismissed election petition filed by employe organization where municipal employer had adopted a resolution recognizing said organization as the exclusive collective bargaining representative.
Buffalo County (7528) 3/66
Grant of recognition to one organization by agents of municipal employer, at a time when said agents were aware of organizational activity by second employe organization among same employes, did not constitute a bar to a representation election among said employes. Proper procedure should have been a determination through the conduct of an election as provided in Section 111.70.
City of Appleton (8431-A) 5/68
M320 BARS TO PROCEEDING
M321 EFFECT OF EXISTING ORDINANCES OR AGREEMENTS
M321.1 Original Commission Policy
M321.1.1 In General
In determining whether petitions for elections in municipal employment are “timely” filed, the Commission will examine existing ordinances affecting the period in which to initiate conferences and negotiations with respect to wages, hours and conditions of employment, the budgetary deadline, the collective bargaining history if any, and other factors which affect the stability of the relationship between the employes, their bargaining agent, and the employer. In the event the Commission conducts an election during the term of an ordinance or collective bargaining agreement, and therein the employes select a representative other than the one previously recognized in the ordinance or agreement, the newly selected representative normally will be obligated to enforce and administer the substantive provisions therein inuring to the benefit of the employes. Any provisions running to the benefit of the former bargaining agent normally will be considered extinguished and unenforceable.
City of Green Bay (6558) 11/63
M321.1.2 Petition Found Not Timely Filed
Where, after the municipal employer filed a petition requesting certain employes be given opportunity to establish a separate unit, the municipal employer adopted a resolution covering wages, hours and working conditions for coming year covering employes in an existing unit, including employes covered in the petition, Commission concluded that the resolution constituted a bar to a present unit determination.
Wauwatosa Board of Education (7472) 2/66
Where school board and incumbent teacher organization are parties to a collective bargaining agreement for current school year and petitioning organization filed a petition for an election some nine months prior to period when negotiations would commence on a succeeding agreement, WERC determined petition as not being timely filed.
Whitewater Unified School District (8034) 5/67
M321.1.3 Petition Found Timely Filed
Where the municipal employer and a labor organization have entered into a collective bargaining agreement for the period from January 1, through December 31, 1964, and where a petition for a second election is filed by the municipal employer, the Commission determined that since the parties were in the second half of their agreement, and since they were approaching the period where the municipal employer must commence deliberations with respect to its budget for the 1965 fiscal year, the Commission found that a question of representation existed and directed the election.
Vernon County Institutions (6652) 7/64
The fact that during negotiation municipal employer agreed to retroactive application of an agreement when reached did not cause petition by rival organization to be untimely filed since no final agreement had been reached prior to the filing of the petition for election with the Commission.
City of Appleton (7423) 1/66
Where employe organization gave timely notice to prevent current collective bargaining agreement from automatically renewing itself for an additional year period, and where second organization filed a petition for an election after the existing representative and municipal employer failed to reach an agreement on the provisions of a succeeding collective bargaining agreement, Commission held neither the existing agreement nor current negotiations on a succeeding agreement as bars to a present election.
Douglas County Hospital (7532) 3/66
Commission entertained petition filed in month prior to effective date of collective bargaining agreement between another organization and Municipal Employer, which agreement was of one-year duration, and directed the conduct of an election, pursuant to the rule expressed in City of Green Bay (6558). The Direction was issued at a time when the existing agreement still had seven months to run.
Waukesha County (7435-A) 5/66
Despite existing agreement, petition for new election filed shortly prior to time when negotiations usually commenced on succeeding agreement held to be timely filed.
Milwaukee Board of School Directors (8030) 5/67
Commission rejected proposal that it not process an election petition, if such petition is not filed within the period from 60 to 90 days preceding the termination date of an existing agreement.
City of Green Bay (8098) 7/67
M321.2 “Wauwatosa” Policy
M321.2.1 In General
Where there presently exists a collective bargaining agreement covering the wages, hours and conditions of employment of employes in an appropriate collective bargaining unit, the petition must be filed within the sixty (60) day period prior to the date reflected in the agreement, resolution or ordinance for the commencement of negotiations for changes in wages, hours and working conditions of the employes in the unit covered by said agreement, resolution or ordinance.
Wauwatosa Board of Education (8300-A) 2/68 (Aff. Dane Co. Cir. Ct., 8/68)
M321.2.2 Petition Found Timely Filed
Commission held it would not effectuate the policies of Section 111.70 to dismiss election petition filed after reopening date, but prior to the execution of a new agreement, for the reason that had the incumbent representative and the Municipal Employer entered into an agreement, the reopening date would have been only three-and-a-half months from the date of the Commission’s determination and the petitioning organization could have filed its petition within a month and one-half thereof.
Douglas County (Highway Dept.) (8433) 3/68
Where collective bargaining agreement contained no reopening date and past practice indicated that incumbent representative and municipal employer commenced negotiations on succeeding agreements on various dates, Commission processed election petition filed by another organization shortly after negotiations between incumbent organization and municipal employer had commenced, since there was no evidence to establish that such raising of a question of representation disturbed the progress or stability of a substantial negotiation process.
Appleton Board of Education (8606) 9/68
M321.3 Modified “Wauwatosa” Policy
The Commission concluded that the policy expressed in Wauwatosa Board of Education (8300-A) with respect to the time for filing petitions was too general, and it modified said policy as follows: “Where there presently exists a collective bargaining agreement, resolution or ordinance covering the wages, hours and conditions of employment of employes in an appropriate collective bargaining unit, a petition requesting an election among said employes must be filed within the 60-day period prior to the date reflected in said agreement, resolution or ordinance for the commencement of negotiations for changes in wages, hours and working conditions of the employes in the unit covered thereby unless the period of negotiations as set forth therein extends beyond six months prior to the budgetary deadline date of the municipal employer involved. In the latter event, petitions for elections will be entertained by the Commission if they are filed in good faith within sixty days prior to such six- month period.”
City of Milwaukee (8622) 7/68; Milwaukee County (8855) 1/69; Dane County (9371) 12/69; Black Earth School District No. 1 (9719) 6/70; Marinette General Hospital (10488) 8/71; City of Green Bay (10474) 8/71; Sheboygan Bd. of Education (10499) 8/71
M321.3.1 In General
M321.3.2 Nature of Agreement
Sec. 111.70(4)(i) does not prohibit a municipal employer and the employe organization from entering into a collective bargaining agreement exceeding one year in duration. Statutory language is permissive rather than restrictive and therefore a two year agreement may constitute a bar to a present determination of representative.
Milwaukee County (8855) 1/69
Purported agreement found insufficient to constitute a bar to a present determination of representative since it was unilateral, tentative in nature, with an indefinite self-renewing feature.
Appleton School District No. 10 (9045) 5/69
Although “Employee Handbook” set forth wages and conditions of employment, Commission concluded that it was not a bar to a present determination of representative, although it was adopted after informal discussions with intervening organization, since it was adopted unilaterally without conferences and negotiations as contemplated in Sec. 111.70.
Rock County (9066) 6/69
M321.3.3 Effect of Schism
Although petition may not have been timely filed under the policy of the Commission established in the City of Milwaukee (8622), since an apparent schism occurred among most of the officers, members of the executive board, and members of the negotiating committee from the incumbent representative to the petitioning organization, Commission found that petition was timely filed and an election was directed.
Chippewa Falls School District (8767) 11/68
M321.3.4 Petition Found Not Timely Filed
When petition was not filed until some four months after the re-opening date of the existing agreement and until after the parties had agreed to the succeeding agreement, although formulation of such agreement, by adoption of the county board and the affixing of the signatures to the agreement had not occurred, Commission dismissed the petition as being untimely filed.
Vernon County (9470) 1/70
When petition was filed by a rival organization on a date after the collective bargaining representative and the employer had reached an agreement, subject only to the adoption of the municipal budget, Commission dismissed the petition since it was not timely filed.
City of Appleton (9511) 2/70
Where employe organization attempted, during the contractual period provided, to open negotiations, and several meetings were held with the Municipal Employer, during which the parties only discussed “ground rules” for the negotiation of substantive provisions to be included in the subsequent collective bargaining agreement, Commission concluded that such discussions by the parties to be an integral part of the collective bargaining process and that a petition for an election, which was filed by the Municipal Employer after the timely filing period was not timely filed, and therefore the petition was dismissed.
Black Earth School District No. 1 (9719) 6/70
M321.3.5 Petition Found Timely Filed
Commission entertained election petition although it was filed prior to the sixty day period as established in City of Milwaukee (8622), since, if petition were to be dismissed, the petitioner could immediately timely file a new petition, which would result in a repetitious proceeding.
Black Earth School District No. 1 (8854) 1/69; Rock
County (10352) 6/71; Dane County (10492) 9/71
Collective bargaining agreement of indefinite duration does not constitute a bar to an election initiated by petition of a rival labor organization which demonstrated an adequate showing of interest.
Rock County (9865) 8/70
Where election petition was filed within the sixty day period prior to the date provided for the reopening of the existing collective bargaining agreement, Commission concluded that the petition was timely filed and processed the petition.
Rock County (9865) 8/70
Collective bargaining agreement covering city employes, including those involved in a pending representation proceeding, which was initiated prior to the execution of such agreement, held not a bar to a present election.
City of Madison (9980) 10/70
M322 EFFECT OF PREVIOUS CERTIFICATION
Commission rejected proposal that previous certification of the results of an election bars a subsequent election within two years of issuance of original certification.
Milwaukee Board of School Directors (8030) 5/67; Kenosha School Board (8031) 5/ 7, Whitewater School District (8034) 5/77; City of Menomonie 18730) l0/68
Where two employe organizations and the Municipal Employer, in order to expedite the conduct of the election, agreed to permit certain classifications of employes to vote by challenged ballots, and where in such agreement there was an apparent misunderstanding as to the effect of the challenges on the unit involved, and the challenges were sustained, which resulted in continuing the same bargaining representative, the Commission announced that it would entertain a petition from the petitioning organization, if timely filed, in the following year, regardless of the length of the collective bargaining agreement entered into by the Municipal Employer and the incumbent representative.
Dist. 9 Area Board of Vocational, Technical & Adult Education (9629-B) 7/70
M323 EFFECT OF IMPROPER EXISTING UNIT
Memorandum of understanding between municipal employer and voluntary recognized bargaining representative with respect to conditions of employment or employes in a unit which improperly included a craft employe held not to constitute a bar to an election involving the craft unit.
City of Milwaukee (Fire Dept.) (7885) 1/67
M324 EFFECT OF FACT FINDING PROCEEDING
M324.1 Petition Filed Prior to Issuance of Recommendations
Petition for election filed by rival union during pendance of proceeding before fact finder involving incumbent union held not timely filed.
City of Milwaukee (9172) 7/69; City of Milwaukee (9477) 1/70
M324.2 Petition Filed Subsequent to Fact Finder’s Recommendations
The Commission may refuse to process an election petition filed after the issuance of a fact finder’s recommendation, however, where almost one year had intervened between the issuance of recommendations and the filing of the petition, the Commission processed the petition filed by another labor organization.
City of Appleton (7423) 1/66
M330 ELIGIBILITY TO PARTICIPATE IN ELECTION
M331 EMPLOYES LACKING REGULAR FULL TIME STATUS
M331.1 Casual Employes
Electrical contractor whose employment was subject to call to advise on certain projects was found to have insufficient interest in wages, hours and conditions of employment as compared to regular Employes employed in the Board of Public Works to permit him to he eligible to participate in election.
City of Wausau (6276) 3/63
Employe hired for a ten week period found to be a casual employe and thus not eligible to participate in election.
City of River Falls (6731) 5/64
Where employe was originally hired for a special project to be completed during the summer, but who had been retained in employment thereafter without notification of early termination, Commission found employe not to be casual, and therefore was eligible to participate in election.
City of River Falls (6731) 5/64
Substitute per-diem teachers teaching less than thirty days of the school year held to be casual employes and therefore not eligible to practice in election in per-diem teacher unit.
Milwaukee Board of School Directors (8901) 2169 (Aff. Dane Co. Cir. Ct. 6/70)
High school student, who during the summer vacation period worked a forty hour week, following the commencement of the school term only worked one day in a thirty day period, held to be a casual employe and not eligible to participate in election.
Village of Brown Deer (8915) 2/69
High school students employed during the summer months who have no expectation to return to employment the following summer, as well as irregular substitute bus drivers, found to be casual employes and not eligible to vote.
Goodman Jt. School Dist. No. 1 (10216) 3/71
Custodial and maintenance employes on “irregular part time staff” found to be casual employes and not included among eligible.
Oconomowoc Jt. School Dist. No. 3 (10388) 6/71
M331.2 Temporary Employes
Retiree recalled temporarily and only for a period which would not affect her eligibility to receive retirement and Social Security benefits is not eligible to vote in representation election.
LaCrosse Hospital (8341-C) 5/68
Employe, who intended to resign employment to continue education, held to be a temporary employe and not eligible to vote.
City of Middleton (10381) 7/71
M331.3 Seasonal Employes
Seasonal employes who work for a substantial period during the year and who have an expectancy to return to active employment the following year are eligible to participate in election.
Pierce County Highway Dept. (6150) l0/62; City of Menomonie (6158) 11/62; Village of Menomonee Falls (6218) 1/63; City of Green Bay (6558) 11/63
Seasonal custodial and maintenance employes of school board who have a reasonable expectation of returning to their employment the following season are eligible to vote in representation election as regular part-time employes.
Stevens Point Board of Education (7713) 8/66;
Oconomowoc Jt. School Dist. No. 3 (10388) 6/71
Teachers who are seasonally employed in custodial and maintenance units are not eligible to vote in an election in said unit since their primary employment for the same employer is that of a professional employs.
Stevens Point Board of Education (7713) 8/66
M331.4 Probationary Employes
Probationary employes are eligible to participate in an election where they have a reasonable expectancy to remain in employment and become regular employes. The determination to permit probationary employes to vote in elections is not based on the similarity of the conditions of their existing employment with those of regular employes, but primarily on the reasonable expectancy of permanent employment. Generally probationary employes do not enjoy employment benefits enjoyed by regular employes.
Taylor County (8178) 9/67
M331.5 Part Time Employes
Employes who are regularly employed on a part time basis have a definite interest in wages, hours and conditions of employment and therefore are eligible to participate in an election with full-time employes.
Florence County, Jt. School Dist. No. 1 (6143) 10/26; City of South Milwaukee (7202) 7/65
“Home bound” teacher, who was required to be certified, teaching one-half of the normal teaching schedule, found eligible to participate in election involving unit consisting of “all full-time and regular part-time certified classroom teachers.”
Superior Joint School District No. 1 (6719) 4/64
The Commission will usually include as eligible in a unit consisting of regular full-time certificated teachings-, personnel, those certificated teachers who are regularly employed on a part-time basis and those who, although not directly engaged in classroom teaching, but who work directly with the students or with teachers, other than in a supervisory capacity, in support of the educational program.
West Allis Joint City School District No. 1 (6677) 3/64;
Janesville Board of Education (6678) 3/64 Teachers who teach fifty per cent (50%) or more of regular teaching schedule are eligible to participate in election.
Milwaukee Board of School Directors (6595) 12/63; Superior Vocational School (7479) 2/66
Students employed on a regular part-time basis, regardless of hours worked, are eligible to participate in election.
Marinette General Hospital (7569) 4/66;
West Bend Jt. School Dist. No. 1 (10296) 6/71;
Oconomowoc Jt. School Dist. No. 3 (10388) 6/71
Regular part time employes are eligible to participate in election.
Eau Claire County (7649) 7/66
The fact that bus drivers in employ of school board worked part time in established custodial unit on a voluntary basis does not deprive said employes of right to be represented for the purposes of collective bargaining.
Stevens Point Board of Education (8539) 5/68
Retiree, who was rehired to work on temporary basis, held not eligible to participate in election.
LaCrosse County (Hospital) (8341-c) 5/68
Regular full-time employes of municipal employer who perform their duties in separate departments or divisions held eligible to vote in unit determination provided they are employed in the voting group at least 50% of their time during the past twelve-month period.
City of Milwaukee (8622) 7/68
Where ordinarily regular part-time employes are included in the bargaining unit, Commission excluded part-time employes where they work on a different schedule and are paid on a different basis, and where they did not qualify for pension and health insurance benefits and were not eligible for vacation or sick leave.
City of Arcadia (8726) 10/68
Regardless of the numbers of hours taught, regular part-time teachers are eligible to participate in an election in a unit consisting of all regular full-time and regular part–time teachers.
Hurley Jt. School Dist. No. 1 (9458) 1/70
Lack of civil service status and absence of fringe benefits to certain regular part-time employes are not factors which affect their inclusion in a unit consisting of regular part-time employes.
Milwaukee County (9767) 6/70
An employe employed on a part-time basis in two separate departments is entitled to cast ballots in both voting groups to determine whether employes in each department desire to constitute themselves separate bargaining units. However, during the balloting, should said employe present herself to vote, she would be given two representation ballots because of the possibility that the employes may establish two separate units. However, because of the further possibility that the employes would reject separate units, her representation ballots were ordered challenged and in taking such challenges said employe should indicate on the challenged ballot envelopes as to which ballot should be counted if no separate units are established.
Fox Point School Dist. No. 8 (10553) 10/71
M332 EMPLOYES ON LEAVE OF ABSENCE
Employes who are on leaves of absence are considered regular employes and are eligible to vote.
Eau Claire County (Hospital) (8280) 11/67
M333 TEACHER CONTRACT EMPLOYMENT
Where Commission directed election involving teachers to be held after April ‘5th, the date upon which the teachers in employ of the school board involved must act on their contracts or employment for the coming school year, teachers who had not accepted contract by such date held not eligible to participate in election since they have no anticipated future employment, and new teachers accepting contracts for following term held eligible to vote if they present themselves at the polls.
Jt. School District No. 1, City of Ashland (7090-A) 5/65; Jt. School District No. 10, City of Appleton (7151) 5/65
M334 EMPLOYES CLAIMED CONFIDENTIAL
M334.1 Employes Found Not Confidential
Timekeeper-bookkeeper and parts manager, whose duties included the keeping of certain records, were not privy to the decisions of management with respect to personnel and labor policies, found not to be confidential employes, and therefore they were considered eligible to participate in representation election.
Eau Claire County (6145) l0/62
Deputy Registrar of Deeds, County Auditor, and Deputy Clerk of Court, who are not privy to any information relating to employer-employe relationship, and who play no role in deter-mining collective bargaining policy, found not to be confidential employes, and therefore included in unit.
Chippewa County (8727) l0/68
Positions of “Radio Operator and Receptionist” found not to perform such confidential duties as to be excluding from unit of highway department employes.
Oneida County (9249) 9/69
Administrative Secretary II, although having access to confidential files, who is not privy to decisions of management with respect to personnel and labor policies, found not to perform such confidential duties so as to be excluded from eligible in unit.
Racine Area Vocational, Technical & Adult Education (9188) 8/69
Medical Secretary-Bookkeeper and Account Clerks, who are not privy to employer-employe relationships, held not to be confidential employes.
La Crosse County (9841) 8/70
Fact that Secretary has her desk in close proximity to Assistant Superintendent of Personnel, who does not handle labor relations, does not render such Secretary a confidential employs.
Sheboygan Board of Education (10488) 8/71
M334.2 Employes Found Confidential
Clerk and clerk receptionist who have ready access to all personnel records, all telephone and written communication to and between superintendent of a county hospital and to all conferences involving the management function found to be confidential employes and therefore excluded from the appropriate collective bargaining unit.
Winnebago County Hospital (6043) 7/62
Private secretary to department head found to be a confidential employe and excluded from eligible in election since she would jeopardize management’s security in formulating its decisions in regard to personnel.
Wausau Water Utility (6277) 3/63; Middle River Sanitarium (6332) 5/63
Employe who takes minutes of Park Department meetings where personal problems are discussed found to be a confidential employe and therefore was excluded from the unit.
City of Wausau (6278) 3/63
Deputy City Comptroller, who prepares financial data for the City’s negotiators and who is privy to discussions and decisions involving confidential matters relating to labor relations found to be a confidential employe and excluded from the eligible.
City of Green Bay (8390) 2/68
Highway Department clerk, who prepares statistical material on costs, which information is used for bargaining, and who participates in discussions with Employer negotiating committee to determine policies on wages, hours and working conditions, deemed to be a confidential employe and excluded from unit.
Chippewa County (8727) 10/68
An employe who is privy to confidential matters relating to collective bargaining matters need not spend a majority of her time performing duties relating thereto. Where a single employe is the only employe assigned to such duties, such employe is excluded from the eligible in a clerical unit.
Village of Brown Deer (8915) 2/69
“Timekeeper and Bookkeeper” in office of Highway Department, who has access to all of the confidential information connected with negotiations, found to be a confidential employe and therefore excluded from unit.
Eau Claire County (9198-A) l0/69
Financial Secretary, whose daily activities include keeping confidential financial reports and records relating to payroll, sick leave and vacation benefits who also assists in conducting surveys of salaries and in developing the budget of the Municipal Employer, who reports directly to the Business Manager, the latter being a member of the Municipal Employer’s negotiating team, and who works with the Business Manager in gathering information needed for making proposals in collective bargaining, found to be a confidential employe.
Racine Area Vocational, Technical & Adult Education (9188) 8/69
Secretaries to Assistant Superintendent and to School Principal, who are privy to decisions of supervisory personnel with respect to employes, were excluded from unit consisting of non-professional school employes because of their confidential duties.
