Combined WEPA Digests

100 DEFINITIONS

110 EMPLOYER

111 NON-PROFIT, CHARITABLE ORGANIZATIONS

A non-profit, charitable hospital corporation, as an employer of non-professional employes, is an employer within the meaning of the Act since it is not within the named exceptions of the Act, and there is nothing in the Act indicating any legislative intent to exempt charitable institutions. Evangelical Deaconess Society of Wis., 242 Wis. 78, 1/43; St. Joseph’s Hospital, 264 Wis. 396, 7/53; St. Francis Hospital (4340) 8/56; St. Anthony’s Hospital (4762-A) 7/58

A non-profit corporation established to construct and operate a memorial to war dead held to be an employer within the meaning of the Wisconsin Employment Peace Act and not a municipal employer within the meaning of Sec. 111.70 of the Wisconsin Statutes.Milwaukee County War Memorial (6325) 4/63

A non-profit, charitable hospital corporation, as an employer of non-professional employes, is an employer within the meaning of the Act since it is not within the named exceptions of the Act, and there is nothing in the Act indicating any legislative intent to exempt charitable institutions. Hope, Inc. (11468) 12/72

Where non-profit corporation performs functions on behalf of a county, whose elected officials exercise direct and immediate control over its operation, WERC exercised its jurisdiction to determine whether corporation discriminatorily discharged an employe because of concerted activity. Wisconsin Humane Society (14768-E,F) 1/77

111.1 Religious Schools

Religious School is not an employer with the meaning of the Act and is exempt from WEPA. Archdiocese of Milwaukee and St. Albert School, Dec. No. 24781-A (8/87); Dec. No. 24781-B (Cir. Ct. Milwaukee County 9/88).

112 PARTIES ACTING IN EMPLOYER’S INTEREST

The ordinary rules of respondeat superior or of agency do not strictly apply in determining whether an employer is responsible for acts of his employes for interfering with rights of (other) employes. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

Foreman, who accompanied employes to attorney to consult with attorney with regard to an election petition to be filed by the employes, held to have acted for and on behalf of the employer, and the employer, by failing to repudiate any of the statements or actions of the foreman and by accepting his assistance, was held to have acquiesced, ratified and approved all of the foreman’s conduct and was held responsible for all of the foreman’s activities. C. A. Starkweather & Son, Inc. (4360) 9/56

Execution of a collective bargaining agreement by the employer under its trade name rather than its corporate name held binding upon the employer since it was the understanding that the collective bargaining agreement covered employes in all establishments doing business under the trade name. Halan’s Foods (5105-A) 2/59 (Aff. Milw. Co. Cir. Ct., 1/60)

Individual who signed collective bargaining agreement as president of corporation found to have acted as an agent for said corporation. Bob Kimball, Inc. (16754-A,B) 10/79

113 DISSOLVED CORPORATION

Dissolved corporation held not to be an employer within the meaning of the Act. Midwest Broadcasting Co., Milw. Co. Cir. Ct., 11/55 (Reversing Dec. No. 4016)

114 EMPLOYER HAVING EMPLOYES WITHIN AND WITHOUT STATE

Employer held to be an employer within the meaning of the Act as far as employes employed in the state. Northern States Power Co., 245 Wis. 532, 10/44

115 OPERATION IN STATE FACILITY

Incidental control which state operated university exercises over company operating food facility on university premises, such as establishment of hours said facility is to be open, the participation in setting of meal prices, and the right to seek dismissal of employes of questionable character, did not convert company into a “state” employer. Prophet Co., Inc., (7198) 6/65

116 SHELTERED WORKSHOP

While primary purpose of establishment was to provide rehabilitation and training to persons it hires, Commission found employer-employe relationship existed because of conditions of employment. Goodwill Industries of Wis., Inc. (7446) 1/66

117 EMPLOYERS OF HARVEST HANDS

Where food processor recruited harvest lands through its agents and where such agents supervise said field workers, keep their time, assign their work locations, and where such hands are paid directly by the processor, Commission found that an employer-employe relationship existed between the processor and harvest hands. Libby, McNeill & Libby (8163) 8/67

118 Multi-Employer Operation

Although telephone and television corporations had common ownership, management and supervision, Commission found that individual was an employe of television corporation, and therefore not eligible to participate in referendum involving employes of telephone corporation. Monroe County Telephone Co. (8647) 8/68

Where the majority of stock of four corporations was held by one stock holder active in the operation of said corporation, and where work of corporations were integrated in one location, Commission held that an individual, although not on payroll of “employer involved in election”, but on payroll of one of the four corporations not specifically involved in the election, to be “employes” of employer involved in election. Doyle Lithographing and Printing Co. (8126-F) 12/68

Evidence failed to establish that relationship between two employers was that of a joint employer for purpose of collective bargaining relationship. Bi-State Trucking Corp. (9924-A,B) 8/71

Although Bar and Steak House were operated by two separate corporations, evidence disclosed that said Bar and Steak House operated as one integrated entity, since they were located in same building, had common parking facility, interchanged employes, engaged in joint advertising, and therefore a single employer within the meaning of the Act. Hammond Bar & Steak House (10901) 3/72

119 INSTRUMENTALITY OF FEDERAL GOVERNMENT

While instrumentalities of the federal government are not specifically expressed as being excluded as an “employer” in Sec. 111.02(2), there is an implied exemption to that effect. American National Red Cross (9875) 8/70

120 EMPLOYE

121 EMPLOYES WHO HAVE CEASED WORK

121.1 As a Result of Current Labor Dispute

Commission of unfair labor practices by employes does not terminate their employe status since the Act vests a discretion in the Board to determine whether the conduct of an employe or employes shall result in a termination of their employe status. Allen-Bradley Co., (6) 2/40 (Aff. U.S. Supreme Ct. on other grounds, 315 U.S. 740); Appleton Chair Corp. , 239 Wis. 337, 12/41

Striker, whose work was being performed by an individual who was expected to return to high school within a matter of days, held not permanently replaced and therefore an employe. Trilu Corp. (5812) 9/61

Where a strike was predicated and continued as a result of employer’s unfair labor practices, striking employes do not lose their “employs” status regardless of whether employer hires replacements. Chuck Wagon Industrial Catering Service (7093-B) 8/66

Employes engaged in an economic strike do not have any right to re-employment upon the termination of the strike on their unconditional offer to return to immediate employment. They stand the chance of being replaced by other employes. A-D Cartage & Movers, Inc. (7704-A) 1/67

Economic strikers may be permanently replaced while on strike, but they enjoy the same protection against discharges based upon engaging in concerted activities as do actively working employes. Joyce Heating, Inc. (8049) 5/67

“Strikers” who ceased work without a strike vote, and who removed Employer property in order to interfere with production not considered employes entitled to protection of the Act. Milwaukee Star News, Inc. (8696-A,B) 12/69

121.2 As a Result of Non-Discriminatory Interruption or Termination of Employment.

Employes, discharged pursuant to a valid maintenance of membership clause, is not an employe within the meaning of the Act, since the discharge was not as a result of a current labor dispute. Checker Cab Company (7) 7/39

121.3 As a Result of a Discriminatory Termination of Employment

Mere fact that a wrongfully discharged employe obtained employment elsewhere at higher wages does not in itself terminate his employe status in absence of proof to indicate “regular and substantial employment elsewhere.” Plankinton Packing Co., 236 Wis. 329, 1/41 (Rev. U.S. Sup. Ct. on other grounds, 338 U.S. 953, 2/50)

Employes who went on strike as a result of a discriminatory discharge of one of their fellow employes are “employes” within the meaning of the Act. Stowe Plastic Products Co., (2715) 1/51 (Aff. Milw. Co. Cir. Ct., 5/51)

122 EMPLOYES ALLIED WITH MANAGEMENT

122.1 Supervisor

Superintendents, as foremen with authority to hire and fire, or to effectively recommend same, held not employes within the meaning of the Act. Fisher Dairy (15) 9/39; L.J. Mueller Furnace Co. (682) 11/44; The Wallace Corporation (1080) 8/46

Dispatchers, whose supervisory duties only consist of directing where a crew should work and occasionally authorizing a crew to work overtime, are not supervisors within the meaning of the Act. Milwaukee Gas Light Company (1326) 6/47

Duties of restaurant day cook, by being responsible for the purchase of meats, fruits, vegetables and other food products, placed her in a managerial responsibility, and therefore she was held not to be an employe. Verbrick Esler Amusements, Inc. (4842) 8/58

Individual who appeared at referendum hearing on behalf of the Employer, who receives a monthly salary unlike other salesmen who are paid a commission with a guarantee, and who effectively recommends the hiring of employes, found by the Board to be a supervisor. Metro R-K, Inc. (5386) 12/59

Although individual had been a member of the union which had been recognized as the collective bargaining agent, Board declared him ineligible to participate in an election because of his supervisory duties. London Hat Shop (5435) 2/60

Where so-called “managers” spent the vast majority of their time as route salesmen and a minor portion of their time in supervisory duties the Board found them employes eligible to participate in election. Sorge Dairy Co. (5470) 4/60

Assistant managers held eligible to participate in election since they were primarily production employes and they possessed no authority to hire or fire. Minit-Man Car Wash, Inc. (5507) 6/60

Designation of employe as assistant manager, with an increase in hourly rate, did not in itself convert such employe to a supervisor where she did not perform duties or possess qualifications which are considered supervisory in nature. Johnson & Rush, Inc. (6698) 4/64

Engineer, although performing a substantial amount of maintenance work, found to be a supervisor, since he hires and disciplines employes and receives higher wages than those under his supervision. St. Joseph’s Hospital (7223) 7/65

The fact that person who formerly supervised employer’s operation, placed workers for merchandise and retained combination of safe and was entrusted with the handling of moneys did not establish said individual as a supervisor after the actual supervision of operation had been taken over by former inactive partner. Chuck Wagon Industrial Catering, Service (7093-B) 8/66

Persons having authority to recommend the hiring and discharging of employes and who are in charge of departments in printing establishments found to be supervisors. Fact that supervisor was included among employes stipulated as being eligible to participate in election arid referendum, was not determinative of his “employe” status. Doyle Lithograph Printing Co. (8126-C) 5/68

Although supervisor was most active in employe concerted activity, he was not protected in such activity. Doyle Lithography & Printing Co. (8126-C) 5/68

Chef who directs and schedules work of seven kitchen employes arid who has exercised the right to hire and fire, found to be a supervisor within the meanings, of the Act. Picasso Plaza, Ltd. (8608) 7/68

Hourly-paid head waitress, having, no authority to hire or fire, although assigns other waitresses and occasionally acts as a hostess, held not to be a supervisor within the meaning of the Act. Picasso Plaza, Ltd. (8608) 7/68

Waitress who assists in scheduling of work and exercises discretion in closing, part of dining area when business is slow, and bartender who exercises some minor authority in the area of discipline, and who is paid on a salary plus-commission basis, does not establish such individuals as supervisors. Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Cook-Manager deemed a supervisor since she played formidable role in hiring, and firing, as well as in the overall administration of cafe operations. Eugene Kerns (8567-A) 10/68

Individual employed in bakery department of retail store operation, although spending approximately 35% of his time performing duties similar to those performed by other bakers, found to be a supervisor, since he spent the majority of his time in performing supervisory duties. Woodman’s Food Market, Inc. (8826) 1/69

Licensed practical nurses, whose primary duties consisted of supervision of activities rather then of personnel, found to be employes and included in the unit. Family Heritage Nursing Home (9556-B) 8/70

Chief Cook and Head Housekeeper found to be supervisors because of authority and responsibilities performed by them. Shady Lane Home, Inc. (9631-B) 10/70

While drivers of disposal trucks had some supervisory authority over their helpers, the vast majority of their time was spent in performing driving “duties assigned to them and in loading and unloading trucks, and therefore were found to be working foremen rather than supervisors. Sanitary Disposal, Inc. (10484) 8/71

Laundry Department Supervisor, who spent 80% of her time performing work similar to other laundry employes, found not to be a supervisor. Spooner Community Memorial Hospital (11098) 7/72

Positions of Planner and Coordinator of charitable employer found not to perform supervisory or managerial duties. Hope, Inc.(11468) 12/72

Maintenance Department Supervisor, having no authority to hire, transfer, promote, suspend or layoff employes, who spent a majority of his time performing maintenance and repair duties, found not to be a supervisor, but an employe under the Act. SpoonerCommunity Hospital (11098) 6/72

Section Heads in hospital laboratory, who primarily direct work flow, and who perform insignificant supervision, found not to be supervisors. Wausau Hospital (12946) 8/74

Head Cook, who can effectively recommend the hiring, firing, transfer promotion, and discipline of five employes who work under the direction of Head Cook, found to be a Supervisor. Eagle River Memorial Hospital (12888-C) 10/74

Night Cook found to be a lead worker exercising his working expertise rather than a supervisor. Andrea’s Inc. (14317) 2/76

Bartender, who schedules employes, grants time off, pays bus boys, signs payroll checks, pays for deliveries of merchandise, oversees waitresses, who has the authority to warn employes as to their attendance, and who participates in the interviewing and hiring of new employes, found to perform sufficient supervisory duties so as To be excluded from the bargaining unit. Dos Bandidos(16454) 7/78

Shift supervisors employed by ambulance service, who primarily supervise an activity rather than employes, found to constitute employes rather than supervisors, and therefore included in bargaining unit. Curtis-Universal Ambulance Service (16512) 8/78

Head Cook found to be an employe rather than a supervisor. The Eggplant, Inc. (16514) 8/78

The WEPA does not expressly define which constitutes a “supervisor”, but Commission case law sets forth the following criteria to be considered: the authority to hire, promote, transfer, discipline or discharge or to effectively recommend same, scheduling and assigning employes, directing and overseeing work and being responsible for work, evaluating and reporting on the work of employes, receiving a greater rate of pay than others, and paying employes and accepting and paying for deliveries. West SideCommunity Center, 19212-A (1983)

122.2 Working Foremen

Working foremen spending a large part of their time in a non-supervisory capacity are employes under the Act. Merrill Mfg. Co. (649) 9/44 (Aff. Lincoln Co. Cir. Ct. 12/44); Automatic File & lndex Co. (6060-B) 10/62

Working foreman, who devotes a substantial portion of his time (more than 30%) to actual manual labor and who has in the past been included in the bargaining unit, is an employe within the meaning of the Act. U.S. Motor Corporation (1345) 6/47

Working foremen entrusted with the power to effectively recommend hiring and firing of employes found not to be employes so as to be eligible to participate in representation election. Dolly Madison Dairies, Inc. (4540) 5/57; Oakdale Electric Coop. Asso. (4642) 10/57; Piper-Hotel Co. (4643) 11/57; Esler-Appleton Hotel Corp. (4863) 8/58; Utschig Dairy (4865) 9/58

Although employe spent 90%, of his time performing the same work as other employes in the unit, Board excluded him from the eligibles, since he was the only representative of management present at the local operation and as such exercised individual judgment concerning the operation on behalf of management, such as ordering goods and supplies, scheduling work, and effectively recommending hiring and firing of employes. Trax Oil Co. (5401) 1/60

Employes who spend only a small portion of their time in supervision are working foremen and eligible to participate in referendum.Heiss Bakery (6354) 5/63

Maintenance man, who directs other employes upon instructions from others, and who spends a greater share of his time in maintenance tasks, held to be a working foreman, and eligible to vote. St. Joseph’s Hospital (7223) 7/65

Foremen, although having certain supervisory authority, found to be employes eligible to participate in election and referendum since they spent substantially all their time in the performance of unit work. Wisconsin Tree Service (8065) 7/68

Maintenance Man, who directs other employes upon instruction from others, and who spends a greater share of his time in maintenance tasks, held to be a working foreman and an employe under the Act. Eagle River Memorial Hospital (12888-C) 10/74;Midway Manor Corp. (14820) 8/76

Foremen, although having certain supervisory authority, found to be employes, since they spent substantially all their time in performing unit work. Eagle River Memorial Hospital (12888-C) 10/74

122.3 Load Dispatchers

Load dispatchers working for hire, not supervisors, are employes within the meaning of the Act. Dairyland Power Coop (1503) 2/48

122.4 Relatives

Wife of foreman held not to be employed by her “spouse” so as to exclude her from voting in representation election. Badger Furnace Pipe Co., Inc. (3670) 1/54

Wife of store manager, who holds no stock in operation, held not eligible to participate in representation election, since husband is an agent of employer acting within the scope of his authority. Tradehome Shoe Stores, Inc. (3783) 8/54

Brother of store manager is not employed by “spouse”, therefore is an employe within the meaning of the Act. Tradehome Shoe Stores, Inc. (3783) 8/54

Children of managerial stockholders found to be employed by their parent and therefore are excluded from the definition of an employe within the meaning of the Act. Block System, Inc. (4201) 3/56; Dorst Metalcraft, Inc. (4296) 6/56; Lassig Dairy (4296) 7/56;Schoepe’s Ice Cream Co. (4436) 1/57; Bomberg’s Better Bakeries (6315) 4/63; Price County Tel. Co. (6795) 7/64; Parks Engineering Inc. (6871) 9/64; Dells Foods Specialties Co. (7121) 4/65; Earl Litho Printing Co. (7162) 5/65

Son of stockholder, where the latter performs no managerial functions, held not to be employed by his parent, and therefore son is eligible to participate in referendum. Dairy State Markets, Inc. (6083-C) 4/63

Sister and brother of majority stockholder, who is also president, are not employed by parent or spouse and are therefore eligible to participate in representation election. Marathon Cheese Corp. (4307) 7/56

Brother of employer found eligible to participate in election and referendum since family relationship does not fall within exclusions of the definition of employe. Casey Lincoln & Mercury (4538) 5/57

Wife of chief stockholder and officer of the employer, although employed as a clerk, found by the Board not to be an employe, since she was employed by her spouse. Phillips Bros., Inc. (4606) 9/57; Trilu Corp. (5812-D) 11/61; Coronet Printing Co. (6799) 7/64;Portage Stop N’ Shop (6803) 7/64

Stepmother employed by her stepson found by the Board not to be an employe within the meaning of the Act. Bartosh Cleaners(6004) 6/62

Son of plant superintendent considered to be employed by his parent within the meaning of the Act. Douglas Plymouth Corp. (6605) 1/64

Wife and children of corporation president found not “employes” within the meaning of the Act. Milwaukee Star News, Inc. (8696-A,B) 12/69

Brother of employer not excluded from term “employe” under the Act. Seifert Mfg. Co. (11015) 5/72

Mother-in-law of employer found not an “employe” within the meaning of the Act. Billy Moy’s One-World Inn (11262) 8/72

Wife of active corporation president found to be employed by her spouse, and therefore not an employe within the meaning of Sec. 111.02(3). Cross, Oberlies & Christiansen, Inc. (13073) 10/74

Children of employer are not “employes” within the meaning of WEPA. Panetti Stone Co. (15332-C) 1/78; Dos Bandidos (16454) 7/78;Curtis-Universal Ambulance Service (16512) 8/78; Ivo Zanello, Inc. (17097) 6/79

122.5 Stockholders

Individual owning ten per cent of stock in food store held to have sufficient proprietary interest so as to exclude him as an employe in representation election. Red Ribbon Food Store (3668-A) 3/54

122.6 Claim Adjuster

Authority of employe to settle claims for damage to laundry does not in itself bring the employe within the exemption as not being able to participate in a representation election. National Family Laundry Co. (3874) 8/54

122.7 Officers

Officer of corporation, although a salesman, found not eligible to vote in representation election in unit consisting of salesmen. W. H. Kranz Co. (4135) 1/56

122.8 Confidential Employes

Where Employer claimed that all four of its office employes were considered confidential, Board concluded that the sharing of such duties could not be considered as so confidential so as to exclude said employes from the eligibles in unit. Waushara Country Electric Coop., Inc. (4875) 9158

Clerk Typist Senior, responsible to Executive Housekeeper, found not to perform confidential duties. St. Mary’s Hospital of Milwaukee(10130-B) 6/71

Secretary to Assistant Executive Secretary, Secretary to President, and Receptionist Secretary found not to perform confidential duties. Executive Committee of the Wisconsin Education Assn. (10230-A) 11/71

Secretary Receptionist found to perform confidential duties and therefore excluded from unit. Hope, Inc. (11468) 12/72

122.9 Managerial Employes

Staff personnel who determine management policy, although they have no direct supervisory authority over line employees, are primary agents of the employer, and therefore as managerial employes are not considered employes under the Act. Holy Family Hospital (11535) 1/73

Staff personnel who determine managerial policy, although having no direct supervisory authority over line employes, are primarily agents of the employer, and therefore, as managerial personnel, are not considered employes under the Act. Spooner Community Memorial Hospital (10661-D) 7/74

Business Manager of hospital found to be a managerial employe, and therefore excluded from bargaining unit. Spooner Community Memorial Hospital (10661-D) 7/74

Managerial employes are those who participate in the formulation, determination and implementation of management policy or who possess effective authority to commit the employer’s resources. Barron Electric Corp. (14929) 9/76

The fact that in the future Engineering Aide would assume managerial responsibility does not change his present employe status. Barron Electric Corp. (14929) 9/76

122.10 Members of Religious Order

Commission found that the relationship of religious order and its members to the management of a non-profit hospital potentially conflicted with the interest of employes, since members of said religious order serve on the Employer’s Board of Directors and participate in the selection of its administrators, and therefore said members were excluded from employe unit. Holy Family Hospital(11535) 1/73

123 OTHERS

123.1 Pensioned Employes

Janitors, although on pension, if on payroll, are employes within the meaning of the Act. Sivyer Steel Casting Co. (582) 5/44

123.2 Independent Contractors

Individual, who by contract leases a milk route territory from a milk plant and who, pursuant to that contract, is to be paid a “commission” amounting to the difference between the cost of the milk to him and the sales price, held not to be an employe within the meaning of the Act but an independent contractor. Mariondale Farms, Walworth Co. Cir. Ct., 5/50

Board found car washers to be employes rather than independent contractors because of Employer’s control of the manner and means their work was performed. Rugene, Inc. (5786) 7/61

Franchise and lease agreements do not in themselves establish an independent contractor-employer relationship. Where employer exercised sufficient control over the person involved In the manner and means in which catering routes were operated, an employe relationship, rather than an independent contractor relationship, was established. Chuck Wagon Industrial Catering Service (7093-B) 8/66

Fact that bus drivers are paid by the trip held not sole determinative factor in determining whether they are independent contractors. Evidence disclosed that said individuals were employes. Prigge’s Chartered Buses, Inc. (8061) 6/67

Individual who is paid a fixed monthly salary, with no regular hours, and performs a repair and maintenance service on call, held to be an independent contractor rather than an employe. Doyle Lithographing and Printing Co. (8126-F) 12/68

Pizza deliverymen found not to be independent contractors for the reason that the employer exerted substantial control over their work functions. Rocky Rococo Corp. (13415) 3/75

Where cab company owns vehicles, pays for insurance and repairs, and directs drivers to pickup fares and obtain cab permits, and has the right to terminate drivers at will, drivers were found to be employes, rather than independent contractors. Red Cab Co.(15410-A,B) 2/78

Janitor, who received fixed compensation for his varying hours of work, but who worked on a regular basis, and did not furnish his own supplies, and who received free meals, as did regular employes, held to be an “employe”, rather than an independent contractor. The Eggplant, Inc. (16514) 8/78

123.3 Agricultural Employes

While laborers employed on a fur farm are agricultural employes, neither the Employer nor the employes are exempt from the application of the Act. Mt. Nebo Fur Farm (6898) 10/64

Migrant harvest hands are employes within the meaning of the Wisconsin Employment Peace Act. Libby, McNeill & Libby (8163) 8/67

123.4 Musicians

Musicians in dance bands held to be employes of band leaders, rather than employes of those purchasing the services of said bands.Wis. Orchestra Leaders Assn. (8392-A,B) 11/70

123.5 Nurse’s Aide Trainees

Nurse’s Aide Trainees, who received two hours training per day for four days per week, without pay and only with the prospect of employment, found not “employes” within the meaning of the Act. Memorial Hospital Assn. (10010-A,B) 11/71

123.6 Clients of Rehabilitation Center

The fact that clients of rehabilitation center receive a nominal wage does not make them employes, since they function primarily as recipients of training and rehabilitation service. Waukesha Training Center, Inc. (14502) 4/76

123.7 Residence on Employer’s Premises

An individual residing on employer’s premises, who performs duties for which he is paid an hourly rate, and who pays for his room and board found to be an employe. Midway Manor Corp. (14820) 8/76

123.8 Employe Who Performed No Actual Work

Where a person is hired with the intent and expectation he would actively be working for the Employer, but that person goes on vacation two days after he is hired, and where the Employer submits payments to union benefit funds on his behalf, and, even though he performed no actual labor, was expected to commence active employment, then he was an employe until he notified the Employer that he would not commence active employment. Tompa Woodwork, Inc., 18498-A, B (4/82) (Aff’d Milwaukee, Co. Cir. Ct., 8/83)

123.9 Volunteers

Although individual in question is a regularly scheduled general counselor who is subject to same supervision and same general working conditions as other general counselors, she receives no monetary compensation and therefore is not an employe under WEPA. Community Alcoholism Services, Inc., Dec. No. 21695 (WERC, 5/94)

124 SOURCE OF FUNDS AS AFFECTING EMPLOYE STATUS

The fact that certain employes are funded by federal funds does not exempt such employes from the coverage of the Act. WisconsinHumane Society (14198) 12/75

130 REPRESENTATIVE

131 GENERALLY

When a union is duly selected as the bargaining representative, it is the representative of all employes, whether members or not, and its representative status is presumed to continue until termination thereof in some legally effective manner is shown or authoritatively determined. Lakeside Bridge & Steel Co., 241 Wis. 286, 11/42

140 LABOR ORGANIZATION

141 PARTIES ACTING ON BEHALF OF LABOR ORGANIZATION

The ordinary rules of respondeat superior or of agency do not strictly apply in determining whether a labor organization is responsible for acts of its members in interfering with rights of employes. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

142 NATURE OF ORGANIZATION

An employe organization need not constitute a formal labor organization before the Employer is obligated to recognize same as the representative of its employes. The Act does not require that concerted activities of employes be reflected in a formal labor organization. The organization must have as its purpose the intent to represent employes in collective bargaining. Mt.Nebo Fur Farm(6898) 10/64

Sec. 111.05(3) of the Act contemplates that persons or organizations requesting to appear on a ballot have as a purpose and function the representation of employes in collective bargaining with their employer. London Hat Shop (7023) 2/65

An employe organization need not constitute a formal labor organization before the Employer is obligated to recognize same as the representative of its employes. The Act does not require that concerted activities of employes be reflected in a formal labor organization. The organization must have as its purpose the intent to represent employes in collective bargaining. The Dorchester(10771) 2/72; Hope, Inc. (11468) 12/72; Mercy Hospital (12627) 4/74; Dos Bandidos (16454) 7/78

150 CRAFT

151 SKILLED WORKERS

Term “craft”, as used in Act (111.02(6) ), was intended to comprehend any group of skilled workers whose functions have common characteristics, distinguishing them sufficiently from others so as to give such group separate problems as to working conditions for which they might desire a separate bargaining agent. Ray-O-Vac Company, 294 Wis. 111, 6/46; Wausau Hospitals (12946) 8/74

Although x-ray, operating room and laboratory technicians were certificated, such certification is not sufficient to establish such technicians as “craft” employes, as the latter term is contemplated in the Act. Door County Memorial Hospital (9073) 6/69

Restaurant cooks found to be lacking in skills so as to constitute craft employes. Athens Restaurant (13153) 11/74

152 PROFESSIONAL EMPLOYES

Registered nurses, as professional employes, were deemed to be “craft” employes within the meaning of the Act. Mill-Way Nursing Home (6355-A) 11/63

Certified Laboratory Aides and Medical Technologists, because of their specific fields of knowledge and skills, found to constitute a separate profession. Wausau Hospitals (12946) 8/74

160 COLLECTIVE BARGAINING AGREEMENT

161 PARTIES

An agreement, covering wages, hours, and conditions of employment, existing between an employer and an employe is not a collective bargaining agreement as defined in See. 111.02(6) of the Act. Hotpoint, Inc. (2122) 6/49

162 “ALL-UNION” AGREEMENT

Collective bargaining agreement requiring all employes to obtain work permits from the union, held not an all-union agreement where the fees charged for such permits were in excess of union dues. Wisconsin Motor Corp., 245 Wis. 417, 6/44

A collective bargaining agreement not requiring membership in the union as a condition of employment but containing clause calling for preferential treatment to union members may constitute an all-union agreement. Cutler-Hammer, Inc., Milwaukee Co. Cir. Ct., 7/47