Holmen Jt. School Dist. No. 1 (10059) 12/70
Research Analyst in Personnel Division of Department of Public Welfare, because of his contribution and participation in management decisions relating to personnel policies, found to be confidential employe.
Milwaukee County (10172) 2/71
M335 EMPLOYES CLAIMED SUPERVISORY
M335.1 General City Hall Employes
Assistant city attorney in charge of “branch” office, who exercises some supervisory duties in assignment of cases and performance of four assistants, found to be working supervisor since he spends a majority of his time performing similar duties and, therefore, is to be included in unit of assistant city attorneys.
City of Milwaukee (8l00) 7/67
Deputy City Clerks and Deputy Assessor found not to perform supervisory functions.
City of Green Bay (8390) 2/68
Assistant City Treasurer found to perform such duties and responsibilities so as to constitute a supervisory position.
City of Beloit (10510) 9/71
M335.2 General Court House Employes
Building maintenance engineer in court house found to be a supervisor and therefore excluded from the unit.
Dodge County (6067) 7/62
Assistant Engineer in court house found to be a supervisor by reason of duties, authority and pay differential and not eligible to vote in election.
Wood County (6501) 9/63
Janitorial and maintenance employe who assigns work to other employes and who has no power to hire or fire found to be a working foreman and eligible to participate in election.
Douglas County (Court House) (7331) 10/65
County Planner, Director of Civil Defense, Building Maintenance Engineer, County Agricultural Agent, Veteran’s Service Officer, Supervisor of Tax Descriptions, Register in Probate, all found to perform supervisory functions and therefore excluded from unit of court house employes.
Sheboygan County (8256-E) 4/70
Deputies to elected county officers, who exercise only limited supervision, determined not to occupy supervisory positions.
Ashland County (7214) 7/65; Oneida County (9134) 7/69
Supervisor of Surplus Commodity Distribution Program, because of the nature of his supervisory duties, and time spent therein, found to be a supervisor, and therefore excluded from unit of general court house employes.
Wood County (10356-A) 10/71
M335.3 General Village Hall Employes
Deputy Clerk-Administrative Assistant to Village Manager, who is empowered to perform latter’s duties in his absence, and who has been delegated the authority to hire and fire employes, found to be a supervisor, and therefore excluded from unit consisting of village hall clerical employes.
Village of Brown Deer (8915) 2169
M335.4 Farm Employes
Manager of farm operated by County hospital who is responsible for the management of the farm and the responsibility for the performance the of the duties of farm personnel excluded from unit as supervisor.
Winnebago County Hospital (6043) 7/62; Outagamie County Hospital (6076) 8/62
Farm Manager having no authority to discipline or discharge employes or effectively recommend same, and who does not schedule vacations, because he spends the majority of his time performing work similar to that performed by farm employes, held to be working foreman and within the unit involved in the election.
La Crosse County (Hospital) (8341-c) 5/68
Farm Manager was excluded from unit on basis of stipulation that he performed supervisory duties, however Herdsman II found out to be a supervisor.
La Crosse County (9841) 8/70
M335.5 Fire Department
Captains in Fire Department found to be supervisors because of the extent of their supervisory duties, number of employes supervised arid pay differential. Lieutenants exercising lesser degree of supervision over less employes for less pay found not to be supervisor.
City of Milwaukee (6476) 8/63; City of Cudahy (9381) 12/69; City of Wauwatosa (9911) 9/70
Senior Fire Captain found to be a supervisor because of his authority to direct firefighters, the responsibility of his command, the level of his supervision and the fact that he supervised 20 to 23 employes including two captains and two lieutenants.
Village of Shorewood (6552) 11/63
Commission found two fire captains and two fire lieutenants not supervisory employes where department consisted of one station having approximately twenty (20) to twenty three (23) employes including two captains and two lieutenants.
Village of Shorewood (6552) 11/63
Commission found that chief, first assistant chief, second assistant chief and fire captains of a fire department containing approximately sixteen (16) employes in three stations to be supervisory employes and thus were excluded from the unit. Chief was in overall charge of the department and could effectively recommend hiring and firing of personnel. The assistant chiefs directed the work force at the various stations and had authority to discipline employes. The captains were in charge of individual companies consisting of twelve (12) fire fighters, including lieutenant.
City of Sheboygan (6619) 1/64
Day shift captain of city fire department having no supervisory duties except when relieving assistant fire chief, found not to perform such supervisory duties as to be excluded from unit. Night shift captain having the primary responsibility of night shift firefighters was excluded from unit on extent of supervision exercised by him. Night shift lieutenant performing no supervisory duties, except in absence of night shift captain, included among eligible in unit.
City of Antigo (7560) 4/66
The fact that captains perform no administrative duties in connection with their supervisory function does not permit their inclusion in unit of firefighters.
City of Milwaukee (8253-A) 12/67
Lieutenants in fire department, who perform only minor supervisory tasks and therein do not require significant judgment or discretion, were included in bargaining unit of firefighters.
Village of West Milwaukee (9576) 4/70
M335.6 Health Department
The type of supervision exercised by a Physician over a nurse during the course of her duties was not considered by the Commission as sufficient to exclude the physician as a super-visor in a unit consisting of physicians.
City of Milwaukee (6252) 2/64
M335.7 Highway Department
Commission found that two oiling foremen, grading foremen and shop foreman of count ‘ v highway department, who directed and assigned work to employes within their respective areas and who were responsible for the quality of work performed by their crews, individually composed of from eight to ten men, to be supervisors and therefore not eligible to participate in representation election.
Shawano County (6074) 8/62
Crushing foreman, who spent a substantial part of his time with a small crushing crew operating a crusher, as well as maintaining the equipment and making minor repairs, and who received only 5¢ per hour over and above those employes in the crushing crew, found to be only a working foreman and not a supervisor, and therefore eligible to participate in the representation election.
Shawano County (6074) 8/62
Assistant highway superintendent who exercises supervisory authority in the absence of regular supervisor found to be a crew leader and as such is eligible to participate in election.
City of Franklin (6147) l0/62
County Highway Department foremen because of the nature of their supervisory duties, the number of employes so supervised and their pay differential excluded from collective bargaining unit.
Lincoln County (6200) 1/63; Dunn County (6207) 1/63;
Trempealeau County (6208) 1/63; Clark County (6268) 3/63
Grader-equipment operator, who only on occasions during the short term of absence of highway superintendent assumed some of the latter’s authority with respect to the direction of the work force, the requisitioning of materials, and the handling of time sheets, and who, during the greater portion of his time, performed work in non-supervisory activities, found to be a working supervisor and thus eligible to participate in the election.
Village of Brown Deer (6650) 2/64
Although certain foremen performed some work and received only 5¢ per hour over and above other employes, Commission excluded said foremen from the eligible because of the number of persons supervised by each in widespread locations and because they directed said employes in their work and evaluated their job performances.
Langdale County (6716) 4/64
Highway Department foremen, although having limited authority with respect to hiring, firing and disciplinary action, held not eligible to participate in election since they supervised and directed employes in their work and were responsible for the performance of such work and only performed work which was incidental to their supervisory duties. The fact that there was an absence of a substantial differential in their wage rate as compared to the employes they supervised was held not to be determinative of the issues.
Sauk County (6762) 6/62
Duties of State Crew Foreman, Sand Lift Crew Foreman, Oil Foreman, Driller, and Dynamiter and Night Watchman and Oiler resulted in a finding that they were employes rather than supervisors and therefore were included in the bargaining unit.
Monroe County (8166-B) 1/68
Employes designated as Assistant Foremen, who spend a majority of their time performing duties similar to those performed by those persons whom they may supervise, were considered working foremen and were included in the bargaining unit.
Rock County (Highway Dept ) (6144-B) 5/68
Grading Foreman, Oiling Foreman, Truck Foreman, Main Highway Shop Superintendent, and Bridge Foreman found to perform such supervisory duties so as to be excluded from unit.
Eau Claire County (9198) 10/69
Shop Foreman, who spends a majority of his time in performing unit work or in supervising an activity rather than employes, held to be a working foreman, and therefore included in unit.
Eau Claire County (9198-A) 10/69
Storekeeper-Partsman, whose supervisory duties are minimal, included in unit of highway department employes.
La Crosse County (9515) 4/70
M335.8 Hospital, Home or Sanitarium
M335.8.1 Non-Professional Supervisory Positions
Aide-supervisors in employ of county hospital who direct and supervise the activities of charge-aides and aides and who spend approximately 80% of their time in performing supervisory duties were excluded from eligible in bargaining unit because of their supervisory status.
Winnebago County Hospital (6043) 7/62
Laundry manager in employ of county hospital who is responsible for the operation of the laundry and who spends 75% of his time supervising said operation and directing three full-time laundry employes and 10 patients working in the laundry found to be a supervisor and therefore ineligible to participate in election.
Winnebago County Hospital (6043) 7/62
Supervisor of Institutional Aides employed in a county hospital who spends at least fifty per cent of her time supervising attendants and service employes and who can effectively recommend disciplinary action with regard to them, performs such supervisory duties so as to be excluded as an employs.
Outagamie County Hospital (6076) 8/62
Chief cook in the employ of a county hospital, although under the supervision of the Superintendent and Medical Director, who is responsible for the institution’s dietary program and who super-vises, directs and delegates duties to dietary personnel, held to perform such supervisory duties so as to be excluded from eligible in the collective bargaining unit.
Winnebago County Hospital (6043) 7/62; Outagamie County
Hospital (6076) 8/62; Middle River Sanitarium (6332) 5/63
Building maintenance engineer of county hospital who directly supervises three employes and patients and who spends approximately 50% of his time performing electrical, plumbing and other skilled maintenance work held to be supervisory primarily due to the fact that he received a salary of more than $100 per month over and above that of the employes he supervises and therefore was excluded from the eligible in an election.
Dodge County Hospital (6067) 7/62
Engineer in employ of county hospital who is responsible for the operation of the power plant and supervises employes in the general maintenance and repair of buildings and who can effectively recommend disciplinary action or discharge of said employes held to be a supervisor and therefore not eligible to participate in the election.
Winnebago County Hospital (6043) 7/62; Middle River Sanatorium (6332) 5/63
Supervisor of Plant Services in a county hospital, although under the general supervision of the Superintendent, who is responsible for the general plant maintenance, and who has direct supervision of all personnel engaged in the heating, ventilating, water systems, mechanical crafts, sewerage systems, refrigeration, laundry, maintenance and janitorial services, excluded from unit.
Outagamie County Hospital (6076) 8/62
Head Housekeeper who has same authority normally associated with supervisor, but who spends no great majority of her time in non-supervisory activities, and does not receive compensation substantially greater than the amount received by employes with whom she work,-., found not eligible to participate in the election.
Middle River Sanatorium (6332) 5/63
Licensed Practical Nurses who spend the vast majority of their time supervising activities of other employes and who can actively regulate the hiring and firing of employes in their charge and who were paid at least $50 more per month than the employes they supervised were excluded from the bargaining unit.
Douglas County (6331) 5/63
Night supervisor, who received $35 per month more than six attendants supervised by her, and having the authority to actively recommend the discharge of said employes and who was responsible for their instruction held ineligible to participate in election. The fact that such employe was temporarily working as an attendant for an attendant who was ill did not result in the change of her eligibility.
Green County (6395) 6/63
Hospital Attendant Supervisors found to perform supervisory duties and therefore excluded from unit.
Milwaukee County (9645) 5/70
Building Maintenance Supervisor, Food Service Supervisor and Laboratory and X-Ray Technician (Registered), and the latter also being the Assistant Superintendent, found to perform supervisory duties, and therefore excluded from unit.
La Crosse County (9841) 8/70
M3358.2 Non-Professional Non-Supervisory-Positions
Licensed practical nurses, charge-aides, seamstress supervisor and stockroom supervisor of County Hospital, all who spend a majority of their time in performing duties similar to those employes whom they supervise, held to be working foremen rather than supervisors, and therefore they were eligible to participate in election.
Winnebago County Hospital (6043) 7/62
Cook I in the employ of a county hospital, who performs her duties under the direct supervision of the Cook II, although supervising a small crew of employes in the performance of kitchen and dining room duties found to be a working foreman and therefore to be included among the eligible in the collective bargaining unit.
Outagamie County Hospital (6076) 8/62
Chief Janitor, Operating Engineer and Laundry Supervisor, in the employ of a county hospital, who are under the supervision of the Supervisor of Plant Services, held to be working foremen rather than supervisors since they only performed incidental supervisory duties, and therefore are in the unit.
Outagamie County Hospital (6076) 8/62
Employe holding title of Laundry Supervisor, responsible for operation of hospital laundry, where no other employe is employed, and where work therein is performed by patients, held to be employe rather than supervisor.
Monroe County (8166-B) 1/68
Licensed Practical Nurse, and Housekeeper found not supervisory because they spent the vast majority of their time in performing duties similar to other employes.
La Crosse County (8341) 1/68 & (8341-c) 5/68
Building Maintenance Supervisor, who is assisted in his duties by patients, and who supervises no employes, held not to be a supervisor. Laundry Supervisor, Licensed Practical Nurse, Houseman, Occupational Therapist, and Laboratory Technician, were determined to occupy non-supervisory positions.
La Crosse County (9841) 8/70
M358.3 Professional Employes
Registered nurse of county hospital who is responsible for all nursing care administered to the patients and who spends more than 50% of her time supervising and directing licensed and unlicensed practical nurses found to perform such supervisory duties so as to exclude her from the eligible in an election.
Winnebago County Hospital (6043) 7/62
Where registered nurses’ supervisory functions are limited to the area of coordinating patient care and do not have the authority to effectively recommend hiring, promotion, transfer discipline or discharge of employes, Commission determined to include them as employes in unit.
Racine County (8330) 12/67
M335.9 Museum
Chief Curator, who reports to Museum Director and who is responsible for the activity of the Museum in the event of a prolonged absence of the Director, and who can effectively recommend hiring and discharging of employes, and who receives wages substantially more than those received by employes under his direction, found to be a supervisor and thus excluded from the bargaining unit.
City of Green Bay (8390) 2/68
M335.10 Park Employes
Assistant forester and crew leader in part department who spends 100% of his time supervising forestry crew, and who can effectively recommend the discipline and discharge of employes under him, found to perform such supervisory functions to be excluded from eligible although he has only five employes under his supervision.
City of Waukesha (6153) l0/62
Forestry Foreman who directs and supervises the work of thirteen regular and twenty seasonal employes 100% of his time held to possess sufficient supervisory characteristics to be excluded from eligible.
City of Wauwatosa (6156) 11/62
Park Foreman, who supervises eight regular and ten seasonal employes, but who spends eight months of the year working with the regular employes, although he can effectively recommend disciplinary action, held to be a working foreman.
City of Wauwatosa (6156) 11/62
Individuals occupying positions of Superintendent of Parks and Park Supervisor who spend more than 75% of their time supervising employes were excluded from eligible.
City of Wausau (6278) 3/63
Senior and Youth Program Director found to perform supervisory duties, while Sports Center Program Director, having only limited supervision over one clerk-stenographer, found not to be a supervisor.
Milwaukee County (10172) 2/71
M335.11 Police Department
Maintenance mechanics, employed on day shifts, who lay out work for employes and who have the authority to effectively recommend discipline or discharge, held to be supervisors and excluded from the eligible.
City of Milwaukee (Police Department) (8605) 7/68
M335.12 Public Works Employes
Shop and street foreman and supervisor of sewer maintenance who can effectively recommend hiring and firing employes as well as disciplinary action, and who spend a majority of their time performing supervisory duties held not to be included among the eligible.
City of Green Bay (604l) 6/62
Superintendent in department of public works who has authority to hire employes and to direct employes in the department and who receives a substantially higher hourly wage found to be a supervisor and therefore excluded from the eligible.
City of Franklin (6147) 10/62
Garbage Collection Foreman, supervising 45 employes 12 months of the year, who spends 100% of his time in such supervision, found to be a supervisory employs.
City of Sheboygan (7665) 7/66
Public works foremen spending less than 50% of their time in supervision held to be working foremen and in the unit.
City of Sheboygan (7665) 7/66
Assistant Ward Foreman, who manages employes in a crew and never performs work performed by said employes, held to be a supervisory position.
City of Milwaukee (6215-M) 9166
Assistant Garage Foreman, who primarily supervises an activity and who is paid for his skill rather than for his supervision of employes, found to be a working foreman, and, therefore, is included in unit of employes.
City of Milwaukee (6215-M) 9/66
Although two individuals spent a majority of their time per-forming work similar to those performed by employes in their crews, individuals were found to be supervisors since they were responsible for hiring and discharging employes or could effectively recommend same and were also responsible for assignment and direction of employes.
City of Eagle River (8513) 4/68
Line Foreman and Water Foreman held to be working foreman rather than supervisors since a majority of their time during the year was spent in performing non-supervisory duties.
City of Waupun (6086-C) 11/68
Truck Drivers in charge of garbage pick-up crews and crew leaders in street and sewerage maintenance found to be working foremen, rather than supervisors.
Village of West Milwaukee (9019) 5/69
Traffic Engineer IV position, providing managerial and supervisory support to Division head, held to be a supervisory position.
City of Milwaukee (6960-H) 10/70
Foremen and Utility Foreman, although receiving substantially more pay than other employes in water and sewer utility divisions of the Department of Public Works, held not to be supervisors, because of the lack of sufficient supervisory duties and because their differential in pay resulted due to their skills involved.
City of Middleton (10381) 7/71
M335.13 Reproduction Department
Assistant Services Supervisor, in partial charge of nineteen employes, who assists in the hiring and discipline of employes, as well as in the rating and training of employes, and who schedules days off and vacations, and who does not perform duties performed by employes, except under special circumstances, found to be a supervisor.
Milwaukee County (10172) 2/71
M335.14 School Employes
M335.14.1 Cafeteria Employes
Head cooks in school cafeteria, while they rate and assign employes, who have no authority to hire or fire employes and who spend most of their time in cooking duties, held to be working supervisors and eligible to vote in election.
Unified School District No. 1 of Racine County (7054) 3/65
Head cooks at four schools, having sole responsibility for authority to effectively supervising employes and having recommend the hiring and firing of employes, and who keep time records and order items to be included in menus, found to be supervisors.
Monona Jt. School Dist. No. 4 (10159) 2/71
M335.14.2 Custodial Employes
Commission found that head custodians employed in various schools were not supervisory employes although they received more pay than other custodians since they were not clothed with supervisory authority or direct control over the activities of other custodial employes.
Greenfield School District No. 6 (6194) 12/62
Employes classified as working foremen in maintenance department of school, but who spent a sufficient time operating equipment and performing maintenance duties, found to be eligible to participate in elections since they neither had the authority to hire nor to terminate employes, nor to effectively recommend such action, and since their wage differential was not based primarily on their supervisory functions, but rather on their longevity.
Manitowoc Board of Education (6856) 9/64
Head custodians found to be working foremen since they regularly performed custodian tasks similar to other custodians and since their wages are substantially the same as other custodians. The fact that head custodians requisitioned supplies did not establish them as super-visors.
Stevens Point Board of Education (7713) 8/66
“Supervisor” in Building and Ground Department, who is compensated on monthly rather than on hourly basis as are employes supervised, and who has been given authority to hire and suspend employes, found to be a supervisor and not to be included in a unit of custodial and maintenance personnel.
Stevens Point Board of Education (7713) 8/66
Although “supervising custodian” and “supervising custodian and swimming pool operator”, because of civil service rules, had limited authority with respect to hiring, promotion and discharge of employes, they were found to be super-visors since they exercised independent judgment with respect to directing and assigning employes, changing shifts, assigning overtime, and ordering materials, and since they had no regular schedule and were not compensated for overtime.
Wauwatosa Board of Education (6219-D) 9/67
Custodial staff foreman who directs and assigns approximately 100 custodial personnel throughout the school system and who can effectively recommend hiring and discipline of those under him and whose monthly wages are approximately $100 per month higher than the highest classification subject to his direction found to be a supervisor and not eligible to participate in election.
Joint School District No. 1, City of Green Bay et al. (8667) 8/98
Foreman of maintenance crew who directs some 22 mechanics and craftsmen and who makes job assignments and recommendations involving hiring, discipline and promotion found to be a supervisory employe and, therefore, not eligible to participate in election.
Joint School District No. l, City of Green Bay et al. (8667) 8/68
Head Building Custodians found not to be supervisors but leadmen and therefore were included among the eligible in a unit consisting of non-professional school employes.
Holmen Joint School District No. 1 (10059) 12/70
Supervisor of Maintenance and Custodial Services in employ of school board found to be a working foreman rather than a supervisor and therefore said individual was included among the eligible in a unit consisting of non-professional school employes.
Holmen Joint School District No. 1 (10059) 12/70
M335.14.3 Secretarial Employes
Secretaries to Assistant Superintendent and Recreation Director, who spend approximately one hour daily directing clerical employes, found not to be supervisors.
Sheboygan Board of Education (10488) 8/71
M335.14.4 Professional Employes
Vice-principals, department heads and teaching nurses, who teach more than 50% of a full teaching schedule were included among eligible in unit of teachers.
Elmbrook Schools (7361) 11/65
Director of Student Services, Area Coordinators, and Special Service and Teacher Coordinators were found to be super-visors and excluded from unit of teachers, since they had the authority to effectively recommend hiring, firing, pro-motion and demotion of teachers, to direct and assign work, and because of the number of teachers so supervised, as well as exercising other characteristics of supervision and administration.