“Agency shop” provision in a collective bargaining agreement falls within the definition of an “all-union” agreement within the meaning of Section 111.02(9). Western Union Telegraph Co. (3661) 1/54

163 STRIKE SETTLEMENT AGREEMENT

An agreement reached between an employer and union, following a strike, which, among other things, provides a procedure for the recall of employes who engaged in the strike, held to constitute a collective bargaining agreement under WEPA. Evco Plastics(16548-A,D) 12/81

170 LABOR DISPUTE

171 BOYCOTTING

Although not defined in the Act, the meaning of the term “boycotting” becomes reasonably certain when considered in connection with the other provisions of the Act. Plankinton House Co., 236 Wis. 329, 1/41

172 PICKETING

Although not defined in the Act, the meaning of the term “picketing” becomes reasonably certain when considered in connection with the other provisions of the Act. Plankinton House Co., 236 Wis. 329, 1/41

173 STRIKE

To constitute a strike there must be an act of quitting work by mutual understanding by a body of workmen as a means of enforcing compliance with demands made on their employer and not only a withdrawal from employment but also a continuance of unemployment. Briggs & Stratton Corp., 250 Wis. 550, 6/47 (Aff. U.S. Supreme Court, 69 Sup. Ct. 516); Home Lumber & Improvement Co. (3304) 10/52

174 GENERALLY

No labor dispute exists within the meeting of the Act where the owner of a business, who conducts it by himself with no employes, sought a temporary restraining order enjoining picketing by a union which was seeking to organize employes in the industry. Brown’s Window Cleaning Service, 258 Wis. 123, 12/50

200 EVIDENCE

210 ADMISSIBILITY

211 IN COMMISSION HEARINGS

Board found not to have committed any prejudicial error by excluding evidence in an unfair labor practice proceeding relating to matters occurring after the filing of the complaint. Caswell Bldg. Corp., Milw. Co. Cir. Ct., 10/49

Board sustained motion to exclude evidence attempting to establish oral agreement purportedly entered into prior to the execution of a written collective bargaining agreement, which oral agreement would alter, modify, and change the subsequently written agreement. Famco Machine Co. (3407) 3/53

Board, in its hearings, is not bound by common law or statutory rules of evidence. Blochowiak Dairy Co., 262 Wis. 280, 10/52

Sec. 227.10, Wisconsin Statutes, provides that agencies shall not be bound by common law and statutory rules of evidence, and that the agency shall admit all testimony having probative value. Briggs & Stratton (7712) 8/66 (Aff. Milw. Co. Cir. Ct., 5/67

Findings of Department of Industry, Labor and Human Relations, with respect as to whether employes were entitled to unemployment compensation, are not admissible in complaint proceeding before WERC alleging that said employes were discharged in violation of collective bargaining agreement. Briggs & Stratton Corp. (9530-A,B) 12/71

212 IN COURT PROCEEDINGS

Chapter 111 of the Wisconsin Statutes does not authorize the taking of additional evidence by the court in the proceeding before the court, but only before the Board on remand to the Board. Century Bldg. Corp., 235 Wis. 376, 4/40; Allis-Chalmers Mfg. Co., 252 Wis. 436, 4/48; J. P. Cullen & Son, 253 Wig. 105, 7/48; Kohler Co., Sheboygan Co. Cir. Ct. 8/54

The determination of jurisdictional facts is for the Board and not the courts. Lucas Livestock & Implement Co., 3 Wis. (2d) 464, 4/58

220 BURDEN OF PROOF

221 GENERALLY

The party on whom the burden of proof rests is required to sustain such burden by a clear and satisfactory preponderance of the evidence. Century Bldg. Corp., 235 Wis. 376, 4/40; Golden Guernsey Dairy Coop, 238 Wis., 379, 6/41; Plankinton Packing Co., 255 Wis. 285, 7/49 (Rev. U.S. Sup. Ct. on jurisdictional grounds, 388 U.S. 953, 2/50)

The mere fact that an employe is engaged in concerted activity within the knowledge of the employer at the time of his discharge does not establish discrimination within the meaning of the Act. Complainant must prove by a preponderance of the evidence that such concerted activity motivated the discharge. Lakeside Industries (4508) 4/57

In the absence of any credible evidence that the employer was aware of the concerted activity of the discharged employe, said discharge found not to have been in violation of the Act. St. Anthony’s Hospital (4735) 7/58

Where the complainant did not establish any violation of the Act by a clear and satisfactory preponderance of the evidence, the Board dismissed the complaint. Utschig Dairy, (5194) 5/59

Burden of establishing the subjective intention of strikers with respect to continuing their strike falls to the strikers or their representative. Joyce Heating, Inc. (8049) 5/67

In a complaint alleging discharge upon concerted activity or sympathy, the complainant must prove by a clear and satisfactory preponderance of the evidence that the discharge was motivated by anti-union animus and that the employer had knowledge of such activity or sympathy of the employes discharged. Sage Nursing Home (8179-B) 3/68 (H.E. Dec.) (Aff. WERC 4/68); St. Joseph’s Hospital (8787-A,B) 12/69; Wetenkamp Transfer & Storage (9781-A,B) 7/71; Paco’s Restaurant (12165-B, C) 7/74; Harry Viner, Inc.(13828-A, E) 6/76; Mini-Bus Charter Service, Inc. (15369-A,B) 4/78; Student Transportation Co., Inc. (16247-A,B) 9/78; Wausau Theatres Co., Inc. (16438-B,C) 8/79; The Eggplant, Inc. (16639-A,B) 9/79

Without knowledge of concerted activity, even where certain actions by Employer may have had a coincidental effect of discouraging concerted activity, the Employer cannot be found to have committed any unfair labor practices. Billy Moy’s One-World Inn (10947-A,B) 8/72

The party on whom the burden of proof rests is required to sustain such burden by and clear and satisfactory preponderance of the evidence. Gehl Co. (10891-A,B) 5/73; A C Trucking Co Inc. (11731-A, B) 2/74; Rocky Rococo’s Inc. (13556-A, B) 4/76

In an unfair labor practice complaint alleging that an employer has violated a collective bargaining agreement by taking action against an employe, e.g. discipline, suspension, discharge, etc., where the employer, in defense thereto, alleges that the “Just cause” provision in the collective bargaining agreement permits such action by the employer, the employer has the burden of establishing, by a clear and satisfactory preponderance of the evidence, that there was just cause for its action, provided the Complainant first establishes a prima facie violation of the collective bargaining agreement involved. Stolper Industries, Inc. (12626-A, B) 10/75

Where individual employe seeks determination of alleged contractual violation and where said contract contains a provision for final and binding arbitration, and where the employe alleged that the union denied him fair representation in processing his grievance, said employe has the burden of proving the latter allegation. Neillsville Coop Transport (14404-A) 8/76; Duo Safety Ladder Corp. 6501-A,B) 2/79

Where Employer contended that it had timely terminated collective bargaining agreement, Employer must establish same by a clear and satisfactory preponderance of the evidence. Giraffe Electric, Inc., (16513-A,D,E) 12/80

Complainant must prove by a clear and satisfactory Preponderance of the evidence that Respondent was hostile toward the concerted activities of the Complainants and that Respondent’s treatment of the Complainants was motivated, at least in part, by Respondent’s animus toward such activity. Wisconsin’s Environmental Decade, Dec. No. 19962-A (McCormick, 3/84)

Where Complainant alleged that the Company violated a strike settlement agreement with respect to the recall of an employe whom the Company contended was not qualified for the position of mold-maker, the Complainant bears the burden of proof. Evco Plastics, Dec. No. 16548-E (WERC, 6/84)

231 GENERALLY

The drawing of inferences from the facts presented at a hearing before the Board is a function of the Board and not of the reviewing court. Sears Roebuck Co., 242 Wis. 21, 12/42; Wisco Hardware Co., Dane Co. Cir. Ct., 12/49; Denmark Warehouse Co., Manitowoc Co. Cir. Ct., 6/50; Stolper Steel Products Co., 258 Wis. 481, 2/51; Milwaukee Sentinel Division, Milw. Co. Cir. Ct., 4/51; Stowe Plastic Products Co., Milw. Co. Cir. Ct., 5/51; Philip Parish, Rock Co. Cir. Ct., 5/51; Cutler-Hammer, Inc., Milw. Co. Cir. Ct., 3/52; Block Bros. Co., Kenosha Co. Cir. Ct., 9/52; National Warehouse Co-op., Milw. Co. Cir. Ct., 9/52; St. Joseph’s Hospital, 264 Wis. 396, 7/53

Employer’s attempts to determine which employes were engaging in union activity, and threats of discharge, together with its unconvincing purported reasons for the discharge of two employes who were union members creates reasonable inference that employer discharged employes to discourage union activity among its employes. Sage Nursing Home, Inc. (6129) 10/62

240 WEIGHT AND SUFFICIENCY

241 GENERALLY

Board is the judge of the creditability and the competence of the evidence presented before it. Century Bldg. Corp., 235 Wis. 376, 6/40; Golden Guernsey Dairy Co-op, 238 Wis. 379, 6/41; Allis-Chalmers Mfg. Co. 243 Wis. 332, 6/43; Harold Cederstrom, Milw. Co. Cir Ct., 10/47; Gilson Bros., 225 Wis. 316, 10/49; Mariondale Farms, Walworth Co. Cir. Ct., 5/50; Stolper Steel Products Co., 258 Wis. 481, 2/51; Milw. Sentinel Division, Milw. Co. Cir. Ct., 4/51; Stowe Plastic Products Co., Milw. Co. Cir. Ct., 5/51; Cutler-Hammer, Inc., Milw. Co. Cir. Ct., 3/52; St. Joseph’s Hospital, 264 Wis. 396, 7/53; St. Francis Hospital, 8 Wis. 2d 308, 11/59; Afram Bros., Milw. Co. Cir. Ct., 10/63

The Commission is the judge of the credibility and the weight of the testimony and of the inferences which may be drawn from it insofar as such inferences are reasonable. Flambeau Plastics Corp., Milw. Co. Cir. Ct., 6/67; Stolper Industries, Inc., Waukesha Co. Cir. Ct., 11/67; Ladish Co. (17414-A,B) 5/81

242 SPECIFIC RULINGS

Evidence presented by employer and union that an employe, who had been wrongfully discharged, presently had a steady job and was receiving more than equivalent to his former wages, was insufficient to preclude the Board from ordering his reinstatement, since factors other than wages are to be considered. Plankinton Packing Co., 255 Wis. 285, 7/49 (Rev. U.S. Supreme Ct. on jurisdictional grounds, 338 U.S. 953, 2/50)

Fact that employes did not attend union meeting following union organizational meeting does not in itself establish interference on behalf of the employer. Pioneer Creamery Co. (3428-B) 7/53

The Board is not permitted to speculate nor to make inference on inference in an attempt to find a violation when the most it can say is that a violation may have occurred. Pearce L. Roberts, et al (3978) 5/55; A C Trucking Inc. (11731-A, B) 2/74

Board found sufficient evidence to draw an inference that union agent induced work stoppage. Capitol Erecting Co., Inc. (4405) 11/56 (Aff. Milw. Co. Cir. Ct., 12/57)

Where employer suddenly discharged employe after learning of “union talk” in small plant employing 11 employes, Board credited discharged employes’ testimony that employer admitted discharge was to discourage concerted activity. Owen Dairy (5699-A) 4/61

Where testimony supporting alleged reason for discharge was hearsay and no explanation for absence of direct testimony was adduced, Board credited employes’ denial of events. Sage Nursing Home, Inc. (6129) 10/62

Stipulation, to the effect that employer was convicted and fined on his plea of nolo contendere to charge of placing a newspaper ad for employment without indicating existing strike, held insufficient to support a finding that said employer committed a misdemeanor and unfair labor practice within the meaning of Sec. 111.06(1)(1) of the Act. Bruns Garage, Inc. (6615) 1/64

In order to establish that an employe quit his employment there must be credible evidence to establish that the employe involved actively or constructively conveyed an intent to quit. Wetenkamp Transfer & Storage (9781-C) 7/71

250 LACK OF PARTICIPATION IN HEARING BY COMMISSIONER

251 GENERALLY

Due process does not require evidence to be taken before Commissioner who ultimately participates in the decision in the matter.Tecumseh Products Co., 23 Wis. (2d) 118, 8/63.

260 CREDIBILITY FINDING BY EXAMINER

261 GENERALLY

Appellate Court rejected contention of complainant that Commission could not pass on credibility of witnesses because the hearing was before an Examiner rather than before the Commission and because Commission’s findings did not reflect that Commission conferred with Examiner in that regard or that it had the benefit of his impressions. Court held nothing in the statutes which requires such a statement in Commission’s findings, and on review the Court presumes the Commission performed its duties in that regard since nothing to the contrary appeared in the record before the Court. Flambeau Plastics Corp., Milw. Co. Cir. Ct., 6/67

300 INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES

311 HOW THE QUESTION IS RAISED

311.1 Demand For Recognition By Labor Organization

There is no necessity for a labor organization to make a formal demand on the employer prior to filing a petition with the Board/Commission. The filing of the petition in itself constitutes a claim by the petitioner that it represents a majority of the employes, as well as a demand on the employer to be recognized as such representative. A. 0. Smith Corp. (867) 1/46; Avon Manor Nursing Home (6987) 12/64; Pavilion Nursing Home, Inc., (7932) 3/67; St. Vincent’s Hospital, (9023-A) 8/69; Pine Manor Nursing Home Inc., (9222) 9/69; Shawano Community Hospital, (9281) 11/69; St. Vincent Hospital, (12008) 7/73; St. Mary’s Hospital Medical Center, (12017) 7/73

Board dismissed petition filed by employer where the union conceded that it did not represent a majority of employes and had made no demand for recognition. Squirt Bottling Co. (3122) 4/52

Where union made no demand for recognition and its handbills could not be equated with such a demand, Board dismissed petition for election filed by the employer, since no question of representation had been raised. Mamie’s, Inc. (6919) 10/64

311.2 Claim of Majority Status

Where in a complaint proceeding Union did not establish that it represented a majority of the employes in order to sustain its allegation that the Employer had refused to bargain with it in good faith. The Commission processed a pending election petition filed by the Employer, since a question of representation existed. Henke’s Floors & Furnishings, (9207) 9/69

311.3 Disclaimer of Representative Status

Where Employer filed petition seeking an election to determine whether its employes desired to continue to be represented by Union, which had been certified as the bargaining representative, and where said Union disclaimed such representative status, WERC dismissed petition on the basis that a question concerning did not exist, and at the same time the original certification was set aside.Lutheran Children’s Friends’ Society of Wisconsin, (14849-A) 10/77

320 SHOWING OF INTEREST

321 FIRST ELECTION

Board has never felt that in a representation proceeding, where no previous election was held, that there was any burden on the petitioner to make a showing of substantial interest in order to be entitled to an election. Kiekhafer Aero Marine Corp. (1364) 6/47;Midwest Hotel Co. (2149) 7/49; St. Mary’s Hospital (6952) 11/64; Holy Family Hospital (7119) 4/65

Commission does not require a showing of interest by a labor organization seeking to represent employes where there exists no recognized or certified bargaining representative. Bellin Memorial Hospital (8518) 4/68; Wausau Colonial Manor (8717) 10/68; St. Vincent’s Hospital (9023-A) 8/69; Pine Manor Nursing Home Inc. (9222) 9/69; Shawano Community Hospital (9281) 11/69; Fort Atkinson Memorial Hospital (9580) 4/70; St. Joseph’s Hospital (9614) 4/70; Evangelical Deaconess Hospital (9672) 5/70; Holy Family Hospital (9682) 5/70; Cedar Lake Home for the Aged (9770) 6/70; Watertown Memorial Hospital (9857) 8/70; Stoughton Memorial Hospital (10436) 8/71; Memorial Hospital of Oconomowoc, Inc. (10581) 10/71; St. Michael’s Hospital (10771) 2/72; Holy Family Hospital (11535) 1/73; St. Michael’s (11845) 5/73; Plymouth Hospital (11848) 5/73; Manitowoc Memorial Hospital (11952) 6/73; St. Mary’s Hospital Medical Center (12017) 7/73; St. Michael’s Hospital (12139) 9/73; Baraboo Concrete Co. (12177) 9/73; Mercy Hospital (12414) 1/74; St. Mary’s Hospital (12520) 3/74; Mercy Hospital (12627) 4/74; St. Mary’s Hospital (12689) 5/74; Trinity Memorial Hospital (12764) 6/74

322 SECOND ELECTION

Under Section 111.02(11) a second election can be directed only where the petitioner established proof that sufficient reason exists therefor. Factors considered, e.g., feelings of employes toward bargaining representative. Madison Laundries (396, 397, 398, 399, 400) 6/42; Eclipse Molded Products Co. (866)1/46; Blochowiak Dairy Co. (2376) 4/50

Unsubstantiated statement of union representative that the union, which had been overwhelmingly defeated in an election held eight months previously, presently had a sufficient interest among the employes to warrant an additional election, is not sufficient reason for the conduct of an election. Kiekhafer Aero Marine, Corp. (1364) 6/47

Where an election had previously been conducted and the result was adverse to the union, which subsequently petitioned for a second election, the Board held that at the hearing on the matter for the second election, the union must make a showing which would indicate some prospects that at such an election there was a possibility that the union would be selected as the bargaining representative. Midwest Hotel Co. (2149) 7/49

Board held 12% showing insufficient to order second election. Midwest Hotel Co. (2149) 7/49

Board held 64% showing sufficient to order a second election. Capital Garage (2175) 9/49

It is the general policy of the Board not to hold more than one representation election in any one year. Since the Act permits more than one election where sufficient reason exists therefor, the Board directed a second election within the year since evidence introduced at the hearing disclosed sufficient reason for holding of the second election. Boss Eau Claire Hotel, Inc. (4838) 8/58; Omar Bakeries Inc. (6774-B) 9/64

Where employer was aware of union’s intention to negotiate a new agreement and where 12 out of 17 employes executed and Presented a statement to the employer indicated they no longer wished to be represented by the union, Board held sufficient reason existed to conduct second election. Columbia Hospital (5399) 12/59

Although it is the general policy of the Board not to hold more than one election in any one year, where during the year following the previous election the same union petitions for an election in a different bargaining unit, it will direct such election where there is no objection voiced to the unit. St. Michael Hospital (5443) 3/60

No showing of interest is required in support of a petition for second election, where in election, held more than one year previously, employee rejected representation by the same Union. Clintonville Community Hospital (10282) 4/71; St. Vincent’s Hospital (10347) 6/71

323 CLAIM OF REPRESENTATION

Board held that collective bargaining agreement which covered “all employes of the employer” was not a bar to an election among employes of a newly established plant of the employer in another city since the contracting local had never claimed to represent the employes of the new plant nor had it ever requested the employer to enforce any provisions of said agreement, including an “all-union agreement” provision. Sorge Dairy Co. (4533) 5/57

Where intervening union does not claim to presently represent any office employes but claims basis for intervention on the fact that said organization usually represents employes of that nature, Board denied said organization a place on the ballot. St. Anthony’s Hospital (4762-A) 7/58

324 PETITION TO DETERMINE WHETHER EMPLOYES DESIRED TO CONTINUE REPRESENTATION

324.1 By Employer

An employer petition to determine whether employes desired to continue the union as their bargaining representative must be supported by objective considerations demonstrating reasonable cause to believe that the incumbent organization has lost its majority status. St. Mary’s Hospital (9052) 5/69; Morgan-Wightman Supply Company, 21048 (10/83)

Where evidence, with respect to statements made by some employes that the Union no longer represented a majority of employes, was insufficient to establish, by objective considerations, any reasonable cause to believe that Union had lost its majority status or that any employes changed their attitude in that regard, Commission dismissed election petition filed by the Employer. RiverviewHospital Assn. (9545) 3/70

Although Employer failed to establish, by objective considerations, that the incumbent organization lost its majority status, Commission did not dismiss petition for election filed by the Employer, since during the course of the hearing, the Union introduced a document, signed only by a minority of the employes, to the effect that they desired to continue their representation by the Union.Williams Cafeteria (11010) 5/72

The Commission determined that Employer made a sufficient showing by objective considerations, that it has reasonable cause to believe that the incumbent organization may have lost its majority status. The extremely high turnover rate combined with the evidence that the employes have expressed declining interest in authorizing the Employer and Union to enter into some form of all-union agreement and the evidence that a number of employes have made unsolicited statements that they no longer desire to be represented by the Union, taken together, indicate that there presently exists a question concerning representation, which is timely presented by the Employer’s petition. Wausau Hospitals, Inc. (11343) 11/72

Where the only employe in the bargaining unit made an unsolicited statement to the Employer’s manager that he wished to withdraw from the Union and where the conversation included a discussion of promotional opportunities, and arguably might be interpreted in that context, the Commission is satisfied that the plain meaning of the statement, even in the context of the conversation, provided the Employer with reasonable cause to believe that the Union might have lost its majority status. The Commission therefore directed an election to resolve any doubts as to whether the employe desired to continue to be represented by the Union. Morgan-Wightman Supply Company, 21048 (10/83)

An Employer is relieved of the bargaining obligation only if it has a good faith doubt, based upon objective considerations, that employes no longer want the Union to represent them for collective bargaining purposes. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A (6/83)

324.2 By Labor Organization

The requirement that a petitioning labor organization provide the Commission with at least a thirty per cent showing of interest to warrant further processing of a petition for an election, wherein the employes sought to be represented are currently represented by a certified or voluntarily recognized labor organization, is intended to prevent the disruptive effect of frivolous and insubstantial claims of representative status and that purpose has been served. The showing of interest procedure is not intended to be a substitute for a secret ballot expression of employe sentiment regarding their desires as to representation. The Dorchester (10795) 2/72

330 BARS TO PROCEEDING

331 CONTRACTS

331.1.1 Contracts Containing Illegal-Clause

A contract, covering all employes of employer, containing an illegal union security clause held not a bar to an election for a unit of departmental employes. Northern States Power Co. (283) 8/41

Contract containing an unauthorized union security provision, regardless whether or not such a provision has been enforced, held not a bar to an election. Roxo Corp. (3395) 3/53

Collective bargaining agreement containing an unauthorized “all-union agreement” is not a bar to a present determination of representatives. Artistic Cleaners & Launderers, et al, (4918-A) 11/58; Finks Laundry & Dry Cleaning, Inc. (5029) 12/58; Avenue Convalescent Home (5380) 12/59; Motor Hotel Wausau, Ltd. (11892) 5/73

331.1.2 “Members Only” Contracts

Contracts limited in coverage to members of contracting organization held no bar. A. 0. Smith Corp. (867) 1/46

Provision in a collective bargaining agreement granting greater seniority to union members than to non-members is illegal and such a provision prevents the agreement from constituting a bar to a present determination of representatives. Artistic Cleaners & Launderers, et al, (4918-A) 11/58; Crib Diaper Service, Inc. (4935-A) 11/58

331.2 Changed Circumstances Within Contract Term

All-union contract held no bar to an election when at the time the contract was executed only one-third of the expected complement was employed, following voluntary recognition and referendum conducted by the Board, since there was proof that there had been a substantial increase in the number of employes. Kiekhafer Aero Marine Corp. (1070) 8/46

Where one of two rival unions disclaims representation and the remaining union and employer do not contend existing agreement constitutes a bar, Board directed a new election. Krueger Heating, Inc. (4625) 9/57

331.3 Duration of Contract

331.3.1 Contracts Approaching Termination

Collective bargaining agreement for a term of one year is a bar to an election where the petition is filed six months prior to the expiration of the contract and in the absence of claims that any other organization, other than contracting union, represents the employes. Garton Toy Co. (8) 8/39

Present existing contract held not a bar to prevent employes from selecting a different bargaining agent or a new collective bargaining unit. The Heil Co. (185) 8/41

Presently existing contract with almost 11 months of its term remaining held a bar to a representation petition filed by employes who desired to constitute themselves a separate bargaining unit inasmuch as they were employed in a department which was included in the existing collective bargaining agreement even though the employes in that department were expelled from the union for failure to maintain their membership pursuant to the contract. Phoenix Hosiery Co. (115) 9/40 (Aff. Milwaukee Co. Cir. Ct. 10/41)

Board ordered an election even though one of the labor organizations had been certified ten months previously and a contract entered into, although wage scale was yet to be fixed by the War Labor Board. Board held that although the collective bargaining agreement was in effect, the selection of a new bargaining representative would have no effect on the agreement since it would continue to bind all the employes for its full term, and the newly elected bargaining agent would become the agent of the employes. Board based its position on the principle of the Act which grants to the employes the right at all times to bargain collectively through representatives of their own choosing, and that any time that the employes are dissatisfied with their representatives, after a reasonable period of time, they should be given the opportunity to select a new bargaining representative. Four Wheel Drive Auto Co.(687) 11/44

Existing collective bargaining agreement with seven months of its term yet to run, held not a bar to an election. In the event the employes select a new bargaining representative, the employes are still bound by the existing agreement but could be represented by the new collective bargaining representative for the purpose of presenting and disposing of grievances. Ray-O-Vac Co. (781) 8/45

Board held legal all-union shop contract to be a bar to an election where the contract still had five months to run before its expiration.Fox-Heard Waukesha Corp. (877) 1/46

In cases where there is a valid existing contract, the Board will not direct an election that will in any manner change the bargaining representative during the period of such agreement. The Board will direct elections a sufficient time prior to the expiration of the agreement, when a satisfactory showing is made, so that negotiations may be begun a reasonable length of time prior to the expiration of the new contract then in effect, by such bargaining agent as may be selected by the employes. Garton Toy Co. (1075) 8/46

Board dismissed petition for election where there existed a collective bargaining agreement with nine months left prior to its expiration. Hartwig, Inc. (1076) 8/46; Holton & HunkeI Greenhouse (1077) 8/64

Board held that a present existing contract was a bar to a present determination of representatives, however, that it would consider a petition at any time within 60 days prior to its expiration. Vandehey Motors (1516) 1/48

Board held contract not to be a bar which expired in less than three months of the date of the direction of the election. Huebsch Laundry Co. (2151) 7/49

Board held present existing collective bargaining agreement with 16 months yet to run prior to its expiration, a bar to a present determination of representatives. Co-op Consumers Assn. (2822) 5/51

Two year agreement, with approximately one year yet to run before its expiration, held to constitute a bar to a present determination of representatives. National League Baseball Club of Milwaukee, Inc. (4057) 9/55

Petition for election filed prior to automatic renewal date held to be timely filed and that agreement did not constitute a bar to an election to be conducted on expiration thereof. Madison Telco Credit Union (7935) 3/67

Where petition was filed after contractual reopening date and contract was extended beyond its termination date as a result of the federal wage freeze, Commission held petition to be untimely filed. However Commission indicated that it would entertain a new petition if the incumbent Union and the Employer could not reach an agreement within 60 days following the dismissal of the original petition. Appleton Memorial Hospital (10905) 3/72

331.3.2 Contracts of Indefinite Duration

Contract indefinitely continued during negotiations held not to constitute a bar to an election because it is an agreement for an indefinite period. Capital Garage (2175) 9/49

Two year agreement which permits termination at will by either party prior to fixed term held by Board not to constitute a bar to a present election. Belle City Press (5509) 6/60

Where collective bargaining agreement can only be terminated by mutual request of the parties Board held that agreement did not constitute a bar to a present election. St. Mary’s Hospital (6779) 6/64

Collective bargaining agreement containing no provision with respect to its duration held not to constitute a bar to a present election.Madison Telco Credit Union (7935) 3/67

Collective bargaining agreement containing no provision with respect to its duration held not to constitute a bar to a present election.St. Luke’s Hospital (9603) 4/70

331.3.3 Long Term Agreement

Where four years of a five year agreement still remained, Board held agreement to be excessive and did not constitute a bar to a present determination of bargaining representatives. Artistic Cleaners & Launderers, et al (4918-A) 11/59; Crib Diaper Service, Inc.(4935-A) 11/58

331.4 Representative Status of Labor Organization

331.4.1 Defunct Labor Organization

Any contract between an employer and a bargaining representative that has, for all practical purposes, ceased to function, held not a bar to an election. Holton & Hunkel Greenhouse (1166) 11/46

Board directed an election, even though notice was given to union after automatic renewal date of contract, where the union has not represented the employes for six years and had not given any service to the employes. North Side Battery Works (1675) 6/48

Although parties to collective bargaining agreement did not terminate the agreement, Board directed election where the union apparently abandoned its representative status by not servicing the employes covered by the agreement at least for a three year period. Brown County Motors (4532) 5/57

Where during term of contract employer unilaterally increased wages and during entire year representatives of previously certified union never contacted employes, Board held contract not a bar to an election since union appeared to have abandoned its representative status. Columbia Hospital (5086) 1/59

Contract under which no grievances had been filed in two years; where one signator Union ceased to exist during the two years and where Employer had reduced vacation and holiday benefits and increased wages without negotiation or consultation with the Union, Board held contract not a bar to an election. Janesville Steam Laundry (5725) 4/61

331.4.2 Minority Representative

Where contracting union has never represented a majority of the employes, and still purports to act as the exclusive representative of all the employes, contract held not a bar to an election. Eau Claire Cafe (134) 10/40

331.4.3 Schism

Where the contracting local was expelled by the parent organization, and where the officers of the contracting local transferred their affiliation to a newly chartered local, and where a substantial number of members of the contracting local revoked their dues check-off authorizations, previously executed in favor of the contracting local, Board found a schism to exist which prevented the contract existing between the employer and expelled union from operating as a bar to a present election. Artistic Cleaners & Launderers, et al(4918-A) 11/58

331.5 Effect of Rival Claim or Petition

331.5.1 Timeliness

Contract covering all employes held not a bar to a petition for a smaller unit where the petitioning union requested recognition during negotiations leading up to the contract. Northern States Power Co. (283) 8/41

Where, prior to the date that either the employer and the contracting union are required by the agreement to give notice of a desire to terminate or change such agreement, a rival union requests recognition and notifies the employer that it represents a majority of the employes, the automatic renewal provision is not a bar to an election. Eclipse Moulded Products Co. (866) 1/46

Contract signed after receipt of notice by employer of claim of majority by rival union held not a bar to an election. La Crosse Telephone Corp., 251 Wis. 583, 12/47 (Rev. U.S. Sup. Ct. on jurisdictional grounds, 336 U.S. 18, 1/49)

Representation petition filed one month prior to expiration date of contract held timely and contract not a bar. Checker Cab Co.(1848) 9/48

Board ordered election, finding recently expired contract nor negotiations for a new contract not a bar. Madison Plow Co. (1844) 10/48

Whenever a claim is made by another union or where the employes desire no union, in order to prevent an automatically renewed contract from becoming a bar it is sufficient if the petition requesting the election is filed prior to the automatic renewal date of the contract. Sunshine Dairy (3320) 12/52

Filing of timely notice to reopen collective bargaining agreement prevents the agreement from constituting a bar to a present determination of bargaining representatives. Wholesale Meats, Inc. (4138) 1/56

The filing of an election petition by the employer prior to the effective date of the automatic renewal clause forestalls the automatic renewal of the agreement and therefore the agreement does not constitute a bar to a present determination of representatives.Janitorial Service, Inc. (4851) 8/58

Filing of timely notice to reopen collective bargaining agreement prevents the agreement from constituting a bar to a present determination of bargaining representatives. Consumer’s Market, Inc. (10407) 7/71

331.6 Effect of Conduct of Parties Upon Contract Renewal, Extension, or Continuance

Contract held not to constitute a bar where the petition, although filed after the automatic renewal date, was filed during negotiations for modification of the contract. Mueller Furnace Co. (495) 6/43

Where the contracting union notified the employer of its desire to “change and modify” the agreement in accordance with a provision therein requiring timely notice prior to the effective date of the automatic renewal and where subsequent negotiations were held and no new agreement was consummated, Board held the contract no bar since the notice prevented the automatic renewal provision from taking effect. Heiss Bakery, lnc. (3274) 10/52

Where union served untimely notice upon the employer requesting modification of the collective bargaining agreement and where the employer took the position that such notice was not effective since it was filed after the cut-off date, and where the union withdrew such notice, Board dismissed election petition filed by the employer during the term of the extended agreement, finding said agreement to constitute a bar. Brandes Co. (4337) 8/56

Where considerable time has elapsed since last bargaining session with Union and high personnel turnover has taken place, Board held question of representation existed. Bowlero, Inc. (5789-B) 10/61

331.7 Individual Contract of Employment

Service agreement executed by employe and employer held not to constitute a bar to a present determination of bargaining representative since it was not a collective bargaining agreement. Joseph H. Waxer (9351) 12/69

331.8 Miscellaneous

The fact that craft employes, who were included in overall employe units, were working along side with craft employes of another employer did not prevent the existing collective bargaining agreement covering said unit from constituting a bar to a present election involving said craft employes. Madison General Hospital (12529) 3/74

332 PRIOR DETERMINATION OF REPRESENTATIVES

332.1 Prior Certification

332.1.1 Less Than One Year Before

Board ordered an election within two months of previous election, where prior to certification, the employer commenced negotiations with a labor organization which was not on the ballot in the first election. Pepsi-Cola Bottling Co. (342) 1/42

Board dismissed representation petition filed by employer, where union had been certified five months previously and where the reasons set forth by the employer for the holding of a second election were not sufficient to warrant the Board from exercising its discretion in that regard. Board held that turnover of employes was normal and that employe petition for new bargaining agent had been obtained with the assistance of the employer. Semling-Menke Co. (503) 7/43 (Aff. Lincoln Co. Cir. Ct., 9/43)

Policy of the Board has been that where an election has been held, where the bargaining representative was selected, and where the results have been certified, such certification shall remain in effect for at least one year before a new election is directed. SheboyganDairymen’s Coop. (986) 6/46; Garton Toy Co. (1238) 2/47; Antigo Milk Products Co. (1308) 5/47; Ashland Tire & Electric Co. (1423) 9/47; Adams Marquette Electric Co-op. (1735) 7/48; Lindey Cleaners, (2711) 3/51; Kress Packing Co. (5581) 8/60

Board held that where the parties enter into a collective bargaining agreement for a term less than one year’s duration the “one year after certification” rule does not apply where the petition was “timely” filed. Blochowiak Dairy Co. (3440) 4/53); Columbia Hospital(5399) 12/59

Where, during the year following certification, there is a substantial, unresolved doubt as to whom the employes in the bargaining unit desire to represent them, the “one-year” rule will not be applied and the Board will order another election. Metro R. K., Inc. (3780) 8/54

Where only four employes voted in the original election, and where ten new employes were added to the unit and where said ten new employes supported a petition requesting a second election within one year of the first election, Board, in the absence of a collective bargaining agreement, found such expansion of the bargaining unit, in addition to the desire of the ten new employes, sufficient reason to conduct a second election within the year following the first election. Lakeside Industries (4610) 9/57

Board deviated from its policy of not conducting more than one election in the same year where the union, which had been certified as the bargaining agent six months previously, did not collect dues, failed to notify members as to meetings, failed to notify employes in unit as to developments concerning their wages, hours, and working conditions. Avenue Convalescent Home, Inc. (5624-A) 12/60

In the absence of any proof that any of the present employes oppose the certified bargaining agent, the mere turnover of employes in the bargaining unit does not constitute grounds for the direction of a second election approximately two months following the certification of the bargaining representative. Belleview, Inc. (5793) 7/61)

Board’s policy of ordinarily not conducting new election for at least one year following preceding election year is measured from time of the conduct of election until the filing of the second petition and is not delayed by appeals to the Courts concerning first vote.Adelman, Laundry Co. (5799) 8/61

332.1.2 More Than One Year Before

Board held that certification of three and one-half years ago and a 300% increase in number of employes constituted sufficient reason for new election. Eclipse Moulded Products Co. (866) 1/46

Employe petition, although filed within three months of certification which was held in abeyance for a year from date of previous election due to a pending unfair labor practice proceeding, held not premature and new election ordered. Lov-it Creamery (3085) 2/52

In cases where a petition for an election is filed more than one year following the preceding election the Board does not deem that a showing of interest is necessary for the processing of the petition. St. Luke’s Hospital (7007) 1/65; Holy Family Hospital (8333) 12/67

Commission entertained petition for election to determine whether employes desired to continue to be represented by the incumbent Union, where such petition was filed more than one year following the original certification and where there existed no other bar to the petition. West Allis Memorial Hospital (11020) 5/72

332.2 Loss of Previous Election

Board dismissed election petition filed within one month of previous election. Blochowiak Dairy Co. (2087) 5/49 (Aff. Milw. Co. Cir. Ct., 4/50

332.3 Effect of Voided Ballot

Where voided ballot affected the result of the first election, Board ordered a new election at the request of the petitioner. St. Michael Hospital (5102-B) 6/59

333 PROCEEDINGS UNDER OTHER LAWS OR AGENCIES

333.1 National Labor Relations Board (See JURISDICTION)

No question of representation exists where the NLRB had conducted an election and certified the result just one month previous to the filing of the petition with the Wisconsin Employment Relations Board. Hall Garage Corp. (1030) 7/46

333.2 War Labor Board

Board dismissed petition for election filed by employer where union had been certified ten months previously and where, after the union and employer having reached an impasse, the dispute was heard by the War Labor Board, which had not at the time of the petition reached its decision. Notwithstanding a turnover of employes and a petition of employes indicating that they no longer desired the union to represent them, which petition was sponsored by the employer, the Board held that, In spite of the unreasonable delay of the War Labor Board, the employes had kept their no-strike pledge, to order a second election would encourage a strike rather than the orderly procedure laid down to avoid such actions. Rydalh’s Launderers & Cleaners (677) 11/44

334 EXPANDING UNIT

Where the date when the employer expects to reach full employment is indefinite and indeterminate, the existence of such an expanding unit is no bar to an election. Harnischfeger Corp. (1178) 12/46

The mere fact that a hospital is only one-third occupied does not in itself indicate that a bargaining unit consisting of firemen will be expanded, in the absence of proof to the contrary such occupancy did not constitute a bar to a present determination of bargaining representative. St. Francis Hospital (4340) 8/56

The Commission will conduct an election where the current work force consists of a substantial and representative complement of employes in tile bargaining unit. Family Heritage Nursing Home (8265) 11/67

Where, after three months of its operation, 60 employes were employed and no indication was given as to the total complement of employes anticipated to be employed, the Commission concluded that the unit involved was not an expanding unit to the extent that it required dismissal of the petition. Madison United Hospital Laundry Ltd. (8478) 4/68

335 SEASONAL OPERATIONS

Board dismissed petition for election where season closed shortly after hearing. Stand Rock Indian Ceremonial (389) 5/42

336 PENDENCY OF UNFAIR LABOR PRACTICES

Board dismissed petition for election filed by the labor organization which was failing to comply with a cease and desist order previously issued by the Board in an unfair labor practice proceeding. Morris Resnick, Inc. (343) 2/42

Board dismissed petition for election filed by the employer where the union had been previously certified after an election held one and a half years prior to the filing of the petition, where the employer, after that certification, refused to bargain with the union in good faith and after having been found to have committed an unfair labor practice by the Board and courts, the employer still re(fused to comply with Board and court orders. Evangelical Deaconess Society (472) 2/43

Board directed an election on petition of the union, to be held after thirty days of employer’s compliance with an order issued by the Board in an unfair labor practice proceeding. S. & R. Cheese Co. (1338) 6/47

Where the Board previously issued no order for an election for the reason that it that time an unfair labor practice proceeding was pending against the employer and a cease and desist order had been issued by the Board, the Board, after one year later, when it appeared that conditions might have changed, ordered a further hearing on the election matter for the purpose of establishing whether or not the employer had complied with the cease and desist order, matters of eligibility, and names on the ballot. SheboyganDairymen’s Co-op Ass’n (1482) 11/47

Board will not order an election until unfair labor practices which were found to have been committed by the employer have been completely eradicated. St. Francis Hospital (4737) 4/58

Where Board’s order that the Employer bargain in good faith was upheld by Supreme Court and thereafter the parties negotiated and agreement existed in all issues except one, Board held, though there may be a change in the employes in the bargaining unit, election would frustrate the purposes and policies of the Act since Employer had only recently complied with the Board’s order to bargain. St. Francis Hospital (5503) 6/60

Board will dismiss petition for election filed during pendency of an unfair labor practices proceeding unless complainant waives the matters complained of as affecting the results of the election. Kress Packing Co., Inc., (5581) 8/60; Coronet Printing Co. (6799) 7/64

Following dismissal of complaint of unfair labor practices filed by Union, Commission directed election after representation proceeding initiated by Employer had been held in abeyance because of the complaint proceeding. Wallie Motor Co. (7143-B) 7/64

Commission will dismiss petition for election filed during pendency of an unfair labor practices proceeding unless complainant waives the matters complained of as affecting the results of the election. Cedar Lake Home for the Aged (9770) 6/70

Commission dismissed petition for election filed by employer where, in a related proceeding, the employer was found to have committed an unfair labor practice in refusing to bargain with union representing a majority of employes in an appropriate unit.Howard Aeh & Associates (11945-A) 10/74

337 NECESSITY OF ELECTION

An election is necessary for the Board to certify a bargaining representative. Gimbel Bros. Dept. Store (356) 2/42

The fact that the union representative claimed that the present members of the union would vote against the union in an election is no ground for dismissing the employer’s election petition. The Board held that it was not its function to determine, or even pass any opinion on, the justification or lack of justification for the members’ attitude toward their union. Norris Lea Furs (616) 6/44

Board denied motion of employer requesting dismissal of petition on basis that employes would testify that they did not desire Union as their representative since method for resolving question of representation is a secret ballot election conducted by the Board.Palmer Johnson Boats, Inc. (6778) 6/64

338 MISCELLANEOUS

338.1 Contemplated Sale of Business 1

Where employer raised objection to election because of contemplated sale of business, Board found question of representation to exist since such plans were still indefinite and the election was directed. A. J. Hanson Co. (4439) 1/57

338.2 Similarity in Names of Labor Organizations

Where election petition by AFL-CIO Laundry & Dry Cleaning International Union Local No. 161 was opposed by Laundry, Dry Cleaning, & Dye House Workers International Union Local No. 161 on grounds that similarity in the names of Unions tended to create confusion and precludes a valid selection of representatives, Commission denied motion and ordered election stating it would so word the ballot that no confusion should exist in the minds of the employes eligible to participate in the election. Finks Laundry & Dry Cleaning, Inc. (5029) 12/58

338.3 Employe Turnover

The fact that an employer has a high degree of employe turnover is no satisfactory reason for denying the benefits of the Act to employes. Goodwill Industries of Wisconsin, Inc. (7446) 1/66

The fact that forty employes presently employed would, in all probability be reduced to twenty, after the employer determined, by an undisclosed date, the employes who would be retained, did not constitute sufficient basis to dismiss election petition. Mandar Inn(14520) 1/76

338.4 Majority Status Established By Employes’ Authorization

Where Employer was ordered to bargain with Union, and where the Employer attempted to dissipate Union majority, evidenced by authorization cards, Commission dismissed election petition filed by the employer, since no question of representation existed. Tony’s Pizza Pit (8405-A and 81406-A)(H.E.Dec.)(Aff. WERC 10/68)

340 ELIGIBILITY TO PARTICIPATE IN ELECTION

341 Eligibility Date

Board has adopted no fixed rule relative to the eligibility date to vote in an election. The ordinary rule fixes the date on which the filing of the petition occurred. Automatic Products Co. (853-A) 2/46

Eligibility date to participate in election is regularly the date on which the Board/Commission issues its Direction of Election. W. H. Kranz Co. (4135) 1/56; Dos Bandidos (16454) 7/78

Employe, hired two days prior to eligibility date, but who did not report for work until after that date in accordance with an understanding with the employer held not eligible to participate in election. Lakeside Industries (4438-B) 4/57

When fraud by employe caused Board to set aside election, Board established eligibility date for new election the same as for original election. Trilu Corp. (5812-E) 1/62

Commission rejected proposal that eligibility date constitute the same date as the date on which the pay period ends immediately prior to the date on which the election is conducted. Rather it followed its general policy of utilizing the date on which the direction is issued as the eligibility date. Curtis-Universal Ambulance Service (16512) 8/78

Rate of employe turnover found not to justify a departure from the policy normally setting the eligibility date as the date on which the direction of election is issued. The Eggplant, Inc. (16514) 8/78

342 EMPLOYES LACKING FULL-TIME STATUS

342.1 Seasonal Employes

Seasonal employes, whom the employer intends to recall if needed, are eligible to participate in a representation election. Waite Carpet Co. (3) 7/39

Employe hired as a seasonal employe terminated by the Employer as a result of the completion of such seasonal work, is not eligible to vote. Spincraft, Inc. (5363-B) 2/60; Mr. Mac’s Restaurant (6858) 7/64

Individual who worked in season prior to filing of petition for election held not eligible to vote since there was no evidence that said individual would be rehired, or how much work he would perform if he were rehired during the coming season. Ulmen Construction Co., Inc. (8750) 11/68

342.2 Employes on Leave

Individuals who were employed by the employer on the date used for establishing eligibility, on bona fide leaves of absence on date of election, are eligible to participate in representation election. L. D. Schreiber & Co. (2855-C) 7/51; Generac Corp. (7211) 7/65

Board amended its Direction of Election to include, as eligible, a regular employe who was on a leave of absence. Wallie Motor Co.(4855-A) 9/58

342.3 Part-Time Work in Unit

Employes who do sufficient work to give them an interest in the conditions of employment also have a sufficient interest in the outcome of an election to entitle them to vote therein. Employe who devotes a minimum of 20% of his time regularly in performing work in the unit held eligible to participate in the election. Blochowiak Dairy Co. (3916-B) 5/55

High school students working under permit because of their youth are not excluded from eligibles. If they are old enough to work and if they work a substantial number of hours, they are eligible to participate in an election. Sentry Foods (4210) 3/56; Svoboda Church Furniture Co. (4352) 8/56; Holy Family Hospital (7119) 4/65; Marquette Bakery (7811) 1/66; Tom’s IGA (8229) 10/67

Board/Commission has never adopted a policy requiring part-time employes to work a specified number of hours in order to be included among those eligible to participate in an election. If an employe is regularly employed, regardless of the number of hours worked by him, such an employe has a definite interest in the wages, hours and working conditions governing his employment.Casey, Lincoln & Mercury (4538) 5/57; Luther Hospital Association (4582) 8/57; Phillips Bros., Inc. (4606) 9/57; Food Queen Stores(4741) 4/58; St. Anthony’s Hospital (4762) 7/58; Lumberman’s Service (5510) 6/60; Commerce Building (5851) 10/61; Wausau Furniture Company (5949) 3/62; Graff Quality Meats (6123) 10/62; Faustel, Inc. (6140) 10/62; Portage Stop N’ Shop (6803) 7/64;Pavilion Nursing Home, Inc. (7932) 3/67; Prigge’s Chartered Buses, Inc. (8061) 6/67; Ft. Atkinson Memorial Hospital (9580) 4/70;West Allis Memorial Hospital (10061) 12/70; The Pad, Inc. (13751) 6/75

Regular full time employe who, because of physician’s order, is temporarily employed on an irregular part time basis, held eligible to vote in election. Automatic File & Index Co. (6060-B) 10/62

Regular full time and regular part time grocery clerks are not excluded from unit of grocery clerks because they spend less than one and one-half hours per week in meat department. Vern’s IGA (7349) 11/65

Fact that college students, who are employed on a regular part-time basis, may in the future terminate their employment upon graduation, does not deprive them of their eligibility to participate in election. Milwaukee Psychiatric Hospital (7575) 5/66

If an employe is regularly employed, such employe has a definite interest in wages and working conditions governing his employment, regardless of the number of hours worked. Marquette Bakery (7811) 1/66

Part-time employe whose hours are self-determined held not eligible to vote. Doyle Lithographing and Printing Co. (8126-F) 12/68

Permanent part-time employe, despite the fact that he was receiving full social security benefits, held eligible to vote. Doyle Lithographing and Printing Co. (8126-F) 12/68

Where stipulated unit consisted of all regular full time and regular part time employee, working 20 hours or more per week, employes who did not average 20 hours or more per week during the year immediately preceding the established eligibility date, or during the period of approximately 8 months from the beginning of the year to the eligibility date, held not eligible to vote in election. MemorialHospital Assn. (9218-A) 2/70

Nurses, who work irregularly on call, found to be casual employes and therefore not eligible to participate in an election involving all regular part time and regular full time staff nurses. Green Bay Visiting Nurses Assn. (11543) 1/73

Students, who are employed on a regular part time basis, are eligible to vote in voting group consisting of regular full time and regular part time employes. St. Vincent Hospital (12008) 7/73

342.4 Occasional Employes

Employes who work only on occasions held to be ineligible to participate in election. Luther Hospital Assn. (4582-A) 10/57; Beaumont Hotel Co. (4720) 3/58; Verbrick-Esler Amusement, Inc. (4842) 8/58; Standard Lumber Yards, Inc. (5745) 5/61; Douglas Plymouth Corp. (6605) 1/64; Riverview Hospital (6813) 7/64; The Pad Inc. (13751) 6/75; Panetti Stone Co. Inc. (15062-A) 3/77

342.5 Employes in Training

Salesman in process of training is eligible to vote in election in unit consisting of salesmen. W. H. Kranz Co. (4135) 1/56

342.6 Probationary Employes

Probationary employes having a reasonable expectancy of becoming permanently employed are eligible to participate in election. St.Francis Hospital (4340) 8/56; Badger Die Casting Corp. (6536) 11/63

Commission retains its long-standing policy of allowing probationary employes to vote in a representation election, despite the fact that there is a high turnover rate among occupants of the position of field representatives. Wisconsin’s Environmental Decade, Dec. No. 21530 (WERC, 3/84)

342.7 Permit Employes

Employes, who because of their youth found it necessary to obtain work permits, were not excluded from unit inasmuch as they had a substantial interest in the conditions of their employment. Sentry Foods (4210) 3/56

342.8 Temporary Employes

Where prior to eligibility date employe gave employer notice that he was quitting in the “near future” and said employe had purchased tools, soliciting business, and seeking to rent quarters for his business, Board determined that such employe was to be considered as a temporary employe and not eligible to participate in election. Casey Lincoln & Mercury (4538) 5/57

While Commission will ordinarily exclude persons only temporarily employed from participation in election, cleaning women, who were characterized as being temporary, whose layoff, however, would not be completed for at least six months, were eligible to participate in representation election. A. L. Grootemaat & Son, Inc. (7814) 11/66

Former full-time employe who, prior to the eligibility date and the date of the election, reduced her employment to an “on-call” basis, held to be a casual employe and therefore not eligible to participate in election. Picasso Plaza Ltd. (8606-C) 11/68

High school employes employed for only vacation period not eligible to participate in election although election was held prior to opening of school year. Doyle Lithographing and Printing Co. (8126-F) 12/68

The fact that employe turnover may occur does not convert employes to temporary status. The Pad, Inc. (13751) 6/75

Employe who notified Employer of intent to quit employment within a month or two following direction of election, and where such notice was conveyed prior to the issuance of the direction, said employ was deemed a temporary employe, and thus not eligible to vote. Dos Bandidos (16454) 7/78

Temporary employes are employes with the meaning of WEPA and where, as in this case, they perform work which is basically the same as the work of the regular employes in the bargaining unit, they appropriately are included in such bargaining unit, for purposes of prospective collective bargaining, if any, over matters involving wages, hours and working conditions for said temporary employes.Wisconsin’s Environmental Decade, Dec. No. 21530 (WERC, 3/84)

Because the Employer’s door-to-door canvasses in Appleton and Madison are seasonal operations as opposed to the year round Milwaukee canvass, and because so few field representatives return for a second canvas in Appleton and Madison, the field representatives in those two offices are temporary employes without a reasonable expectation of reemployment, and are not eligible to vote in the election. Wisconsin’s Environmental Decade, Dec. No. 21530 (WERC, 3/84)

343 EMPLOYES SEPARATED FROM EMPLOYMENT

343.1 Generally

Persons, although not presently working, but considered by the employer as employes and whom the employer intends to recall when work is available, are eligible to vote in a representation election. Armour Leather Co. (9) 8/39

Employes, discharged pursuant to a valid maintenance of membership clause, held no longer to be employes, since their employment did not cease as a result of a current labor dispute and are not eligible to vote in an election. Checker Cab Co. (7) 7/39

Laid off employe, who failed to report on call and who failed to advise the employer of her season for not reporting to work, held to have not been an employe as of the eligibility date, which date had been established after the recall. L. D. Schreiber & Co. (2855-C) 7/51

Individuals who had been terminated because of the elimination of a night shift were not employes and, therefore, not eligible to participate in the election. Brandes Co. (4594-A) 10/57

Employe who may retire held eligible to vote as long as he is actively employed. Standard Lumber Yards, Inc. (5745) 5/61

Employe, who was terminated from employment as a result of a non-discriminatory discharge, not eligible to vote. Billy Moy’s One-World Inn (11262) 8/72

Where an employe voluntary quits his employment, he is not eligible to vote, even though he may voluntarily return to work at a later date. Billy Moy’s One-World Inn (11262) 8/72

343.2 As a Result of a Labor Dispute

Employe who took a new job during strike and who would return to work after strike if part-time work was available, held not eligible.Trilu Corp. (5812-D) 11/61

Eighteen year old employed during strike held ineligible to vote since Section 103.69(3)(u) prohibits employment of minors during strike. Trilu Corp. (5812-D) 11/61

Board found strikers who were replaced eligible to vote since they were not absent from employment a substantial period of time during which reasonable expectancy of settlement of labor dispute existed. Trilu Corp. (5812-D) 11/61

344 Employe Hired During Labor Dispute

New employes hired because of upturn in business and not to replace striker, held eligible to vote. Trilu Corp. (5812-D) 11/61

350 THE ELECTION

351 THE BALLOT

351.1 Right to Appear on Ballot (111.05(3))

Request of one labor organization to appear on ballot in a representation election was denied by the Board although representatives of that labor organization appeared at the hearing, when it offered no testimony that it represented any of the employes, and where none of the employes had requested that such labor organization be placed on the ballot. However, shortly after the Board order, the labor organization filed an affidavit with the Board where a number of employes requested that it be placed on the ballot. Thereupon the Board so ordered. Four Wheel Drive Auto Co. (515, 515-A) 10/43

Where evidence disclosed that employer aided and assisted the formation of an independent organization, by scheduling meetings permitting employes to attend such meetings during working hours without deduction from wages, and permitting secretary of personnel director to preside over such meetings, Board refused to place the name of such organization on the ballot to determine collective bargaining representative. St. Anthony’s Hospital (4762-A) 7/58

Where intervening Union challenged petitioning Union’s status as a labor organization, Board found the petitioner bad sufficient interest to he placed on the ballot. Fink’s Laundry & Dry Cleaning, Inc. (5029) 12/58

If organization is shown to be Employer assisted or encouraged, Board has authority to refuse to place its name on the ballot. The Roxy, Inc. (5829) 10/61

Where, following certification of results of election, labor organization executed agreement with employer and then ceased to function as a labor organization, Board refused said organization a place on ballot in a subsequent representation election. London Hat Shop(7023) 3/65

351.2 Wording of Ballot

Board dismissed motion of employer to change the wording on the election ballot in a unit determination so as to permit the employes to vote for or against the then existing unit. Board followed usual practice and worded the ballot so that the employes could express their choice as to whether or not they desired to constitute themselves as a separate unit. Kohler Co. (909) 3/46

In order to raise an objection to the manner in which the Board proposed to hold an election, unless such objection shall be excused because of extraordinary circumstances, such objection should have been submitted to the Board if the parties objected to the wording on the ballot. La Crosse Telephone Corp. 251 Wis. 583, 12/47 (Rev. U.S. Sup. Ct. on jurisdictional grounds, 336 U.S. 18, 1/49)

Where employes filed petition questioning representative status of certified union, Board worded ballot to give choice to employes as to whether they desired to be represented by the union, rather than indicating a desire as to whether the employes desired to decertify the present bargaining representative. St. Francis Hospital (5771) 6/61

351.3 Void and Blank Ballots

Ballot signed by voting employe declared void. Normington Laundry & Dry Cleaning (3864-D) 2/55

Only those employes who cast valid ballots can be considered as “employes voting.” A blank ballot is not a valid ballot. Dickten & Masch, Mfg. Co. (4648) 12/57

Where ballot is marked so as not to convey the clear intent of the employe voting, such ballot is declared void. BelleviewConvalescent Hospital (5545) 8/60

Commission concluded that ballot was valid where employe casting same instead of placing an “x” in the square of his choice, shaded the entire square, indicating its choice clearly. Teeson Construction Co. (13104-A) 11/80.