Eau Claire Area Vocational School (8869-A) 6/69
M335.15 Sewerage Department Employes
Although foreman in sewerage plant spends only two to three hours per day as a supervisor, Commission excluded him from eligible since he was responsible for the repair and maintenance of buildings and grounds, he scheduled and supervised the work of operators and laborers, he could effectively recommend hiring, discipline and. firing, and received 13¢ per hour more than highest paid employe supervised by him.
City of Waukesha (6152) 10162
Chief Operator in Sewerage Division of the Department of Public Works assigned supervisory responsibilities and received wages sufficient to establish him as a supervisor and, therefore, was excluded from the unit.
City of Appleton (7423) 1166
Laboratory technician in Sewerage Division found neither a craft or confidential employe and, therefore, was included among eligible.
City of Appleton (7423) 1/66
M335.16 Street Department Employes
Crew leaders in city street department held not supervisors since they performed work performed by other employes in their crews and received only 5¢ per hour above the hourly rates paid to crew employes.
City of Waukesha (6153) 10/62
Incinerator Operator II in Street Department, having g’s regular and 47 “extra help” employes and four supervisors, who spends 35% of his time in the physical operation of incinerator and who receives $12 per week less than his immediate superior, found to be a working foreman and eligible in unit.
City of Wauwatosa (6156) 11/62
Mechanics II in Mechanical and Maintenance Department, consisting of eleven employes who are primarily supervised by the Equipment Foreman, who are in charge of a shift, and as such are responsible for scheduling work for Mechanics I and helpers who spend 50% of their time in mechanical repairs held not to be Supervisors but Working Foremen.
City of Wauwatosa (6156) 11/62
Meter Repairman I, spending only 10% of his time in supervision, held to be a Working Foreman.
City of Wauwatosa (6156) 11/62
Street Department foreman who works with and exercises some supervision over six other employes of the Street Department found to be a working foreman, and is not, then, a supervisor.
City of River Falls (6729) 7/64
Employe who spent 80% of his time in supervising nine employes in street department and, who received 15¢ per hour more than other employes, although having no authority to hire or fire employes, but who did have authority to impose disciplinary suspensions, although subject to review, found ineligible to participate in election because of his supervisory status.
Town of Weston (6796) 7/64
Concrete construction foreman, spending only 20% of his time in supervision and whose terms and conditions of employment are substantially the same as remaining employes, held not a supervisor, and, therefore, was included in the collective bargaining unit.
City of New London (7505) 3/66
Crew foremen in street division and park department who have not been delegated any authority to discipline or discharge employes and who work a majority of their time alongside employes in their departments held to be working foremen and thus in the unit.
City of Kenosha (7529-A) 6166
M335.17 Water Department Employes
Water foreman, who regularly directs and supervises six employes and who spends approximately 90% of his time in supervision, held to perform such supervisory function so as to be excluded from eligible.
City of Wauwatosa (6156) 11/62
Crew Foreman in construction division of Water Department having authority to issue effective orders to employes and to schedule overtime hours and to assign employes found to be a supervisor.
City of Kenosha (7529-A) 6166
Assistant Water Materials Supervisor who oversees maintenance of “yard”, who performs dispatching, record keeping and material inspection, in the absence of any evidence with respect to time spent or judgement exercised in direction and assignment of employes found not to be a supervisor.
City of Milwaukee (6215-M) 9/66
Water Filtration Operator in Charge and Operating Engineer II found not to he supervisory.
City of Milwaukee (6215-M) 9/66
Water Distribution Foreman II who heads a crew of seven employes and directs and assigns such employes determined to be a supervisory position.
City of Milwaukee (62l5-M) 9/66
M335.18 Weed Commissioner
Weed Commissioner, who spent six months as Weed Commissioner and remaining six months as a traffic sign maintenance man, held eligible to participate in election, not as Weed Commissioner, but as a traffic sign maintenance man.
City of Waukesha (6153) 10/62
M335.19 Welfare Department
Basic Services Supervisors in Welfare Department found to perform supervisory duties and therefore excluded from unit of professional social workers.
Waukesha County (9132) 7/69; Barron County (10146) 2/71
Administrative Assistant, while carrying some supervisory responsibility, did not have sufficient responsibility to warrant exclusion from the unit.
Oneida County (9134) 7/69; Barron County (10146) 2/71
Custodial Work Supervisor employed at Welfare Center, who is responsible for fifteen second shift custodians in assigning and supervising their duties, determined to be a supervisor.
Milwaukee County (10172) 2/71
Assistant Home Management Supervisor and Food Stamp Program Supervisor found to perform supervisory duties and there-fore excluded from unit.
Milwaukee County (10172) 2/71
Social Work Supervisor and Basic Services Supervisor perform such duties as to exclude them from the unit of professional social workers.
Chippewa County (10496) 9/71
M335.20 Zoo
Zoo Area Supervisors, who supervise and work with Zookeepers I, and who spend approximately 85% of their time feeding and cleaning animals, found not to perform such duties as to exclude them as supervisors.
Milwaukee County (10172) 2/71
Aquarist and Reptile Supervisors, who supervise an activity with respect to fish and reptiles, and who only indirectly schedule and direct employes on a minor basis, found to be employes rather than supervisors.
Milwaukee County (10172) 2/71
M336 EFFECT TO STIPULATION TO EXCLUDE EMPLOYES FROM UNIT
Where there is no basis for excluding otherwise eligible employes from the appropriate bargaining unit, the
Commission will include said employes despite agreement of the parties to exclude them.
City of Middleton (10381) 7/71
M340 UNIT APPROPRIATE FOR COLLECTIVE BARGAINING
M341 STATUTORY LIMITATION ON COMMISSION’S POWER TO DETERMINE
Whenever a petition for an election is filed with the Commission, and wherein the petitioner requests an election among certain employes not constituting all of the employes of the employer, the Commission has no power, except if the employes constitute a single craft, to determine what constitutes an appropriate collective bargaining unit. It does determine whether the group of employes set out as being an appropriate bargaining unit does in fact constitute a separate craft, division, department or plant. The employes involved, if they do constitute a separate division, department, or Plant, are given the opportunity to determine for themselves whether they desire to continue a separate collective bargaining unit.
Dodge County Hospital (6067) 7/62; Appleton Water Commission (6075) 8162; Lincoln County (6200) 1-/73; City of Milwaukee (6253-B) 4/63; City of Green Bay (6558) 11/63; County of Milwaukee (7134) 5/65; City of Appleton (7423) 1/66; City of Kenosha (7424) 1/66; Monroe County (8166) 9/67; City of Milwaukee (Police Department) (8605) 7/68; Joint School District No. 1, City of Green Bay et al. (8667) 8/68; City of Neenah (8906) 2/69; City of Evansville (93311) 11769; Spooner Jt. School District No. 1 (9832) 8/70; Marinette General Hospital (9826) 9/70; West Bend Jt. School District No . 1 (10296) 6/71
M342 BARGAINING HISTORY
The fact that two competing organizations had previously submitted proposals to the municipal employer on behalf of their member-ship, held not a material factor in establishing separate divisions or departments of said employer for the determination of appropriate collective bargaining units.
Milwaukee Board of Vocational & Adult Education (6343) 5/63
The fact that certain employes had not been historically represented in the past is no reason to warrant their exclusion from a particular unit of employes. Where desired employes do not constitute a separate department or division, and are not members of a single craft or profession, other eligible employes in the department cannot be excluded from said voting group.
City of Milwaukee (6476) 8/63
Statutory criteria do not permit Commission to rely on bargaining history as a basis for denying elections among employes in separate divisions to determine for themselves whether they desire to constitute a unit separate and apart from the other employes of a municipal employer.
City of Appleton (7423) 1/66; City of Kenosha (7424) 1/66; City of Medford (10545) 9/71
M343 FACTORS CONSIDERED IN DETERMINING SEPARATE
CRAFT, DIVISION, OR DEPARTMENT
M343.1 Craft or Professional Employes
M343.1.1 Generally
Craft units must consist of employes who are practitioners of the same allied craft and must be primarily engaged in the performance of tasks requiring the exercise of their particular craft skills.
Winnebago County Hospital (6043) 7/62; City of Green Bay (6558) 11/63; City of Racine (10389-C) 11/71
Craft employes cannot be fragmentized in separate units on basis of being employed in separate departments. All employes of the municipal employer engaged in the same craft constitute one unit except in unusual circumstances.
City of Milwaukee (7432) 1/66; Milwaukee County (7467-A) 4/66; Oconomowoc Jt. School Dist. No. 3 (10388) 6/71
Professional units must consist of practitioners of the same professions.
Milwaukee County (7463) 2/66
The mere fact that certain professional positions were over- looked and originally included in a unit of non-professional employee does not preclude their subsequent exclusion from said non-professional unit and their inclusion in the appropriate professional unit.
City of Milwaukee (6960-F) 1/70
M343.1.2 Barbers and Beauticians
Barbers and beauticians, although performing similar functions, are engaged in separate crafts and therefore cannot be combined in a single “craft” unit.
Milwaukee County (8393) 2/68
M343.1.3 Carpenters
Maintenance carpenter required to pass a civil service examination and who has used all the tools of a carpenter and who builds cabinets, partitions and shelving and who makes carpenter repairs is a craft employe who constitutes a unit separate and apart from maintenance employes.
Wauwatosa Board of Education (7471) 2/66
Journeyman carpenter, although not employed on civil service but on a “temporary” basis found to be included in unit of carpenters since such “temporary” employment commenced some two years previous, and continued in active employment except for a three week lay off in the 1st year of his employment.
Dane County (10026) 11/70
Journeyman carpenter, who spends only 20% of his time performing carpenter duties, was excluded from unit of carpenters.
Dane County (10026) 11/70
Carpenters performing duties of craft carpenters constitute a separate unit.
City of Racine (10389-c) 11/71
M343.1.4 Chemists
Chemists employed in Waste Water Treatment Plant found to have such education and training so as to constitute a professional employe and therefore to constitute a separate unit.
City of Racine (10389-c) 11/71
M343.1.5 Correction Officers
Correction Officers, not being professional or craft employes, cannot constitute a unit separate and apart from other employes of county House of Correction.
Milwaukee County (10053) 12/70
M343.1.6 Electricians
Electricians and helpers held to be a single craft and there-fore constitute a separate unit.
City of Appleton (8431-A) 5/68; City of Racine
(10389-C) 11/71
M343.1.7 Electronics Repair Technician
Electronics Repair Technician found to be engaged in a separate craft.
Milwaukee Area Technical Collage, (10397) 9/71
M343.1.8 Engineers
Plan Examiner II positions occupied by registered engineers found to be professional employes and to be included in a unit of professional engineers.
City of Milwaukee (6705-D) 1/70
Although individual occupying the position of Building Materials Research Analyst had no degree in engineering or architecture, his duties and responsibilities and experience permitted his inclusion in a unit of professional engineers.
City of Milwaukee (6705-D) 1/70
Plan Examiner I and Street. Construction Technician positions held not professional employes, since neither the extent of formal education nor job duties qualifies the positions to be included of a unit of professional engineers.
City of Milwaukee (6960-H) 10/70
“Engineering aides” found not to be craft employes, and, therefore, not to constitute a separate unit, and further, since they were employed in three distinct departments, did not have the opportunity for separate unit vote.
Milwaukee Sewerage Commission (8564) 6/68
Engineers constitute a separate profession and therefore constitute a separate unit.
City of Racine (10389-C) 11/71
M343.1.9 Firefighters
Commission found firefighters to be “craft” employes for the purposes of an election under Sec. 111-70.
Milwaukee County (7135) 5/65
M343.1.10 Laboratory Technicians
Laboratory technicians in sewerage commission, who lack an academic degree and substantial period training, found not to be a “craft” employe within the meaning of the statute.
City of Appleton (7423) 2/66
M343.1.11 Librarians
Librarians found to be professional employes and therefore constitute themselves as a separate unit.
City of Racine (10389-C) 11/71
M343.1.12 Nurses
Commission found nurses to be “craft” employes for the purposes of an election under Sec. 111.70.
Milwaukee County (7135) 5/65; City of Racine (10389-C) 11/71
M343.1.13 Plumbers
Plumbers who perform duties of craft plumbers constitute a separate unit.
City of Racine (10389-C) 11/71
M343.1.14 Sanitariums
Health Department sanitariums and laboratory technologists found to have education and training experience to constitute professional employes and therefore each classification is entitled to be in separate units.
City of Racine (10389-C) 11/71
M343.1.15 Sewerage Treatment Plant Operator
Sewerage Treatment Plant Operator found not to be a “craft” employs.
City of Medford (10545) 9/71
M343.1.16 Steamfitters
Employes occupying classifications of Operating Engineers III and IV found to be performing, duties of “steamfitters” and therefore, as craft steamfitters said employes constitute an appropriate unit.
Dane County (10027) 11/70
M343.2 Division or Department
M343.2.1 Generally
Where a group of employes is functioning distinct and separate from other employes and where such employes are neither craft nor professional but who may be identified with traditional trades and wherein a group distinct from other employes and who, as a result, have common special interests, the Commission will find that a separate department or division exists, and will permit the employes therein to determine for themselves as to whether to decide to establish a separate bargaining unit.
Dodge County Hospital (6067) 7/62; City of Milwaukee (6252) 2/63
Where all parties agreed Commission consolidated eligible employes in various departments and divisions in a single voting group and permitted said employes to determine for themselves whether they desired a separate unit.
City of Kenosha (7529-A), 9/66
Clerical employes of county found not to constitute a separate department or division since they had no common separate location or common separate supervision, being distributed throughout separate county offices and departments.
Waukesha County (8548) 5/68
Where Commission directed three separate unit votes, it set forth that if the employes in two of the departments established separate units, the employes in the third department, even if they rejected a separate unit, would constitute a separate unit, since it would constitute the residual unit.
Spooner Jt. School District No. 1 (9832) 8/70
Employes employed in separate departments of the city, where said employes do not constitute all employes of the city, cannot be combined in one separate bargaining unit.
City of Madison (9980) 10/70
Commission determined that departmental unit could not constitute an appropriate unit since it would exclude employes in certain divisions of various bureaus of the department involved.
City of Milwaukee (10063-C) 1/71
M343.2.2 Airport
Maintenance mechanics, utility men and janitresses, since all were employed in a single department, and since none of said classifications constituted craft employes, Commission denied separate unit votes for any of said classifications.
Brown County Airport (9577) 4/70
M343.2.3 Bureau of Municipal Equipment
Operations Division in Bureau of Municipal Equipment found
to constitute a separate division of the municipal employer and, therefore, employes therein were entitled to a self–determination election with respect to the establishment of a bargaining unit.
City of Milwaukee (8622) 7/68
M343.2.4 Buildings and Grounds
Elevator operator included in unit of janitors and maintenance employes since all three classifications are the only classifications employed in the Buildings and Grounds department of the municipal employer.
Douglas County (Court House) (7331) 10/65
Building and Grounds Division of Police Department found to constitute a “separate division” and, therefore, employes therein may determine for themselves whether they desire to constitute a separate unit.
City of Milwaukee (Police Department) (8605) 7/68
M343.2.5 City Assessor
Office of City Assessor found to constitute a separate department and employes there in are entitled to separate unit vote.
City of Green Bay (10474) 8/71
M343.2.6 City Hall
Where one employe organization sought separate units consisting of Parking Commission, Health Department, Custodial, Engineering Division of the Department of Public Works, and Office of City Assessor, and where second organization sought an overall unit of City Hall employes, Commission directed separate unit votes among employes in the above named five claimed units on the basis that said claimed units constituted separate departments. If employes in any of the separate departments voted to constitute a separate unit they would be so considered; otherwise they would be included in residual overall City Hall unit.
City of Appleton (8431-A) 5/68
Where the only basic difference in employment conditions of regular full-time and regular part-time clerical employes was the number of hours worked during the week, Commission concluded that such distinction was insufficient to establish the regular part-time employes as a division separate and apart from the regular full-time employes, and therefore the regular part-time employes were included in the unit along with full–time clerical.
Village of Brown Deer (8915) 2/69
M343.2.7 County Institutions
Cooks, bakers and laundry employes of a county hospital, although the nature of their duties was different from other employes, the character of their duties and their common supervision did not permit establishment of a separate division or department since they had a common interest with other employes in a closely integrated operation.
Dodge County Hospital (6067) 7/62
Commission found that separate county home and sanitarium, constituted a single division of the employer, separate and apart from the county hospital, for the reason that the operations of the home and sanitarium were sufficiently integrated and similar in nature so that the employes of both had substantial similar conditions of employment. The hospital was not included in said division by reason of its physical separation from the other two institutions, its separate supervision and the absence of a substantial integration in the operation with the other institutions.
Eau Claire County Home (6183) 12/62
Operation of Hospital and Infirmary found sufficiently integrated and similar in nature and that employes therein had similar conditions of employment so as to constitute a single department.
Monroe County (81(6) 9/67
Collector-Investigators employed in Department of Institutions (Administration) found not to constitute a separate division or department. While their particular function was distinct, they were associated with other employes in a sub-unit of the Department, under common supervision.
Milwaukee County (8705) 10/68
Power plant constituted a separate department and employes therein entitled to unit vote.
Milwaukee County (9862) 8/70
M343.2.8 Fire Department
Where municipal employer treated certain waterfront fighter classifications as a separate division, said employes may determine for themselves as to whether they desire to constitute a separate appropriate collective bargaining unit.
City of Milwaukee (6476) 8/63
M343.2.9 Health Department
Where municipal employer established a divisional separation of nurse classifications, Commission permitted employes in one division to determine for themselves whether they desired to constitute a separate unit.
City of Milwaukee (6252) 2/63
Scientific laboratory personnel permitted to determine whether they desired to constitute unit separate and apart from other employes in health department.
City of Milwaukee (6252) 2/63
M343.2.10 Highway Department
Employes in county highway department, being employed in a separate department, are entitled to vote on separate unit determination.
Lincoln County (6200) 1/63
M343.2.11 Park and Recreation Department
Employes in Park and Recreation Department, since they were under separate supervision, operating from a location separate and apart from other employes, having separate job classifications and different conditions of employment, were permitted to determine for themselves whether they desired to constitute a separate unit.
City of Neenah (8906) 2/69
M343.2.12 Public Safety
All non-uniformed employes of Public Safety Department were permitted to determine for themselves whether they desired to constitute a separate unit.
City of Evansville (9334) 11/69
M343.2.13 Public Utility
Commission found public utility functioned as a separate department where it was under separate supervision, where it was separately located, and where its employes performed duties distinct from duties performed by other employes of the city.
City of Waupun (6086) 8/62
M343.2.14 Public Works
Custodial workers employed in the shop of the department of public works included in unit consisting of employes in street, sanitation and sewer divisions of the city department of public works since they were under the supervision of the same super-visor who was in charge of other employes employed in the street division. While their hours worked and duties may differ from other employes in the division the character of their duties were not such as to entitle them to be in a separate unit.
City of Green Bay (6041) 6/62
Employes in Sewerage Division of Department of Public Works were given the opportunity to determine for themselves as to whether they desired to constitute a unit separate and apart from employes in remaining division of said department.
City of Appleton (7423) 1/66
Waste Division of Department of Public Works found to constitute a separate division within the meaning of the Act and, there-fore, employes therein were given the opportunity to determine whether they desired to constitute a unit separate and apart from other employes in the Department of Public Works.
City of Kenosha (7424) 1/66
Street and Sanitation Department of Department of Public Works found to constitute a separate department and therefore employes therein were permitted the opportunity to vote on whether they desired to constitute a separate unit.
City of Neenah (8906) 2/69
All, otherwise eligible, employes employed in Department of Public Works found to be employed in a separate department, and there-fore said employes were permitted to determine for themselves whether they desired to constitute a separate unit.
City of Evansville (9334) 11/69
Since the positions of Labor Foreman I were not employed in a separate division of the Department of Public Works, Commission dismissed petition seeking to establish separate unit for such employes.
City of Milwaukee (9646) 5/70
Bureau of Sanitation of Department of Public Works found to constitute a separate residual division of said department and therefore no unit vote was required to establish unit.
City of Milwaukee (10003-C) 1/71
Natatoria employes, since they are employed in a separate division entitled to determine for themselves whether they desire to constitute a separate unit.
City of Milwaukee (10325) 5/71
Department of Public Works, consisting of water and sewer division, utility division and street division, found to be a separate department so as to entitle employes therein a separate unit vote.
City of Middleton (10381) 6/71
M343.2.15 School Board (Non-Professionals)
Lunch matrons held to constitute a separate department of the municipal employer school board.
School District No. 1, Village of Whitefish Bay (6161) 11/62
Although clerical employes of School Board had separate immediate supervision, Commission found them not to be employed in a separate division or department since they were employed at different locations and were subject to the same general personnel problems and conditions of employment applicable to other employes.
Southern Door Co. School District No. 1 (8407) 4/68
Employes employed in “hot lunch program” found to constitute a separate department and members therein are entitled to a self-determination vote with respect to establishing a separate unit.
West Bend Joint School District No.1 (8648) 8/68
Commission found that custodial and maintenance employes and laundry workers of School Board did not constitute a separate division or department and, therefore, not entitled to separate unit vote since said employes, while having distinct duties and supervision, had common interests and working conditions with other non-professional employes. Custodial employes were employed in various locations under various supervisors who also supervised other employes.
West Bend Joint School District No. 1 (8648) 8/69
Where there exists a substantial difference in working conditions between maintenance employes and cooks and clerical, and where each group is directed by separate supervision and have separate working conditions, “maintenance employes” were given the opportunity to determine for themselves whether they desired to constitute a unit separate and apart from the other employes.