351.4 Absentee Ballot

The fact that employe did not receive mail ballot was found to have resulted from employes leaving on vacation prior to the time he should have received such ballot in the ordinary course of mailing, and therefore objection to election on such ground was denied.United Community Services of Milwaukee, Inc. (11281-C) (10/73)

Where Commission received ballot day following conduct of manual balloting, said ballot was not opened and therefore not included in result, since the employe intending to so vote, received a notice, along with his ballot, that his ballot must be received by the Commission on a specified date, which was one day prior to the manual balloting. Wisconsin Humane Society (14198-D) 7/76

352 POSTING OF NOTICE

Board ordered employer to post notices for ten days prior to election to alleviate remarks made by him inadvertently which might have been considered to interfere with the free choice of employes. Milwaukee Nut Co. (23) 10/39

Commission has not set policy for period of time which notices with respect to elections must be posted. If the period is sufficient for all employes to be apprised of the time, place and purpose of the balloting, such period of time is sufficient. Larsen Bakery (11980-A) 8/73

The fact that notices concerning the election were altered by the Employer at the direction of the Commission to change the date, time and place of the balloting did not constitute a valid objection to the election, where all employes were aware of such changes.United Community Services of Milwaukee, Inc. (11281-C) 10/73

353 DIRECTION SET ASIDE

Board set aside direction of election, where labor organization involved failed to cooperate toward its conduct and after repeated requests by the Board it failed to indicate whether it desired that the election be conducted. L. Weiman Co. (5260-B) 6/44

Board set aside direction of election, issued ten (10) months previously, and dismissed union’s petition where the union requested that the Board hold the election in abeyance and where the union showed no further interest in having the election conducted.Hamilton Manufacturing Co. (626) 5/45

Commission set aside direction of election where evidence established that employer had ceased operation. Mandar Inn (14250-B) 4/76

354.1 By Participating Labor Organization

Board ordered new election, where at previous election a union observer had engaged in an altercation with an employe whose vote had been challenged. C. M. Tool & Die Co. (1850-B) 11/48

Board held that activities by one of two competitive unions in distributing paid-up memberships to employes eligible to participate in election was not improper since such memberships were not conditioned on the vote of any employe involved. Boynton Cab Company (4809-C) 11/58 (Aff. Milwaukee County Circuit Ct. 9/59

Board set aside results of election where organization involved reproduced a copy of the official Board ballot and inserted a mark in the box indicating a choice for it and distributed same as campaign propaganda. St. Mary’s Hospital (6779-C) 1/66

Board will not condone exaggerations, inaccuracies, partial truths, name calling and falsehoods made during preelection campaigns and the same may be excused as propaganda if they are not so misleading so as to prevent a free choice by the employes participating in the election. London Hat Shop (7023-B) 6/65

Fact that union representative acted as an observer at the election does not constitute grounds for sustaining objections to the conduct thereof. London Hat Shop (7023-B) 6/65

Commission dismissed objections to conduct of election filed by the Employer since free life insurance offer made by Union to employes and waiver of initiation fee were not conditioned on the results of the election and remarks in Union letter to employes constituted permissible propaganda. West Side Hospital (7890-B) 6/67

Commission will not condone exaggerations, inaccuracies, partial truths, name calling and falsehoods made during preelection campaigns and the same may be excused as propaganda if they are not so misleading so as to prevent a free choice by the employes participating in the election. Professional Food Service Management (9020-C) 4/70; Clintonville Community Hospital(10282-A) 10/71; Holy Family Hospital (11535-B) 8/73

Remarks in Union leaflet distributed prior to the conduct of election held to be within permissible bounds of campaign propaganda and therefore objections based thereon were dismissed. Picasso Plaza, Ltd. (8608-F) 6/69

354.2 By Employer

Election set aside where the employer interfered with free choice of his employes by indicating, prior to the election, that the employer was desirous that the union not be selected as the bargaining representative, by promising additional employment to an employe it the union lost, and further, by promising a party to the employes if the union lost. Schiff Co. (41-A) 2/40

Series of letters issued by employer prior to representation election containing indicated antipathy toward the union with no threat of promise or benefit held insufficient to amount to conduct as to interfere with the free choice of the employes. Pelton Steel Casting Co.(1568) 7/48 (Aff. Milw. Co. Cir. Ct., 10/48); Milwaukee Athletic Club (6993-E) 7/65; St. Luke’s Hospital (7007-C) 9/65; MisericordiaHospital (7011-D) 9/65

Election set aside where the employer, by interrogating employes, by threatening them with changes in the operation of the business in the event the union was selected as the bargaining representative, and in making unilateral changes in working conditions, prior to election, was held to have interfered with the free right of the employes to select a collective bargaining representative. Wern Farms(2722) 4/51

Board/Commission will set aside an election or referendum if it appears that eligible employes were precluded from exercising a free choice, by methods which were coercive in character and which were so related to the election and referendum as to have a probable effect on the free choice of the employes. However, the Board cannot censure information, misinformation, gossip, opinion or argument made by either employer or union representatives during or prior to the conduct of such votes. Whitefish Bay Cleaners & Tailors, Inc. (5335-B) 2/60; Shawano Convalescent Center, Inc. (9308-C) 10169

Board held that the unilateral granting of paid vacation and paid holidays during pendency of election proceeding by the employer influenced the employes to such an extent that it interfered with their right to cast a free and unfettered ballot, thus constituting grounds for setting aside the results of the election. Mantin Bros. (5378-B) 3/60

Board established rule that, upon timely objections filed, where either party prior to an election addresses assembly of employes on the employer’s time and premises within 24 hours of the time set for the vote, the Board will set aside the results thereof. Mt. CarmelNursing Home (6352) 5/63

While captive audience meeting was held more than 24 hours prior to the balloting Board set aside results because of promises of benefits made at such meeting. St. Mary’s Hospital (6779-C) 1/65

Activity of supervisory employes in urging employes to vote for one or two organizations found to have interfered with results of election. St. Mary’s Hospital (6779-C) 1/65

Where, under recently expired contract, employes who were not union members were receiving rates lower than union members and prior to election employer equalized rates, Board found that such increases to non-union members did not constitute unlawful interference with election. Milwaukee Athletic Club (6993-E) 9/65

Administrator found not to have exceeded bounds of permissible campaigning where he advised employes with respect to initiation fees and possible fines imposed by the union. Deaconess Hospital (7008-D) 10/65

Captive audience type meetings held more than 24 hours prior to the commencement of the balloting does not fall within the 24 hour rule established by the Board. Deaconess Hospital (7008-D) 10/65

Appeals to prejudice, with respect to age, race, creed, color, sex, national origin or ancestry, for the purpose of influencing the results of a representation election, shall be considered grounds for setting aside the results of the balloting. E. Gibes Distributing Co. (7157-C) 10/65

Employer granting employe benefits and interrogating employes concerning their concerted activity prior to election held to have contributed grounds for setting results aside. Shady Lawn Nursing Home (7516-B) 8/66

Transportation to polls of employe who was absent from work because of illness held not to constitute conduct interfering with results of election since employe had initiated request for transportation. Burleigh Pharmacy, Inc. (8167-B) 11/67

Question by employe not in bargaining unit as to whether an employe in the bargaining unit was eligible to vote, made in the presence of other employes, was found to be inoffensive question by fellow employe rather than employer conduct affecting the results of the election. Burleigh Pharmacy, Inc. (8167-B) 11/67

Election was set aside where Employer held captive audience meeting within twenty-four hours prior to balloting, even though Employer’s speech contained neither threats or promises. Doyle Lithographing and Printing Co. (8126-C) 5/68

Series of letters issued by employer prior to representation election containing indicated antipathy toward the union with no threat of promise or benefit held insufficient to amount to conduct as to interfere with the free choice of the employes. Professional Food Service Management (9020-C) 4/70

Employer’s conduct in granting wage increases to (1) certain employes to meet the State’s minimum wage requirements, (2) an employe who threatened to quit unless a raise was forthcoming, and (3) an employe as a result of a promotion, did not constitute conduct which destroyed the atmosphere necessary to enable employes a free choice in an election. However, wage increases granted to other employes for no apparent reason prior to the election were found by the Commission to constitute conduct which interfered with such free choice and the results of the election were set aside. Picasso Plaza, Ltd. (8608-E) 4/69

Employer’s action in correcting schedule of work and compensating two employes as a result of such error one day prior to balloting found not related to the election and therefore such activity held insufficient to set aside results of election. Professional Food Service Management (9020-C) 4/70

Statement made immediately prior to election to an employe that he should not look forward to working full time, and the unilateral wage increase granted to another employe following the filing of the election petition, held to have interfered with conduct of election and the results were set aside. Cardinal Hotel (9374-B) 4/70

Employer’s conduct in issuing two payroll cheeks to employes just prior to election, one representing the amount of monthly Union dues, and the other the balance of the employers weekly wage, held insufficient to interfere with conduct of election. ClintonvilleCommunity Hospital (10282) 4/71; West Allis Memorial Hospital (10061-C) 6/71

Advising employes of comparison of wage rates with those of another employer, where comparisons were accurate, and predicting Union’s position in bargaining, held to be within bounds of permissible campaign propaganda. Clintonville Community Hospital(10282) 4/71; West Allis Memorial Hospital (10061-C) 6/71

Employer’s statements to employes, constituting a prediction as to Union’s position in bargaining and what the results of the bargaining would be, held not a basis for setting aside election results. West Allis Memorial Hospital (10061-C) 6/71

The Examiner incorrectly concluded that the Employer improperly promised a wage increase to an employe prior to the election, where, in response to an employe’s question, the Employer responded that if money were available in the budget, employes would receive raises irrespective of whether or not they chose a union. West Side Community Center, Inc., Dec. No. 19211-B (WERC, 3/84)

354.3 By Employes

Where employe was less than 18 years old and working in strike bound store and Board’s Direction excluded her from eligibles but employe lied about her age to the Board agent conducting the election and Union did not have opportunity to challenge her statement, Board sustained objections to conduct of election since employe committed fraud on Board which may have affected election results. Trilu Corp. (5812-E) 1/62

355 POST ELECTION ISSUES

355.1 Eligibility of challenged voters

Regular part-time employe, who was employed on day of election, held to have been entitled to take part and vote in representation election. Wern Farms (2722) 4/51

Board refused to consider employer’s objection to the conduct of the election, such objection having to do with the eligibility of an employe where no objection was raised prior to or at the time said employe cast her ballot and where the facts claimed by the employer causing said employe to be ineligible were within the knowledge of the employer’s observer during the conduct of the vote.Normington’s Beloit, Inc. (4308-A), 8/56

Normally the Board will not entertain post election challenges to ballots. Trilu Corp. (5812-E) 1/62; Clintonville Community Hospital(10282-A) 10/71

Where employer claimed its observer was not advised as to procedure to challenge ballots, and where individual cast ballot, which the Employer claimed it would have challenged, Commission did not set aside the results of election since results were not affected regardless of the vote cast by said individual. Evangelical Deaconess Hospital (9672-B) 8/70

356.2 Effect of Stipulation

Where an Employer and a Union enter into a stipulation for an election and stipulate as to employes eligible to participate therein, the Board will not disturb or amend such list of eligibles after the conduct of the balloting since to do so would destroy the effectiveness of the stipulation. Menominee Sugar Co. (5657-A) 1161

356 CONDUCT OF ELECTIONS

356.1 Observers

The presence of observers is not a matter of right but a privilege which the Board extends to the parties. The Board or its agent may disperse the observers in a manner which will not interfere with the employes right to cast a secret ballot. Minit Man Car Wash, Inc.(3692) 3/54

356.2 Opening and Closing of Polls

Where election was unavoidably delayed a few minutes and polls were kept open a few minutes past closing time, during which time employes were permitted to vote, without challenge by either party, Board found no cause to set aside the vote. Edison Industries, Inc. (5696-B) 4/61; Shawano Convalescent Center, Inc. (9308-C) 7/70

Agreement by parties, reached prior to opening of polls, to extend the polling time by ten minutes, did not constitute a basis for a valid objection by one of the parties. Gargano’s Restaurant (16382-B) 8/78.

356.3 Custody of Ballot Box During Interim in Balloting

Leaving sealed ballot box in Election Agent’s locked motel room for one hour does not cast such a doubt on the integrity of the ballot box as to warrant overturning the results of the election. Shawano Convalescent Center, Inc. (9308-C) 7/70

356.4 Failure of Election Agent to Appear For Election

Failure of Commission agent to appear to conduct election does not constitute a basis for establishing new eligibility date. Rather, Commission merely issued an order extending the time for the conduct of the election, and then set a new date for the conduct thereof. Curtis-Universal Ambulance Service (16512-A) 10/78

356.5 Date On Which Election Is Scheduled

The Commission will seek to schedule the election at a time which best serves the needs of the parties in accordance with its statutory mandate consistent with the administrative constraints normally involved in the scheduling of such elections. The Eggplant Inc. (16514) 8/78

360 CERTIFICATION OR OTHER DISPOSITION FOLLOWING ELECTION

361 MAJORITY

Where the majority of employes in three voting groups vote against separate bargaining units, and where the majority of the employes in one of the groups voted against any bargaining representative, the labor organization receiving the majority of the votes cast by the employes in the two other groups is certified by the Board as being the collective bargaining agent of the employes in a unit composed of those two groups. La Crosse Telephone Corp., 251 Wis. 583, 12/47 (Rev. U.S. Sup. Ct. on jurisdictional grounds, 336 U.S. 18, 1/49

362 SETTING ASIDE CERTIFICATION

Board set aside certification, without prejudice, within two months of issuance where all employes who voted in the election voluntarily quit their employment. Ficken Oil Co. (3889-B) 4/55

Where Union and Employer stipulated that results of election should be set aside where small number of eligibles had cast votes because of inconvenience of the previously stipulated polling time, upon filing of new petitions and at request of both parties, Board ordered new election. Sparkle Maintenance Co. (5182-A) 8/59

363 ELECTION SET ASIDE AS A RESULT OF SALE

Where, after Board had directed an election among three separate plants of the employer to determine whether or not the employes therein desired to constitute separate unit or one unit, prior to the conduct of the election the employer sold one of the plants, Board set aside the results of the election at the two remaining plants since it would have been impossible for the employes at all three plants to constitute one unit. Sorge Dairy Co. (5470) 4/60

400 JURISDICTION

410 AS AFFECTED BY FEDERAL LAW ADMINISTERED BY NATIONAL LABOR RELATIONS BOARD

411 REPRESENTATION PROCEEDINGS

411.1 Prior to “La Crosse Telephone Corp.” Doctrine (5/39-1/49)

411.1.1 Where NLRB Had Asserted Jurisdiction

WERB dismissed petition for election where NLRB had asserted jurisdiction in a representation proceeding. Richland Coop Creamery Co. (12) 8/39; Allis-Chalmers Mfg. Co. (68) 5/40; Allen-Bradley Co. (121) 10/40; Canvas Products Corp. (131) 11/40; The Wisconsin Porcelain Co. (332) 11/41; Howard Machine & Welding Co. (408) 6/42; Neenah Paper Co. (487-A) 5/43; Land O’ Lakes Dairy Co.(499) 6/43; J. Greenbaum Tanning Co. (558) 2/44; Greene Mfg. Co. (992) 6/46; P & V Atlas Industrial Center, Inc. (1072) 8/46;Algoma Plywood & Veneer Co. (1290) 6/47; Wis. Public Service Corp. (1344) 6/47; Fowle Printing Co. (1541) 1/48; Kearney & Trecker Corp. (1636) 5/48; Safticycles, Inc. (1792) 9/48; P. Lorillard Co. (1793) 9/48; Weber Life-Like Fly Co. (1813) 9/48; Preston Coop Creamery Assoc. (1837) 9/48; Bell Machine Co. (1887) 10/48; Borden Co. (2001) 1/49; Equity Telephone Co. (2002) 1/49;Penokee Veneer Co. (2006) 1/49; Northern Crate & Lumber Co. (2467-A) 7/50; Albert Weinbrenner Co. (2514) 8/50; Milwaukee Boiler Mfg. Co. (3097) 3/52

Where WERB has ordered an election but prior to the conduct thereof an election is ordered by the NLRB, WERB withdrew and cancelled its order and direction of election. Furniture Mfg., Inc. (324-A) 11/41; Northern States Power Co. (365) 2/42

NLRB certification three years prior to filing of a petition with the WERB does not affect the jurisdiction of the WERB in ordering “second” election since the results of such an election would not change the certification but merely determine what factual situation existed. Eclipse Moulded Prod. Co. (866) 1/46; Allis-Chalmers Mfg. Co. (1191) 12/46

WERB dismissed petition for election filed by union where previously the NLRB had dismissed a representation petition on the ground that the union had not complied with the filing requirements of the NLRA. Once the NLRB has assumed jurisdiction, the power of the state board to act has been superseded by the exercise of the conceded power of the federal government. Eau Claire Press Co.(1456) 11/47; Crown Can Co. (1738-A) 8/48

411.1.2. Where NLRB Had Not Asserted Jurisdiction

WERB asserted jurisdiction and ordered an election even though an unfair labor practice proceeding was pending before the NLRB. However, the election could not limit any orders which the NLRB might issue as a result of the unfair labor practice proceeding. Allen-Bradley Co. (121) 10/40

The fact that the NLRB has jurisdiction to proceed in a representation matter does not prevent the WERC from proceeding, at least until the NLRB exercises its jurisdiction. The Heil Co. (185) 3/41

WERC has jurisdiction over representation proceeding involving a Wisconsin employer engaged in interstate commerce where the NLRB has never exercised nor attempted to exercise its jurisdiction and no request had ever been made that it do so. United States Motor Corp. (1345) 6/47; Shell Lake Boat Co. (1437) 9/47 (Aff. Washburn Co. Circuit Court, 3/48)

411.2 From “La Crosse Telephone Corp.” Doctrine to “Guss” 2 Doctrine (1/49-3/57)

United States Supreme Court, in reversing the WERB and the Wisconsin Supreme Court, held that the WERB had no jurisdiction of representation proceedings involving an employer engaged in interstate commerce where generally the NLRB has exercised its jurisdiction, even though it had not as yet done so in the instant matter. La Crosse Telephone Corp. , 336 U.S. 18, 1/49

WERB dismissed election petition where it was satisfied that the business and operations of the employer affect interstate commerce to the extent that the NLRB would, if requested, assume jurisdiction. Kolman Laboratories (2023) 2/49; Kearney & Trecker Corp.(2032) 2/49; Olson Transportation Co. (2051) 3/49; Kimberly-Clark Corp. (2128) 6/49; Hudson Sharp Machine Co. (2274) 12/49;Green Bay Auto Parts Co. (2372) 4/50; Libby, McNeill, Libby (2496) 8/50; Waukesha Daily Freeman (2615) 11/50; Pioneer Mfg. Co.(2914) 7/51; McKenzie Chevrolet Co. (2966) 9/51; Low Motor Co. (2967) 9/51; Newburg Motor Co. (2968) 9/51; Cohen Bros., Inc.(3071) 1/52; Peterson Builders, Inc. (3104) 3/52; Vinegar Hill Zinc Co. (3233) 8/52; Sears, Roebuck Co. (3235) 8/52; C. J. Berst & Co.(3315) 11/52; Terminal Storage Co. (3347) 1/53 (Rev. Milw. Co. Cir. Ct. 10/55); Piggly Wiggly Madison Company (3848) 11/54;Brownberry Ovens Inc. (3997) 6/55; Service Transport Co. (4294) 7/56; Lien Chemical Co. (4320) 7/56; Cheese Producers Marketing Asso. (4322) 7/56, American News Co. (4330) 8/56

WERB assumed jurisdiction in a representation proceeding where testimony before it was insufficient to establish any substantial effect of employer’s business on interstate commerce. Capital Garage (2175) 9/49

WERB assumed jurisdiction in a representation proceeding involving two stores of an employer because of the local nature of the employer’s business and because of the fact that the NLRB has developed a doctrine of declining to assert jurisdiction over relatively local enterprises on the theory that it would not effectuate the policy of the NLRA to assert jurisdiction. Columbia Credit Clothing Store(2500) 8/50; Fox Super Market (4418) 12/66

Where the WERB had certified a union as the collective bargaining representative of the employer’s employes after an election conducted pursuant to a stipulation entered into between the employer and that labor organization, and where, subsequently, the employer and a competing labor organization stipulated for an election to be conducted by the NLRB, and where pursuant to the latter election, in which the original labor organization was not on the ballot, no union was certified, the WERB refused to set aside its certification where the employer set forth no reason for setting it aside. Neillsville Milk Products Coop. (2932) 7/51

WERB dismissed representation petition where the NLRB had accepted and asserted jurisdiction. Carpenter Baking Co. (3037) 11/51

WERB assumed jurisdiction in representation proceeding involving an employer whose dollar volume of business was far less than the minimum established by the NLRB as a standard for the exercise of its jurisdiction. Cooper-Utter Lumber Co. (3739) 5/54;Delafield Lumber & Fuel Co. (3741) 6/54

Board has no power to decertify a union previously certified by the NLRB, however where the NLRB subsequently refused to entertain jurisdiction over the employer because of a change in its jurisdictional standards, the Board will exercise jurisdiction over the employer. Ashland Motor Co. (4107) 11/55; Melin Motors (4108) 11/55

411.3 From “Guss” Doctrine to 1959 Amendment to NLRA 3 (3/57-11/59)

WERB dismissed election petition where it was satisfied that volume of employer’s business met NLRB jurisdictional standards.Appleton Wood Products Co. (4600) 8/57; Metal Processing Co. (4613) 9/57; Tiedjens Distributing Corp. (4645) 11/57; East Side Chevrolet Co. (4785) 6/58; Northwestern Products Co. Inc. (4854) 8/58; Neesvig’s Madison Packing Co. (4916) 10/58; Consolidated Waste Paper Co. (5075) 1/59; Wisconsin Fuel & Light Co. (5092) 2/59; E. F. Schmidt Co. (5180) 4/59; Capitol Court Corp. (5191) 5/59; Schoolway Transportation Co. (5193) 5/59; Casey Lincoln & Mercury (5233) 6/59; Brandes Co. (5251) 7/59

WERB dismissed election petition for lack of jurisdiction where business of employer affected interstate commerce, although volume of business did not meet jurisdictional standards of NLRB. Coca CoIa Bottling Co. (4542) 6/57; WHBL (4593) 8/57; General Plastics, Inc. (4708) 6/58; Scott-Taylor Co. (4804) 6/58

Where NLRB had assumed jurisdiction in an election proceeding but had dismissed petition for reason that only one employe was in unit, WERB would not assert jurisdiction, although otherwise the WERB does conduct elections in single employe units. E. R. Wagner Mfg. Co. (4355) 9/56 (Aff. Milw. Co. Cir. Ct. 4/57)

411.4 From 1959 NLRA Amendment

Board/Commission dismissed election petition where it was satisfied that volume of employer’s business met jurisdictional standards of NLRB. Clem LaFond (5400) 1/60; Melvin Ready Mix Co. (5402) 1/60; Modern Cleaners (5515) 6/60; Make-All Tool & Die Co.(5649) 11/60; Superior & Duluth Transfer Co. (6626) 1/64; Wolff-Scoggins Dist. Inc. (6773) 6/64; Gibb Bldg. Maintenance Co. (6891) 10/64; Lampert Yards, Inc. (15366) 3/77

Where business of employer fell short of NLRB jurisdictional standards Board/Commission asserted jurisdiction and processed election petition. London Hat Shop (5435) 2/60; Harry L. La Due (6394) 6/63; Mamie’s, Inc. (6916) 10/64; Vern’s IGA (7349) 11/65;Steve Spilde Construction Co. (17995) 8/80

The fact that NLRB refused to assert its jurisdiction over employer operating a food facility at an educational institution because it was intimately tied to the educational purpose of a non-profit university did not constitute a limitation on the right of WERB to determine whether the employer constituted an “employer” within the meaning of the state Act. Prophet Co., Inc. (7198) 6/65

Where NLRB declined jurisdiction over employer because of charitable nature of Its operation, WERC does not lack authority to exercise its jurisdiction although NLRB determination was unrelated to volume of employer’s business in interstate commerce.Goodwill Industries of Wisconsin, Inc. (7446) 1/66

Commission assumed jurisdiction of election proceeding where it was satisfied that volume of employer’s business did not meet jurisdictional standards of NLRB. Picasso Plaza, Ltd. (8608) 7/68

Commission reversed policy established in E. R. Wagner Mfg. Co. and exercised jurisdiction in an election proceeding involving a one man unit despite the fact that the NLRB had dismissed petition involving the identical unit. Red Owl Stores, Inc. (9928) 9/70

Commission has no jurisdiction to process election petition involving guards where such petition was filed by a union which admits to membership employes other than guards where NLRB dismissed a similar petition involving the same guards because said union could not properly represent guards under the NLRA. Burns Detective Agency (9022-A) 5/69

Where NLRB enlarged its Jurisdiction, pursuant to prerogatives under the federal act, over certain extended care facilities, Commission dismissed pending election proceeding involving such an employer. Cedar Lake Home For the Aged (9770-A) 7/70

Where evidence established the probability that volume of Employer’s business met NLRB jurisdictional standard, Commission dismissed election petition without prejudice to refiling same should the NLRB decline to exercise its jurisdiction. Prade Upholstery, Inc. (12309) 12/73

Commission dismissed petition seeking an election among employes of one employer where existing unit consisted of employes of employers in an association, since combined volumes of business of members of association fell within jurisdictional standards of NLRB. Frank W. Voss Construction Co. (13178) 11/74

411.5 From 1974 NLRA Amendment

National Labor Relations Act was amended August 26, 1974 so as to grant NLRB jurisdiction over non-profit hospitals, and therefore Commission declined to exercise its jurisdiction with respect to election petition involving employes of such an employer. TrinityMemorial Hospital (12764-B) 8/74

412 REFERENDUM PROCEEDINGS

WERB, in directing a referendum to be conducted among employes of an employer engaged in interstate commerce, held that it saw no reason why the state could not further limit matters relating to union security over and above those already limited by the Wagner Act. Island Woolen Co. (56) 4/40

The War Labor Board, in the exercise of its war power, may render inoperative the provisions of Chapter Ill with respect to requirements for an all-union agreement. Rhinelander Paper Co., 249 Wis. 362, 10/44

Union security provisions of the federal act and of the Wisconsin act are not in conflict and the provisions of the federal act does not render the state provision inoperative so as to deprive the WERB of jurisdiction over matters involving employes engaged in interstate commerce arising under the state provision. Four Wheel Drive Auto Co. (506) 8/43; Rhinelander Paper Co., 249 Wis. 362, 10/44;Northern States Power Co., 245 Wis. 532, 10/44; Riggs-Distler Co. (652) 10/44 (Aff. Dane Co. Cir. Ct., 6/46); Algoma Plywood & Veneer Co., 336 U.S. 301, 3/49; Western Union Telegraph Co. (3661) 1/54; Racine Millwork & Supply Co. (6526-B) 7/64

Where employer’s business fell within so-called “no man’s land” and where employer raised no question concerning the representative status of the union, WERB directed referendum. Scott-Taylor Co. (4804) 6/58

There is no limitation in Sec 14(b) of the federal Act with respect to the time and manner the WERB may exercise its jurisdiction with respect to procedures to establish valid union security provisions. Packaging Corp. of America (7400) 12/65

413 UNFAIR LABOR PRACTICE PROCEEDINGS INVOLVING PRACTICES REGULATED BY BOTH FEDERAL AND STATE LAWS NOT INVOLVING EXERCISE OF STATE POLICE POWER

413.1 Prior to “Plankinton Doctrine (5/39-2/50)

413.1.1 Where NLRB Had Asserted Jurisdiction

WERB declined jurisdiction of unfair labor practice proceeding where the NLRB assumed jurisdiction in the same dispute. Eclipse Moulded Prod. Co. (390) 5/42; Bergstrom Paper Co. (1838) 9/48; Bell Machine Co. (1888) 10/48; Penokee Veneer Co. (2007) 1/49

WERB declined jurisdiction of unfair labor practice proceeding against employer engaged in interstate commerce where unfair labor practices alleged were covered by NLRA and where the NLRB had previously exercised jurisdiction of the employer in other unfair labor practice proceedings. Hotpoint, Inc. (2272) 12/49

WERB has jurisdiction to enforce unfair labor practice provisions of the Wisconsin act, although provisions of the NLRA are identical against an employer engaged in interstate commerce, until and unless the NLRB should assume jurisdiction of the particular controversy. The mere bolding of an election among the employes of an employer engaged in interstate commerce and the resulting certificate of the NLRB does not deprive the WERB of jurisdiction of an unfair labor practice issue. The right of the Wisconsin Board arises under the exercise of state police power. Milwaukee Gas Light Co. (450) 9/42; Wisconsin Motor Corp., 245 Wis. 417, 6/44;Northern States Power Co. 245 Wis. 532, 10/44; Cutler-Hammer, Inc. , Milw. Co. Cir. Ct., 7/47

413.1.2 Where NLRB Had Not Asserted Jurisdiction

WERB has jurisdiction over unfair labor practices committed by a Wisconsin employer, having its manufacturing operations within the state, employing Wisconsin employes, although it might be engaged in interstate commerce, where it does not appear that the NLRB bad ever accepted or attempted to exercise its jurisdiction in a matter affecting such employer or its employes, or that any petition had ever been filed requesting it so to act. Wisconsin Motor Corp., 245 Wis. 417, 6/44; Northern States Power Co., 245 Wis. 532, 10/44; Wisconsin Gas & Elec. Co., 246 Wis. 190, 12/44; Briggs & Stratton, 250 Wis. 550, 6/47; J. P. Cullen & Son, 253 Wis. 105, 7/48;Gilson Bros., 255 Wis. 316, 7/49 (U.S. Sup. Ct. refused certiorari)

413.2 From “Plankinton” Doctrine to “Guss” Doctrine (2/50-3/57)

U.S. Supreme Court, in a per curiam decision, reversed decision of the Wisconsin Supreme Court (7/49) which had held that the WERB had jurisdiction of an unfair labor practice proceeding involving an unlawful discharge of an employe by an employer engaged in interstate commerce. The U.S. Supreme Court cited its decision rendered in the La Crosse Tel. Corp., and the Bethlehem Steel Co. v. New York Labor Board, 330 U.S. 767, 4/47, as being controlling, holding in effect that the WERB has no jurisdiction over unfair labor practices committed by an employer engaged in interstate commerce where such activities are covered by the NLRA and where the NLRB generally has assumed jurisdiction, even though it had not done so in the instant matter. Plankinton Packing Co., 338 U.S. 953, 2/50

WERB had no jurisdiction of an employer engaged in interstate commerce where complaint alleges unfair labor practices which are covered in NLRA. River Falls Coop Creamery (2311) 2/50; Freeman Printing Co. (2613) 11/50; National Warehouse Corp., 267 Wis. 356, 10/54

WERB has jurisdiction over employer performing construction work for agency of federal government since the employer’s operation does not affect interstate commerce. J. P. CulIen & Son, Rock Co. Cir. Ct., 5/51

Where union’s failure to properly process an employe’s grievance, if proven, might constitute a violation of NLRA, WERB has no jurisdiction where the employer is engaged in interstate commerce within the meaning of the federal Act. Louis J. Luloff (4410) 1/57

WERB has jurisdiction in an unfair labor practice proceeding involving matters normally regulated by the federal Act where the combined volume of business of employers involved did not meet the jurisdictional standards established by the NLRB for the exercise of its jurisdiction. Capitol Erecting Co. (4405) 11/56 (Aff. Milw. Co. Cir. Ct. 12/57)

413.3 From “Guss” Doctrine to 1959 Amendment to NLRA (3/57-11/59)

Where complaint alleged activity which is also regulated by the federal fact and the business of the employer involved affects interstate commerce, regardless of volume of business, WERB has no jurisdiction. Pauly & Pauly Cheese Co. (4568) 7/57; Mayr Electric Co. (4601) 9/57; Heiser Ready Mix Co. (4780) 6/58; Milw. Bldg. & Const. Trades Council (4898) 10/58; Lucas Livestock & Implement Co. (4467-A) 11/58; Carpenters Dist. Council of Milwaukee (4993) 11/58; Vapor Blast Mfg. Co. (5010) 11/58; Safer Foods Inc. (5200) 5/59

WERB held that $10,000 volume of employer interstate business bad only a trifling effect on interstate commerce and therefore asserted jurisdiction over activity also regulated by the federal Act. Louis Caruso (4703) 2/58 (Aff. Wis. Sup. Ct., 11 Wis. 2d 337, 11/60); Walter H. Pieper (4727) 3/58

413.4 From 1959 NLRA Amendment

Where activity is also regulated by the federal Act and the volume of business of the employer involved meets the NLRB’S jurisdictional standards, WERB will not exercise its jurisdiction. Kiekhaefer Corp. (5381) 12/59; NoPak, Inc. (5708-B) 7/61; Al Sciborski, d/b/a Boulevard IGA (6791) 7/64

Where volume of employer’s business does not meet NLRB jurisdictional standards, WERB exercised its jurisdiction to determine whether employer interfered with rights of employes. Portage Stop N’ Shop (7037) 2/65

WERB found to have been preempted from exercising its jurisdiction to prohibit a union from levying a fine against its members for crossing its picket line since the activity was regulated by the federal Act. Allis-Chalmers Mfg. Co. 11 Wis. 2d 292, 11/60 (Rev. WERB (3314) 5/59); Allen-Bradley Co. 11 Wis. 2d 292, 10/60 (Rev. WERB (5008) 1/58); Robt. A. Johnston Co. (5743) 5/61

WERB does not have jurisdiction over alleged secondary boycott activities even though primary employer would be subject to WERB jurisdiction since NLRA regulated said activity and NLRB exercises its jurisdiction over such disputes where combined volume of interstate business of both primary and secondary employers meet NLRB jurisdictional standards. Lake Incinerator Co. (6375) 6/63

Where the alleged conduct of an employer is possibly an unfair labor practice within the jurisdiction of the NLRB and such alleged conduct also violates a collective bargaining agreement, the WERC will exercise its jurisdiction with respect to the alleged contract violation. Stolper Industries, Inc. (7948) 3/67

Since refusal to bargain in good faith is regulated by Federal Act, where volume of employer’s business meets NLRB jurisdictional standard, WERC will not exercise its jurisdiction. Adelman Laundry & Cleaners (8109) 7/67

Where employer’s volume of business is sufficient to meet jurisdictional standards of NLRB, and Regional Director of latter agency refused to issue a complaint alleging discriminatory discharge since the proceeding before that agency was barred by its statute of limitations, WERC discharge violated the WEPA. Office and Professional Employes Union (8504-A) 11/68

Where activity is also regulated by the federal Act and the volume of business of the employer involved meets the NLRB’S jurisdictional standards, WERC will not exercise its jurisdiction. Moxness Products, Inc. (8399-A,B) 3/69; Overhead Door Co. of Wausau, Inc. (9112-A) 9/69; Paul’s IGA Foodliner (10762-A,B) 2/73; Wigwam Mills, Inc. (12838-A, B) 11/74; Union Grove Lumber & Fuel Co. (14093-A, B) 1/76; Napiowocki Construction Inc. 11941-B)3/76; Emcee Trucking Ltd. (14094-C, D) 11/76

Although Employer’s volume of business fell within jurisdictional standards of NLRB, where the latter agency refused to exercise its jurisdiction because the unit involved included only one employe, WERC exercised its jurisdiction to determine whether Employer refused to bargain in good faith within the meaning of the Wisconsin Employment Peace Act. Sinclair Refining Co. (8526-A,B) 3/69 (Aff. 52 Wis. 2d 126, 6/71)

Although employer’s volume of business fell within jurisdictional standards of the NLRB, and where, however, the latter agency will not exercise its jurisdiction to determine whether the Employer failed to bargain in good faith because the unit involved consisted of only one employe, WERC entertained a complaint alleging such a refusal to bargain. However, where prior to the close of the hearing additional employes were hired in the unit, the Commission determined that it had no jurisdiction with respect to the allegation pertaining to the refusal to bargain in good faith. Park Wood IGA (10761-B,C) 2/73

Although Employer’s volume of business fell within jurisdictional standards of NLRB, where the latter agency refused to exercise its jurisdiction because the unit involved included only one employe, WERC exercised its jurisdiction to determine whether Employer refused to bargain in good faith within the meaning of the Wisconsin Employment Peace Act. Straus Printing & Publishing Co. (17736) 4/80

Where an act may constitute a violation of both the NLRA and WEPA and the NLRB has jurisdiction, then the jurisdiction of the Commission is preempted. Where the NLRB reviewed the matter and assumed jurisdiction, it is proper to deny extension of the Commission’s jurisdiction. Strauss Printing Company Inc., 20115-A, B (1/83)

Where the NLRB refuses to assert jurisdiction over one person bargaining units, as here, then the Commission may appropriately assert its jurisdiction. Typography Unlimited and Kenosha Typographers, Inc., 19218-A, B (12/82)

Where an Employer is involved in commerce, the Commission has recognized that it is bound to apply substantive law that is consistent with the federal law established by federal courts pursuant to Sec. 301. Stoughton Trailers, Inc., 18796-C (3/83)

The Commission has jurisdiction over one-man units, irrespective of whether the Employer involved is engaged in either interstate or intrastate commerce. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A 6/83; C. Bundy, Jr., Inc., 20466-B, C (10/83)

Once the NLRB has refused to exert jurisdiction over a case, any determination on the merits which it makes after that cannot be given any weight. For once the NLRB made that jurisdictional determination, at that point it relinquished its right to rule on the merits of the remaining issues in dispute. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A 6/83

In order for the WERC to exercise its jurisdiction over a one-man bargaining unit, that unit must be appropriate under Sec. 111.02(6) of WEPA. C. Bundy, Jr., Inc., 20466-B (10/83)

Where there is more than one employe who may appropriately be included in the bargaining unit and where the Respondent meets the jurisdictional standards of the NLRB, then the Commission cannot assert jurisdiction. C. Bundy, Jr., Inc., 20466-B, C (10/83)

The Commission will generally assume jurisdiction where it is satisfied that the dollar volume of the Employer’s business is below the minimum established by the National Labor Relations Board as a standard for the exercise of its jurisdiction. Community Learning Center, Inc., 20512 (4/83)

The Commission takes administrative notice of National Labor Relations Board decisions applicable to an enterprise. The NLRB will apply the same standard to a non-profit organization as its does to a similar commercial enterprise. Community Learning Center, Inc., 20512 (4/83)

Where the NLRB has asserted jurisdiction over day-care operations where such operations have a gross annual income of $250,000 or more and where the record does not establish that the Employer has ever had $250,000 in gross annual revenues for any of the years of its operation, nor has it requested the National Labor Relations Board to assert jurisdiction, the Commission is satisfied that it possesses jurisdiction to conduct an election. Community Learning Center, Inc., 20512 (4/83)

Even in a one-person bargaining unit, where letter of NLRB Regional Director indicated that NLRB did assert jurisdiction over allegations alleging discrimination, threats and interference, and disposed of those charges on their merits, WERC declines to assert jurisdiction regarding those charges. Examiner erred in deciding that NLRB Director’s determination that charges were without merit was mere dicta. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., Dec. No. 20214-B (WERC, 2/84)

Where letter of NLRB Regional Director states that NLRB does not assert jurisdiction with respect to charges of a refusal to bargain in good faith where the bargaining unit consists of one person, Examiner correctly found that Commission had jurisdiction regarding alleged violations of Sec. 111.06(l)(d) and derivative violations of Sec. 111.06(l)(a), Stats. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., Dec. No. 20214-B (WERC, 2/84)

Where the NLRB investigated charges relating to an employe discharge, and then refused to issue a complaint in the matter, the NLRB’s action constitutes the exercise of NLRB jurisdiction over the matter; since the allegations in the instant complaint before the WERC are substantially similar to the matters which were before the NLRB, the WERC is preempted from asserting its jurisdiction by force of the NLRB. Trucker’s & Traveler’s Restaurant, Dec. Nos. 20882-B, 20880-B (McCormick, 3/84)

Where the NLRB entered into a settlement agreement to remedy the Complainants’ discharge, over the Complainants’ objection, the NLRB’s action constitutes the exercise of NLRB jurisdiction over the matter, and the WERC is preempted from asserting its jurisdiction. Trucker’s & Traveler’s Restaurant, Dec. Nos. 20882-B 20880-B (McCormick, 3/84)

To the extent that the complaint claimed that the Respondent violated WEPA by discharging the Complainant because he was exercising rights protected by WEPA, the Examiner correctly dismissed the complaint because the NLRB had exercised jurisdiction over the matter. Trucker’s & Traveler’s Restaurant, Dec. No. 20882-C (WERC, 10/84)

Where the Employer initially answered the NLRB complaint by asserting that the NLRB did not have jurisdiction over its business, but then amended its answer and acknowledged the NLRB’s jurisdiction, and where the NLRB found the Respondent to be within its jurisdiction, the WERC is without jurisdiction to determine the merits of the Complaint. Transportation Service of Watertown, Dec. No. 19535-C Honeyman, 4/84)

414.1 Generally

Federal Act does not prevent a state from exercising its police power to restrain mass picketing, obstruction of plant entrances, and threats of violence even though such activity is also regulated by federal Act. Kohler Co. 351 US 266, 6/56; Lake Incinerator Co.(6375) 6/63; Bruns Garage, Inc. (6614) 1/64

415 UNFAIR LABOR PRACTICE PROCEEDINGS INVOLVING PARTIES AND PRACTICES REGULATED BY STATE LAW ONLY

415.1 Parties Not Subject to NLRA

Prior to 8/47 federal labor law did not regulate activities of labor organizations or employes with respect to labor relations and therefore WERB exercised its jurisdiction to determine whether employes or their representatives violated the Wisconsin Employment Peace Act irrespective of the fact that the business of the employer involved affected interstate commerce to the extent that the NLRB would have otherwise exercised jurisdiction over said employer. Allen-Bradley Co., 315 U.S. 140, 3/42; Plankinton House Co., 315 U.S. 437, 3/42; Allis-Chalmers Mfg. Co. 243 Wis. 332, 6/43 (U.S. Sup. Ct. denied certiorari)

Where employer operated a fur farm and his volume of business met non-retail jurisdictional standard established by NLRB and the activity involved is prohibited by the federal Act, WERB, nonetheless, has jurisdiction to apply the state Act, since agricultural employes are not considered “employes” within the meaning of the federal Act. Mt. Nebo Fur Farm (6898) 10/64 (Aff. Richland Co. Cir. Ct. 1/65)

State has jurisdiction to regulate union’s efforts to organize supervisors of an employer otherwise subject to jurisdiction of NLRB, since such activity is neither protected nor prohibited by the federal Act. Hanna Mining Co. v. Dist. 2, MEBA, U.S. Sup. Ct., 12/65

415.2 Practices Not Regulated by NLRA

415.2.1 Violations of Collective Bargaining Agreements

Since violations of collective bargaining agreements are unfair labor practices under state Act, and are not so regulated by the federal act, WERB has jurisdiction to determine whether such violations occurred, although the employer involved is otherwise subject to the jurisdiction of the NLRB. U.S. Motor Corp. (2067-A) 5/49; Boehm Bindery Co., Milw. Co. Cir. Ct., 6/51; Liberty Powder Defense Corp.(3895) 2/55 (Aff. Columbia Co. Cir. Ct., 3/57); Harnischfeger Corp. (3899-B) 5/55; Swift & Co. (4059) 9/55; Oscar Mayer & Co. (4051) 9/55; Midwest Food Services, Inc. (4408) 11/56; Halquist Lannon Stone Co. (4732) 4/58; John Deere Horicon Works (5083) 1/59; All-Work Glove Co. (5219) 6/59; Zwicker Knitting Mills, Dane Co. Cir. Ct., 1/60; American Motors Corp. (5739) 5/61; Lake Incinerator Co.(6375) 6/63; Elm Tree Baking Co. (6383) 6/63; Wheeler Div., Consolidated Freightways (6542) 11/63; Tecumseh Products Co. 23 Wis. 2d 118, 3/64; American Motors Corp. (7079) 3/65; American Motors Corp. (7203) 6/65; Norm’s IGA (7399) 12/65; American Motors Corp. (7079) 3/65 (Aff. 32 Wis. (2d) 327, 10/66); American Motors Corp. (7488) 2/66; Harnischfeger Corp. (7556) 4/66;Ladish Co. (7686-A) 2/67; Stolper Industries Inc. (H.E. Dec.); Ladish Co. (8550) 5/68; Retail Store Employees Union (8409-C) 6/68; C & L Erectors, Inc. (9718) 6/70; Andis Clipper Co. (10634-A,B) 2/73; Parkhood IGA (10761-B,C,) 2/73; Oscar Mayer & Co., Inc.(11591-B, C) 10/74; UOP Norplex Division (13214-A, B) 1/76; Gateway Foods, Inc. (13188-A, B) 4/76; Giraffe Electric Inc. (16513-A,D,E) 12/80; Bay Shipbuilding Corp., 19957-B, 19959-B (4/83)

It is not an unfair labor practice under the NLRA for an Employer to violate the terms of a collective bargaining agreement. Sec. 111.06(l)(f) of WEPA contains such a provision and it has been well-established that the Commission has concurrent jurisdiction with both state and federal courts to entertain complaints alleging such violations involving Employers who are otherwise subject to the jurisdiction of the NLRB. Metcalfe, Inc., d/b/a Sentry Foods, 17660-B (1982)

415.2.2 Temporary Work Stoppages

Since NLRA does not regulate temporary work stoppages for the purpose of interfering with production of an employer otherwise subject to NLRB jurisdiction, WERB has jurisdiction to determine whether such activity constituted an unfair labor practice under the state Act. Briggs & Stratton Corp., 336 U.S. 245, 2/49

415.2.2 Certain Types of Picketing

Where type of picketing is not regulated by NLRA, WERB has jurisdiction to determine whether such activity is violative of the state Act, although the employer involved is otherwise subject to NLRB jurisdiction. Brill’s, Inc., Milw. Co. Cir. Ct., 3/50; Gateway Liquor Co., Brown Co. Cir. Ct., 1/52; Waterways Engineering Corp. (3166) 6/52; Milwaukee Boston Store Co., 269 Wis. 338, 8/54

415.2.4 Illegal Advertising

Advertising for employment in such a manner during a labor dispute so as to constitute a misdemeanor under state law is not regulated by the NLRA and therefore WERB has jurisdiction under the provision of the Act making such an activity an unfair labor practice. Milwaukee Cheese Co. (5792) 8/61

415.2.5 All-Union Agreements

WERB exercised its jurisdiction to determine whether union unreasonably denied an employe membership and caused his discharge pursuant to an all-union agreement, although the employer was generally subject to the jurisdiction of the NLRB. Charles J. Wiechering (4187-A) 11/56; Curtis Co. (6639-A) 12/60

WERC exercised its jurisdiction to determine whether union and employer implemented all-union agreement which had not been previously authorized in a referendum conducted by WERC, although employer was generally subject to the jurisdiction of the NLRB.Surfside Manor (11809) 5/73; Hearthside Nursing Home and Rehabilitation Center (11822) 5/73; Madison Convalescent Center(11825) 5/73

415.2.7 Refusal To Work Overtime

Since a concerted refusal to work overtime is not an activity which is arguably protected or prohibited by the NLRA, WERC has jurisdiction to determine whether such conduct is violative of the Wisconsin Employment Peace Act. Kearney & Trecker Corp. (11083-A,C) 4/73 (Aff. Milw. Co. Cir. Ct., 9/73)

U. S. Supreme Court reversed the rule established by it in Briggs & Stratton Corp. (336 U.S. 245, 2/49), and held that refusal to work overtime is peaceful conduct constituting activity which must be free of regulation by the State if the Congressional intent in enacting the NLRA is not to be frustrated. Lodge 76 IAM v. WERC et al (Kearney & Trecker Corp.) 427 US 132, 6/76 (Reversing 67 Wis. 2d 13, 3/75)

420 WERC JURISDICTION CONCURRENT WITH

THAT OF FEDERAL COURTS

421 GENERALLY

Board/Commission jurisdiction to determine whether violation of collective bargaining agreement constitutes an unfair labor practice under state law is concurrent with that of the federal courts involving civil actions commenced under Sec. 301 of the NLRA. John Deere Horicon Works (5362) 11/59; American Motors Corp. (5739) 5/61; Seaman-Andwall Corp. (5910) 1/62; Lake Incinerator Co.(6375) 6/63; Elm Tree Baking Co. (6383) 6/63; American Motors Corp. (7079) 3165; American Motors Corp. (7283) 9/65; Tecumseh Products Co. 23 Wis. (2d) 118, 3/64; American Motors Corp. (7079) 3/65 (Aff. 32 Wis. (2d) 237, 10/66); American Motors Corp.(7488) 2/66; Rodman Industries, Inc. (9650-A,B) 11/70 (Aff. Brown Co. Cir. Ct. 2/72); Parkwood IGA (10761-B,C) 2/73; Oscar Mayer & Co. Inc. (11591-B, C) 10/74; G&H Products, Inc. (13225-A,B) 6/75; UOP Norplex Division (13214-A, B) 1/76; Gateway Foods Inc.(13188-A, B)4/76

Although Wisconsin Employment Relations Commission has concurrent jurisdiction with federal courts to determine whether a collective bargaining agreement has been violated, Commission set aside notice of hearing upon being advised that the matter had been removed to federal court and that, therefore, WERC presently had no jurisdiction in the matter. General Electric Co. (Hotpoint)(8544) 5/68; General Electric Co. (X-Ray) (8599) 7/68

The Wisconsin Employment Relations Commission has concurrent jurisdiction with federal district courts over cases alleging violation of collective bargaining agreements but is obligated to apply federal case law developed in Sec. 301 actions under the Labor Management Relations Act. Tecumseh Products Co., 23 Wis. 2d 118, 1963 (*); Oscar Mayer & Co., Inc. (11591-B, C) 10/74; G&H Products, Inc. (13225-A, B); Gateway Foods Inc. (13188-A, B) 4/76; J.I. Case Company and United Auto Workers, Local 180, 18324-A, B (9/82); Northland College, 22094-B (5/86); Northwestern Mutual Life Insurance Company, 22366-B (7/86).

It has been well-established that the Commission has concurrent jurisdiction with both state and federal courts to entertain complaints alleging violations of the collective bargaining agreement involving Employers who are otherwise subject to the jurisdiction of the NLRB. Metcalfe, Inc., d/b/a Sentry Foods, 17660-B (2/82)

An allegation the Employer violated Secs. 111.06(l)(f) and (g) by failing to immediately pay the amounts due under an arbitration award and by failing to pay interest from the date of that award on any amounts not immediately paid is governed by federal substantive law. Sparta Manufacturing Company, Inc., 20787-A, B (12/83)

The Commission has concurrent jurisdiction with federal and state courts to hear and decide complaints involving alleged violations of a collective bargaining agreement and a Union’s alleged breach of its duty of fair representation. Ruan Transportation Management Systems, Dec. No. 25074-B (Jones, 7/88) aff’d by Operation of Law Dec. No. 25074-C (WERC, 8/88).

430 WERC JURISDICTION CONCURRENT WITH

THAT OF STATE COURTS

431 GENERALLY

WERB, under the state Act, has no exclusive jurisdiction to prevent unfair labor practices. Sec. 111.07(1) permits relief to be sought in the courts of the State. George LaDuc, Racine Co. Cir. Ct., 7/47

The State of Wisconsin may exercise its police power in labor relations through state courts or the WERB, where the activity involved is regulated by the Wisconsin Employment Peace Act. Kohler Co., 351 U.S. 266, 6/56

While Commission has jurisdiction to determine whether employer committed an unfair labor practice by committing a misdemeanor in connection of a controversy involving labor relations, Commission held complaint proceeding in abeyance, since court proceeding involving same activity was pending. North Shore Publishing Co. (11310-A) 10/72

Where Circuit Court in issuing injunctions with respect to picketing activity did not issue same on the basis of Secs. 111.06(2)(f) or (j), WERC was not deprived of jurisdiction to entertain complaint alleging violation of said statutory provisions. LaCrosse Telephone Corp.(13294-A, B) 3/76

* Omitted in Volume II of Digest

Civil action in Circuit Court damages for assault on picket line does not deprive WERC of jurisdiction to determine whether assailant violated Sec. 111.06(2)(j). LaCrosse Telephone Corp. (13294-A, B) 3/76

WERC has jurisdiction to determine whether a crime or misdemeanor was committed in a labor dispute in violation of Secs. 111.06(2)(L) or (2)(j), since WERC imposes no criminal sanction. Layton School of Art & Design, Milw. Co. Cir. Ct., 1/76 (aff. Dec. No. 12231-B, 5/75); LaCrosse Telephone Corp. (13294-A, B) 3/76

WERC has jurisdiction to determine whether an employer committed a crime or misdemeanor in connection with a controversy as to employment relations, and such statutory authority under WEPA does not constitute delegation of a judicial power, nor is it violative of the provision of the Wisconsin constitution vesting judicial power in the courts of this state. Layton School of Art & Design v. WERC 82 Wis. 2d 324, 2/78 (Aff. Dec. No. 12231-B, 5/75)

Legislature, in declaring it to be an unfair labor practice for an employer to commit any crime or misdemeanor in connection with a controversy as to employment relations, has not conferred upon WERC the power to adjudicate criminal guilt. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 2/78

Determination that agent of employer committed perjury in an arbitration hearing involving the discharges of employes, and therefore an unfair labor practice within the meaning of Sec. 111.06(l)(1) of WEPA, and the subsequent remedial order issued by the WERC, constitute a legitimate exercise of WEPA’s responsibility to regulate unfair labor practices. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 2/78

WERC has concurrent jurisdiction with the courts to determine whether collective bargaining agreement has been violated, and whether such violation constitutes an unfair labor practice in violation of WEPA. Reimer’s Meat Products, Inc. (15577-A,B) 5/78

440 WERC JURISDICTION AS AFFECTED BY

COLLECTIVE BARGAINING AGREEMENTS

441 EXECUTED OUTSIDE STATE

Collective bargaining agreement, covering employes employed in Wisconsin, legally executed outside the State must be given effect in Wisconsin. Fielding & Shipley (259) 6/41

442 EFFECT OF GRIEVANCE AND ARBITRATION PROVISIONS

442.1 Disputes Resolved in Grievance Procedure

Where the final disposition of a grievance is reached in accordance with contractual grievance procedure, the Board, in the absence of bad faith, or lack of fair representation, will not exercise its jurisdiction to determine the merits of the grievance. Liberty Powder Defense Corp. (3895) 2/55 (Aff. Columbia Co. Cir. Ct., 3/57); Wisconsin Farmco Service Coop. (4653) 11/57; Donner Commission Co.(5178) 4/59; John Deere Horicon Works (5362) 11/59; American Motors Corp. (5739) 5/61; Wisconsin Power & Light Co. (5911) 6/62;Lubotsky Tire Co. (6089) 6/62; Weyenberg Shoe Mfg. Co. (6159) 11/62; Jack Winter, Inc. (6633) 2/64; Consolidated Freightways Corp. (6542-A) 10/64; Ladish Co. (7010) 1/65; Hansen Seaway Service, Ltd. (7052) 3/65; American Motors Corp. (7283) 9/65;American Motors Corp. (7283) 9/65 (Aff. Dane Co. Cir. Ct. 6/67); American Motors Corp. (8385) 2/68; F. Dohmen Co. (8419-A) 8/68 (H.E. Dec.) (Aff. WERC 9/68); F. Dohmen Co. (8419-A,B) 9/68 (Aff. Milw. Co. Cir. Ct. 6/70); Schlueter Co. (8348-A,B) 2/69; Moxness Products, Inc. (8399-A,B) 3/69; Kroger Co. (10004-A,B) 11/70; Building & Construction Trades Council (10000-A,B) 4/71; Ozite Corp.(10298-A,B) 2/72; Grey Iron Foundry (11383-A,B) 5/73; C & J Transport Co. (11558-A,B) 8/73; Oilgear Co. (11569-A, B) 2/74; Oscar Mayer Co., Inc. (11591-B, C) 10/74; Eagle Knit Inc. (13501-A, B) 9/75; J. I. Case Co. (13869-A, B) 7/76; (14207-A) 8/76; Neillsville Coop Transport (14404-A) 8/76; J.I. Case Co. (14007-C, D) 9/76; Pabst Brewing Co. (17023-B,C) 9/80.