Joint School District No. 1, City of Green Bay et al (8667) 8/68
Where, parties without a formal proceeding before the Commission, established the collective bargaining unit as consisting of “all employes of School. Board, excluding supervisory, clerical and teaching personnel”, and the collective bargaining agreement subsequently entered into by the parties specifically set forth the classifications covered therein, without providing for the accretion of new classifications to the existing unit, the Commission, following a petition filed by the Union requesting a clarification of the bargaining unit, determined that the newly created position of “Audio-Visual Technician” was not to be included in the existing unit, since the duties performed by the employe in such classification were distinct and separate from any of the duties performed by unit employes, who were involved in custodial, maintenance, truck driving and warehousing duties.
Eau Claire Board of Education (9752) 6/70
Since bus drivers, custodians, and food service employes in employ of school board, were employed in three separate departments, Commission ordered three separate unit votes to determine whether employes therein desired to establish separate units.
Spooner Jt. School District No. 1 (9832) 8/70
Department of Buildings and Grounds of school system found to be a separate department and employes therein are entitled to separate unit vote.
West Bend Jt. School District No. 1 (10296) 6/71
School custodial and maintenance employes found to be employed in Department of Buildings and Grounds, and therefore, they are entitled to separate unit vote.
Oconomowoc Jt. School District No. 3 (10388) 6/71
Custodial and maintenance employes having problems and conditions which differ from problems and conditions of other non-professional employes of school board and also having separate supervision fall within a natural group so as to constitute a separate department.
Nicolet High School (10437) 9/71
Custodial and maintenance employes, and cafeteria employes, found to be employed in two separate departments and Commission directed two separate unit votes.
Fox Point Jt. School Dist. No. 8 (10553) 10/71
M343.2.16 School Board (Professionals)
Vocational school teachers who teach more than one-half of a full teaching schedule constitute a division separate and apart from those employes teaching less than one-half of a full teaching schedule for the reason that the municipal employer provided different conditions of employment, wages and benefits for the employes in said two groups.
Milwaukee Board of Vocational & Adult Education (6343) 5/63
Commission denied request for separate unit vote among teachers at each school of a school district filing. Although the teachers were employed at separate locations and under separate immediate supervision, the function of each school was identical and the methods and techniques used in such functions were for the most T)art also identical, and the curriculum for all schools was planned and supervised by a single board and other high level administrators.
Madison Joint School District No. 8 (6746) 5/64
The Commission will include in a unit consisting of primarily classroom teachers those, who do not engage in classroom teaching but who Possess teaching certificates, evidencing a background in education and who work with students or teachers in a non-supervisory capacity in support of the educational program.
Janesville Board of Education (6678) 3/64; Appleton Joint School District No. 10 (7151) 5/65
Driver education teachers found to constitute neither separate craft nor division nor department separate and apart from other teachers.
Wauwatosa Board of Vocational and Adult Education (8158) 8/67
Where, unlike regular teachings, personnel, substitute per them teachers do not receive such fringe benefits as health insurance, sick leave, funeral leave, emergency days, leaves of absences, personal leaves, maternity leaves and convention leaves, and are paid on a per them rate rather than on an annual basis, receive no tenure as do regular teachers, Commission determined that per diem them teachers constituted a division separate and apart from regular teaching personnel. “Since such separate division was a residual division of the employes in the teaching profession, there was no need for a unit determination vote.
Milwaukee Board of School Directors (8901) 2/69 (Aff. Dane Co. Cir. Ct., 6/70)
Positions of school nurse and school social worker excluded from unit of certified teachers, since the former positions are engaged in separate professions and are not engaged in classroom teaching.
Platteville Jt. School Dist. No. 4 (9358) 12/69
M343.2.17 Sheriff’s Department
All employes of Sheriff’s Department, excluding deputy sheriffs, found to be employed in a separate department and therefore are permitted to determine for themselves whether they desire to constitute a unit separate and apart from remaining court house employes.
Walworth County (10547) 10/71
M343.2.18 Water and Light Department
Employes employed in Water and Light Department, since they were employed in a separate department, are entitled to determine for themselves whether they desired to constitute a separate unit.
City of Evansville (9334) 11/69
M343.2.19 Welfare Department
Pursuant to stimulation of the parties, Commission permitted clerical employes in welfare department self-determination as to unit.
Sheboygan County (8256) 10/67
M344 SIZE OF UNIT
Commission will not dens, election where unit contains only one employe since to do so would deprive employe of statutory rights.
City of Whitefish Bay (6160) 11/62
M350 THE ELECTION
M351 THE BALLOT
M351.1 Form
When a question has arisen concerning whether the employes in a particular department or division desire to constitute themselves a separate unit, the Commission, where feasible and practical, may provide a single ballot on both the unit and representation questions. When such single ballot is provided, a majority of the eligible employes in the unit must vote in favor of the organization seeking representation in order to establish the separate unit.
Superior Jt. School Dist. No. 1 (6056-A) 8/62; Appleton Water Comm. (6075) 8/62; City of Waupun (6086) 8/62; City of Whitefish Bay (6161) 11/62; Eau Claire County Home (6183) 12/92; Lincoln (6200) 1/63, City of Milwaukee (6215) 1/63; Milwaukee Board of Vocational and Adult Education (6343) 5/63
M351.2 Void and Blank Ballots
Commission determined that ballot marked with an “X” in the box indicating a choice for one organization and word “NO” in the box provided for the selection of another organization did not destroy the secrecy of said ballot, and therefore was considered valid and included in the final results of the election.
City of Milwaukee (6253) 4/63 (Aff. Wisconsin Supreme Court, 23 Wis. 2nd 303)
M351.3 Right to Appear on Ballot
Where, during hearing, representative of School Board introduced as exhibits statements purportedly executed by various employes seeking representation by individual employes in separate units, Commission refused to place such individuals on the ballot since they had knowledge of the hearing and failed to appear and state their positions.
Southern Door Co. School District No. 1 (8497) 4/68
Labor organization, which previously represented employes and was a party to a collective bargaining agreement involving said employes, which in new election proceeding, initiated by another labor organization, indicates no desire to further represent such employes, will not be placed on ballot despite request of the Municipal Employer involved.
Rock County (9865) 8/70
M352 INTERFERENCE WITH ELECTION
M352.1 By Municipal Employer
Election set aside where municipal employer, prior to conduct of balloting, interrogated employes concerning their concerted activity, and threatened to withdraw employment benefits in the event the employes selected the labor organization involved as their representative.
Marathon County (6499-A) 8/64
Rules established by a municipal employer, in effectuation of its public function, which regulate, on a non-discriminatory basis, the activities of its employes and their representatives on the employer’s time and premises, and which may arguably limit the rights and protected activities of employes, as established in Section 111-70, shall be presumed valid. Whether said rules constitute grounds for setting aside elections will depend on the facts of each case. The rights of the employes and their representatives must be balanced with the obligation and duties of the municipal employer. Those challenging the rules must establish *.hat they were adopted for the purpose of affecting the free choice of the employes and not primarily for the purpose of preventing the interruption of the normal duties of employes in carrying out the function of the municipal employer. Municipal employes should be given a reasonable opportunity to be fully informed of the issues and the position of the parties involved in an election, as well as the views, if any expressed by the municipal employer. Permitting the use of the employer’s premises on a reasonable basis for such communications ordinarily affords a greater opportunity for the employes to be adequately informed about matters affecting their free choice. Reasonable limitation on the use of teacher mail boxes held not to interfere with such free choice.
Kenosha Board of Education (6986-C) 2/66
Distribution of salary schedule two days prior to election would have constituted interference with election had not the adoption thereof by the School Board at least one month prior thereto been given publicity in local press.
Kenosha Board of Education (6986-C) 2/66
“Institute Day” conducted two days prior to election held not to constitute interference therewith where such day was scheduled months prior to election and where no remarks were made therein to interfere with free choice.
Kenosha Board of Education (6986) 2/66
Mere presence of Superintendent and Business Manager at polls during election among teachers for short period held not to interfere with election.
Kenosha Board of Education (6986-C) 2/66
Commission found evidence insufficient to support findings that employer made any unequivocal commitment, prior to concerted activity, to pass on an additional wage increase or that employer withdrew an automatic wage increase because of such activity.
Washington County (7694-C) 9/67
M352.2 By Competing Labor Organization
Commission will not pass judgment on campaign propaganda. While it does not condone exaggerations, inaccuracies, partial truths and name calling, such campaign material may be excused as propaganda if it is not so misleading as to Prevent a free choice by employes.
City of Green Bay (8099-B) 11/67
Commission rejected objections to conduct of election or claim, made after execution of tally of ballots, of one observer that he had noticed employes voting. The observer should have made his object-ion at the time of the balloting involved.
City of Green Bay (8099-B) 11/67
M360 DESIGNATION OF REPRESENTATIVE FOR CITY AND VILLAGE POLICE OFFICERS, SHERIFF’S DEPUTIES AND COUNTY TRAFFIC OFFICERS
M361 IN GENERAL
Section 111.70(4)(j) grants certain rights to law enforcement personnel with respect to fact finding, and in that regard sets forth that their bargaining agent need only be designated in a petition presented to the Municipal Employer, by a majority of the personnel involved. The latter Section of the statute clearly sets forth that only subsections (4) (e), (f) and (g), pertaining to fact finding, apply to law enforcement personnel. Such limitation excludes the applicability of subsections (4) (d) and (4) (h)2. The reference in subsection (3)(a)3 to “a duly authorized representative of an organization certified pursuant to sub-section (4)(d) or (j) . . . .” does not imply that the certification of the bargaining representative can result only after an election. Should a municipal employer in a proceeding to initiate fact finding involving law enforcement personnel question the authenticity of the signatures appearing on the petition presented to the municipal employer designating the majority representative, or should there arise a question concerning the appropriate unit or the eligible therein, the Commission, in resolving said issues or any other issue, would determine such issues and thus “certify” the- results of its investigation, as required in subsection (4) (f).
Waukesha County (9216) 9/69
M400 JURISDICTION
M41O REPRESENTATION PROCEEDINGS
M411 IN GENERAL
Commission has jurisdiction under Sec. 111-70 to determine not only what categories of employes are covered by the statute but also to determine which individual employes are within such categories.
Village of Menomonee Falls (6218-D) 4/71
M420 PROHIBITED PRACTICE PROCEEDINGS
M421 IN GENERAL
In administering Sec. 111.70 the Wisconsin Employment Relations Commission has jurisdiction to make and issue any order which it deems necessary to enforce said provision relating to any contract, or lack thereof, between teachers and their school board employers.
Kenosha Board of Education (6986-C) 2/66
Fact that school board did not deem teachers to have resigned as previously announced, which announcement was alleged as constituting a prohibited practice held not to render said issue moot and Commission exercised jurisdiction to determine whether prohibited practice had been committed.
St. Francis Jt. School District No. 6 (9546-A) 6/71; (9546-B) 10/71
M422 EFFECT OF OTHER STATUTES
M422.1 School Statutes
General school statutes are subject to the limitations of Sec. 111.70 where such statutes affect the rights of municipal employes established in the latter statute.
Muskego-Norway Consolidated Schools, 35 Wis 2d 540, 6/67; Kenosha Board of Education (8120) 8/67
Provisions of the state school code are subject to the limitations of Sec. 111.70, at least where such statutes affect municipal employe rights established in the latter statute.
Ashland School District No. 1 (8708-B) 5/69
Sec. 118.22, Wis. Statutes, setting forth procedures for renewal or non-renewal of teacher’s contracts involve tenure of teachers as employes and therefore the non-renewal of a teaching contract is within the scope of Sec. 111.70.
Whitehall School District (10268-A, 10268-B) 10/71; Crandon Jt. School Dist. No. 1 (10271-A), 10271-C) 10/71
M422.2 Police and Firefighters
Statutory authority granted police and fire departments by Sec. 62.13, Wis. Statutes, does not deprive WERC of its jurisdiction to determine whether prohibited practices have been committed with respect to firefighters.
City of Madison (9582-B, 9582-C) 7/71
M423 STRIKE ACTIVITY
In connection with unlawful strike activities, although strikes are not prohibited practices within the meaning of Sec. 111.70, where municipal employes or their agents engage in accompanying acts of interference, restraint or coercion of employes, the Commission has jurisdiction to restrain such accompanying activities as prohibited practices.
Wauwatosa Board of Education (8636) 7/68
M424 VIOLATION OF COLLECTIVE BARGAINING AGREEMENT
Since Sec. 111.701/does not provide that violations of collective bargaining agreements covering employes in municipal employment are prohibited practices, the WERC has no jurisdiction to determine alleged violations of such agreements.
Janesville Board of Education (8791-A) 3/69; St. Francis Jt. School District No. 6 (9546-A) 6/71, (9546-B) 10/71
Fact that collective bargaining agreement provides that employer is not required to give a reason for discharging a probationary employe does not deprive WERC of jurisdiction to determine whether such discharge resulted from alleged concerted activity.
Wood County (9437-A) 1/71
M430 FACT FINDING PROCEEDINGS
M431 IN GENERAL
Prior to the adoption of the Municipal Employment Relations Act on November 7, 1971
WERC has exclusive jurisdiction to determine whether conditions precedent to initiation of fact finding exists.
Shawano County (6388) 6163 (Aff. Dane Co. Cir. Ct., 8/63); City of Wauwatosa (7l06) 4/65; Village of Whitefish Bay (7494) 3/66 (Aff. 34 Wis,. 2d 432, 4/67)
WERC has jurisdiction to process fact finding petition filed by a labor organization on behalf of non-supervisory employes of police department after said employes had designated said organization as their representative.
City of Greenfield, Milw. Co. Cir. Ct. 8/65
M500 PRACTICE AND PROCEDURE BEFORE
THE COMMISSION
M510 IN GENERAL
M511 COMPUTING TIME FOR SERVING NOTICES
Rule FRC 10.8(2) provides that time for serving notice issued by Commission by mail is measured from date notice is placed in mail, and not from date on which notice is received by the parties.
City of Green Day (9834-A) 2/71
M520 DECLARATORY RULINGS
M521 PURPOSE
Since Section 227.06, Wis. Stats. provides that an agency nay issue a declaratory ruling only with respect to the applicability to persons or a state of facts of “any rule or statute” enforced by the agency, the Commission has no authority to issue a declaratory ruling with respect to the applicability of constitutional pro-visions.
City of Cudahy (9381) 12169
M522 NATURE OF PROCEEDING
Proceeding involving a petition for a declaratory ruling is not an adversary proceeding, but is in the nature of an administrative investigation.
City of Green Bay (9834-A) 2/71
M523 PETITION
Sec. 227.06 does not require that verifications of a petition to conform to verifications in civil actions.
City of Green Bay (9834-A) 2/71
M524 ORDER FOR HEARING
M524.1 Service
Service of order for hearing on a petition for a declaratory ruling on City Labor Negotiator, who had been designated by the city as its bargaining representative, held proper service on the city.
City of Green Bay (9834-A) 2/71
M524.2 Effect of Defective Petition
Order for hearing on petition for declaratory ruling, where petition was originally defective, held not to be improper where petition was properly amended prior to hearing.
City of Green Bay (9834-A) 2/71
M525 NATURE OF ISSUES INVOLVED
Commission entertained petition for declaratory ruling requesting a determination as to the right of a municipal employer to grant the certified collective bargaining agent exclusive check-off of dues, use of its facilities, and other matters relating to wages, hours and working conditions.
Milwaukee Board of School Directors (6833) 8/64
Commission entertained petition for declaratory ruling requesting a determination as to whether captains and lieutenants were or were not supervisors and thereby excluded from bargaining unit of fire-fighters, and also to determine whether Municipal Employer could prohibit them from becoming members of the employe organization.
City of Cudahy (9381) 12/69
Commission entertained petition for declaratory ruling requesting a determination as to whether rules and regulations enacted by chief of police, which in part controls and has a direct bearing on wages, hours and working conditions of police officers, are a proper subject of negotiations.
City of Milwaukee (9429) 1/70
Commission will entertain and Process petitions for declaratory rulings requesting determinations as to whether individuals are supervisors, craft employes, and the like.
Village of West Milwaukee (9576) 4/70; La Crosse County (9579) 4/70; Village of Fox Point (9959-A) 2/71
M530 REPRESENTATION PROCEEDINGS
M531 NATURE
Proceeding initiated by a Petition for an election to determine collective bargaining representative is non-adversary in nature.
City of Menasha (8989) 4/69
M532 PARTIES
M532.1 Labor Organization
The Commission will not in a representation proceeding question the internal affairs of an organization which the Commission is satisfied exists for the purpose of representing municipal employes in conferences and negotiations with municipal- employers on matters pertaining to wages, hours and conditions of employment.
City of Milwaukee (Engineers)(6960) 12/64; Elmbrook Schools (7361) 11/65; City of Kenosha (7529-A) 6166; Milwaukee County (8765) 11/68; City of Menasha (8989) 4/69
M532.2 Individual Employes
Individual employes or committee thereof, who do not seek to represent employes, are not proper parties to establish their supervisory status.
City of Milwaukee (6476-D) 4/66
Commission concluded that person filing the petition was not a supervisor, but an “employe” and thus said “employe” was a proper petitioner within the meaning of Secs. 111.70(11)(d) and 111.05.
City of Menasha (8989) 4/69
M533 PETITION
M533.1 Failure to Receive Copy of Petition
Fact that an organization claiming, to represent the employes involved, other than the petitioning organization, failed to receive a copy of the petition, did not constitute grounds for dismissal of the petition, as requested by the municipal employer, where the representative of such organization appeared at the hearing and was ready to participate therein.
Rock County (9066) 6/69
M533.2 Failure to Designate Local Organization
Petition filed by parent employe organization need not designate local organization on petition. Whether parent organization designates a local on the petition is an internal matter to be determined by the parent organization.
City of Milwaukee (Police Department) (8605) 7/68
M533.3 Failure to Designate Nature of Unit
Failure to indicate on petition whether proposed unit does or does not include craft employes is not fatal to validity of the petition.
Oconomowoc Jt. School Dist. No. 3 (10388) 6/71
M533.4 Amendment
Commission permitted petitioning employe organization to amend its petition to reflect that the petitioner was a local organization rather than its state organization.
Marinette General Hospital (7569) 4/66
Commission afforded petitioning organization an opportunity to amend its petition after hearing, since unit claimed in petition to be appropriate was found otherwise.
Spooner Jt. School District No. 1 (9832) 8/70
Where amendment of petition made during hearing causes no substantial surprise or inconvenience, Commission will entertain amended petition.
Oconomowoc Jt. School Dist. No. 3 (10388) 6/71
M533.5 Withdrawal
In its direction of election Commission granted leave to petitioner to withdraw petition since the unit found to constitute a separate division of the employer was different than that sought by the petitioner.
Appleton Water Commission (6075) 8/62; Superior Jt. School District No. 1 (6056-A) 8/62; Eau Claire County Home (6183) 12/62
M534 STIPULATION FOR ELECTION
In stipulated elections Municipal Employers and employe organizations should, prior to the execution of their stipulation as to the unit and as to eligible, disclose their claims as to whether certain positions are or are not supervisory or confidential positions, and they should not stipulate to the eligibility of questionable supervisors or confidential employes on the probability as to whether the particular person involved is going to vote for or against representation.
La Crosse County (9841) 8/70
M535 HEARING
M535.1 Nature of Hearing
Hearing on election petition held not to be an adversary proceeding but an administrative inquiry for the purpose of determining whether a question of representation exists, and for the further purpose of gathering the essential facts regarding the appropriate collective bargaining unit and the eligibility of voters in order to facilitate the conduct of the representation election among municipal employes.
Buffalo County (6031) 6/62
M535.2 Notice of Hearing
The fact that a notice of hearing involving a petition for an election was not served on the chairman of the county board but on the members of the highway committee held not to constitute defective service upon the municipal employer since pursuant to Section 59.75(2)(d) the county highway committee is included in the category of governmental agencies which have power to enter into contracts for employment.
Buffalo County (6031) 6/62
M535.3 List of Employes
Municipal employers, except for good cause shown, are required to have names of employes who are employed in the classifications in the proposed units available to the Commission and parties at the time of the hearing.
Marinette General Hospital (7569) 4/66
M535.4 Briefs
Briefs are normally to be filed pursuant to arrangements made during the course of the hearing. Requests for extension of time for filing should be made prior to time briefs are due. however, Commission accepted a supplemental brief filed by one of the parties, even though no arrangement had been made for such filing, since the issue covered therein was not moved to the Commission.
Oconomowoc Jt. School District No. 3 (10388) 6/71
M536 DIRECTION
Where, following issuance of direction of election a dispute arose between a labor organization and its District Council with respect to the appropriate collective bargaining unit and where substantial number of employes in the local organized an independent labor organization and filed a separate petition requesting to represent employes in a separate collective bargaining unit, Commission proceeded to hearing on the petition and subsequently amended the direction, upon being satisfied that the evidence established the right of the independent labor organization to request a vote to determine whether or not employes desired to constitute a separate collective bargaining unit.
City of Milwaukee (6253) 3/63
M537 ELECTION
Where a majority of employes voting failed to vote in favor of either of the two labor organizations on the ballot or in favor of no representation, the Commission directed a run-off election, and
eliminated the choice for no representation since the latter received the least number of votes cast.
Superior Memorial Hospital (6412-B) 9/63
Where Commission directed simultaneous elections on unit determination and bargaining representative, Commission specified that unit ballots would be tallied first, and if employes did not establish a separate unit, then ballots with respect to the selection of the bargaining representative would be impounded.
City of Appleton (7423) 1/66; Monroe County (8166) 9/67
Although normally Commission will conduct unit and representation elections on the same date, the Commission set said votes on separate dates since certain employes were regularly employed on a part-time basis in both voting groups to avoid probable confusion.
Spooner Jt. School District No. 1 (9832-C) 9/70
M537.1 Mail Balloting
Where the school year was about to close and the non-professional employes would not be working their normal hours during the school vacation period at such time as the vote was conducted, and because the parties could not agree as to the means of advising the employes as to the coming vote or as to whether the employes should vote by mail or otherwise, the Commission determined to conduct the election by mail ballot.
New Berlin School Dist. No. 14 (9082) 6/69
M537.2 Challenged Ballots
Where eligibility of employes is fully litigated during hearing and Commission rules on eligible prior to hearing, Commission will not accept challenges with respect to eligible.
City of Appleton (7423) 1/66
Normally where parties enter into a stipulation with respect to eligible, the Commission will not subsequently reconsider any determination based on the stipulation.
City of Milwaukee (6215-K) 4/66
M537.3 Objections to Conduct of Election
M537.3.1 Purpose
A hearing on objections to the conduct of an election is technically a non-adversary proceeding. The purpose of filing of objections with the Commission, within a certain specified time, is to preclude the Commission from automatically Issuing a certification of the results of the election. The timely filing of objections puts the Commission on notice not to issue its certification. Upon receiving such notification, and upon the filing of objections which, on its face, contains allegations, if proven, would establish improper preelection conduct, the Commission sets a hearing in the matter, as an investigation to solicit facts to determine whether or not the preelection conduct affected the employes’ free choice.
Washington County (7694-C) 9/67
M537.3.2 Form
Where amended objections to conduct of election contained no jurat, filing of original objections with jurat, while somewhat defective in its allegations, constituted substantial compliance with procedural rules of such filing.
Washington County (7694-C) 9/67
Filing of three copies of objections to conduct of election rather than five copies with the Commission is not considered such a non-compliance with the rule (ERB 11.10(1)) so as to warrant dismissal of objections.
City of Green Bay (8098-B) 11/67
M537.3.3 Nature
An election to determine bargaining representatives implements the public policy with respect to collective bargaining, and any conduct, either by an employer, employe or labor organization, which may interfere with an election conducted by the Commission must stand the scrutiny of the Commission, which has the duty to conduct elections in an almost here where employes may cast a free choice. Therefore, the Commission will examine any pertinent evidence which is claimed to interfere with that choice.
Washington County (7694-C) 9/67
Normally objections to the conduct of an election will not be considered by the Commission unless the objections concern activity which occurred after the initiation of the election proceeding. However, where no procedural defense was raised thereto and where the allegations in the objections were fully litigated before the Commission, the Commission determined the merits of the objections.
Washington County (7694-C) 9/67
M538 CERTIFICATION OF RESULTS
M538.1 Effect of Domination
The Commission will not, in a representation proceeding, question the internal affairs of an employe organization, which the Commission is satisfied exists for the purpose of representing municipal employes in conferences and negotiations with their employer on matters pertaining to wages, hours and conditions of employment. however, if it can be established, in a prohibited practices proceeding that super-visors, who are members of said organization, dominate the organization, and thus interfere with the rights granted to employes under the act, the Commission will, among other things, set aside any previous certification involving said organization.
City of Milwaukee (Engineers) (6960) 12/64
M538.2 Amendment of Certification
By stipulation of the parties, Commission amended certification of representatives as a result of the merger of three separate vocational school boards into one such hoard, where affiliated employe organizations represented the employes of said employers, and where two of the organizations ceded their jurisdiction to the remaining local organization.
District No. 9, Vocational, Technical & Adult Education (8736-A) 12/69
Commission refused to set aside the results of an original election because of a mutual mistake made by the parties in excluding certain employes from the unit involved on the mistaken belief that they were professional employes. Since said employes should have been properly included among the eligible in the original election, the Commission ordered an election among said employes and determined to include their ballots in the results of the original election and thereafter issue an amended certification.
City of Racine (10389-C) 11/71
M538.3 Clarification of Bargaining Unit
Purpose of processing petitions for clarification of bargaining units is to determine whether positions which were overlooked in the original proceeding, or not in existence at the time, should or should not be included in the existing, unit.
City of Milwaukee (6060-F) 1/70
Merely because Employer and Union originally did not exclude certain supervisory positions from bargaining unit does not preclude the employer from subsequently seeking an order from the Commission to clarify the bargaining unit.
Sheboygan County (8256-E) 4/70
M540 COMPLAINT PROCEEDINGS
M541 STATUTE OF LIMITATIONS
Commission assumed jurisdiction where alleged acts of discrimination were completed within one year of filing of complaint, although activity leading thereto was initiated over one year prior to filing.
City of Milwaukee (7950) 3/67
M542 PARTIES
Labor organization is a proper party complainant in a proceeding before the Commission wherein it alleged that the municipal employer committed prohibited practices against an employe who was a member of such organization.
Waunakee Joint School District No. 1 et al (6706) 4/64; City of Milwaukee (8017) 5/67; Whitehall School District (10268-B) 10/71
Fact that organization had been certified as the exclusive representative does not preclude individual in the bargaining unit from filing a prohibited practice complaint alleging a discriminatory discharge.
City of New Berlin (7293) 3/66
Individual employe may file a complaint alleging that the municipal employer committed a prohibited practice.
Whitehall School District (10268-B) 10/71
M543 PLEADINGS
Failure to file answer, in writing, in absence of showing of prejudice, held not basis for findings and order based on complaint.
City of Milwaukee (8017) 5/67
Where allegations in complaint set forth matters in the nature of a contested case to be heard before an examiner performing a quasi-judicial function and which required a full hearing on the pleadings, motion to dismiss the complaint was denied.
County of Racine (8308-B) 12/67
Amendment to complaint to allege unlawful discharge of employe, who had been reinstated by the employer with full back pay, was permitted since if discharge was found to constitute a prohibited practice Commission could order the employer to cease and desist from such activity in order to prevent such action in the future.
City of Lake Geneva (8604-A) 2/69
Complaint alleging that employe organization denied the complainant fair representation in grievance involving termination of complain-ant’s employment is proper, since the allegations therein, if proven, would constitute a prohibited practice.
Kenosha Education Assn. (9239-A) 12/69
M544 RECORD
In complaint proceeding Commission must make determination record made before it in said proceeding. Commission will not accept facts as found by a fact finder with respect to matter which was before him.
City of New Berlin (7293) 3/66
M545 COMMISSION ORDER
Sec. 111.07(4), Wis. Stats., providing that Commission shall make and file its findings of fact, conclusions of law and order, within sixty days after hearing all testimony and arguments, is directory and not mandatory.
Muskego-Norway School District No. 9, 32 Wis. (2d) 478, 4/67; Green Bay Jt. School District No. 1 (9095-E) 9/71
M550 FACT FINDING PROCEEDINGS
M551 PARTIES
Where deadlock between petitioning organization and municipal employer with respect to assignment of work involved employes in a bargaining unit represented by another employe organization, Commission permitted latter organization, if it so desired, to become a party to the fact finding proceeding, either on its own motion or on the motion of either of petitioning organization or the municipal employer. If said organization refused to participate, Commission will not entertain fact finding petition filed by it with respect to said issue.
City of Milwaukee (7544) 4/66
M552 EFFECT OF QUESTION CONCERNING REPRESENTATION
Commission dismissed petition for fact finding where petitioning labor organization had previously filed an election petition with the Commission requesting an election to determine the bargaining representative for the same employes.
City of Milwaukee (6223) 1/63
Pursuant to a joint request of the parties, the Commission staff member, during the course of the fact finding investigation polled the police officers as to their desire to be represented by the petitioning labor organization, and when the poll indicated that said officers desired such representation, a question of representation no longer existed.
City of Edgerton (10134) 1/71
M553 EFFECT OF EXISTING STRIKE
The Commission as a general policy and in the absence of good cause shown, will decline to process any fact finding petition filed by a labor organization engaged in a strike.
City of Milwaukee (6575-B) 12/63
M554 EFFECT OF BUDGET ADOPTION
The Commission will not automatically grant a petition for fact finding whenever it finds that a municipal budget has been adopted without at the same time considering the efforts which the parties have made to resolve their dispute.
City of Racine (6242-A) 3/63
M555 OFFICIAL RECOGNITION OF DEADLOCK
Where following a petition to initiate fact finding being filed with the Commission, the Municipal Employer adopts a resolution acknowledging the existence of a deadlock, the Commission ordered the matter to fact finding.
Eau Claire Board of Education (6571) 12/63; City of Eau Claire (6879) 9/64
M556 DETERMINATION THAT CONDITIONS FOR FACT FINDING EXISTS
Commission does not determine that conditions for fact finding exists on the basis of the allegations contained in the petition to initiate fact finding, but rather on facts determined after an informal investigation or after a formal hearing conducted by the Commission.
Madison School Board (7293) 3/66
M557 CONSOLIDATION OF FACT FINDING PROCEEDINGS
Where four labor organizations, representing employes of the same municipal employer were in four separate collective bargaining units, and the municipal employer agreed, Commission consolidated four fact finding proceedings to avoid unnecessary costs, delay, and multiplicity of proceedings before a three member fact finding panel.
City of Milwaukee (6575-E) 12/63
Commission consolidated three fact finding proceedings initiated by three separate labor organizations involving three separate departments of the same municipal employer.
City of Eau Claire (6879) 9/64
Commission permitted labor organization to withdraw from consolidated fact findings proceeding, where municipal employer raised no objection thereto, with prejudice to refiling, a petition for fact finding with respect to the deadlock involved and subject to its share of costs incurred in the fact finding up to the date upon which the Commission received the written request to withdraw from the proceeding.
City of Milwaukee (6575-F) 1/04
Commission refused to consolidate fact finding proceeding, initiated by petition alleging refusal to meet and negotiate in good faith, with complaint of prohibited practices alleging unlawful interference.
Elmbrook School District No. 21 (9170) 7/69
M558 HEARING BEFORE THE FACT FINDER
M558.1 Jurisdiction of Fact Finder
Where fact finder did not as vet issue his final fact finding report, the fact finding proceeding is not closed and the fact finder still retains jurisdiction, and the WERC still has jurisdiction to issue subpoenas material to the disposition of the fact finding proceeding.
City of Sun Prairie (9-3)45-A) 9/71
M558.2 Subpoenas
Failure to tender the exact amount of fees upon individuals subpoenaed does not defeat the validity of the subpoenas.
City of Sun Prairie (9345-A) 9/71
Failure of subpoenas to indicate on its face the name and address of the party on whose request subpoenas were issued did not void the subpoenas since the proceeding was identified and the parties subpoenaed were well aware of the other party to the fact finding proceeding.
City of Sun Prairie (9345-A) 9/71
M559 EFFECT OF RECOMMENDATIONS
Fact that an employe’s discharge was involved in fact finding does not preclude a determination by the Commission as to whether employe was discharged in violation of the Act as prohibited practice.
City of New Berlin (7293) 3/66
M560 MEDIATION
M561 NON-PUBLIC IN NATURE
A rule of the Wisconsin Employment Relations Commission that mediator’s functions under sec. 111-70, Stats., be confidential and that mediation meetings be non-public, would not violate the anti-secrecy law contained in sec. 14.90, Stats.
Attorney General Opinion 10/63
Preliminary steps of the bargaining process between a school board and a teachers’ majority representative union may be carried on in private.
Milwaukee Board of School Directors, 42 Wis. 2d 637, 6/69
M562 OPEN MEETING ON EMPLOYER’S FINAL ACTION
In view of the Anti-Secrecy Act, sec. 14.90, Stats., which provides that no formal action of any kind shall be introduced, deliberated upon, or adopted at any closed executive session or closed meeting of any state and local governing and administrative bodies, it is clear that the formal introduction, deliberation, and adoption by the elected body of the bargaining recommendations with respect to changes in wages and working conditions of municipal employes must be at open meetings.
Milwaukee Board of School Directors, 42 Wis. 2d 637, 6/69
M570 STRIKES IN MUNICIPAL EMPLOYMENT
M571 ROLE OF WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Municipal Employer has the primary duty and obligation to avail itself of the powers vested inherently and by statute to take appropriate steps to terminate an illegal strike against it. If the Municipal Employer falls to take such steps, the Commission, if the public interest demands it, will take whatever action is necessary to terminate strike activity by municipal employes.
City of Milwaukee (6575-B) 12/63
M600 PRACTICE AND PROCEDURE BEFORE THE COURTS
M610 JUDICIAL REVIEW OF REPRESENTATION PROCEEDING
M611 IN GENERAL
Commission certification of results of representation election is subject to judicial review in the manner provided in Chapter 227, Wisconsin Statutes.
City of Milwaukee 23 Wis. (2d) 303 3/64
M620 JUDICIAL REVIEW OF PROHIBITED PRACTICE
PROCEEDINGS
M621 IN GENERAL
In an appeal of a Commission order issued in a Prohibited practice proceeding the court is limited in its review to an examination of the record to determine (1) whether or not the disputed findings of fact are supported by credible and competent evidence, and if so, (2) whether the facts found support the conclusions of the Commission and (3) whether the Commission acted within its jurisdiction in making its final order of disposition.
Rock County, Rock Co. Cir. Ct., 7/64
Sec. 227.20 (2), Stats., requires that upon judicial review due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, which means, in short, that the court must make some deference to the expertise of the agency.
Muskego-Norway School District No. 9, 35 Wis. 2d 540, 6/67
Judicial review of WERC findings is to determine whether or not the questioned finding is supported by substantial evidence in view of the entire record.
Muskego-Norway School District No. 9, 35 Wis.(2d) 540, 6/67
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The test of reasonableness is to be applied to the evidence as a whole and not merely to that part which supports the agency’s findings.
Muskego-Norway School District No. 9, 35 Wis. (2d) 540, 6/67; Kenosha School Board, 39 Wis. (2d) 197, 6/68
The Commission is the judge of the credibility of witnesses in a proceeding before it, and the reviewing court is not to substitute its judgment for the judgement of the Commission in that regard,
Kenosha Board of Education 39 Wis. (2d) 196, 6/68
M630 JUDICIAL REVIEW OF FACT FINDING PROCEEDINGS
M631 IN GENERAL
Where Commission found county fact finding ordinance not in substantial compliance with Sec. 111.70, court determined county to be aggrieved party and therefore may seek review of Commission’s order.
Shawano County, Dane Co. Cir. Ct., 8/63
In a subsequent proceeding the Dane County Circuit Court, another judge presiding, determined that the Commission’s order certifying matter to fact finding was not reviewable on a Petition for review since the Commission’s order was not a “decision” as contemplated under Chanter 227 of the Wisconsin Statutes. Commission suggested that matter could be reviewed whether in a suit for declaratory judgement relief or in equity for injunctive relief.
City of Wauwatosa, Dane Co. Cir. Ct., 5/65
WERC determination as to substantial compliance of local ordinance is reviewable under Chapter 227, Wis. Stats.
Village of Whitefish Bay, 34 Wis. (2d) 432, 4/67
Although issue which was to proceed to fact findings was “history” by time matter was before the court, appeal was not dismissed as moot in light of Public interest and importance of question before the court.
Madison School Board, 37 Wis. (2d) 483, 12/67
M700 COMMISSION ORDERS REMEDYING PROHIBITED PRACTICES
M710 COMMISSION’S AUTHORITY TO ISSUE REMEDIAL ORDERS
M711 IN GENERAL
Sec. 111.70(4)(a) provides that Sec. 111.07 of the Wisconsin employment Peace Act, which governs labor relations in private employment, shall govern procedure in all cases involving prohibited practices under Sec. 111.70.
Sec. 111.07(4) of the Wisconsin Employment Peace Act provides, in part, as follows:
“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 his rights, immunities, privileges or remedies granted or afforded by this subchapter for not more than one year, and require him to take such affirmative action, including reinstatement of employes with or without pay, as the commission deems proper. Any order may further require such person to make reports from time to time showing the extent to which he has complied with the order.”
M720 RIGHT TO RELIEF
M721 IN GENERAL
Right to relief in prohibited practice case is not predicated on absence of unlawful act by party seeking, relief. Unlawful acts of one party do not excuse unlawful acts by another party.
City of Milwaukee (7950) 3/67
M730 CEASE AND DESIST ORDERS INVOLVING MUNICIPAL EMPLOYER PROHIBITED PRACTICES
M731 RELATING TO ACTS OF INTERFERENCE, RESTRAINT AND COERCION IN VIOLATION OF SEC. 111.70(3)(a)l
M731.1 Interrogation of Employes
Municipal employer ordered to cease and desist from interrogating employes with respect to their concerted activity.
Green Lake County (6061) 7/62; Rock County (6655) 3/64; City of Evansville (9440-A, 9440-C) 3/71
M731.2 Threatening Employes with Reprisals
Municipal employer ordered to cease and desist from threatening employes with changes in working conditions if employes engaged in protected concerted activity.
Green Lake County (6061) 7/62; Wauwatosa Board of Education (8577-A, 8577-B) 3/69; City of Evansville (9440-A, 9440-C) 3/71; Green Bay Jt. School Dist. No. 1 (9095-E) 9/71; Green County (10166-B, 10166-C) 9/71; St. Francis Jt. School District No. 6 (9546-A, 9546-B) 10/71; Village of West Milwaukee (9845-B) 10/71
School Board was ordered to cease and desist from threatening teachers with loss of pay for failure to attend convention of employe organization.
Muskego-Norway School District No. 9 (7247) 8/65
M731.3 Promising Benefits to Employes to Forego Concerted Activity
Municipal Employer ordered to cease and desist from making promises, implied or actual, to employes of increased in an effort to persuade employes to forego their concerted activity.
Wauwatosa Board of Education (8319-C) 7/68; Green County (10166-B, 10166-C) 9/71
M731.4 Requesting Employes to Work Against Concerted Activity
Municipal Employer ordered to cease and desist from requesting employes to work against and desist from concerted activity.
Green Lake County (6061) 7/62; Rock County (6655) 3/64
M731.5 Assisting Organization in Obtaining Membership
School Board was ordered to cease and desist from distributing, material on behalf of employe organization and from soliciting membership therein.
Waunakee Joint School District No. 1 (6706) 4/64
M731.6 Assisting One of Two Rival Organizations
School Board ordered to cease and desist from assisting one of two rival organizations.
West Allis Jt. School Dist. No. 1 (6544) 11/63; Waunakee Jt. School Dist. No. 1 (6706) 4/64; Milwaukee Board of School Directors (9258) 10/69
M731.7 Granting Recognition During Pendency of Question Concerning Representation
School Board ordered to cease and desist from recognizing of two teacher organizations during pendency of election proceeding.
West Allis Jt. School Dist. No. 1 (6544) 11/63
M731.8 Failure to Recognize Majority Representative
Municipal Employer ordered to cease and desist from failing to permit teacher to be represented by bargaining representative of employes in an appropriate unit following determination of such status by commission.
City of Evansville (9044-A, 9440-C) 3/71; Green County (10166-B, 10166-C) 9/71
M731.9 Interference with Right of Representation
School Board ordered to cease and desist from refusing to permit teacher to be represented by bargaining representative in a conference with respect to the non-renewal of the teaching contract of said teacher.
Whitehall School District (10268-A, 10268-B) 9/71
M731.10 Miscellaneous Acts of Interference
Fire Chief ordered to cease and desist from playing departmental rules, or otherwise preventing employes from participating in organizational fund raising activities.
Village of West Milwaukee (9845-B) 10/71
M732 RELATING TO ACTS OF DISCRIMINATION IN VIOLATION OF SEC. 111.70(3)(a)2
M732.1 Discharge Resulting From Concerted Activity
Municipal Employer ordered to cease and desist from discouraging membership in labor organization by discharging employes as a result of their concerted activity.
Green Lake County (6061) 6/62; Rock County (6655) 3/64; Eau Claire County (6790) 7/64; Marathon County (6826) 8/64; City of Oshkosh (8381-A, 8381-C) 10/68; City of Lake Geneva (8604-A) 2/69; Green Bay Jt. School Dist. No. 1 (9095-E) 9/71; Green County (10166-B, 10166-C) 9/71; St. Francis School Dist. No. 6 (9546-A, 94546-B) 10/71
M732.2 Failure to Renew Teaching Contract
School Board ordered to cease and desist from failing to renew a teacher’s contract where such non-renewal resulted from teacher’s protected concerted activity.
Mukego-Norway School Dist. No. 9 (7247) 8/65
School Board ordered to cease and desist from giving effect to decision not to renew a teacher’s contract, where the School Board, in arriving at such decision, had denied said teacher the right to be represented by the bargaining representative at the hearing preceding such decision.
Whitehall School District (10268-A, 10268-B) 9/71 Crandon Jt. School Dist. No. 1 (10271-C) 10/71
M732.3 Suspensions Resulting From Concerted Activity
Municipal Employer ordered to cease and desist from suspending employes as a result of engaging in protected concerted activity.
City of Madison (Fire Dept.) (9582-B, 9582-C) 7/71
M732.4 Evaluation and Re-assignment as a Result of Concerted Activity
School Board ordered to cease and desist from discriminatorily evaluating and/or recommending re-assignment of teachers where such action was motivated by lawful concerted activity.