Where the employer and the union, by agreement, provide for arbitration and agreement that they will be bound by the award, and if the award of the arbitrator does not violate any positive provision of the law and it is in no sense illegal, WERB has no power than to require the parties to comply with the award. Wisconsin Axle Division (1467) 11/47

The Employer has a right to be free from litigation when the grievance procedure provides a remedy and the union in good faith believes, either in the initial stage or intermediate stage of the contractual procedure, that the employe claim is without merit. John Oster Mfg. Co. 17 Wis. (2d) 367, 10/68

Where Union elects, without bad faith, not to proceed to arbitration in order to conserve its finances, the Employer should not thereby become subject to an action to determine whether the collective bargaining agreement has been violated. Louis Allis Co. (11017-A,B) 9/72

442.2 Disputes Not Resolved in Grievance Procedure

442.2.1 Lack of Provision for “Final Disposition”

Where the collective bargaining agreement does not provide for the final and binding resolution of grievances, the Board, under Sec. 111.07, upon filing of proper complaint will determine whether the collective bargaining agreement has been violated with respect to the merits of the dispute. J. I. Case Co. (1593) 4/48; Crittal, Inc. (3677) 2/54; J. H. Nowinski Trucking Co. (4406) 11/56; Quality Aluminum Casting Co. (4498-A) 1/58; Electric Service Shop, Inc. (5688) 2/61; Tecumseh Products Co., 23 Wis. 2d 118, 3/64;American Motors Corp. (7079) 3/65 (Aff. Milw. Co. Cir. Ct. 11/65); American Motors Corp. (7203) 7/65; American Motors Corp. (7283) 9/65; American Motors Corp. (7079) 3/65 (Aff. 32 Wis. (2d) 237, 10/66); Webster Electric Co. Inc. (14909-B,C) 1/78

Commission will not determine alleged violation of collective bargaining agreement in complaints of unfair labor practices unless it can be established that the complainant attempted to utilize the contractual grievance procedure, regardless of whether such procedure does not provide for the final resolution of the dispute. American Motors Corp. (7488) 2/66; American Motors Corp. (7659) 7/66;Amity Nursing Home, Inc. (8425) 2/68; Millway Nursing Home (7823-A) 3/68; Mueller Color Plate Co. (8780) 12/68; Schlueter Co.(9348-A,B) 2/69; American Can Co. (14688-A, B) 10/76

Where collective bargaining agreement provides that the Union is not required to utilize arbitration provision to seek enforcement of provision relating to welfare fund payments, Commission asserted jurisdiction to determine whether Employer failed to make required payments. Lorentzen Tile Co. (9630) 5/70

Where collective bargaining agreement provided that grievance not settled in grievance procedure shall be “promptly” submitted to the Commission in an unfair labor practice proceeding, Commission refused to determine grievance on merits, where complaint was filed some six months following Employer’s answer to grievance. Milwaukee Athletic Club (10292-A,B) 6/72

Where a working agreement does not require the utilization of the grievance and arbitration procedure set forth therein, the Commission has jurisdiction to determine whether the Employer violated the bargaining agreement by failing to make payments to welfare, pension, vacation and education funds for hours worked by employes, and whether it thereby committed an unfair labor practice within the meaning of Sec. 111.06(i)(f). R & R Drywall Co. Inc., 19109-B (3/83)

Where the parties’ collective bargaining agreement does not contain a provision for final and binding arbitration or any other means of final resolution of disputes arising over the agreement, the Commission will exercise its jurisdiction to determine if Sec. 111.06(l)(f), Stats. has been violated. Webster Electric Company, Inc., 23510-A (10/86); Ladish Co. Inc., TRI-COVER DIVISION, 23390-A (7/87).

442.2.2 Inclusion of Provision for “Final Disposition”

Board/Commission will not normally assert jurisdiction to determine violation of collective bargaining agreement where the agreement contains a provision for the final disposition and resolution of the dispute where the complaining party has not proceeded in accordance with the grievance procedure in said agreement. River Falls Coop. Creamery (2311) 1/50; F. Hurlburt Co. (4121) 12/55 (Aff. Brown Co. Cir. Ct. 11/56); Pierce Auto Body Works (6635) 2/64; American Motors Corp. (7488) 2/66; Allen Bradley Co. (7659) 7/66; Amity Nursing Home, Inc. (8425) 2/68; Millway Nursing Home (7823-A) 3/68; Mueller Color Plate Co. (8780) 12/68; J. I. Case Co. (9727-A,B) 7/70; Bartell Brand Casters, Inc. (9763-A,B 7/70; D. L. Bradley Co. Inc. (9526-A,B) 9/70; Rodman Industries, Inc.(9650-A,B 1/70 (Aff. Brown Co. Cir. Ct. 2/72); Stokely Van-Camp Inc. (10349-A) 7/71; Bausch Machine Tool Co. (11287) 9/72;Katahdin Foundation, Inc. (10559-B,C) 2/73; Badger Lumber Co. (12451-A, B) 5/74; Wisconsin Mosaic & Tile Co. (10573-A, B) 6/74;St. Regis Paper Co. (12880–C, D) 12/74; UOP Norplex (13214-A, B) 1/76; Harry Viner Inc. (13828-A, E) 8/76, J.I. Case Corp.(14513-A, B) 11/76; Styberg Engineering Co. Inc. (15119-A,B) 7177; Clevenak Corp. (15555-C D) 3/78; Crepaco, Inc. (15192-B) 6/78;Kohl’s Food Stores (15903-A,B) 12/78; E S B Wisco, Inc. (17217-B,C) 4/80

Where employer waived procedural requirements in processing grievance, Board will not consider failure to comply therewith as affecting its jurisdiction to determine the grievance on its merits. Wells Mfg. Co. (6720) 10/64; Cornell Paperboard Products (7353) 11165

If the employe involved, or any party to the agreement, is improperly denied the opportunity to process grievances as contemplated in the agreement, the Board will disregard the procedure in the agreement and will exercise its jurisdiction to determine the grievance on its merits. Blackhawk Mfg. Co. (3714) 4/54; Wonder Rest Corp. (3983) 5/58 (Aff. Wis. Sup. Ct., 275 Wis. 273, 3/57); Consolidated Freightways, Inc. (5768-A) 7/62, FWD Corp. (6216) 1/63; Cornell Paperboard Products (7353) 11/65

Board/Commission will determine grievance on its merits unless party opposing Board’s jurisdiction timely objects thereto on the basis that the collective bargaining agreement contains a provision for final and binding arbitration of said grievance. Fiore Coal & Oil Co.(3234) 8/52; Pet Milk Co. (6209) 1/63; Pinno Plumbing & Heating (7989) 4/67; Bi-State Trucking Corp. (9924-A,B) 8/71; Mike’s Super Valu (13383-A, B) 8/75; Zapata Kitchens, Inc. (13229-B) 4/76; Equipment Installers, Inc. (18372-A,B) 9/81

Board will not assert jurisdiction to determine complaint alleging contract violation on merits where the parties had previously requested the Board to designate an arbitrator and where, thereafter, the complainant withdrew its claim before the arbitrator. Lou Ehlers Buick, Inc. (6450) 1/64

By presenting evidence with respect to the merits of the dispute Commission held that Employer and Union waived the arbitration provision in their agreement and that since the merits of the dispute were fully litigated before the Commission, the Commission would determine the dispute on its merits. Allis-Chalmers Manufacturing Co. (8227) 10/67

Where one party to a collective bargaining agreement completely ignores and rejects the voluntary method for the settlement of disputes thereunder, without any defense or reason whatsoever, Commission shall, in order to effectuate the policies of the Act, unless the complaining party requests an order compelling arbitration, deter-mine whether or not the agreement has been violated without requiring the complaining party to be frustrated in seeking an adjudication of the dispute through arbitration. Mews Ready Mix Corp. (6683) 3/64 (Aff. 29 Wis. 2d 44, 11/65); Bob Harrison Trucking (9051-A,B) 4/70; Wonderland Foods (10256-A,B) 7/71

Where the behavior of the Employer is such that he has wholly rejected and refused to follow the contractual arbitration procedure, normally the Commission will consider the merits of the alleged violations as if the Employer had waived the arbitration procedure. However the fact that the Employer on one prior occasion rejected the negotiated procedure and was on another occasion inept in following that procedure is not sufficient to find an exception to this well established and firmly based rule of the Commission. D. L. Bradley Co. Inc. (9526-A,B) 9/70

Refusal by Employer to proceed to arbitration because of his belief that employe involved had no rights under the collective bargaining agreement did not, in itself, warrant the Commission’s exercise of its jurisdiction to determine the grievance on the merits.Rodman Industries, Inc. (9650-A,B) 11/70 (Aff. Brown Co. Cir. Ct., 2/72)

Fact that arbitration proceeding would involve considerable expense does not warrant a determination of an arbitrable grievance on its merits. Handcraft Co., Inc. (10030-A,B) 7/72

Where arbitrator reserved jurisdiction to determine amount of back pay due or owing employes should the parties not agree on such amounts, Commission refused to exercise its jurisdiction to determine whether the Employer violated the award since a dispute existed as to the amounts of back pay due under the award. Hoeppner-Bartlett Co. (11207) 8/72

Where Union violated its duty to fairly represent employe with respect to grievance over employe’s discharge, Commission determined to exercise its jurisdiction to determine whether employer discharged employe in violation of collective bargaining agreement. Katahdin Foundation, Inc. (10559-B,C); Woodland Foundry (11294-A,B) 3/73

Where employer repudiated entire collective bargaining agreement, including provisions for arbitration, on his claim that he was not a “successor” to such agreement, Commission referred to exercise its jurisdiction to determine whether the employer violated said agreement. Parkwood IGA (10761-B,C) 2/73

Before the Commission will determine merits of complaint filed by individual employe alleging that employer violated collective bargaining agreement, the complainant must establish that he attempted to exhaust the contractual grievance procedure and that such attempt was frustrated by the union’s breach of its duty of fair representation. Badger Lumber Co. (12451-A, B) 5/74; Oscar Mayer Co. Inc. (11591-B, C) 10/74; St. Regis Paper Co. (12880-C, D) 12/74

A union’s duty of fair representation does not necessarily require that it carry grievances through all steps of the grievance procedure, rather it must investigate and prosecute each grievance in a manner untainted by arbitrary, discriminatory or bad faith motives.Badger Lumber Co. (12451-A, B) 5/74; St. Regis Paper Co. (12880-C, D) 12/74

In processing employes grievance union must make a decision as to the merits of the grievance. Such a decision must take into account at least the monetary value of the employes claim, the effect of the breach, and the likelihood of success in arbitration. Absent such a good faith determination, a decision not to arbitrate based solely on economic considerations could be arbitrary and a breach of the union’s duty of fair representation. Harold Mahnke v. WERC, 66 Wis. 2d 524, 2/75

Where, during the course of the hearing, the parties waive the contractual arbitration provision, Commission will determine alleged contractual violation on the merits. Wigwam Mills, Inc. (12838-A, B) 11/74

Where one party to a collective bargaining agreement completely ignores and rejects the voluntary method for the settlement of disputes thereunder, without any defense or reason whatsoever, Commission shall, in order to effectuate the policies of the Act, unless the complaining party requests an order compelling arbitration, determine whether or not the agreement has been violated without requiring the complaining party to be frustrated in seeking an adjudication of the dispute through arbitration. Larson Landscape Service, Inc. (17474-B,C) 7/80 (Aff. Dane Co. Cir. Ct., 11/80); Bailey Construction Co. (18371-A,B) 5/81

Where Union violated its duty to fairly represent employe in the processing of his grievance, the WERC will exercise jurisdiction to determine said grievance on its merits. Wisconsin Associates Inc. (18661- A,B) 11/81

WERC refused to exercise jurisdiction to determine whether Employer discharged employe in violation of collective bargaining agreement where the Union’s failure to seek arbitration of the discharge grievance was not arbitrary or based upon discriminatory or bad faith considerations, but rather resulted from an evaluation of the merits of the grievance and the likelihood of success in arbitration. Harnischfeger Corp. 14898-C,D,E) 11177; Clevepak Corp. (15055-C,D 3/78; Allis Chalmers Corp. 15069 4/78; Crepaco, Inc. (15192-A,B) 6/78; Duo Safety Ladder Co. (16501-A,,B 1/79; Blackmon Trucking, Inc. (16681-A,B) 6/79; J. I. Case Co. (16992-A,B) 3/80; Racine Steel Castings & Stratton Corp. 16069-A,B 6/80; Pabst Brewing Co. 17023-B, C 9/80

Where the collective bargaining agreement provides that the parties may mutually agree to proceed to arbitration, or, in the absence of such an agreement, the Union has the right to engage in a strike should the parties not resolve said grievance in the preliminary steps of the grievance procedure, the WERC will determine the grievance on its merits where the parties have not mutually agreed to proceed to arbitration on said grievance. Evco Plastics (16150-A,B) 11/79

The fact that the grieving employe did not exhaust his internal union procedure in failing to appeal the Union’s determination not to proceed to arbitrate the grievance, does not in itself constitute a basis to preclude the employe from seeking a WERC determination as to whether the employe was denied fair representation in the processing of said grievance. J. I. Case Co. (16992-A,B) 3/80 (Aff. Racine Co. Cir. Ct., 6/81).

Where the parties have a provision providing for final and binding arbitration and where the Employer has failed and refused to process a grievance, it is appropriate for the Commission to assert jurisdiction to consider the alleged contractual violation. Modern Poured Walls, Inc., 19102-A, B (4/82) (Enforced by Outagamie Co. Ct., 12/82)

The Union’s duty of fair representation does not require that all grievances must be processed through all steps of the grievance procedure, including arbitration. Mercury Marine Division of Brunswick Corporation and Lodge No. 1947, IAM, 17607-A, B (7/82)

Where the Union reasonably concluded a discharge would be sustained by an arbitrator, and it decided not to continue processing the grievance, the record shows the Union’s decision was not arbitrary, discriminatory, or in bad faith. Mercury Marine Division of Brunswick Corporation and Lodge No. 1947, IAM, 17607-A, B (7182)

An employe lacks standing to pursue a violation of a contract claim under Section 111.06(l)(f) unless he alleges that his attempted use of the contractual grievance arbitration process has been awarded by the bargaining representative’s failure to fairly represent him. G & H Products, Inc., 17630-B (1/82)

Where the Examiner denied a motion to dismiss by the Employer who claimed an individual employe lacked standing to enforce an arbitration award, the Commission reversed, because unless there is an allegation that the Union violated its duty to fairly represent the employe, the Union has exclusive control over contractual administration and enforcement, including enforcement of an arbitration award. G & H Products, Inc., 17630-B (1/82)

The Examiner will not exercise the Commission’s jurisdiction to determine the merits of a Complainant’s allegation that the Employer breached the collective bargaining agreement by violating Sec. 111.06(l)(f), absent a showing by a clear and satisfactory preponderance of the evidence that the Complainant attempted to exhaust the contractual grievance procedure and was frustrated in doing so by the Union’s violation of its duty to fairly represent him. Jacobsen, Division of Textron and Local No. 556, UAW, 18839-A, B (1/83); Kohlberg Theatres, Inc. (Lakes Drive In Theatre), 20482-A, B (8/83)

The standard that generally has been employed by the Commission and the courts in determining a breach of the duty of fair representation is whether the Union’s conduct toward bargaining unit employes is arbitrary, discriminatory, or in bad faith. Mere negligence, inaptitude, or poor judgement in grievance handling are insufficient to establish a breach of the duty of fair representation. Additionally, the failure of a Union to notify a grievant about the disposition of his or her grievance is an inadequate basis for finding a breach of the duty. Jacobsen, Division of Textron and Local No. 556, UAW, 18839-A, B (1/83)

The Complainant does not have an absolute right to have his grievance processed through all the steps of the grievance procedure, including arbitration, and the mere fact that the Union withdrew the grievance short of arbitration does not, without more, constitute a breach of its duty of fair representation. Jacobsen, Division of Textron and Local No. 556, UAW, 18839-A, B (1/83)

Where the agreement provides for final and binding arbitration of grievances with respect to alleged violations of its provisions, the Commission generally refuses to exercise its jurisdiction. Metcalfe, Inc., d/b/a Sentry Foods, 17660-B (2/82)

Where there is an absence of a breach of the duty of fair representation, it is unnecessary to reach the merits of the alleged breach of contract claim. J.I. Case Company and United Auto Workers, Local 180, 18324-A, B (9/82)

Where an employe must exhaust Union procedures prior to pursuing a Sec. 301 action and where a grievance may be reactivated after resort to internal Union procedures, the grievance should be submitted to the collective bargaining dispute resolution procedure.J.I. Case Company and United Auto Workers, Local 180, 18324-A, B (9/82)

By applying federal case law, the Commission has discretion in deciding whether to require an employe to exhaust internal Union procedures. In making such a decision, the Commission considers: (1) whether Union officials are so hostile to the employe that he or she could not have hoped to have a fair hearing on his or her claim; (2) whether the internal Union appeals procedures would be inadequate either to reactivate the employes grievance or to award him or her the full relief he or she seeks; and (3) whether exhaustion of internal procedures would unreasonably delay the employes opportunity to obtain a judicial hearing on the merits of the claim. J.I. Case Company and United Auto Workers, Local 180, 18324-A, B (9/82)

Although the Commission’s usual policy in response to a complaint alleging breach of a contract is to defer to the arbitration process if the collective bargaining agreement provides for final and binding arbitration, exceptions to that general rule are made where the party opposing the exercise of jurisdiction by the Commission fails to timely object thereto on the basis of the existence of final and arbitration in the parties’ agreement. Bay Shipbuilding Corp., 19957-B, 19958-B (4/83)

There are at least three relevant factors which bear on the issue of whether exhaustion of an internal Union procedure should be required of the employe. They are: 1) whether Union officials are so hostile to the employe that he could not hope to obtain a fair hearing on his claim; 2) whether the internal Union appeals procedure would be inadequate either to reactivate the employes grievance or to award him the full relief he seeks under Sec. 301; and 3) whether exhaustion of internal procedures would unreasonably delay the employes opportunity to obtain a judicial hearing on the merits of his claim. All three standards must be met before an employes failure to exhaust internal Union remedies become a valid defense available to a Union. The jurisdiction of the Commission will not be exercised in the absence of a clear and satisfactory preponderance of evidence showing that the Complainant attempted to exhaust the contractual grievance procedure but was frustrated in that attempt because of the Union’s breach of its duty to fairly represent him. Bardon Rubber Products Company UAW Local 627, 19743-A (6/83)

A Union has considerable latitude in deciding whether to pursue a grievance through arbitration. Bardon Rubber Products Company UAW Local 627, 19743-A (6/83); Jacobsen, Division of Textron and Local No. 556, UAW, 18839-A, B (1/83)

A Union is required to make decisions as to the merits of grievances. Such decisions should take into account at least the monetary value of the employes claim, the effect of a breach of contract on the employe, and the likelihood of success in arbitration. The absence of evidence that these factors were taken into account by a Union in making its decision as to the merits of a grievance does not show a breach of the duty of fair representation. Bardon Rubber Products Company and UAW Local 627, 19743-A (6/83)

If it can be proven by a clear and satisfactory preponderance of the evidence that (1) the Union acted arbitrarily, capriciously or in bad faith, or in other words failed to provide the Complainant with fair representation in the grievance process and (2) that said breach of duty materially affected the decision, then the decision by the Union is not binding and the Commission will review the merits of the alleged violation of the contract. Kenosha Auto Transport Corporation, 19081-B, C (1/83)

Where there has been a final and binding decision on the alleged violation of the collective bargaining agreement, the Commission will not exercise its jurisdiction to hear the merits of the alleged breach unless there is a showing that the Union breached its duty to fairly represent the Complainant in processing his grievance. Kenosha Auto Transportation , 19081-B, C (1/83)

If the Complainant demonstrates the Union acted negligently or exercised poor judgement in failing to raise the Complainant’s contention, such proof is not enough to support a claim of unfair representation. Because the Complainant has failed to demonstrate that the Union breached its duty of fair representation, the Complainant is bound by the final and binding decision of the Union.Kenosha Auto Transport Corporation, 19081-B, C (1/83)

Where the parties have a contractual provision for final impartial resolution of disputes, the Commission generally will not assert its statutory jurisdiction over breach of contract claims because of the exclusivity of the contractual procedure and a desire to honor the parties’ agreement. Northland College, 22094-B (5/86)

443 Strike Settlement Agreements

Where a strike settlement agreement describes the procedure by which the Employer was to rehire striking employes following the settlement of a strike and where in the opinion of the court there is no plausible rationale for characterizing such an agreement as other than one relating to “terms and conditions of employment,” then the Commission does have jurisdiction. Evco Plastics, Dane Co. Cir. Ct., 8/83, (Affirming in part and reversing in part Dec. No. 16548-D, 12/81)

Where a strike settlement agreement provides that recalled strikers will receive accrued benefits according to the labor agreement and the National Labor Relations Act, the strike settlement agreement involves terms and conditions of employment and is a collective bargaining agreement and the Commission has jurisdiction to determine whether it has been violated. Evco Plastics, Ct.App. IV, (1/85) Affirming Dane County Cir. Ct. which affirmed in part and reversed in part Dec. No. 16548-D, (12/81).

Where the Employer was well aware of the dispute and urged the Union to submit the grievance in writing, where the Employer then refused to accept the documents that it had demanded, thereby preventing the processing of the grievance, and where there is nothing in the record to suggest that the Employer’s conduct was the result of inadvertence, the Employer’s pattern of conduct constitutes a deliberate repudiation of the grievance procedure set forth in the labor contract. Kohlberg Theatres, Inc. (Lakes Drive In Theatre), 20482-A, B (8/83)

450 AS AFFECTED BY WISCONSIN STATUTES OTHER THAN WEPA

451 GENERALLY

WERC declined to exercise jurisdiction to determine whether discharge of employe violated collective bargaining agreement, since the claim resulted from the employes physical handicap, which would constitute a violation of the Fair Employment Practices Act, and jurisdiction of such a claim rested with the Department of Labor, Industry and Human Relations. Harold Mahnke v. Louis Allis Co.(11017-E) 1/78

To the extent complaint claimed that Respondent engaged in sex discrimination by discharging the Complainant, it is dismissed because such actions are not prohibited under WEPA, but are covered under other state statutes. Trucker’s & Traveler’s Restaurant, Dec. No. 20882-C (WERC, 10/84)

460 AS AFFECTED BY STATE AND FEDERAL CONSTITUTIONS 4

461 GENERALLY

WERB did not exercise a purely judicial function in violation of Art. VII, Sec. 2 of the state constitution in determining whether a collective bargaining agreement had been violated. The WERB merely exercised limited power to what is incidental and reasonably necessary to the proper and efficient administration of the Act. Stolper Steel Products Corp. 258 Wis. 481, 2/51; Crittall, Inc. (3677) 2/54; Rice Lake Creamery Co. (4997-C) 5/61; Peavey Paper Mills, Inc. (6477) 9/63; Bruns Garage, Inc. (6615) 1/64

470MISCELLANEOUS

471 AS AFFECTED BY UNION BY-LAWS AND CONSTITUTIONS

Where non-member employe cannot avail himself of the privilege of pursuing grievance against the bargaining representative under its by-laws and constitution, Board held requirements therein inapplicable to the employe and that he need not exhaust the procedures therein before the Board will exercise its jurisdiction in the matter. Chas. J. Wiechering (4187-A) 11/56

Where employe did not exhaust union procedures for appealing union’s decision not to proceed to arbitration, such failure did not preclude employes from attempting to prove that union breached its duty of fair representation in processing employe’s grievance. J. I. Case Co. (14007-C, D) 10/76

Where an employe must exhaust Union procedures prior to pursuing a Sec. 301 action and where a grievance may be reactivated after resort to internal Union procedures, the grievance should be submitted to the collective bargaining dispute resolution procedure.J.I. Case Company and United Auto Workers, Local 180, 18324-A, B (9/82)

472 AS AFFECTED BY DIVERSITY OF CITIZENSHIP

473 FAILURE OF SERVICE WITHIN STATE

There is no federal statutory provision which limits WERB jurisdiction over parties because one of the parties has its business office outside the State of Wisconsin. Norm’s IGA (7399) 12/65

474 APPEARANCE 5

General appearance at a representation hearing is deemed as a waiver of objection to Board’s jurisdiction. Creamery Package Mfg. Co. (258) 6/41

481 GENERALLY

WERB assumed no jurisdiction of activities of president of international union, who allegedly was committing unfair labor practices, where no service was obtained on that individual within the state. Wisconsin Liquor Co. (685) 11/44

500 PRACTICE AND PROCEDURE BEFORE THE COMMISSION

510 IN GENERAL

511 EXAMINATION OF BOARD RECORDS

A labor union, the collective bargaining agent for the employes concerned, had a right to examine a petition by citizens, on file in the Board’s office, requesting the Board to order an election among the employes to determine whether such employes would accept an offer of the employer to settle a strike. The petition had been received by the Board, given an official file number, and officially acted upon by the Board to the extent of a written decision, determining that it was without jurisdiction. The union had an interest beyond mere curiosity in the subject matter of the petition and it was not shown that it had improper motives. J. I. Case Co., 251 Wis. 362, 11/47

512 EFFECT OF ARBITRATION AWARDS

Evidence adduced before an arbitration board, appointed pursuant to a collective bargaining agreement, will not be relitigated before the Board. Kempsmith Machine Co. (743) 5/45

Board sustained arbitration award where the award was found to be certain, capable of being performed, valid, and sustained by the evidence. Kempsmith Machine Co. (743) 6/45

The Board has no statutory power to review arbitration awards, and when a collective bargaining agreement provides that the award of the arbitrator shall be final and binding the Board can neither review nor vacate such an award. Milwaukee Tool & Die Co. (1502) 1/48

Agreements to submit future disputes to arbitration may be enforced by virtue of Sections 111.06(1) (f) and (2) (c). Board will not attempt to interpret or apply the contract, at least, until the parties have exhausted their remedies under the contract. U.S. Motors Corp. (2067-A, 2067-B) 5/49; Oshkosh Motor Truck Co. (2068-A) 5/49; Manitowoc Church Furniture Co. (3656)) 12/53; Dunphy Boat Corp. (3588) 10/53 (Aff. 267 Wis. 316, 6/54)

513 EFFECT OF COURT JUDGMENTS

A judgment of a municipal court to enforce a provision in a collective bargaining agreement is not res adjudicata and the Board is not estopped from enforcing the public rights declared in the Act. Quality Dairy (172) 2/41 (Aff. Winnebago County Circuit Court, 7/51)

520 REPRESENTATION PROCEEDINGS

521 PARTIES

Labor organization may properly file petition for unit determination based on separate department status of employes. Door County Memorial Hospital (9073) 6/69

521.1 Appearance

General appearance at a representation hearing is deemed as waiver of objection to Board’s jurisdiction. Creamery Package Mfg. Co. (258) 6/41

521.2 Intervention

Board set aside direction for election and referendum and ordered further hearing when prior to the election an intervening labor organization filed a petition for an election. Scientific Cleaners (1491-B) 1/48

Board permitted intervention following hearing where the petition did not indicate intervenor’s interest. Bowlero, Inc. (5789-B) 10/61

Any claim relating to employer or supervisor membership in a labor organization cannot be raised in an election proceeding but can only be raised in an unfair labor practice proceeding. Petitioning union’s motion to deny intervention to a competing organization on such claim was denied by the Commission. Madison Telco Credit Union (7440) 1/66

521.3 Petitioner

Fact that individual employe who filed initial petition quit his employment did not in itself warrant dismissal of petition where at the hearing the employer contended that there was a reasonable doubt that union represented present employes because of a turn-over of personnel. Bartosh Cleaners & Launderers (6004) 6/62

Where employer obtained the signature of his sole employe on an election petition jointly executed by the employe and employer, Board dismissed petition since the activity of the employer in that regard invaded the province of the Board to conduct a secret ballot election. Romantini Printing Co. (7044) 2/65

522 PETITION

522.1 Form

The fact that the election petition did not state the approximate number of employes on whose behalf the petition is filed is not grounds for dismissal of the petition. Artistic Cleaners & Launderers (4918-A) 11/58

Commission considered telegram requesting election in specified unit and alleging emergency to warrant expedited election as proper petition. Libby, McNeill & Libby (8163) 8/67

The fact that the petition did not state the total number of employes of the Employer, or the approximate number of employes in the unit claimed to be appropriate, or the number of employes on whose behalf the petition was filed, did not constitute grounds for dismissing the petition. St. Vincent’s Hospital (9023-A) 8/69; Pine Manor Nursing Home, Inc. (9222) 9/69; Shawano Convalescent Center, Inc. (9308) 11/69; Shawano Community Hospital (9281) 11/69; St. Michael’s Hospital (10771) 2/72; St. Vincent Hospital(12008) 7/73; St. Mary’s Hospital Medical Center (12017) 7/73; St. Mary’s Hospital (12520) 3/74

522.2 Laches

Board dismissed election and referendum petitions for being stale more than 18 months after petitioner requested Board to withhold action. Yawkey-Bissell Corp. (2617) 11/50; Triangle Mfg. Co. (2619) 11/50

522.3 Withdrawal

Board dismissed petition filed by employes to determine whether a particular labor organization represented the employes, when that organization indicated upon receipt of the notice of the election that it had no interest in the proceeding nor in representing those employes. Shadur Paper Box Co. (3400) 3/53

522.4 Unit Petitioned For Found To Be Inappropriate

Where unit petitioned for by union was different from the unit found to be appropriate by the Board, the Board included in its direction a provision giving the union the right to withdraw and request that the direction be set aside. Kelly Furniture Co. of Eau Claire (3724) 4/54

Where nurses previously rejected separate unit and were included in overall unit of nursing home employes and were subsequently covered by a collective bargaining agreement, Commission denied Union’s request In subsequent petition to exclude nurses from unit on Union’s disclaimer with respect to the nurses. Millway Nursing Home (7762) 10/66

522.5 Effect of Employe Turnover

Turnover of employes since date of filing of petition does not require the filing of a new petition. Board rejected motion to dismiss petition on the ground that the turnover may have dissipated union’s majority. Ace Foods, Inc. (6876) 9/64

523 HEARING

523.1 Proper Time to Prepare for Hearing

Board found not to have allowed intervening union proper time to prepare and plead material evidence. Rock River Woolen Mills, Rock Co. Cir Ct., 7/40

523.2 Employe List

The request of the Board that employer present list of employes at hearing is for the purpose of assisting the Board in resolving issues, if any, with respect to eligibles and to prevent an excess of challenges during conduct of the vote. St. Luke’s Hospital (7007) 1/65

Union should have reasonable time prior to the conduct of the balloting to examine eligibility list in order to properly challenge same.Milwaukee Athletic Club (6993-E) 9/65; St. Luke’s Hospital (7007-C) 9/65; Misericordia Hospital (7011-D) 9/65; Deaconess Hospital(7008-D) 10/65; St. Vincent’s Hospital (10347) 6/71; Stoughton Hospital Assn. Inc. (10436) 8/71; Holy Family Hospital (11535) 1/73;General Corp. (12479) 2/74

The request of the Commission that employer present list of employes at hearing is for the purpose of assisting the Commission in resolving issues, if any, with respect to eligible employes and to prevent an excess of challenges during conduct of the vote.Milwaukee Psychiatric Hospital (7557) 5/66; Jewish Vocational Service (7722) 9/66; Wausau Colonial Manor (8717) 10/68; Manor House of Madison, Inc. (9518) 2/70; St. Vincent’s Hospital (10347) 6/71; Stoughton Hospital Assn. Inc. (10436) 8/71

Commission in requiring Employer to furnish list of employes in unit for conduct of manual balloting will not require the Employer to list the addresses of said employes. Stoughton Hospital Assn. Inc. (10436) 8/71; Larsen Bakery (11980) 7/73; Medical Services Clinic S.C. (12836) 6/74

Where Union never requested copy of list of employes and raised an objection thereto, for the first time, following the election, Commission held that such an objection was not valid. Clintonville Community Hospital (10282-A) 10/71

The Commission has never required an Employer to provide a list of the names and addresses of the eligible employes. West Side Community Center, Inc., 19211-A (4/83)

523.3 Failure of Employer to Appear at Hearing

Notwithstanding employer’s failure to appear at the hearing on election petition, testimony of petitioning union was sufficient for Commission to direct election and order the employer to furnish list of employes in the unit. Benson Oil Co. (8082) 6/67

Where Employer, after receiving the notice of hearing, failed to appear, Commission directed election by mail ballot in the unit claimed appropriate by the Union, and utilized the Union’s list of employes as the eligibility list. Canaan Day Care Center (18190) 10/80

523.4 Agreement to Challenge Ballots

In stipulated elections the parties should, if they intend to challenge the eligibility of any individuals whose names are included on the stipulated eligibility list, indicate those individuals whose ballots will be challenged. Badger State Tanning Corp. (15062-A) 3/77

Where Union and Employer could not agree on whether two individuals were supervisors, Commission accepted agreement of the parties to the effect that should said individuals appear at the polls to vote, their ballots would be challenged and if such ballots, if any, would affect the results of the election, the Commission would subsequently determine their “employe status.” Gargano’s Restaurant(15401) 3/77

523.5 Offers of Proof

An offer of proof was denied and a hearing was closed where a witness would be repetitive and where the record is sufficient for the Commission to correctly determine the outstanding issues. Bread and Roses Women’s Health Center, 21038 (10/83)

524 DISCLAIMER

524.1 Generally

Filing of disclaimer by union just prior to the conduct of an election pursuant to a petition filed by employes held to be without merit where Board is satisfied that the employes involved have a right to determine for themselves whether or not they desire the union to represent them. Tender Crust Baking Co. (3439) 5/53

Board dismissed petition of employer upon filing of disclaimer by union. However, in the event the union makes a representation claim within six months of the date of dismissal, the employer may reinstate its petition. Board will not entertain petition filed by the union within the six-month period, unless good cause to the contrary is shown. Wetzler Distributing Co. (3754) 6/54

Where an employer filed a representation petition to determine whether his employes desired a union, previously certified, to continue to represent them and where the union notified the Board that it no longer desired to represent the employes, Board dismissed the petition and set aside previous certification. Old Elm Mills (4094) 10/55

Where an employer filed a representation petition to determine whether his employes desired a union, previously certified by the NLRB, and which agency subsequently refused to exercise jurisdiction on the employer’s petition, to continue to represent the employes, and where the union notified the Board that it no longer desired to represent the employes, Board dismissed the petition.Ashland Motor Co. (4107) 11/55; Melin Motor Co. (4108) 11/55

Where Commission found employer to have engaged in unfair labor practices and where it sustained objections to conduct of election on grounds that employer’s conduct interfered with free election, and where subsequently the Commission directed new election and petitioning union then requested to withdraw its petition, Commission dismissed the proceeding with prejudice to the filing of an election petition by said union within one year from date of dismissal. However, one year period was not applied to another organization which filed an election petition within the year. Shady Lawn Nursing Home (8193) 9/67

525 ELECTION

525.1 Unfair Labor Practice Proceeding Pending

Board will not conduct an election among employes of an employer while there is a charge pending against the employer that might affect the results of an election. Bowman Farm Dairy (3044-B) 11/51

Board refused to consider objections to conduct of election where the objections dealt with similar matters which were alleged in a complaint of unfair labor practices filed prior to the election and which complaint was waived for the purpose of the election. South Side Die & Tool Co. (4680) 1/58

The Commission will not conduct an election while a complaint proceeding is pending before the Commission unless the complainant waives the allegations in the complaint as affecting the results of the election. Colonial Restaurants, Inc. (7604-C) 1/67; MemorialHospital (8116-A) 10/67

525.2 Failure to Vote

Board dismissed representation petition and set aside direction of election after the one employe eligible to vote failed to cast a ballot.Hilltop Market (2817-A) 5/51; Ambrose Electric (3515-A) 8/53; J. Brown (3516-A) 8/53; Muskego Heating and Sheet Metal Co. (3518-A) 8/53; Milwaukee Braves (3563-A) 9/53; Joel E. Taxman (4902-A) 11/58

Board will not permit telephonic voting, since it would make a farce of the Board’s election procedure. Milwaukee Athletic Club (6993-E) 9/65

525.3 Dual Election

Dual election to determine bargaining unit and bargaining representative held proper. Blochowiak Dairy Co., Milw. Co. Cir Ct., 8/48;Marquette University (9506) 2/70; Manitowoc Memorial Hospital (11952) 6/73; St. Vincent Hospital (12008) 7/73

Where labor organization sought unit and representation elections in separate departments, Commission determined that, in those departments where employes rejected separate units, the representation ballots cast by employes in said departments would be impounded. St. Joseph’s Hospital (9614) 4/70; Evangelical Deaconess Hospital (9672) 5/70; Holy Family Hospital (9682) 5/70

Where Union filed a petition requesting the conduct of an election and referendum, and the Commission concluded that “unit involved required a self-determination vote by the employes therein, Commission first directed a unit determination vote, and provided that should a separate unit be so established, the Commission would subsequently direct a representation election and a referendum among the employes in said units. St. Vincent Hospital (12008) 7/73

525.4 Objections

A hearing on objections to the conduct of an election is technically a non-adversarial proceeding. The purpose of a hearing on objections is to determine whether there occurred any conduct which interfered with the free choice of the employes in the election. The purpose of filing of objections with the Board/Commission, within a certain specified time, is to preclude the Board/Commission from automatically issuing a certification of the results of the election. The timely filing of objections puts the Board/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 Board/Commission sets a hearing in the matter, as an investigation to solicit facts to determine whether or not the pre-election conduct affected the employes’ free choice. DeaconessHospital (7008-D) 10/65; St. Vincent’s Hospital (10550) 10/71

Objections to conduct of election, based on acts which occurred prior to the conduct of such election and within the knowledge of the objecting parties prior to the conduct of said election, were deemed not timely filed so as to set aside the election. Boynton Cab Co.(4809-C) 11/58

Commission dismissed objections to conduct of election where such objections were not timely tiled. Glenbrook Corp. (7306-B) 12/65

The fact the Union was aware of the Employer’s activity prior to the election does not preclude it from thereafter timely filing objections to the conduct of the election. Colonial Restaurants, Inc. (7604-C) 1/67

When a party to a representation election engages in pre-election unfair labor practices which interfere with the election, the other party may file a complaint of unfair labor practices that will cause the election proceeding to be held in abeyance or it may await the result of the balloting and file post-election objections requesting that the employes be re-polled. A Union that is unsuccessful in such an election may also file an unfair labor practices complaint after the election in addition to objections. Colonial Restaurant, Inc.(7604-C) 1/67

Ordinarily in a complaint with respect to the conduct of the employer, where the Commission sets aside the results of an election because of the employer’s pre-election conduct, the Commission will normally order a new election at such time that it is satisfied that the effect of the objectionable conduct has been dissipated and at such time as the employes may cast a free and unfettered ballot. However, where the pre-election conduct of the Employer dissipates the Union’s majority the Commission will order the Employer to bargain collectively with the Union, therefore, there is no need for a further election, and the Commission dismissed the election proceeding. Colonial Restaurants, Inc. (7604-C) 1/67

Commission dismissed objection to conduct of election with respect to the date on which the election was held since there had been sufficient time prior to the balloting to make such objection. Burleigh Pharmacy (8167-A) 9/67

Commission will not relitigate matters as objections to conduct of election where such matter had been determined in an unfair labor practice proceeding. Burleigh Pharmacy (8167-A) 9/67

Objections to election based on Employer activity, occurring prior to filing of election petition, which could have reasonably been within the knowledge of the Union at the time of filing of formal objections and amended objections, were not entertained by Commission to determine whether said activity affected results of election. Clintonville Community Hospital (10282-A) 10/71, Professional Food Service Management (9020-C) 4/70

Individual employe, who had filed petition for election, held to be a party having standing to file objections to conduct of election.United Community Services of Greater Milwaukee, Inc. (11281-C) 10/73

The purpose of filing objections is to put the Commission on notice that it should not certify the results of the election due to alleged preelection misconduct by the Employer and the Employer is put on notice as to the specific acts it was alleged to have committed.West Side Community Center Inc., 19211-A (4/83)

Where the Union has alleged certain conduct by the Employer which, if proven, could be found to have interfered with the employes’ free choice in the election, and where that conduct is demonstrated and also found to have interfered with that free choice, the election would like to be set aside and a new election ordered. If that is the case, then the question of whether the election agent’s error affected the election need not be answered, and hence, a ballot need not be opened. West Side Community Center Inc., 19211-A (4/83)

It is inappropriate in an Order responding to objections to an election to determine whether a remedial bargaining order should be issued to remedy the Employer’s conduct, or to require the Employer to post a notice to employes, or to cease and desist from certain conduct where such matters are addressed in a companion unfair labor practice complaint. West Side Community Center, Inc., Dec. No. 19211-B (WERC, 3/84)

Using a “complaint” form to file objections to an election does not make the Union’s objections defective where no prejudice is shown.West Side Community Center Inc., 19211-A (4/83)

525.5 Observers

In the absence of observers of either or both union and employer at elections or referendums conducted by the Board, employes, whose names are not included on the prepared eligibility list, who present themselves to vote will be permitted to vote under challenge by the Board agent conducting the balloting. Standard Oil Division (6737-B 10/64

There is no Commission rule preventing officers or agents of either an employer or labor organization from acting as observers during the conduct of any balloting conducted by the Commission. Burleigh Pharmacy Inc. (8167-A) 9/67; Shawano Convalescent Center, Inc. (9308-C) 7/70; Evangelical Deaconess Hospital (9672-B) 8/70; Clintonville Community Hospital (10282-A) 10/71

526 RUN OFF ELECTION

526.1 Generally

Board directed a run off election and placed only the two labor organizations on the ballot and eliminated the choice for “no organization” since the latter choice received a lesser number of votes than did each of the labor organizations in the original election. Mt. Sinai Hospital, Inc. (5100-A) 3/59

530REFERENDUM PROCEEDINGS

531 GENERALLY

A referendum proceeding is not a proper proceeding in which to change the membership in the collective bargaining unit from what has been agreed upon between the union and the employer, or has been certified as a result of an election. Harley Davidson Motor Co. (969) 1/56; Wisconsin Power and Light Co. (3065)1/52; Pittsburgh Plate Glass Co. (3637) 11/53; Wis. Southern Gas. Co. (4414) 12/56; Rockwell of Randolph, Inc. (5285) 9/59

Where two separate bargaining units exist among employes of one employer, employes in each unit, although represented by the same labor organization, must be given an opportunity, in a referendum proceeding, to separately determine in each unit whether or not they desire an all-union agreement between the employer and the labor organization involved. Blochowiak Dairy Co. (3638) 12/53

Differing statutory conditions for the filing of referendum petitions by employes and employers does not deny employers equal protection of the law under federal constitution. Packaging Corp. of America (7400) 12/65

Referendum authorizing all-union agreement in original facility of corporate employer does not extend such authorization to subsequently established separate facilities. Surfside Manor (11089) 5/73; Hearthside Nursing Home & Rehabilitation Center (11822) 5/73; Madison Convalescent Center (11825) 5/73

532 PETITION

532.1 Form

Failure of referendum petition to contain factual information did not result in a defective petition. The Board does not issue a direction on the filing of the petition but rather after it has considered all the evidence adduced at the hearing. Modern Clean-Up Service, Inc.(5341) 10159

Board entertained oral petition for referendum on motion of union during hearing on election petition filed by union. St. Mary’s Hospital (6952) 11/64

532.2 As Affected by Question Concerning Representation

Where petitions for election and referendum are filed by one labor organization, and another organization intervenes with respect to the question of representation, the Board will abate the referendum petition pending the election results. Milwaukee Linen Supply Co.(4721) 3/58; Gerhard Quality Bakery (7365) 11/65

Board may conduct election and referendum simultaneously when only one union is on election ballot. St. Mary’s Hospital (6952) 11/64; St. Vincent Hospital (12008) 7/73

Where Commission, approximately one month prior, issued certification of Results of Referendum, wherein employes rejected authorization for all-union agreement, Commission denied motion to dismiss subsequent petition filed by another organization, which claimed representative status. The Commission deemed that hearing was necessary to determine issues involved. Lakeshore Manor(12539) 3/74

532.3 Withdrawal of Petition

Where Union withdrew petition following a direction of referendum issued by the Commission after it had made an exception to “one year” rule because of a substantial turnover of personnel and a change of attitude on part of current employes, Commission dismissed proceeding with prejudice to the extent that it would not entertain any referendum proceeding involving said Union and employes for one year period from the date of the dismissal. Red Owl Stores, Inc. (7883-A) 2/67

Commission denied Union’s request to dismiss Direction of Referendum without prejudice, following a hearing on the petition requesting same filed by the Union. The Direction was dismissed with prejudice to the extent that it would not entertain a new petition from the Union for a period of one year from the date of the dismissal. Vernon Memorial Hospital (12348-A) 2/74

533.1 Unfair Labor Practice Proceeding Pending

Board will not conduct referendum initiated by petition filed by employer until the employer had complied with order issued by Board in an unfair Labor practice proceeding. Northwestern Products Co., Inc. (4852) 8/58

Board will not conduct a referendum while a complaint proceeding is pending either before the NLRB or WERB unless the complaining party waives the allegations in the complaint as affecting the results of the referendum. Appleton Mfg. Co. (5577) 8/60

Referendum petition, filed by union, dismissed without prejudice, until effects of employer’s unfair labor practices have been dissipated. Portage Stop N’ Shop (6803-B) 2/65

Referendum proceeding held in abeyance pending NLRB proceeding, as well as an arbitration proceeding, both of which could affect the results of the referendum. Panetti Stone Co., Inc. (15332) 3/77

533.2 Failure to Vote

Board dismissed referendum petition and set aside direction of referendum after the one employe eligible to vote failed to cast a ballot. Hilltop Market (2817-A) 5/51; Ambrose Electric (3515-A) 8/53; J. Brown, (3516-A) 8/53; Muskego Heating and Sheet Metal Co.(3518-A) 8,153

Commission will not conduct a referendum while a complaint proceeding is pending either before the NLRB or WERC unless the complaining party waives the allegations in the complaint as affecting the results of the referendum. Realist, Inc. (8026) 5/67

533.3 Objections

Objections to the conduct of a referendum has the same purpose and procedure as objections filed to the conduct of an election, as set forth in Deaconess Hospital (7008-D) 10/65; E. Gibbs Distributing Co., Inc. (7157-C) 11/65

Where objections to the conduct of the referendum were based on incidents which occurred prior to the conduct of the referendum and which incidents were within the knowledge of the union prior to the conduct of the referendum, the Board dismissed such objections filed by the Union and issued its certification. Dorst Metalcraft, Inc. (4249-A) 10/56

Where union wired objections to conduct of referendum on fifth day following the conduct thereof, by stating “Union objects to conduct of referendum. Details of objection will follow”, and such details were not received within a reasonable time, Board found no substantial compliance with Sec. 4.05 of the rules. Halan’s, Inc. (5553) 10/60

The fact that union had knowledge of employer’s objectionable conduct prior to the referendum did not preclude the union from filing objections thereto after the balloting, since Board’s rules permit the filing of such objections within five (5) days after the receipt of a copy of the results of the referendum. American Paper & Plastic, Inc. (6157-A) 5/63

Board reinstated objections at request of union since the Board had neither dismissed same nor issued its certification of the results of the referendum, and the timely filing of the objections is deemed to continue until the objections are formally disposed of by the Board. E. Gibes Distributing Co., Inc. (7157-C) 11/65

Failure of Union to serve the Employer with a copy of Objections to Conduct of Referendum, where Union timely filed objections with the Commission, did not constitute grounds for dismissing objections where Employer had sufficient notice thereof prior to hearing thereon. Acme Die Corp. (8140-C) 1/68

Where individual petitioner did not receive a copy of the final tally of ballots, Commission considered his objections timely filed although the Commission had already issued the certification of the results of the election, since rule ERB 3.05 permits filing of objections within five days after the receipt of a copy of said tally. Picasso Plaza, Ltd. (8608-F) 6/69

Failure of party filing objections to conduct of referendum to have his signature “Sworn to” when he executed same, pursuant to rule ERB 4.05, held not to prevent consideration of such objections for the reason that facts alleged therein did not conflict with report of the Commission’s agent who conducted the balloting. Lakeshore Manor, Inc. (9765-A) 8/70

The Union, prior to the conduct of the balloting, having originally stipulated to the eligibility list, and thereafter having participated in rectifying said list prior to the balloting, and having made no challenges during the referendum cannot after balloting raise an objection with respect to the eligibility of the employes who participated in the referendum. Manor House of Madison Inc. (9819-A) 9/70; Lake Shore Manor (10412-A) 9/71

The fact that of 62 employes eligible to vote, only 31 cast ballots, in the absence of evidence establishing same, does not establish that Employer did not properly post notices of referendum or that any employes were given the day off, and therefore objections in that regard were dismissed. Manor House of Madison, Inc. (9819-A) 9/70

Where objections were not filed within five days of the receipt of a copy of the tally of ballots, Commission held objections not timely filed. Seamon Company (10929-A) 5/72

The fact that objections were in the form of a letter, with a copy sent to the Employer, held to be in substantial compliance with Commission rule ERB 4.05.

Lake Shore Manor (10412-B) 9/71

Union, which was a complainant in an unfair labor practice proceeding before the Commission alleging that incumbent Union and Employer were parties to an illegal all-union agreement, held to be a proper party to file objections to conduct of referendum, initiated by stipulation of incumbent Union and Employer, where stipulation altered existing certified unit. Madison Convalescent Center (1679-A) 9/72

Where parties stipulated that an individual was a supervisor on the basis that he had the authority to effectively recommend the hiring and firing of employes, WERC, following conduct of referendum, refused to allow the Employer to contend that said individual was an employe and should have had the right to cast a ballot. Panetti Stone Co., Inc. (15332-C) 1/78

534 FAILURE OF EMPLOYER TO APPEAR AT HEARING

534.1 Generally

Failure of employer to appear at hearing does not prevent Commission from directing referendum. Adjustment of eligibility list will be permitted prior to balloting. St. Regis Paper Co. (8203-A) 11/67

540 COMPLAINT PROCEEDINGS

541 PARTIES

541.1 Generally

A petition by citizens requesting the Board to order an election among employes to determine whether such employes would accept an offer of their employer to settle a strike could not have initiated a proceeding before the Board since it was not filed by a party in interest and did not relate to a specific unfair labor practice. J. I. Case Co., 251 Wis. 362, 11/47

Where an individual employe selected to process his layoff grievance in accordance with the grievance procedure set forth in the collective bargaining agreement, the Board will not subsequently entertain the complaint filed by the employe alleging a violation of the agreement where the disposition of the grievance is made in the absence of a showing of bad faith, arbitrary action or fraud.Liberty Powder Defense Corp. (3895) 2/55

Where individual employes have exhausted any remedy they have as individuals under the collective bargaining agreement, which provides for arbitration of disputes arising thereunder only between the employer and the union, the individual employes may file complaints with the Board and are entitled to have a determination on merits. Harnischfeger Corp. (3899-B) 2/55

Where the termination grievance of an employe is reversed in accordance with the terms of the collective bargaining agreement providing for final settlement of grievances, such settlement constitutes a full and final settlement of the controversy. Wisconsin Motor Corp. (3943) 4/55

Where grievance procedure has been exhausted and where agreement contains no provision for final and binding arbitration, individual employe may file complaint alleging violation of agreement if his grievance has not been resolved in grievance procedure.John Deere Horicon Works (5362) 11/59; American Motors Corp. (5739) 5/61; Consolidated Freightways, Inc. (6942-A) 10/64;American Motors Corp. (7283) 9/65

Officers acting as agents for corporate employe found to be proper respondents in an unfair labor practice proceeding. Rainbow Auto Wash Corp. (6674) 6/58

Where complaint on its face merely alleged a dispute between the individual and his union, Board dismissed the complaint on motion of the respondent employer. Lester Wehrwein (5502) 6/60

Union held to be proper party complainant in complaint alleging violating of a collective bargaining agreement which had expired prior to the filing of the complaint with the Board. Rice Lake Creamery Co. (4997-C) 5/61

Filing of complaints alleging violation of collective bargaining agreement not limited to union or only employe involved in the grievance. Board permitted employe in the unit covered by the agreement to process complaint. Snap-On-Tools Corp. (5762) 6/61

Board found union to be a party in interest for the purpose of filing a complaint alleging a violation of See. 111.06 (1) (1) although the union had no standing to file a criminal complaint with regard to the matter. Milwaukee Cheese Co. (5792) 8/61

After close of hearing Board granted motion to reinstate complaint against a party who had been permitted to withdraw as a party respondent with permission of the complainant, since that party had been represented throughout the hearing. Menominee Sugar Co. (6357) 5/63

Where grievance procedure has been exhausted and where agreement contains no provision for final and binding arbitration, individual employe may file complaint alleging violation of agreement if his grievance has not been resolved in grievance procedure.American Motors Corp. (7283) 9/65 (Aff. Dane Co. Cir. Ct., 6/67); American Motors Corp. (7955) 3/67

Commission held that Union, which did not presently represent or presently claim to represent any of the employes of the employer, was not a “party in interest” within the meaning of Sec. 111.07(2)(a) so as to properly file a complaint that the employer was committing a misdemeanor by failing to pay employes prevailing wage rates. Gerovac Wrecking Co. (8334) 12/67 and (8334-A) 1/68

Commission held that Union, which did not presently represent or presently claim to represent any of the employes of the Employer, was not a “Party in interest” within the meaning of Sec. 111.07 (2)(a) so as to properly file a complaint that the employer was committing a misdemeanor by failing to pay employes prevailing wage rates. Gerovac Wrecking Co. (8334-A) 1/68 (Aff. 51 Wis. 2d 391, 1971)

Where Union which executed agreement merged with sister local, latter found to be proper party in interest to proceed on complaint alleging violation of the collective bargaining agreement. Milbrew, Inc. (8926-A,B) 11/69

The fact that individuals are parties to “union hall agreements”, identical to those agreements involving parties in complaint proceedings, does not in itself make such individuals parties in interest in such complaint proceeding. Wis. Orchestra Leaders Assn.(8392-A,B) 11/70

Allegation of unfair labor practices was dismissed where complaint failed to allege any controversy concerning unfair labor practices to which the complainants were parties in interest with the meaning of Secs. 111.07 (1) and (2) (a) of the Act. Wis. Orchestra Leaders Assn. (8392-A,B) 11/70

Where Labor Council was not made a Respondent, Commission has no authority to find that said Labor Council committed an unfair labor practice in publishing a “Do Not Patronize” list. Ram’s Head Inn (8759-A,B) 11/70

Union, as a party to a collective bargaining agreement, is a proper party in interest to seek enforcement of arbitration award requiring the Employer to make payments to Health, Welfare and Pension Funds where Union was a party in the arbitration proceeding, and said Funds need not be joined as complainants. Liedtke Vliet Super, Inc. (9717-A,B) 4/71

Where certain employes had executed cards authorizing labor organization to represent them for the purpose of collective bargaining in an election proceeding before the NLRB, the fact that the NLRB Regional Director dismissed the election petition filed by said organization, as not being timely filed, did not preclude a determination by the WERC that said organization was a proper party complainant to seek legal redress with respect to an alleged invalid all-union agreement between the employer and the present collective bargaining representative. Madison Convalescent Center (11825) 5/73

Where complainant organization failed to establish (1) that it claimed to represent any of the employes involved; (2) that any employes had authorized it to represent them for the purposes of collective bargaining; or (3) that it had been authorized by any employ to initiate a complaint proceeding relating to an alleged invalid all-union agreement, Commission determined that said organization was not a proper party in interest within the meaning of Sec. 111.07 (2)(a) so as to properly file a complaint. JacksonCenter (11812) 5/73; Care Center East, Care Center West (11814) 5/73

Where union was engaged in process of organizing employes for purpose of collective bargaining, said union had standing, as a party in interest, to file a complaint alleging unlawful interference. Goodwill Industries-Milwaukee (12985-B, C) 12/75

WERC correctly concluded that the decision to seek enforcement of an arbitration award is the last stage in the arbitration process and therefore an employe cannot seek to enforce an award without the Union’s participation, absent a showing that the Union had breached its duty of fair representation. Absent bad faith, the right to determine which cases should be arbitrated and how far to proceed is within the control of the Union. G & H Products, Inc., Dec. No. 17630-B (WERC, 1/82, aff’d Kenosha Co. Cir. Ct., 5/84)

542 NOTICE OF HEARING

542.1 Service

Service of Notice of Hearing on local union held sufficient notwithstanding that the international union was the party to the collective bargaining agreement in controversy. Riggs-Distler & Co., Dane Co. Cir. Ct., 1/45

Receipt of Notice of Hearing and copy of complaint at office of registered agent constituted proper service upon respondent corporation. ABC Cartage & Trucking, Inc., (6897-B) 7/65

543 PLEADING

543.1 Objections to Conduct of Election

Where union, which had filed objections to conduct of election, did not file amended objections within time period set by Board upon motion of employer to make said objections more definite and certain, Board dismissed objections and issued certification. Glenbrook Corp. (7306-B) 12/65

543.2 Complaint

543.2.1 Form

543.2.1 Statute of Limitations (Sec. 111.07(4)

Complaint dismissed when it was filed more than one year following the date of the alleged unfair labor practice. Wisconsin Waste & Wiper Co. (339) 11/41; Christo P. Ganchoff (2104) 1/49; Speedway Contracting Co. (3888) 1/55-1 Oscar Mayer & Co. (4051) 9/55;Louis J. Lulloff (4410) 1/57

Complaint filed more than one year after death of employe, alleging that employer violated collective bargaining agreement by failing to pay the widow of the deceased vacation pay, was processed by the Board even though the employe had died more than one year prior to the filing of the complaint since the agreement did not establish a liability, if any, with respect to the vacation, until sometime after the death of the employe and on a date within one year from the date on which the complaint was filed. Harley-Davidson Motor Co. (6290) 4/63

Where arbitrator did not enter a final and binding award due to absence of employer at arbitration hearing, Board dismissed complaint, as not being timely filed, alleging a refusal to proceed to arbitration, when such refusal had been indicated to the union more than one year prior to the filing of the complaint. Board concluded that the filing of the complaint within seven months of the issuance of the arbitrator’s interim award did not toll the one year rule. ABC Cartage & Trucking, Inc. (6897-B) 7/65