Milwaukee Board of School Directors (9242-B) 4/71
M732.5 Deduction from Pay for Failure to Attend Convention
School Board ordered to cease and desist deducting pay from teachers’ salaries for failure to attend convention when it had paid teachers for attending same.
West Allis-West Milwaukee Jt. School Dist. No. 1 (7664) 7/66
M732.6 Denial of Privileges
Fire Chief ordered to cease and desist from removing employe from Personnel Committee and from refusing to permit said employe from trading days off because of said employes concerted activity.
City of Milwaukee (8420) 2/68
M732.7 Changing Working Conditions
Fire Chief ordered to cease and desist from changing working conditions and discriminatorily re-assigning employes to other job duties for the purpose of discouraging lawful concerted activity.
Village of West Milwaukee (9845-B) 10/71
M740 AFFIRMATIVE ACTION ORDERS INVOLVING
MUNICIPAL EMPLOYER PROHIBITED PRACTICES
M741 RELATING TO ACTS OF INTERFERENCE, RESTRAINT AND COERCION IN VIOLATION OF SEC. 111.70(3)(a)l
M741.1 Regarding Interference with Concerted Activity
School Board ordered to repeal rule which illegally restricted teachers from engaging in protected concerted activity.
St. Francis School Dist. No. 6 (9546-A, 9546-B) 10/71
Fire Chief ordered to restore benefits reduced by Chief to discourage lawful concerted activity are to restore employes to previous position with same rights and privileges previously enjoyed which had been changed by the Chief because of the employe’s participation in lawful concerted activity.
Village of West Milwaukee (9845-B) 10/71
M741.2 Regarding Assistance to One of Two Rival Labor Organizations
School Board, after it had granted prohibited assistance to majority organization by permitting such organization the exclusive use of bulletin boards and teacher mail boxes to display and distribute matters relating to its internal affairs, was ordered to grant the use of bulletin boards and teacher mail boxes to minority organization for same purpose for period of one week.
Milwaukee Board of School Directors (9258) 10/69
M741.3 Relating to Recognition
School Board ordered to withhold and withdraw recognition from an organization as the exclusive collective bargaining representative of its teachers until such time as such organization had been certified as such representative after an election con-ducted by the Commission.
West Allis Jt. School Dist. No. 1 (6544) 11/63
Municipal Employer ordered to recognize union as the exclusive bargaining representative of employes in an appropriate unit without being certified as such representative in an election conducted by the Commission, following a determination by the Commission that the union in fact represented a majority of the employes prior to the employer’s engaging in prohibited practices.
City of Evansville (9440-A, 9440-C) 3/71; Green County (10166-B, 10166-C) 9/71
M741.4 Relating to Right of Representation
School Board, after being found to have committed a prohibited practice by denying teacher the right to be represented by the bargaining agent at a hearing leading to the non-renewal of said teacher’s contract, was ordered to expunge all reference to the matter from said teacher’s employment record to renewal its resolution not to review said teacher’s contract, and further, to reinstate said teacher until the School Board properly took action in the matter.
Crandon Jt. School Dist. No. 1 (10271-B, 10271-C) 10/71 Whitehall School District (10268-A, 10268-B) 9/71
M742 RELATING TO ACTS OF DISCRIMINATION IN VIOLATION OF SEC. 111.70(3)(A)2
M742.1 Suspension or Discharges Resulting from Concerted Activity
Where Commission found employes to have been discriminatorily suspended or discharged to discourage concerted activity, Municipal Employer was ordered to offer reinstatement and make discharged employes whole for loss of wages and other benefits resulting therefrom.
Green Lake County (6061) 6/62; Rock County (6655) 3/64; Eau Claire County (6790) 7/64; Marathon County (6826) 8/64; City of Oshkosh (8381-A, 8381-C) 10/68; City of Lake Geneva (8604-A) 2/69; City of Madison (9582-B, 9582-C) 7/71; Green Bay Jt. School Dist. No. 1 (9095-E) 9/71; Green County (10166-B, 10166-C) 9/71
In ordering Municipal Employer to offer reinstatement to employe who had been discriminatorily discharged and whose work had been sub-contracted to an independent contractor, Commission also ordered Municipal Employer to terminate the services of the independent contractor.
Rock County (6655) 3/64
M742.2 Failure to Renew Teacher Contract
School Board ordered to offer teacher contract to teacher who had been denied same because of concerted activity.
Muskego-Norway Jt. School Dist. No. 9 (7247) 8/65
M742.3 Discriminatory Evaluation and Reassignment
School Board ordered to furnish teacher with a new or amended evaluation and an opportunity to return to previous or equivalent teaching position where original evaluation and transfer of teacher were discriminatorily motivated.
Milwaukee Board of School Directors (9242-B) 4/71
M742.4 Nature of Back-Pay Orders
Computation of amount to make employes whole for salaries or wages lost resulting from discriminatory discharges or lay-offs will consider earnings received elsewhere during period of discharge or lay-off, as well as any unemployment compensation, if any, received by the employes involved.
Rock County (6655) 3/64; Eau Claire County (6790) 6/64; Marathon County (6826) 8/64; Muskego-Norway Jt. School Dist. No. 9 (7247) 8/65; City of Oshkosh (8381-A, 8381-C) 10/68; Green Bay Jt. School Dist. No. 1 (9095-E) 9/71; Green County (10166-B, 10166-C) 9/71
M743 NOTIFICATION BY MUNICIPAL EMPLOYER WITH REFERENCE TO PROHIBITED PRACTICE ORDERS
M743.1 To Labor Organization
School Board was ordered to notify minority organization that it would grant latter the use of bulletin boards and teacher mail boxes for distribution of documents relating to its internal affairs, inasmuch as it had granted such privilege to the majority organizations.
Milwaukee Board of School Directors (9258) 10/69
M743.2 To Employes Generally
Commission in decisions where it has found that a municipal employer has committed prohibited practices, generally will order municipal employer to post notices on its premises, where all employes may observe same, with reference to the Commission’s order.
Green Lake County (6061) 6/62; West Allis Jt. School Dist. No. 1 (6544) 11/63; Rock County (6655) 3/64; Waunakee Jt. School Dist. No. 1 (6706) 4/64; Eau Claire County (6790) 7/64; Marathon County (6826) 8/64; Muskego–Norway Jt. School Dist. No. 9 (7247) 8/65; West Allis–West Milwaukee Jt. School Dist. No. 1 (7664) 7/66; Wauwatosa Board of Education (8319-C) 7/68; City of Lake Geneva (8604-A) 2/69; Wauwatosa Board of Education (8577-A, 8577-B) 3/69; City of Evansville (9440-A, 9440-C) 10/70 Milwaukee Board of School Directors (9242-B) 4/71; City of Madison (9582-B, 95827-C) 7/71; Green Bay Jt. School Dist. No. 1 (9095-E) 9/71; Green County (10166-B, 10166-C) 9/71; Village of West Milwaukee (9845-B) 10/71.
M743.3 To Commission with Respect to Compliance
Commission, where it has found that a municipal employer has committed prohibited practices, will order the municipal employer to notify the Commission within a fixed number of days as to what steps it has taken to comply with the order.
Green Lake County (6061) 7/62; West Allis Jt. School Dist. No. 1 (6544) 11/63; Rock County (6655) 3/64; Waunakee Jt. School Dist. No. 1 (6706) 4/64; Eau Claire County (6790) 7/64; Muskego-Norway Jt. School Dist. No. 9 (7247) 8/65; West Allis-West Milwaukee Jt. School Dist. of Milwaukee (8420) 2/68; Wauwatosa Board of Education (8319-C) 7/68; City of Oshkosh (8381-B,8381-B) 10/68; City of Lake Geneva (8604) 2/69; Wauwatosa Board of Education (8577-A, 8577-B) 3/69; Milwaukee Board of School Directors (9258) 10/69; City of Evansville (9940-A, 9940-B) 10/70; Milwaukee Board of School Directors (9242) 10/69; City of Madison (9582-B, 9582-C) 7/71; Green County (10166-B, 10166-C) 9/71; Whitehall Board of Education (10268-A, 10268-B) 9/71; Village of West Milwaukee (9845-B) 10/71; Crandon Jt. School Dist. No. 1 (10271-C, 10271-B) 10/71
M750 CEASE AND DESIST ORDERS INVOLVING MUNICIPAL EMPLOYE
PROHIBITED PRACTICES IN VIOLATION OF SEC. 111.70(3)(b) 1 and 2
No Decision
M760 AFFIRMATIVE ACTION ORDERS INVOLVING MUNICIPAL EMPLOYE PROHIBITED PRACTICES IN VIOLATION OF SEC. 111.70(3)(b) 1 and 2
No Decision
M770 CEASE AND DESIST ORDERS INVOLVING THIRD PARTY PROHIBITED PRACTICES IN VIOLATION OF SEC. 111.70(3)(b)
No Decision
M780 AFFIRMATIVE ACTION ORDERS INVOLVING THIRD PARTY PROHIBITED PRACTICES IN VIOLATION OF SEC. 111.70(3)(c)
No Decision
M800 PROHIBITED PRACTICES BY MUNICIPAL EMPLOYERS
M8lO IN GENERAL
M811 RESPONSIBILITY OF MUNICIPAL EMPLOYER FOR ACTS OF AGFNTS AND OTHERS
Joint School District held responsible for acts or the principal of the only school operated by it since said individual was the highest ranking administrative official of the District, and the municipal employer relied upon the principal for information and recommendations, as well as the supervision of the teachers in its employ.
Waunakee Joint School District No. 1, et al (6706) 4/64
The activities of supervisory employes of municipal employers, including principals in the employ of school boards, in encouraging or discouraging membership in an employe organization may very well, without any knowledge by their superiors, subject the municipal employer to complaints of illegal activity and may constitute grounds for setting aside the results of an election.
Kenosha Board of Education (6986-C) 2/66
M8l2 “CLEAN HANDS” DOCTRINE
Fact that Union engaged in unlawful work stoppage is no defense to Employer prohibited practice, if any.
City of Portage (8378) 1/68; St. Francis Jt. School Dist. No. 6 (9546-A, 9546-B) 10/71
M820 INTERFERENCE, RESTRAINT AND COERCION:
SECTION 111.70(3) (a)l
M821 IN GENERAL
The Commission shall consider any activity which interferes with, restrains or coerces employes in their rights guaranteed in Sec. 111.70, whether specifically enumerated or not, as prohibited practices, as long as such determinations do not conflict with other provisions of said statute.
West Allis Jt. School Dist. No. 1 (6544) 11/63
The mere opposition by an employer to a union does not, in itself, constitute a prohibited practice. It is where an employer, in support of such opposition, engages in unlawful activity among its employes, such as making threats of reprisals or promises of benefits to discourage them from concerted activity, or where he discharges employes for such activity, which constitutes the unfair labor or prohibited practice.
Brown County (9537) 3/70
M822 FREE SPEECH
Municipal employes, in their concerted activity, have the right to disagree with the policies of their municipal employer which affect the public interest and to communicate their views through normal means of communication, and such right is protected by Sec. 111.70.
West Bend Joint School District No. 1 (7938-A) 4/68; City of Madison (9582-B, 9582-C) 7/71
All phases of the collective bargaining relationship in municipal employment concern matters of public importance, however, Sec. 111-70 restricts certain privileges formerly exercised by agents of municipal employers in their relationship with municipal. employes, whether such privileges were in the form of action or statements. Statements made by public officials lose their privilege if they are violative of the provisions of the municipal employer-employe labor relations statute.
Janesville Board of Education (8791-A) 3/69
Commission found that president of school board in remarks made in a radio interview, wherein he discussed the demands of the teacher organization and its probable effects on school board finances and the education process as a whole, where such prophesized results might be detrimental to the teacher organization and its members, did not constitute any unlawful interference, restraint and coercion within the meaning of Sec. 111.70(3)(a)l.
Janesville Board of Education (8791-A) 3/69
M823 RIGHT TO REPRESENTATION
To deny an employe the right to select a minority organization to initially present a grievance constituted a violation of Sec. 111.70(3)(a)l.
Milwaukee Board of School Directors (6995-A) 3/66 (Aff. Dane Co. Cir. Ct., 8/68)
Municipal employer found not to have interfered with rights of employe by refusing to permit the employe to have a representative present at a pre-disciplinary hearing involving the employe since the grievance procedure contained in the collective bargaining agreement between said representative and the municipal employer provided for reasonable representation in the processing of the grievance, and the representative was unsuccessful in negotiating a procedure which permitted representation at pre-disciplinary hearings.
Milwaukee County (8707) 10/68 (Aff. Dane Co. Cir. Ct., 1970
When a grievance procedure is established by contract, the right to process grievances without coercion or interference from the employer is a fundamental right of representation, and threats by the employer, and changes in working conditions in reprisal as a result of the exercise of such protected activity constitute prohibited acts of interference.
Village of West Milwaukee (9845-B) 10/71
Apart from any duty to confer and negotiate, Section 111.70(2) clearly mandates that employes have a right to be represented by a labor organization of their own choice in conferences concerning their wages, hours and working conditions, and the denial of such right constitutes an act of prohibited interference.
Whitehall School District (10268-A, 10268-B) 10/71, Crandon Jt. School Dist. No. 1 (10271-A, 10271-C) 10/71
M824 NATURE OF EMPLOYER ACTIVITY
M824.1 Surveillance
Highway Commissioner found to have illegally interfered with rights of employes by deliberately observing employes who entered hall where organizational meeting was being conducted.
Green Lake County (6061) 7/62
Short appearance of School Superintendent and Business Manager at Commission-conducted election at invitation of Commission agent did not constitute unlawful activity.
Kenosha Board of Education (6986-C) 2/66
Presence of supervisor, who was also a union member, at meeting of union members to select a steward, for approximately five minutes, held not to constitute interference, restraint or coercion.
City of Milwaukee (8017) 5/67
M824.2 Presence of Agents During Events Involving Concerted Activity
Mere presence of school Principals at meeting where teachers executed cards authorizing association to represent them held not in itself to constitute interference with the meaning of Sec. 111.70.
West Allis Jt. School Dist. No. 1 (6544) 11/63
Commission found that School Board did not commit a prohibited practice by permitting representatives of employe organization to appear at its teacher training meeting to announce through whom memberships might be obtained and to speak on teacher welfare programs. No other employe organization or individual sought to address the same employes under the same circumstances.
Jt. School District No. 1, Sheboygan Falls (7216) 7/65
M824.3 Interference with Internal Union Activity
Municipal Employer, by removing employe from employe bargaining committee and by refusing to Permit said employe custom to trade days off and to fulfill a speaking engagement as a representative of the employe organization interfered, restrained and coerced said employe in violation of Section 111.70 (3)(a)1.
City of Milwaukee (8420) 2/68
To permit a municipal employer to punish a representative of the employe organization for zealous conduct as an advocate of employes, unless such conduct is totally unreasonable under the circumstances, interferes with the employes’ right to representation free of employer interference, restraint and coercion.
City of Oshkosh (8381-A, 8381-B) 10/68
When a municipal employer, through departmental pulps or other means, prevents a union from engaging in permissible fund raising activity, the municipal employer engages in prohibited acts of interference.
Village of West Milwaukee (9845-B) 10/71
M824.4 Interrogation of Employes with Respect to Concerted Activity
In absence of established animus, interrogation of employes, either orally or otherwise, concerning possible affiliation with labor organizations, does not in itself constitute illegal acts of interference or coercion.
Kenosha Board of Education ((986-C) 2/66
Interrogation of employes with respect to their concerted activity found to have constituted acts of illegal interference.
Green Lake County (6061) 7/62; Rock County Home (6655) 3/64; Marathon County (6826) 8/64; City of Evansville (9440-B, 9440-C) 3/71
Evidence disclosed that only supervisory employes were interrogated with respect to employes’ attitudes toward their Union, and therefore such activity was not prohibited.
Wauwatosa Board of Education (8319-B, 8319-C) 7/68
M824.5 Promises of Benefits
When viewed in the context of Employer’s activity in seeking a new election, albeit such activity in itself was not unlawful, letters to the employes, which were sent during pendency of election proceeding, contained implied promises of benefits if they would forego the Union as their bargaining agent, were held to constitute interference with rights of employes. School board found to have committed a prohibited practice by promising improved wages and working conditions to employes to forego their concerted activity although union presented no claim that it represented a majority of such employes.
Wauwatosa Board of Education (8577-A, 8577-B) 3/69
M824.6 Failure to Pay Wages or Fringe Benefits
Determination not to may employes who did not work as a result of a strike by other employes was not unlawfully motivated but rather was based on fact that said employes were not ready, willing and able to work, and therefore, the denial of such pay did not constitute a prohibited practice.
City of Milwaukee (7950) 3/67
Withholding of holiday and vacation payments from resigned employe and failure to remit insurance premiums found not to have been motivated to interfere with rights of employes but that such determination resulted from a good faith doubt as to the legal obligation to make such payments.
La Crosse County (7707-A) 6/67
Withdrawal of free meals by employer following certification of Union as bargaining representative found not to have constituted unlawful interference, restraint or coercion in the absence of a preponderance of evidence that said action was motivated by a desire to undermine the Union.
La Crosse County (8683-A, 8683-C) 2/69 (Aff. 52 Wis. 2d 295, 1971)
M824.7 Favoritism or Acts Indicating Preference For One Organization
The fact that a municipal employer may not favor or prefer a particular organization as the representative of its employes does not in itself constitute a prohibited practice. There must be a manifestation of such an attitude which interferes, restrains or coerces the employes in their rights under the statute.
Kenosha Board of Education (6986) 2/66
Reasonable application of rules with respect to use of school facilities for organization purposes found to have been reasonably applied and not to have constituted unlawful interference.
Kenosha Board of Education (6986-C) 2/66
Where School Board, which had history of meeting and conferring with teacher’s union and teacher’s association, was served demands for exclusive recognition by both, and thereafter School Board assisted association in proving its majority status while ignoring union’s demand, Board held School Board interfered with employe’s rights, since municipal employer must maintain strict neutrality when confronted with conflicting demands for recognition.
West Allis Jt. School Dist. No. 1 (6544) 11/63
Principal, as agent of school district, committed acts of interference by soliciting membership applications and dues for a labor organization representing teachers, and in the selling of tickets for the annual convention of that organization.
Waunakee Joint School District No. 1 (6706) 4/64
Supervisory employes of School Board found to have interfered with and coerced employes by threatening teachers with forfeiture of pay if they failed to attend teacher’s convention and if they failed to retain their membership in teacher organization.
Muskego-Norway School District No. 9 (7247) 8/65
Entries by principal in teachers’ calendars and lesson plan books of events of one of two organizations, upon being requested to do so by only one organization, found not to have unlawfully favored such organization.
Kenosha Board of Education (6986-C) 2/66
Equal treatment to a minority organization, in some respects, is not required after the majority representative has been established, since Section 111.70 (4)(d), (b) and (i) permit municipal employers to make distinctions between an organization which represents a majority of its employes and minority organizations. Therefore, certain rights and benefits granted by the municipal employer to the exclusive representative, and not to any minority representatives, would not constitute unlawful interference, restraint or coercion, or discrimination within the meaning of Section 111.70(3).
Milwaukee Board of School Directors (6995-A) 3/66, (Aff. 42 Wis. 2d 637, 6/69; Kenosha Board of Education (8120) 8/67
Those rights or benefits which are granted exclusively to the majority representative, and thus denied to the minority organizations, must in the same rationale manner be related to the functions of the majority organization in its representative capacity and must not be granted to entrench such organization as the bargaining representative.
Milwaukee Board of School Directors (6995-A) 3/66 (Aff. 42 Wis. 2d 637, 6/69)
While a majority representative may negotiate for check off of dues and if it is granted, minority organizations are also entitled to same. An exclusive check-off agreement is a prohibited practice as a matter of law.
Milwaukee Board of School Directors 42 Wis. 2d 637, 6/69 (Rev. WERC (6833-A) 3166)
Where a municipal employer engages in collective bargaining with the majority representative, it has the right to grant such representative the exclusive use of its premises, including, the use of bulletin boards and teacher mail boxes, in order that the representative may perform its obligations as the majority representative of the employes, when the use of such facilities does not interfere with the prime purposes for which they are normally utilized.
Milwaukee Board of School Directors (6833-A) 3/66 (Aff. 42 Wis. 2d, 6/69)
Where records with respect to both salaries and names of teachers are available to the Public, the municipal employer cannot grant exclusive access to such records to the majority representative without a violation of Section 111.70(3).
Milwaukee Board of School Directors (6833-A) 3/66 (Aff. 42 Wis. 2d 637, 6/69)
The granting by a municipal employer of the exclusive use of its facilities to any labor organization, for organizational or internal purposes, regardless of its majority or minority status, would interfere with the rights of employes belonging to other employe organizations.
Milwaukee Board of School Directors (6833-A) 3/66 (Aff. Dane Co. Cir. Ct., 8/68)
WERC erred in its determination that the minority union representative of some of the teachers had a right to be heard on negotiable matters at public meetings of the school board committees deliberating on bargaining subjects, for any argument advanced by the minority would be for the purpose of influencing the school board and thereby constitute negotiation with it, contrary to prior recognition of the majority union representative as the exclusive collective bargaining agent.
Milwaukee Board of School Directors, 42 Wis. 2d 637, 6/69
School Board, by granting certified representative exclusive use of bulletin boards and teacher mailboxes for the posting and distribution of printed matters relating to the internal and organizational activity of said organization, while at the same time denying such privileges to the minority organization, found to have interfered, restrained and coerced its employes in the exercise of their rights, and therefore, constituted a prohibited practice within the meaning of Sec. 111.70(3)(a)l.
Milwaukee Board of School Directors (9258) 10/69
M824.8 Threatened Actions with Regard to Hire, Tenure, Terms and Conditions of Employment
Municipal employer, by threatening to change conditions of employment if the employes chose to be represented by a labor organization, found to have unlawfully interfered with the rights guaranteed to employes, and thereby committed prohibited practices.
Green lake County (6061) 7/62; Marathon County (6826) 8/64
Supervisor of county home committed acts of interference with threatening to discharge employes who engaged in concerted activities, and by threatening to withhold privileges and benefits should the employes select the labor organization involved as their representative.
Marathon County (6826) 8/64
Supervisory employes of School Board found to have interfered with and coerced employes by threatening teachers with forfeiture of pay if they failed to attend teachers’ convention and, if they failed to retain their membership in teacher organization.
Muskego-Norway School District No. 9 (7247) 8/65 (Aff. 35 Wis. (2d) 540, 6/67)
School Board found to have interfered in acts of prohibited interference, restraint and coercion by threatening to discharge union officers if they did not divulge the names of union officers or members who were responsible for composition circulation and posting of list of employes, identified as it all hired during the walkout” and who were not members of the union, since such activity by union members constituted protected activity within the meaning of Sec. 111.70(2).
Green Bay Jt. School Dist. No. 1 (9095-E) 9/71
By threatening teacher, who was a representative of teacher organization with disciplinary action, for discussing “union business” during “preparation-time” break in teachers’ lounge. In the absence of an established rule prohibiting non-work activity on school premises found to constitute prohibited interference.
St. Francis School District No. 6 (9546-A) 6/71, (9546-B) 10/71
Threats by municipal employer to deprive employes of benefits enjoyed by them for the purpose of discouraging concerted activity constituted a prohibited practice.
City of Evansville (9440-B, 9440-C) 3/71; Green County (10166-B, 10166-C) 9/71
M824.9 Contracting Out Work
Commission found that contracting out of work of street department was not unlawfully motivated.
City of New Berlin (7293) 3/66
M824.10 Activity with Regard to Teacher Conventions
The refusal of the School Board to change calendar so as to grant teachers days off the attend convention of minority organization on days other than days on which convention days had been established in school calendar with acquiescence by majority organization, and warning of disciplinary action and determination not to pay those teachers who attended the convention of the minority organization did not constitute a prohibited practice.
Two Rivers Board of Education (7905-B) 8/67; Milwaukee Board of School Directors (7906-B) 8/67; West Bend Board of Education (7907-B) 8/67; Appleton School District No. 10 (7908-B) 8/67; Fond du Lac Jt. School District No. 1 (7909-B) 8/67; Madison Jt. School District No. 8 (7910-B) 8/67; Kenosha Board of Education (8120) 8/67 (All Aff. Dane Co. Cir. Ct. 11/67) West Allis-West Milwaukee Jt. School District No. 1 (10633) 11/71; Milwaukee Board of School Directors (10630) 11/71; Two Rivers Board of Education (10637) 11/71
Even though the board of education had discretion whether to give the minority union members teacher convention days off the pay under sec. 118.21(4), Stats. Discriminatory treatment remained, in that one union got the days off as a matter of labor organization negotiated contractual right, while the other union members depended upon a favorable disposition of the school board.
Ashland Board of Education 52 Wis. 2d 625, 11/71
The fact that on the dates specified in the collective bargaining agreement the only state convention held was that of the majority union, and all teachers were permitted to attend that convention under the negotiated contract without loss of wages, did not warrant the employer’s purported clarification of the disputed contract provision, for prohibited discriminatory practice
occurred when the contract was interpreted by the board of education as excluding teachers form attending any other educational convention sponsored by the competing minority union on those days or any other days.
Ashland Board of Education 52 Wis. 2d 625, 11/71
M824.11 Activity Relating to Individual Teacher Contracts
Proffering of individual teacher contracts, pursuant to Sec. 111.21 containing no reference that salaries and working conditions contained therein would be superseded by any collective bargaining agreement negotiated by the School Board and the teacher organization, did not constitute acts of prohibited interference, since prior to the proffer of such contracts the School Board, by letter to each teacher advised them that if negotiations resulted in improvements in salaries and conditions over and above those reflected in the individual contracts, the teachers would receive same.
Elmbrook School District No. 21 (9163-C) 12/70
The concerted withholding of teacher contracts, or the concerted refusal to execute individual teacher contracts, are neither prohibited nor protected concerted activities within the meaning of any provision of Section 111.70 of the Wisconsin Statutes. Not being a protected concerted activity, School Board was not required to permit the removal of unsigned teacher contracts from the schools where teachers perform their duties, and since ther was no evidence adduced to establish that nay agent of the teacher organization or any individual teacher requested or were denied the opportunity to remove individual teacher contracts from the office of the Principals to an area in each school, outside the presence of the Principal, to examine the individual teacher contracts or to permit any representative of the organization to do so, School Board was found not to have committed any prohibited acts of interference, restrain and coercion.
Elmbrook School District No. 21 (9163-C) 12/70
The right not to employ teachers who do not sign their teacher’s contracts within the time limit set forth is implied, in Section 118.22 and statements by agents of the School Board to teachers of the consequences of the failure to timely execute their contracts in the ablsence of any related prohibited activity cannot be deemed to constitute “threats” and therefore prohibited acts interference with, restraint or coercion of, any teacher in violation of any provision of Section 111.70, Wisconsin Statutes, but merely constituted statements with regard to consequences which might lawfully result from the application of Section 118.22
Elmbrook School District No. 21 (9163-C) 12/70
M830 ENCOURAGING OR DISCOURAGING MEMBERSHIP
IN A LABOR ORGANIZATION BY DISCRIMINATION
SECTION 111.70(3) (A)2
M831 EMPLOYER’S RIGHT TO DISCHARGE, SELECT OR CHANGE TERMS OR CONDITIONS OR EMPLOYMENT
M831.1 Statutes Applying to School Boards
The authority granted school boards under Sec. 40, Wis. Stats., to hire or refuse to rehire teachers, is not absolute but subject to statutory restrictions, such as Sec. 111.70(3)(a).
Muskego-Norway School District No.9, 35 Wis (2d) 540, 6/67
Since Sec. 115(10), Wis Stats., enacted after Sec.111.70, amended the term “school days” to include days on which state teacher conventions are held, whereas previous provision included both state and county teacher conventions, failure of School Board to permit members of minority organizations to attend regional convention without loss of pay on same dates or which teachers were permitted to attend state convention of the majority organization did not constitute a prohibited practice.
Ashland Unified School District No. 1, 52 Wis 2d 625, 6/67
M831.1.1 Statutes Applying to Fire Departments
Sec. 111.70 mitigates authority granted to fire chief by general statutes to regulate, fire department and its members, including the right to discharge and suspend, since Sec. 111.70 is a subsequent enactment.
City of Milwaukee (8420) 2/68; City of Madison (9582-B, 9582-C) 7/71
M831.1.2 Effect of Concerted Activity
An employer may discharge an employe for any reason, or for no reason, provided that the discharge is not motivated by a desire to discourage or encourage concerted activity.
Muskego-Norway School Dist. No. 9 35 Wis. 2d 540, 6/67; Wood County (9437-A) 1/71
An employe may not be discharged or otherwise discriminated against when one of the motivating factors for the employer’s action is the employe’s concerted activity, no matter how many other valid reasons exist for such employer action.
Muskego-Norway School Dist. No. 9, (7247)8/65 (Aff. 35 Wis. 2d 540 6/67); City of Oshkosh (8381-A, 8381-B) 10/68; Milwaukee Bd. of School Directors (9242-A, 9242-B) 4/71; City of Madison (9582-B, 9582-C) 7/71; Village of West Milwaukee (9845-B) 10/71
M832 EMPLOYER’S ACTION FOUND NON-DISCRIMINATORY
M832.1 Discharge
Discharge of custodial employes by school district found to he for cause in failing to obtain permission to leave work early in violation of an established rule, and not to discourage concerted activity of employes so discharged.
Greenfield School District No. 6 (6195) 12/62
Commission found termination of employes was not unlawfully motivated but resulted from economic reasons.
City of New Berlin (7293) 3/66
M832.2 Voluntary Quit
Although original discharge of employe, who had been voluntarily reinstated by municipal employer, was found to constitute a prohibited practice, subsequent termination of said employe resulted from a voluntary quit rather than a discharge.
City of Lake Geneva (8604-A) 2/69
M832.3 Failure to Renew Teacher Contract
School Board’s failure to renew teacher’s contract was found to have been motivated by matters other than teacher’s concerted activity.
Kenosha Board of Education (6986-D) 2/66 (Aff. 39 Wis. 2d 196, 10/68)
M833 EMPLOYER’S ACT FOUND DISCRIMINATORY
M833.1 Discharge for Concerted Activity
Municipal employer found to have committed prohibited practices in discharging employes because of their concerted activity.
Green Lake County (6061) 7/62; Rock County Home (6655) 3/64; Eau Claire County (6790) 7/64; Marathon County (6826) 8/64; Green County (10166-B, 10166-C) 9/71
Where discharge of steward was motivated by reasonable activity engaged in by the employe as a steward, and where such activity was not connected with his duties as an employe, such discharge was held to constitute unlawful discrimination.
City of Oshkosh (8381-A, 8381-B) 10/68
Where Municipal Employer discharged employe on “general principles” Commission concluded that such reason was a pretext, and that such action was motivated by the employe’s refusal to divulge his reasons for joining the Union, and therefore, such discharge was unlawful.
City of Lake Geneva (8604-A) 2/69
Discharge of union officers for failing to divulge names of union members responsible for composition, circulation and posting of list of employes, identified as “all worked during walkout”, and who were not members of the union, constituted discriminatory discharges since such activity was found by Commission to constitute protected concerted activity.
Green Bay Jt. School Dist. No. 1 (9095-E) 9/71
M833.2 Suspension for Concerted Activity
News release issued by President of union critical of action of Fire Chief with respect to latter’s promotional practices found to be protected concerted activity and suspension of Union’s President because of said news release found to have constituted a prohibited practice within the meaning of Sec. 111.70(3)(a)2 and 1.
City of Madison (9582-B, 9582-C) 7/71
M833.3 Reassignment to Less Desirable Position
Reassignment of union President to a less desirable position found to be motivated, at least in part, by President’s protected concerted activity found to have constituted act of prohibited discrimination.
Village of West Milwaukee (9845-B) 10/71
Where Principal suggested reassignment of teacher to another school was, in part, motivated by his activity as a Building Representative of teacher organization, Commission found such activity to constitute prohibited discrimination.
Milwaukee Board of School Directors (9242-A, 9242-B) 4/71
M833.4 Failure to Pay for Attendance at Teacher Convention
Deducting from the salaries of teachers for not attending conventions of the Wisconsin Education Association or the Wisconsin Federation of Teachers, while at the same time not making similar deductions from teachers who did attend such conventions, discriminates against those not in attendance as a result of the exercise of their statutory right not to participate in the activities of such labor organization, and thereby interferes with their right to refrain from such activity.
West Milwaukee-West Allis School Board (7664) 7/66
Where collective bargaining agreement permits members of majority organization to attend state teacher convention of majority organization with pay while not providing, similar benefit to members of minority organization, School Board who is Party to such an agreement commits an act of prohibited discrimination.
Ashland Unified School Dist. No. 1 52 Wis. 2d 625 11/71
M833.5 Failure to Renew Teacher Contract
Commission found that School Board failed to renew teachings, contract for following year was motivated by teacher’s concerted activity, and therefore, in violation of Section 111.70.
Muskego-Norway School District No. 9 (7247) 8/65 (Aff. 35 Wis. (2d) 540, 6/67; Mercer School Board (8449-A) 8/68
Where School Board, during bargaining, had agreed that teachers could withhold their individual contracts until bargaining was completed and thereafter advised the teachers that they would be assumed to have resigned if they failed to return their signed contracts, prior to the completion of bargaining, and further threatened to refuse to employ such teachers during the coming summer school session, and by failing to employ teachers for the summer session because they had not returned their individual contracts, Commission found School Board to have committed prohibited practices within the meaning of Secs. 111.70(3)(a) 2 and 1.
St. Francis School District No. 6 (9546-A, 9546-B) 10/71
M833.6 Teacher Evaluation
Where teacher’s evaluation of “below average” was found to be motivated, in part, as a result of said teacher’s activity as a Building Representative of the teacher organization, Commission found such evaluation to constitute an act of prohibited discrimination.
Milwaukee Board of School Directors (9242-A, 9242-B) 4/71
M833.7 Grant of Exclusive Check-off Dues
The grant under a collective bargaining agreement by a municipal employer of exclusive check-off of dues a majority union representative, thereby preventing a nonmember from making a request or assignment of a portion of his wages to a competing union, is in the nature of a “union security” provision in that its sole purpose is self-perpetuation and entrenchment of its majority status, and hence a prohibited practice contrary to 111.70(3)(a) 1 and 2.
Milwaukee Board of School Directors, 42 Wis. 2d 637, 6/69
M840 EMPLOYER ACTIVITY UNREGULATED AS PROHIBITED PRACTICES
M84l DUTY TO BARGAIN
Section 111.70 does not impose any statutory duty, which is enforce-able in a prohibited practice proceeding, upon either a municipal employer or the representative of its employes, in an appropriate unit to bargain in good faith over wages, hours and conditions of employment. However, any action in this regard may very well constitute sufficient grounds to proceed to fact finding.
City of New Berlin (7293) 3/66; Milwaukee Board of School Directors (6883-A) 3/66; LaCrosse County (7707-A) 6/67 (Aff. 52 Wis. 2d 295, 10/71; City of Portage (8378) 1/68; City of Milwaukee (8410) 2/68; Wauwatosa Bd. of Education (8319-B, 8319-C) 7/68; Elmbrook Bd. of School Directors (9163-C) 12/70; St. Francis Jt. School Dist. No. 6 (9546-A, 9546-B) 10/71
Minority organization has no right to insist that municipal employer negotiate with it when employer is negotiating with majority organization since latter organization is entitled to exclusive representation if employer chooses to recognize its voluntary obligation to bargain with that organization.
Milwaukee Board of School Directors (6883-A) 3/66
The differences in language between Sec. 111.70 and the Wisconsin Employment Peace Act make manifest that the legislature did not intend in the former that a municipal employer should be under a duty to collectively bargain as that term is used in Sec. 111.02 of WEPA.
Madison School Board 37 Wis- 2d 483, 12/67; City of Evansville (9440-B, 9440-C) 3/71; Crandon Jt. School
Dist. No. 1 (10271-A, 10271-B) 10/71; Whitehall School
District (10268-A, 10268-B) 10/71
M842 VIOLATION OF COLLECTIVE BARGAINING AGREEMENT
The violation of a collective bargaining agreement is not a prohibited practice within the meaning of Sec. 111.70.
Janesville Board of Education (8791-A, 8791-B) 3/69; St. Francis Jt. School Dist. No. 6 (9546-A, 9546-B) 10/71
M843 FAILURE TO IMPLEMENT FACT FINDING RECOMMENDATIONS
Fact finding recommendations are not binding upon the parties, and the failure to adopt them is not a prohibited practice.
City of Portage (8378) 1/68
M900 PROHIBITED PRACTICES BY MUNICIPAL EMPLOYES,
INDIVIDUALLY AND IN CONCERT WITH OTHERS
M910 INTERFERENCE, RESTRAINT AND COERCION OF EMPLOYES: SECTION 111.70(3)(b)l
M911 IN GENERAL
Where majority representative and municipal employer enter into an agreement which denies the right of a minority organization to be heard at a public hearing and which also denies an employe the right of selecting a minority organization to initially present the employes grievance, Commission held majority organization to have committed prohibited practices within the meaning of Sec. 111.70(3)(b)l.
Milwaukee Board of School Directors (6995-A)
1/66 (Rev. 42 Wis. (2d) 637, 6/69)
Where evidence filed to establish that in connection with strike activity municipal employes or their agents engaged in accompanying acts of interference, restraint and coercion, Commission dismissed prohibited practice complaint alleging unlawful interference.
Wauwatosa Board of Education (8636) 7/68 (Aff. Dane
Co. Cir. Ct., 3/69)
Employe organization found to have fairly represented employe with respect to the resignation of his employment, and that, therefore, employe organization did not interfere with, coerce or restrain said employe of his rights in violation of Sec. 111.70.
Kenosha Education Association (9239-C) 9/70
Composition, circulation and posting by union of list of employes identified as “a.11 hired during the walkout” and as not being members of the union did not constitute an illegal blacklist within the meaning of Sec. 134.03, and therefore, such list, and the action with regard thereto, were found to constitute protected concerted activity, and therefore, not a prohibited practice.
Green Bay Jt. School Dist. No. 1 (9095-E) 9/71
M920 ATTEMPTS TO INDUCE AN EMPLOYER TO COERCE, INTIMIDATE OR INTERFERE WITH A MUNICIPAL
EMPLOYE’S RIGHTS: SECTION 111.70(3)(b)2
No decisions
M930 EMPLOYE ACTIVITY UNREGULATED AS PROHIBITED PRACTICES
M931 STRIKES
If the legislature had intended that a strike of municipal employes constituted interference with the rights of municipal employes as set forth in Sec. 111.70(2), it would have provided that a municipal employment strike constitutes a prohibited practice. Jurisdiction to enjoin strikes in municipal employment lies only in the courts in this state.
Wauwatosa Board of Education (8636) 7/68 (Aff. Dane Co. Cir. Ct., 3/69)
Threats to engage in a strike do not constitute prohibited practices since Commission has no jurisdiction over strike activity.
Brown County (9537) 3/70
M940 PROHIBITED PRACTICES BY PERSONS OTHER THAN
EMPLOYERS OR EMPLOYES: SECTION 111.70(3)(c)
No decisions
M1000 FACT FINDING
M1010 LAW ENFORCEMENT PERSONNEL
M1011 Representatives
There is no statutory limitation of the right of non-supervisory members of a notice department to designate either an individual or any organization as their representative for the purposes of fact finding.
Shawano County Sheriff & Traffic Dept.) (7051) 3/65;
City of Greenfield (Police Dept.) (7252) 8/65
Section 111.70(4)(j) contains no limitation as to when a labor organization, which also represents other employes, may commence to act as the representative of police officers. The language of the provision infers that the designation of such a representative may occur simultaneously at such time as the police officers petition for changes and improvements in the wages, hours and working conditions. The statute does not indicate that such designation is conditioned on the occurrence of the circumstances leading, to fact finding as set forth in Sec. 111.70(4)(e).
City of Medford (8396) 2/68 (Aff. 42 Wis. (2d) 581, 5/69)
Pursuant to, and within the meaning of, Sec. 111.70(4)(1), are, representative designated by a majority of the members of a police, sheriff or county traffic department becomes the exclusive collective bargaining representative of all of the non-supervisory law enforcement personnel employed in such department, and as such, should an agreement be reached between such representative and the municipal employer involved, such representative is permitted to enter into a collective bargaining agreement with the municipal employer involved, coverings the wages, hours and workings, conditions of said law enforcement personnel, and further, that as a party to such an agreement, said representative has the right to administer said agreement, including the filing of grievances, with or without the authorization of the officers involved.
Columbia County (9764) (/70)
Where Commission found that Lieutenants were, not supervisors, they were included in the unit of law enforcement personnel. As a result, alleged representative had not been authorized as the representative by the majority of the personnel in the department, and therefore, petition for fact finding filed by such “representative” was dismissed.
City of Portage (10318) 5/71
M1011.2 Membership in Organization Which Also Represents Non-Law Enforcement Personnel
Police Officers may designate a labor union also representing non-law enforcement personnel as their representative in fact finding. However, said officers cannot join that organization.
City of Greenfield, 35 Wis. (2d) 175, 5/67; City of Medford, 42 Wis. (2d) 581, 5/69; City of Sun Prairie Dane Co. Cir. Ct., 2/70
Monthly payment to Union, which also represents employes other than law enforcement personnel, for service fee, found not to establish that police officers making such payments were members of said Union.
City of Sun Prairie (9345) 11/69
M1020 APPROPRIATE UNIT
M1021 LAW ENFORCEMENT PERSONNEL
Clerk-trainee who has no power to make arrests is excluded from unit of non-supervisory police for the purpose of fact finding.
City of Greenfield (Police Dept.) (7252) 8/65
Supervisory employes and organizations representing them do not have the right to proceed to fact finding under Sec. 111.70.
City of Milwaukee (Police Dept.) (7069) 3/65
Supervisory employes cannot be included in unit of police officers for the purpose of fact finding.
City of Wauwatosa (7106) 4/65; City of Neenah (10147-A) 8/71
Police officers having the rank of Lieutenant and above, being supervisors and therefore agents of the municipal employer, have no right to proceed to fact finding.
City of Milwaukee (8950) 3/69
Where Sergeants and Police Investigator spend very little tome in supervisory duties and then only in absence of the Chief of Police Commission found that their pay differentials were based partially on length of service their experience, and therefore, that said officers were to be included in unit of police officers for the purpose of fact finding.
City of Sun Prairie (9345) 11/69
Where Police Department was composed of a Chief, one Sergeant, and seven Patrolmen, Commission found that the Sergeant was not a supervisor, since he spent 50% of his time performing duties similar to those performed by the Patrolmen, and the remainder of his time in clerical and dispatching duties. Although the Sergeant had some authority with regard to assignments, imposing minor disciplinary measures, recommending retention and training of new officers, much of his responsibilities in said regard involved transmitting decisions made by the Chief.
City of Edgerton (10134) 1/71
Where Police Department consisted of the Chief, two Lieutenants, two Sergeants, and thirteen Patrolmen, Commission found that all but the Patrolmen were supervisors because of the duties and responsibilities assigned and performed by them.
Village of Fox Point (9959-A) 2/71
Lieutenants having no authority to effectively recommend hiring, discharge, promotion, transfer, or discipline, and who only directs and assigns duties upon the order of the Chief, and who spend 90% of their time performing duties performed by Patrolmen, found not to be supervisory personnel.
City of Portage (10318) 5/71
Sergeants found not to perform such duties as to be considered supervisory personnel.
City of Neenah (10147-A) 8/71
M1030 CONDITIONS NECESSARY FOR FACT FINDING
M1031 EFFECT OF QUESTION CONCERNING REPRESENTATION
Commission dismissed fact finding petition where there existed questions concerning the appropriate unit and representation.
City of Appleton (8430-A) 5/68
M1032 EFFECT OF LOCAL, ORDINANCES
M1032.1 Pertaining to Local Fact Finding
Commission held local fact finding ordinance not in substantial compliance with statute, where municipal employer selected members of fact finding commission which appointed the fact finder, since commission members and fact finders appointed by them would lack neutrality.
Shawano County (6388) 6/63 (Aff. Dane Co. Cir. Ct.
8/63); Pierce County (6573) 12/63; Barron County (6574)
12/63 Where county fact finding ordinance required that third members of local fact finding panel be appointed by judicial committee of county board, said ordinance held not to be in substantial com-pliance with Sec. 111.70.
Shawano County (7051) 3/65
Requirement in local fact finding ordinance that representative of majority of employes in sheriff’s department must be recognized by County Board in order to proceed to fact finding found to he in-consistent with requirements in Sec. 111.70.
Shawano County (7051) 3/65
Local ordinance setting forth time limitations on right to initiate fact finding held not in substantial compliance with Sec. 111.70.
City of Wauwatosa (7106) 4/65
Where local ordinance may otherwise be in compliance with Sec. 111.70 and where ordinance provides that the chairman of three man fact finding panel be appointed by WERC, Commission will not make such an appointment where the ordinance limited compensation to chairman at $50 per day since Commission rules permits compensation up to $150 per day.
City of Wauwatosa (7106) 4/65
Where local ordinance contained time limitations for the filings of requests for changes in hours and working conditions, as well as for the initiation of fact finding and where said ordinance requires fact finder to fulfill certain residential requirements, as well as being tax payers of the municipal employes involved, Commission found ordinance not in substantial compliance with election 111.70.
Village of Whitefish Bay (7494) (7495) 3/66 (Aff.
34 Wis. (2d) 432, 4/67)
M1032.2 Pertaining to Salaries and Workings Conditions
Municipal employer, at least for the purposes of fact finding, has the duty to bargain with certified majority representatives on salary and hiring dates regardless of the fact that ordinance permits changes to be made thereon.
Milwaukee County (7800) 11/66
M1033 EFFECT OF BUDGET ADOPTION
The fact that the municipality has adopted its budget in accordance with Sec. 65 of the Wis. Statutes it does not preclude the Commission from finding that the conditions precedent to fact finding exist and from appointing a fact finder to make recommendations with regard to a wage dispute which was deadlocked prior to the adoption of the budget.
City of Racine (6242) 3/63
M1034 EFFECT OF COLLECTIVE BARGAINING AGREEMENT
Unless collective bargaining agreement permits, municipal employer action in establishing new classification in bargaining unit is subject to collective bargaining and if, after a reasonable period of negotiations, a deadlock remains, fact finding may be initiated.
Milwaukee County (8137-B) 12/67; Milwaukee County (9754) 6/70
Where collective bargaining agreement permits the Municipal Employer to unilaterally establish methods and processes by which work of certain employes was to be performed, the employe organization waived its rights to negotiate on the revision of such duties, and therefore, Municipal Employer, during the term of the agreement, had no duty to negotiate in that regard and, therefore, conditions for fact finding did not exist.
City of Milwaukee (8505) 4/68
Where collective bargaining agreement containing provisions for advisory arbitration with respect to unresolved issues on succeeding agreement Commission concluded that said procedure did not apply, since request for the implementation of same was made after the agreement containing such procedure had expired, and therefore, the Commission ordered fact finding.
City of Two Rivers (9828) 8/70
M1035 EFFECT OF PERSONAL DIFFERENCES BETWEEN REPRESENTATIVES
Personal differences between representatives of the Municipal Employer and representatives of employe organization do not constitute a valid reason for the Employer’s refusal to bar- gain, and the Commission ordered fact finding, since the Municipal Employer was deemed not to have bargained in good faith.
City of Superior (8325) 10/67
M1036 EFFECT OF PENDING COURT ACTION
Pending court action with respect to municipal employer’s liability with respect to an alleged violation of a collective bargaining agreement does not excuse said employer from bargaining on a succeeding agreement, and the failure to do so constitutes a refusal to bargain and, therefore, a basis for fact finding.
City of West Allis (9365) 12/69
M1037 RELATING TO MEET AND NEGOTIATE IN GOOD FAITH
M1037.1 Condition for Bargaining Established by Municipal Employer
Refusal of employe organization to bargain only on matters limited by employer does not constitute a refusal to meet and negotiate in good faith as contemplated in Section 111.70(4)(e), and, there-fore, fact finding Petition filed by employer was dismissed.
Wauwatosa Board of Education (8551) 5/68
Condition precedent established by the Municipal Employer before it would engage in bargaining with the Petitioner, specifically, that the Petitioner submit in writing a sworn statement that no police officer was a member of or otherwise affiliated with the Petitioner and that the Petitioner would not accept any of the police officers as members and, further that the “bargaining team” of the Petitioner include at least two off-duty police officers, are neither reasonable nor necessary, and therefore, because of such conditions precedent, the Municipal Employer failed and refused to meet and negotiate with the Petitioner at reasonable times in a bona fide effort to arrive at a settlement with respect to wages, hours and conditions of employment affecting the police officers in its employ.
City of Sun Prairie (9345) 11/69
M1038 RELATING TO IMPASSES
M1038.1 Matters Subject to Bargaining
Form of written agreement with respect to conditions of employment is a matter for collective bargaining under Section 111.70.
Milwaukee County (7711-A)10/66
Where the exercise of any phrase or portion of the legislative responsibility of a school board has a direct and intimate effect upon salaries, hours and working conditions or its employes, such matters are subject to collective bargaining within the meaning of Section 111.70, and any deadlock with respect thereto is subject to fact finding.
Madison School Board (7768) 10/66 (Aff. 37 Wis. (2d) 483, 12/67
Rules established by chief of police for the regulations of the police department and for the governing of police officers therein, which affect the wages, hours and working conditions of such officers, are proper subjects of negotiation between the representative of such officers and the municipal employer.
City of Milwaukee (9429) 1/70 (Aff. Dane Co. Cir. Ct. 2/71)Issues with respect to reorganization of welfare department and with respect to the effects of such reorganization upon bargaining unit employes, even though such reorganization is subject to limitations set forth in state and federal statutes, as well as regulations promulgated by the Wisconsin Department of Health and Social Services, are proper subjects of collective bargaining within the meaning of Sec. 111.70, and the refusal of the county to bargain on such issues constitutes a basis for fact finding.
Milwaukee County (9904) 9/70 & (9004-A) 12/70
Educational conventions and whether they are to be considered in service or school days, questions of compensation for such days are within the statutorily defined area of negotiation on “wages, hours and conditions of employment”.
Ashland Unified School Dist. No. 1, 52 Wis. (2nd) 62, 11/71
M1038.2 Reasonable Period of Negotiations
Commission will not order fact finding with respect to single issues arising in collective bargaining since it would result in piece-meal fact finding prior to a reasonable period of negotiation on all issues.
Milwaukee County (7711-A) 10/66
M1039 DEADLOCK FOUND TO EXIST
Where parties were unable to resolve their differences after a number of negotiation meetings with respect to wages, hours and conditions of employment, Commission found deadlock to have existed and ordered fact finding.
Town of Preble (6077) 8/62;* City of Racine (6242) 3/63;* City of DePere (6307) 4/63;* Shawano County (6388) 6/63;* Town of Preble (6527) 10/63; Barron County (6574) 11/63;* Eau Claire Board of Education (6571) 12/63;* Pierce County (6573) 12/63;* City of Milwaukee (6575) 12/63;* City of South Milwaukee (6576) 12/63;* City of New Berlin (6577) 12/63;* City of Watertown (6580) 12/63;* Green County (6607) 1/64;* City of Portage (6609) 1/64;* Racine County (6660) 3/64;* City of Appleton (6682) 3/64;* Wood County (6766) 6/64;* City of Eau Claire (6879) 9/64;* Milwaukee Board of School Directors (6906) 10/64;* Janesville Board of Education (6962) 11/64;* City of Portage (7000)* 1/65; Wisconsin Rapids Board of Education (7026) 2/65;* Shawano County (7051) 3/65;* City of Milwaukee (7055) 3/65;* Appleton Water Commission (7073) 3/65;* City of La Crosse (7088) 4/65;* City of Wauwatosa (7106) 4/65; Edgerton Jt. School District No. 8
*Fact finding recommendations issued.
City Council of Two Rivers (9828) 8/70; Wisconsin Heights Joint School District No. 1 (9877) 8/70;* Unified School District No. 1 City of Ashland (9897) 9/70;* Walworth County (9902) 9/70;* Wausau Public Schools Board of Education (9960) 10/70;* City of Jefferson (9965) 10/70;* City of Stevens Point (9966) 10/70;* City of Oshkosh (9981) 10/70;* County of Waukesha (9995) 11/70; Milwaukee County (9904-B) 12/70;* Board of Education, Joint School District No. 1, City of Oshkosh, et al (10060) 12/70;* Town of Barksdale (10069) 12/70; Rock County (10091 12/70; City of Monona (Police Department) (10092) 12/70;* City of Sturgeon Bay (Department of Public Works) (10074) 12/70;* City of Madison (10105) 1/71;* City of Menasha (10106) 1/71;* County of Adams (10111) 1/71;* Eau Claire Area Board of Vocational, Technical and Adult Education, District One (10119) 1/71;* Manitowoc County (10162) 2/71;* City of Appleton (10186) 2/71;* Fond du Lac County (10196) 3/71;* Fond du Lac County (10197) 3/71;* Superior Board of Education, Joint City School District No. 1, City of Superior, et al (10241) 3/71;* Cippewa Falls Board of Education (10243) 3/71;* City of Columbus (10287) 4/71;* City of Tomah (10285) 4/71;* Rusk County (10290) 4/71;* City of Oconto (10297) 5/71;* School District No. 6, City of Greenfield (10321) 5/71;* City of Milwaukee (10337) 5/71;* Freedom Joint School District No. 3 et al (10348) 6/71;* Independence Joint School District No. 6 (10369) 6/71;* Portage County (10375) 6/71; Racine Unified School District No. 1 (10376) 6/71;* East Troy Board of Education Joint School District No. 1 (10379) 6/71;* Board of Education of Joint School District No. 1, City of Thorp, et al (10398) 7/71;* City of Superior (10419) 7/71;* Board of Education, Joint School District No. 1, City of Mellen, et al (10425) 7/71; Elmbrook Schools Joint Common School District No. 21 (10427) 7/71;* Board of Education of the Wrightstown Community School Joint District #1 (10440) 7/71;* Board of Education Joint School District No. 1, Schofield (10451) 8/71;* Board of Education of Joint School District No. 6 of the City of Fort Atkinson, et al (10446) 8/71;* Board of Education of Joint School No. 4, City of Monona, et al (10469) 8/71;* Joint School District No. 5, City of Mayville, et al (10470) 8/71;* West Bend Board of Education, Joint School District No. 4 (10502) 9/71;* Ofordville Joint School district No. 4 (10502) 9/71;* Appleton Joint School District No. 10 (10543) 9/71;* Whitnall Joint School District #3, et al (10563) 10/71; Clintonville Board of Education (10566) 10/71;* Sheyboygan County (10606) 11/71;*
M1040 PROCEEDING BEFORE THE FACT FINDER
M1040.1 Nature
Fact Finding is advisory and non-binding and, therefore, does not result in a delegation of the legislative function.
Madison School Board (7768) 10/66; (Aff. 37 Wis. (2d) 483, 12/67)
*Fact Finding recommendations issued.(7154) 5/65; Village of West Milwaukee (7165) 5/65;* City of Burlington (7231) 7/65;* City of Greenfield (7252) 8/65;* City of Beloit (7280) 9/65;* City of Milwaukee (7341) 10/65;* La Crosse County (7386) 12/65;* City of West Allis (7397) 12/65;* City of Milwaukee (7406) 1/66;* City of Waukesha (7388) 1/66;* Milwaukee Board of School Directors (7428) 1/66;* Waukesha County (7430) 1/66;* Village of Whitefish Bay (7494) (7495) 3/66;* City of Milwaukee (7544) 4/66;* City of Milwaukee (7749) 9/66;* Madison School Board (7768) 10/66; Milwaukee County (7786) 11/66; Milwaukee County (7800) 11/66;* City of Kenosha (7817) 11/66;* City of Waukesha (7857) 12/66;* Milwaukee Board of School Directors (7873) 1/67;* Appleton Water Commission (7896) 2/67;* City of Wisconsin Rapids (8036) 5/67;* City of Milwaukee (8092) 6/67;* City of Antigo (8102) 7/67;* Cudahy Board of Education (8110) 7/67;* Milwaukee County (8137) 8/67;* City of Madison (8279) 11/67; Iowa County (8285) 11/67;* Polk County (8306) 12/67;* Dane County (8318) 12/67; Village of Whitefish Bay (8321) 12/67;* City of Superior (8325) 12/67’* City of Wauwatosa Firefighters) (8362) 1/68;* City of West Allis (Police) (8364) 1/68;* City of Medford (Police) (8396) 2/68;* Eau Claire County (8423) 2/68; Joint School District No. 10, Appleton (8432) 3/68;* Milton Union Jt. School District No. 1 (8435) 3/68;* Winnebago County (Institutions) (8436) 3/68;* Milwaukee Sewerage Commission (8438) 3/68;* Manitowoc County (Public Welfare Department) (8439) 3/68;* Whitewater School Dist. (8502) 4/68;* Kenosha School Board (8520) 4/68;* West Allis-West Milwaukee School Board (8533) 5/68;* Brown Deer School District No. 1 (8534) 5/68; Stoughton Jt. School District No. 3 (8535) 5/68; Cudahy Board of Education (8557) 5/68;* Sheboygan County (8600) 7/68; City of Green Bay (8680) 9/68;* Sheboygan County (8686) 9/68;* City of Fond du Lac (8700) 10/68;* City of Milwaukee (8716) 10/68;* Sturgeon Bay Schools (8737) 10/68;* Cippewa County (Institutions) (8739) 10/68;* Chippewa County (Highway Department) (8741) 10/68;* City of Madison (Firefighters) (8743) 11/68; Racine County (Sheriff) (8810) 12/68; Winnebago County (8830) 1/69; Kenosha County (8831) 1/69;* Milwaukee Technical College (8870) 1/69; Village of Bayside (8831) 2/69;* Milwaukee Board of School Directors (8889) 2/69;* City of Cedarburg (8905) 2/69;* City of Milwaukee (8911) 2/69;* City of West Bend (8925) 2/69;* City of Milwaukee (8929) 3/69;* Janesville Jt. School Dist. No. 1 (8935) 3/69;* Bayfield County (8991) 4/69;* City of Menasha (8992) 4/69;* Douglas County (8996) Port Washington Jt. School Dist. No. 1 (9006) 4/69;* Waukesha County (9038) 5/69;* Appleton Jt. School Dist. No. 10 (9044) 5/69;* City of Sturgeon Bay (9065) 6/69; West Bend Jt. School Dist. No. 1 (9090) 6/69; La Crosse County (9086) 6/69;* West Allis-West Milwaukee Bd. of Education (9092) 6/69;* Douglas County (9094) 6/69;* Ashwaubenon Jt. School Dist. No. 1 (9097) 6/69;*
*Fact Finding recommendations issued.
Rothschild-Schofield Jt. School Dist No. 1 (9098) 6/69;* Fort Atkinson Jt. School Dist. No. 6 (9105) 6/69; Lake Holcombe Bd. of Education (9119) 6/69;* City of Milwaukee (9120) 6/69;* St. Francis Jt. School Dist. No. 6 (9169) 7/69;* Waukesha County (9216) 7/69; City of Lake Geneva (9304) 11/69; Kenosha Unified School Dist. No. 6 (9306) 11/69;* City of Chippewa Falls (9316) 11/69;* Oshkosh Jt. School Dist. No. 1 (9322) 11/69;* Kenohsa Unified School Dist No. 1 (9330) 11/69;* Green Bay Jt. School Dist No. 1 (9335) 11/69;* City of Sun Prairie (9345) 11/69;8 Milwaukee County (9346) 11/69;* Vernon County (9348) 11/69;* Green Bay Jt. School Dist. No. 1 (9356) 12/69;* Pepin County (9357) 12/69;* E Elkhorn (9359) 12/69;* City of Stevens Point (9360) 12/69;* City of Green Bay (9363) 12/69;* City of West Allis (9365) 12/69; Waukesha County (9369) 12/69; Waukesha County (9370) 12/69;* Burnett County (9404) 12/69, City of Kaukauna (9410) 12/69;* Sheboygan Bd. of Education (9427) 1/70; Ashland County (9452) 1/70;* Ashland County (9453) 1/70; Rice Lake Jt. School Dist. No. 1 (9455) 1/70;* City of Neenah (9488) 2/70; Superior Jt. School Dist. No. 1 (9496) 2/70;* Rock County (9494) 2/70; Winnebago County (9508) 2/70;* Fond du Lac County (9515) 2/70; Village of Elm Grove (9534) 3/70;* Dunn County (9531) 3/70;* Marinette County (9560) 3/70; Rusk County (9570) 3/70;* (9578) 4/70;* City of Plymouth (9592) 4/70;* Douglas County (9605) 4/70; Plymouth Joint School District No. 8 (9619) 4/70; River Valley School Board (9615) 4/70; Winnebago County (9617) 4/70;* Mercer School District No. 1 (96147) 5/70;* Whitewater Board of School Directors (9643) 5/70;* City of Appleton (9644) 5/70;* Board of Education, Joint District No. 1 Gratiot, South Wayne (9656) 5/70;* Crandon Joint District No. 1 (9667) 5/70;* Berlin Board of School Directors (9668) 5/70;* Board of Education, Joint School District No. 1, City of Tomah et al (9664) 5/70; Oostburg Board of School Directors Joint District 5/70; Kenosha County (9697) 5/70;* Turner Board of School Directors (9699) 6/70;* Board of Education of Whitehall Public Schools (9698) 6/70; City of Columbus (9700) 6/70; Joint School District No. 1 Altoona and Town of Washington (9707) 6/70; Hamilton Joint School District No. 16 (9708) 6/70;* Elmbrook Schools Joint Common School District No. 21 (9712) 6/70;* Hutisford Board of Education (9723) 6/70;* Albany Board of Education (9748) 6/70;* Milwaukee County (9754) 6/70;* Cudahy Board of Education (9761) 6/70;* Drummond Integrated Schools (9760) 6/70;* Outagimie County (9766) 6/70;* Columbia County (9783) 7/70; Oconto County (9787) 7/70; Antigo Unified School District No. 1, et al (9821) 7/70;* LaCrosse Board of Education (9316) 7/70;* Board of Education of the City of Madison (Board of Education for Joint School District No. 8, et al) (9829) 7/70;*
*Fact Finding recommendations issued.
The primary function of fact finding is to provide a means to resolve disputes arising out of collective bargaining, and where the parties are not agreed on the scope of the issues which are subject to the fact finder’s recommendations the fact finder must have the discretion to hear and consider all issues which have been discussed during negotiations, to determine whether the issues are properly subject to those matters which in the fact finder’s opinion are essential to the resolution of the dispute. Under such circum-stances, only where the parties jointly agree to define or limit the issues which are before the fact finder, is the fact finder limited in his consideration of the issues.
Milwaukee County (8137-B) 12/67
Although the Commission may decide whether a matter is properly a subject for collective bargaining, it cannot make the determination as to which issues are relevant in a fact finding proceeding and, accordingly, which issues are subject to the fact finder’s recommendations. It is the responsibility of the parties to the dispute to present evidence to the fact finder with respect to the relevancy and materiality of the issues, and it is the responsibility of the fact finder to weigh the evidence before him to determine the relevancy of the issues, and to make recommendations with respect to material matters, based upon the relevant evidence, which will, in his opinion, resolve the dispute.
Milwaukee County (8137-B) 12/67
M1040.2 Extent of Recommendations
There is no prohibition in the statute preventing the fact finder from making recommendations to be applied in the future.
City of Racine (6242-A) 3/63
Commission appointed fact finder to make recommendations, stipulated by the parties to be final and binding upon them, with respect to a dispute as to which of’ two employes was entitled to a job vacancy in highway department.
Douglas County (6531) 10/63
Where collective bargaining agreement limits scope of fact finding, fact finder may consider those issues relevant to the matters subject to such fact finding.
Milwaukee County (8137-B) 12/67