Where a collective bargaining agreement contains procedures for the voluntary settlement of disputes arising thereunder and where the parties thereto have attempted to resolve such disputes with such procedures, the cause of action before the Board cannot be said to arise until the grievance procedure has been exhausted, and therefore the Board shall compute the one-year period of limitation for the filing of complaints of unfair labor practices from the date on which the grievance procedures have been exhausted by the parties to the agreement, provided that the complaining party has not unduly delayed the grievance procedure. However the application of this rule shall not preclude any party from pleading equitable or other defenses. Harley Davidson Motor Co. (7166) 6/65

Complaint dismissed when it was filed more than one year following the date of the alleged unfair labor practice. Four Roses Distillers Co. (8003) 4/67

Where complaint, alleging violation of collective bargaining agreement in failing to proceed to arbitration, had been filed more than one year following request to proceed, Commission dismissed complaint as not being timely filed. Although Commission has concurrent jurisdiction in such a proceeding and while statutes of limitation governing such actions before State and Federal Courts extend beyond one year, Commission’s jurisdiction is specifically limited to one year by Section 111.07(14). Retail Store Employees Union (8409-C) 6/68

Complaint alleging violation of collective bargaining agreement was dismissed since collective bargaining agreement involved expired more than one year prior to the filing of the complaint. B. & I. Milk Transport (8742) 10/68

Fact that complaint was not prepared on the form prescribed by the Commission did not constitute grounds for its dismissal, since it was in “substantial compliance” with the procedure established in Sec. 111.07 of the Act within the meaning of subsection (12) thereof. Buckley Laundry Co. (8943-B,C) 7/70; Consolidated Papers, Inc. (11705-A,B) 6/73

The fact that copy of complaint served on respondent did not contain a copy of the collective bargaining agreement, as set forth in the complaint, did not warrant dismissal of complaint. Commission rule WERC 10.01 permits a liberal construction of the rules of the Commission, and where subsequently a copy of the agreement was furnished to respondent in sufficient time to prepare for hearing.M-K Hartman & Sons Inc. (13934-A) 9/75

543.2.2 Statute of Limitations (Sec. 111.07 (14))

The date on which a complaint is filed, rather than the date on which it is served on the respondent, is the date utilized in determining whether the complaint is timely filed within the meaning of Sec. 111-07(14) of the Act. Cirkl Sheet Metal (7852-A) 3/69

Complaint dismissed when it was filed more than one year following the date of the alleged unfair labor practice. Ram’s Head Inn(8759-A,B) 11/70; Appleton Memorial Hospital (10535-A,B) 12/71

Where a collective bargaining agreement contains procedures for the voluntary settlement of disputes arising thereunder and where the parties thereto have attempted to resolve such disputes with such procedures, the cause of action before the Commission cannot be said to arise until the grievance procedure has been exhausted, and therefore the Commission shall compute the one-year period of limitation for the filing of complaints of unfair labor practices from the date on which the grievance procedures have been exhausted by the parties to the agreement, provided that the complaining party has not unduly delayed the grievance procedure. However the application of this rule shall not preclude any party from pleading equitable or other defenses. Appleton Memorial Hospital (10535-A,B) 12/71; Ladish Co. (15982-A,B) 4/80

Although conduct of Employer in failing to make welfare fund payments dated beyond one year from the filing of the complaint, his failure to pay continued every month since that date and on several occasions, during the year preceding the filing of the complaint, acknowledged his failure to make such payments and stated he intended to pay, the Commission determined that the prohibited conduct related to the entire sum due at the time of the filing of the complaint. Lorentzen Tile Co. (9630) 5/70

Where complaint alleged that Employer failed to pay employes proper wage rates for over a period of time, including a period exceeding more than one year prior to the filing of the complaint, Commission considered only the alleged acts falling within the one year period preceding the filing of the complaint. Reimer Sausage Co. (10965-A,B) 10/72; Harry Viner Inc. (13828-A, E) 6/76

The one year statute of limitations in Sec. 111.07(14), Stats. is applicable to a complaint alleging an employer breach of contract and an Union breach of the duty of fair representation rather than the federal NLRA six month rule holding of Del Costello v. Teamsters, 462 U.S. 151, 113 113 LRRM 2737 (1983). Ruan Transportation Management Systems, Dec. No. 25074-B (Jones, 7/88) aff’d by Operation of Law Dec. No. 25074-C (WERC, 8/88).

Where a collective bargaining agreement contains procedures for the voluntary settlement of disputes arising thereunder and where the parties thereto have attempted to resolve such disputes with such procedures, a statutory cause of action does not ripen until the grievance procedure has been exhausted. Where the grievance procedure was exhausted in February and the Union informed complainant in March, a complaint against the employer filed in July and amended to include the Union in November was well within the one year statutory period. Ruan Transportation Management Systems, Dec. No. 25074-B (Jones, 7/88) aff’d by Operation of Law Dec. No. 25074-C (WERC, 8/88).

543.2.3 Specificity of Allegation

General allegation in complaint, without relating to specific facts or proof in support thereof, was dismissed, since the complainants must prove by preponderance of the evidence that a violation of the Act has occurred. American Motors Corporation (8209-C,D) 3/70

Where, pursuant to ERB 2.02(c), complaint contained a clear and concise statement of the facts constituting the alleged unfair labor practices, Commission denied bill of particulars seeking evidentiary matters. Paco’s Restaurant (12165-A) 11/73

Motion to make complaint more definite and certain was granted to require complainant to specify the alleged acts in issue, as well as the identity of the individuals who engaged in such alleged activity. Generac Corp. (12602-A) 4/74

543.2.4 Dismissal After Settlement Agreement

In a complaint case where the complaint is dismissed on the basis of a settlement agreement, the Commission will not ordinarily entertain a refiling of a complaint alleging the same matter previously complained of, unless it is determined that the settlement agreement reached between the parties has not been complied with, or that the settlement agreement reached is repugnant to the policies expressed in the Wisconsin Employment Peace Act. Ellis Stone Construction Co. (11474-A,B) 12/72

543.3 Plea in Bar

Where question in prior proceeding before Board concerned itself with whether or not complaining employes were rightfully suspended from the respondent union, Board dismissed respondent’s plea in bar to complaint alleging unlawful discharge since the issue of discharge was not previously litigated, and therefore previous dismissal by Board does not bar the complaint. Four Wheel Drive Auto Co. (760) 6/45

Where complaint on its face alleged a dispute between an individual union member and his union, which if proven would not constitute an unfair labor practice within the meaning of the Wisconsin Employment Peace Act, Board dismissed the complaint. Lester Wehrwein (5502) 6/60

The failure of the employer to protest the omission of discharged employes from eligibility list does not constitute a waiver of the right to initiate an unfair labor practice proceeding with respect to the termination of employment of such employes. Mt. Carmel Nursing Home (6352) 5/63

Where Commission dismissed original complaint alleging that Employer committed acts of interference, restraint and coercion, as well as a discriminatory discharge and refusal to bargain with respect to the discharge of an employs, said dismissal did not bar a complaint alleging that the Employer violated an existing collective bargaining agreement by refusing to proceed to arbitration on such discharge. Milbrew, Inc. (8926-A,B) 11/69

543.4 Variance Between Pleadings and Proof

Where complaint alleged a violation of Sec. 111.06(l)(f) and the proof related to an alleged violation of Sec. 111.06(l)(g), pleadings were considered amended so as to conform with the proof. Appleton Electric Co. (9651-A) 11/70

543.5 Failure to Answer

By failure to an answer and to be present at hearing, Respondent sacrificed opportunity to raise defenses, if any, to complaint. Cirkl Sheet Metal (7852) 12/66 (Remanded Dane Co. Cir. Ct., 12/67)

Failure to file answer held not to constitute grounds for granting relief sought in complaint. Flambeau Plastics Corp. (7987) 4/67

543.6 Answer

Officer of respondent employer who testified that he was not an “expert as to the collective bargaining agreement” held not a basis for striking the answer executed by said officer or from rendering a decision based on the complaint. WISN Division – The Hearst Corp. (7901-B) 9/67

543.7 Mootness

A case might be said to be moot by reason of the fact that the unfair labor practice complained of has ceased if it can be said that the same practice may not be immediately repeated. Kearney & Trecker Corp, (11083-A,C) 4/73 (Aff. Milw. Co. Cir. Ct., 9/73)

The fact that parties had executed a collective bargaining agreement does not moot a complaint alleging unlawful picket line activity which occurred prior to execution of such agreement. LaCrosse Telephone Corp. (13294-A, B) 3/76

WERC concluded that complaint alleging interference by Union with respect to the right of an employe to run for Union office was not moot. Local 150, Service Employees International Union (16277-C,D) 11/80

543.4 Variance Between Pleading and Proof

Although complaint did not specifically allege acts whereby union caused the employer to interfere with the rights of his employes, Board made such a finding where during the hearing the union was apprised of such conduct in the opening statement made by employer’s counsel. National Warehouse Corp., Milw. Co. Cir. Ct., 9/52

Although the complaint did not specifically allege acts constituting a secondary boycott, Board made such a finding where the issues in regard thereto were fully litigated at the hearing with no objection raised. Home Lumber & Improvement Co. (3304) 10/52

Although the means of a violation of the Act had been set forth on a mistaken theory, Board found the Act to have been violated where the unfair labor practice was blatant in the pleadings and where there was no undue surprise upon the respondent. Manpower, Inc. (3854) 11/54

While it is recognized that pleadings are to be treated as flexible and that they are to be liberally construed in administrative proceedings, where there was no direct reference in the pleadings to a particular issue and one of the parties would very well have been justified in believing that such matter was not in issue in view of the position taken by the other party, the Board could not make a finding on such issue and the matter was remanded for further hearing. General Electric Co. 3 Wis. (2d) 227, 2/58

Fact that complaint did not specifically allege a violation of Sec. 111.06(l)(c) did not preclude Commission from determining such a violation where such issue was fully litigated during hearing, and where there was no undue surprise on the respondent. Harry Viner, Inc. (13828-A, E) 6/76

543.8 Depositions

Motion to take depositions denied where party moving for same did not offer the “good cause” required by ERB 2.10. Paco’s Restaurant (12165-A, B) 11/73

543.9 Motion to Dismiss

Respondent’s motion to dismiss was denied on the grounds that it is premature, and because the allegations contained in the complaint set forth matters in the nature of a contested case, requiring a full hearing on the pleading. Hennes Erecting Company, Inc., 19675-A (1/83) Kenosha Auto Transport Corporation, 19081-A (6/82)

544 HEARING

544.1 Adjournment

Sec. 111.07(2) of the Act, while requiring hearing on a complaint to be “fixed” on a date not less than ten days nor more than forty days after filing, said section also permits the hearing to be adjourned from time to time. American Motors Corp. (7988-C) 11/68;Buckley Laundry Co. (8943-B,C) 7/69

544.2 Sequence of Witnesses

In an unfair labor practice proceeding Examiner may determine the sequence in which witnesses are called. Harley-Davidson Motor Co. (8590-A,B) 10/68

544.3 Raising Question Concerning Appropriate Unit

Where a dispute over the scope of a bargaining unit arises during negotiations, and where such dispute results in a refusal to bargain complaint, it is appropriate for the Commission to resolve the dispute over the scope of the unit in the unfair labor practice proceeding. Libby, McNeill & Libby (8616) 7/68

545 FAILURE TO PROSECUTE 6

Board dismissed complaint where no one appeared at hearing to prosecute matter for complainant. Allied Independent Unions (2702) 12/50

545 RE-HEARING 7

Board ordered re-hearing to give respondent opportunity to produce evidence. Respondent was ordered to pay complainant’s witness fees for appearance in original hearing. Van Drisse Motors (341) 12/41

Board ordered hearing to be reopened for the purpose of obtaining testimony of unavailable witness. J. E. Hergo (478) 3/43

Board ordered re-hearing where it appeared to the Board, as indicated in affidavit of complainant, that further evidence was material to the issues involved. Kingston Coop Creamery (377) 4/42

Board ordered re-hearing concerning a contract violation where it appeared to the Board that the contract was ambiguous and the evidence received in the original bearing was unsatisfactory to explain the ambiguity. Herman Tolkman (427-A) 8/42

Board further ordered hearing to determine amount of back pay due employe unlawfully discharged. American Plywood Corp. (576-A) 6/49

Before Board will order re-hearing, party moving for same must show (1) new evidence will change result, (2) new evidence discovered since trial, (3) new evidence could not have been discovered before original hearing by due diligence, (4) new evidence is material, and (5) evidence is not merely cumulative or impeaching. Gilson Bros. (1831-B) 11/48

Board denied motion to reopen hearing where the evidence desired to be introduced was not material to the disposition of the complaint proceeding. Archdiocese of Milwaukee (6695) 4/64

Before Commission will order re-hearing, party moving for same must show (1) new evidence will change result, (2) new evidence discovered since trial, (3) new evidence could not have been discovered before original hearing by due diligence, (4) new evidence is material, and (5) evidence is not merely cumulative or impeaching. Gehl Co. (9474-D) 12/70

Motion to reopen hearing, filed more than twenty days following order dismissing complaint, issued at the request of complainant’s counsel, denied by Commission. Waukesha Motor Co. (13251-C) 5/75

546 BOARD/COMMISSION ORDER

Board does not lose jurisdiction of unfair labor practice proceeding where it does not make and file findings of fact and order within 60 days from date of hearing arguments. If the Board fails so to act, the only remedy of the parties might be in a proceeding to compel the Board to act. To compute 60 day period, Board computes such time to commence from date of filing of briefs. Tiny Tot Mfg. Co.(2444-B) 6/50; Philip Parish, Rock Co. Cir. Ct., 5/51; Fiore Coal and Oil Company, Dane Co. Cir. Ct., 1/53; Standard Foundry Co., Racine Co. Cir. Ct., 9/63

The fact that an employer might be guilty of an unfair labor practice does not preclude the Board from enforcing an order finding the union guilty of an unfair labor practice. Kohler Co., 269 Wis. 678, 5/55

Board may order party to cease and desist from illegal activity even though the complainant may also be guilty of illegal activity.Milwaukee Cheese Co. (5792) 8/61

Commission does not lose jurisdiction of unfair labor practice proceeding where it does not make and file findings of fact and order within 60 days from date of hearing arguments. If the Commission fails so to act, the only remedy of the parties might be in a proceeding to compel the Commission to act. To compute 60 day period, Commission computes such time to commence from date of filing of briefs. Chuck Wagon Industrial Catering Service, Milw. Co. Cir. Ct. 2/68

Fact that Union was engaged in illegally picketing does not prevent Commission from finding that Employer committed an unfair labor practice by committing an assault on the pickets. My’s Restaurant (8822-B,C) 8/69

Commission does not lose jurisdiction of unfair labor practice proceeding where it does not make and file findings of fact and order within 60 days from date of hearing arguments. If the Commission fails so to act, the only remedy of the parties might be in a proceeding to compel the Commission to act. To compute 60 day period, Commission computes such time to commence from date of filing of briefs. Family Hospital (12616-E) 7/76; Northwest General Hospital (12839-C) 11/76

Where not for profit hospital was ordered to cease and desist from discriminatory acts, Commission indicated that it would not seek to enforce its order regarding activity following NLRB amendment granting NLRB jurisdiction over such employers. Family Hospital(12616-E) 7/76

548 RAISING QUESTION CONCERNING APPROPRIATE UNIT 8

Where a dispute over the scope of a bargaining unit arises during negotiations, and where such dispute results in a refusal to bargain complaint, it is appropriate for the Commission to resolve the dispute over the scope of the unit in the unfair labor practice proceeding. Libby, McNeill & Libby (8616) 7/68

549 PETITION FOR REVIEW 9

549.1 Time for Filing 10

The twenty-day period established for the filing of exceptions and/or petitions for review of hearing examiner’s decision, as set forth in Sec. 111.07(6), cannot be extended for periods of mailing. Albert J. Janich (8165-B) 1/68; Sinclair Refining Co. (8526-B) 3/69

544.3 Failure of Respondent to Appear

Where, after diligent notice by Examiner at time of hearing to respondent that hearing would commence, Examiner properly proceeded to hearing in absence of respondent. United Contractors (10253-A, B) 1/74; (Affirmed Waukesha Co. Cir. Ct., 8/74);Kohlberg Theatres (12147-A, B) 3/74; Edward Ryan, Inc. (1 390-A, B) 5/74 (Affirmed Milwaukee Co. Cir. Ct., 7/75); J. I. Case Co.(15503-A,B) 12/77; Canaan Day Care Center (18452-A,B,C) 5/81

547 RAISING QUESTION OF JURISDICTION

The matter of the Board’s jurisdiction as affected by NLRA may be raised at any time and cannot be conferred by consent of the parties or by estoppel. Lucas Livestock & Implement Co. 3 Wis (2d) 464, 4/58; Snap-On-Tools Corp. (5762) 6/61

Where respondent, prior to hearing, filed a motion requesting the dismissal of a complaint alleging violation of collective bargaining agreement, on the ground that the Commission had no jurisdiction since the complainant had not exhausted the grievance procedure in said agreement, hearing Examiner denied such motion for the reason that the complaint set forth matters in the nature of a contested case and on which a hearing was required on the pleadings. E. C. Styberg Engineering Co., Inc. (8483-A) 4/68 (H.E. Dec.)

548 Miscellaneous

548 HEARING

In an unfair labor practice proceeding Examiner may determine the sequence in which witnesses are called. Harley Davidson Motor Co. (8590-A) 9/68 (H.E. Dec.) (Aff. WERC 10/68)

548.2 Petition for Review

In response to the Petitioner’s argument that on review the Commission must determine the matter de novo, the Commission agrees that in reviewing an Examiner’s decision, it does not sit in an appellate capacity but must affirm or reverse an Examiner on the basis of its review of the evidence. Bay Shipbuilding Corp., Dec. Nos. 19957-C, 19959-C (WERC, 2/84)

548.4 Defenses

An Employer did not waive its procedural defense of the timeliness of the filing of grievances by seeking to resolve the grievances after having advised the Complainant of its position on the timeliness issue. Metal Forms Corporation, 19994-A, B (3/83)

549 PETITION FOR REVIEW

549 MISCELLANEOUS

549.2 Notice of Review

Where neither party filed a petition seeking review of Examiner’s decision, pursuant to Sec. 111.07(5), and where Commission determined that it required more time to review said decision on its own motion, Commission within 20 days of Examiner’s decision, issued a Notice of Review for the purpose of staying the Examiner’s decision for the purpose noted. Harry Viner Inc. (13828-B, C) 5/76

549.2.1 Time For Filing

550 ARBITRATION

551 GENERALLY

Where an arbitrator who has been selected by the parties under a written agreement to arbitrate and where dispute has been submitted prior to the hearing, and where all interested parties have been served with due notice of the time and place for hearing, and if one of the parties fails to appear at said hearing without a satisfactory reason therefor or without requesting an adjournment of the hearing based on reasonable grounds, the arbitrator may proceed with the scheduled hearing and take evidence with regard to the issue and make a final and binding award normally enforceable by the WERB. ABC Cartage & Trucking, Inc. (6897-B) 7/65

Where either party may seek a rehearing or reconsideration by an arbitrator with respect to a final and binding award, unless specifically prohibited from doing so in the collective bargaining agreement, or in the original submission agreement, the arbitrator cannot proceed without the consent of both parties. The same holds true for requests to rescind, modify, clarify or interpret the award. Allis-Chalmers Mfg. Co. (8227-B) 4/68

Commission has no jurisdiction to entertain a petition to review an arbitration award pursuant to Sec. 298.10, Wis. Stats. However a review may be made where a party seeks enforcement of the award in a complaint proceeding before the Commission and where the other party contends that the award should be vacated on any of the grounds set forth in such statutory provision. Marathon CountyFarmers Union Coop. (10515-A) 6/72

560 STRIKE VOTE

561 Generally

Strike vote properly should be conducted by the collective bargaining representative and the Board will not interfere with such an election without some strong showing of misconduct. Allis-Chalmers Mfg. Co. (186) 3/41

600 PRACTICE AND PROCEDURE BEFORE THE COURTS

610 IN GENERAL

611 EFFECT OF SECTION 270.635(1), WISCONSIN STATUTES

Summary judgment statute (270.635(1), not applicable to change Board procedure for review of Board’s orders. J. P. Cullen & Sons, 253 Wig. 105, 7/48

612 EFFECT OF CHAPTER 227, WISCONSIN STATUTES

Petition to review a Board order directing a hearing on challenged ballots is not a final order and therefore such an order is not subject to review. Allis-Chalmers Mfg. Co., Milw. Co. Cir. Ct., 3/47

Circuit court will not review order of the Board dismissing motion of petitioner to dismiss complaint on jurisdictional grounds until evidence is introduced before the Board. Chapter 227, Wis. Stats. does not contemplate that orders made during the progress of a hearing are intended to be reviewed. Modine Mfg. Co., Racine Co. Cir. Ct., 5/48

613 EFFECT OF WISCONSIN SUPREME COURT RULE 32

Where a union brought an action to review Board order relating to unfair labor practices, wherein the Board filed a cross complaint for enforcement and where the Board appealed from a Circuit Court judgment dismissing the proceeding, and where the union, on its motion, was dismissed as a party on the appeal, and the employer made no appearance and filed no brief on appeal, judgment appealed from is reversed under Supreme Court Rule 32, as a matter of course, with directions to enter judgment on the cross-complaint of the Board. Milwaukee Gas Light Co., 244 Wis. 258, 12/43

614 EFFECT OF CHAPTER 298, WISCONSIN STATUTES

Agreement for the arbitration of future disputes are unenforceable in the courts. Allen Bradley Co., 259 Wis. 609, 11/51

Chapter 298 does not declare that arbitration clauses in labor agreements are not specifically enforceable. Board can enforce such agreements, for the legislature has seen fit to invest the Board with such power that has been denied the courts. Dunphy Boat Co., 267 Wis. 316, 8/54

620 JUDICIAL REVIEW OF EVIDENCE

621 GENERALLY

Circuit court, in its discretion, may remand the matter to the Board for additional evidence, and if the point which the party seeking the remand is not material, it is not an abuse of such discretion to refuse to remand the matter. Century Bldg. Corp., 235 Wis. 376, 4/40;Milwaukee Foundry Equipment Co., Milw. Co. Cir. Ct., 9/44

No objection that has not b(,en urged before the Board shall be considered by the reviewing court unless the failure or neglect to urge such objection before the Board shall be excused because of extraordinary circumstance. Milwaukee Foundry Equipment Co., Milw. Co. Cir. Ct., 9/44

Circuit Court, pursuant to Section 111.07, should remand matter to the Board for further proceedings only where there is a reasonable cause for so doing and where the circumstances are such as to warrant it. Employer’s request for remand for purpose of adducing additional evidence denied where his default to originally do so was due solely to inexcusable neglect. Neenah Milk Products Co. , Winnebago Co. Cir. Ct., 12/40; Afram Bros. Co., Milw. Co. Cir. Ct., 10/63

Where there existed reasonable cause for failure to present evidence at Board hearing, court remanded matter to Board for the purpose of receiving such evidence. Milwaukee Tool & Die Co., Milw. Co. Cir. Ct., 10/48

Failure of Circuit Court to remand matter to Board for additional evidence was not an abuse of its discretion since no reasonable cause was shown for the failure to introduce such evidence at the Board hearing. Gilson Bros., 255 Wis. 316, 7/49

Findings of fact made by the Board, if supported by credible and competent evidence, are conclusive an review, and the court may not weigh the evidence to ascertain whether it preponderates in favor of the findings. Sears Roebuck Co., 242 Wis. 21, 12/42;Raper’s Olds Garage, La Crosse Co. Cir. Ct., 3/42; Pelton Steel Casting Co., Milw. Co. Cir. Ct., 10/49; Wilke Paint and Glass Co., Manitowoc Co. Cir. Ct., 5/50; Denmark Warehouse Co., Manitowoc Co. Cir. Ct., 6/50; Milwaukee Sentinel Division, Milw. Co. Cir. Ct., 4/51

Reviewing court cannot exercise the powers conferred on the Board as an administrative agency and substitute its opinion for the judgment of the Board. Court held that Board’s conclusions as to employer’s unfair labor practice were “fairly” sustained by the evidence. Appleton Chair Corp., 239 Wis. 237, 12/41; Milwaukee Sentinel Division, Milw. Co. Cir. Ct., 4/51

Court has no jurisdiction to determine factual issues anew, nor weigh the evidence, if there is some evidence before the Board reasonably tending to support a finding. Ray-O-Vac Co., 249 Wis. 111, 6/46; Blochowiak Dairy Co., 262 Wis. 690, 8/52

Court is confined to record made in Board hearing. Contract not introduced at hearing cannot become evidence in action for enforcement before court. J. P. Cullen & Son, 253 Wis. 105, 7/48

On a Petition for Review the jurisdiction of the court is limited to a review of findings of fact made by the Board. The reviewing court will not pass on matters which were not included in the Board’s findings of fact. Milwaukee Breweries, Milw. Co. Cir. Ct., 5/50

Wisconsin Supreme Court, on an appeal from a Circuit Court judgment directing enforcement of Board’s order, based on record made before the Board and certified by it to the Circuit Court, cannot assume Circuit Court was without jurisdiction because of occurrences subsequent to Board’s certification of the record. Nor can the Supreme Court assume that the Circuit Court erred in its rulings respecting such occurrences when the record contains no evidence of such occurrences. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

When the Board seeks enforcement of its order, its scope of review by the Circuit Court is as provided in Section 111.07(7) to the effect that findings of fact supported by credible and competent evidence in the record shall be conclusive rather than the more expansive review provided in Chapter 227 to the effect that the Court may reverse findings unsupported by substantial evidence in view of the entire record. Owen Dairy, Clark County Circuit Court, 9/62

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. St. Francis Hospital, 8 Wis. (2d) 308, 11/59; Stolper Industries Inc., Waukesha Co. Cir. Ct., 11/67

Circuit Court remanded matter to Commission to determine evidence with regard to union’s defense that it did not proceed to arbitration with respect to employe’s discharge because of financial reasons. Harold Mahnke v. WERC, Dane Co. Cir. Ct. 3/73 (Louis Allis Co. [11017-A,B] 9/72)

Circuit Court remanded matter to Commission to determine evidence with regard to union’s defense that it did not proceed to arbitration with respect to employes discharge because of financial reasons. Harold Mahnke v. WERC, Dane Co. Cir. Ct. 3/73; Louis Allis Co. (11017-A, B) 9/72 (Affirmed Wis. Sup. Ct., 66 Wis. 2d 524, 2/75)

630 JUDICIAL REVIEW OF REPRESENTATION PROCEEDINGS

631 GENERALLY

Federal court denied union a restraining order upon a request to prevent the Board from conducting an electron on the ground that the union failed to prove irreparable injury, and that the union had not exhausted its available legal remedies before the Board. Allis-Chalmers Co., U.S. Dist. Ct. (Eastern District of Wis.), 1/47

The manner in which Board proposed to conduct an election may not be raised for the first time on review in court (except for extraordinary circumstances). Objection to wording on ballot was not made by any party prior to the election. La Crosse Tel. Corp., 251 Wis. 583, 12/47

Order of Board dismissing representation petition held not subject to judicial review. Kearney Trecker Corp., Milw. Co. Cir. Ct., 7/48

Matter of second election is discretionary with the Board and such discretion cannot be disturbed except for abuse by the Board.Blochowiak Dairy Co., Milw. Co. Cir. Ct., 7/50

A direction of election issued by the Board, directing an election to determine the bargaining unit, establishing the eligible employes and to determine the bargaining agent, is not appealable under Chapter 227 of the Wisconsin Statutes, since such a direction is not a final order or an administrative decision as contemplated in said chapter. Bakery Sales Drivers Union Local No. 344 (Squirt-Nesbitt Bottling Co.) Milw. Co. Cir. Ct., 12/55

640 JUDICIAL REVIEW OF REFERENDUM PROCEEDINGS

641 GENERALLY

Court has no power to review an order of the Board directing a referendum since the review authorized by the Act is limited to controversies concerning the duty of the Board as indicated in See. 111.06(1) (c). A. Goldman & Sons, 245 Wis. 636, 10/44

Certification of results of referendum are not subject to judicial review. Adelman Laundry Co., Milw. Co. Cir. Ct. 2/61

651 GENERALLY

Board is entitled to judgment directing enforcement of its order, notwithstanding the fact that after the matter bad been argued and was under advisement, the respondent union bad indicated its intention to comply with the Board’s order. Morris Resnick, Inc., Milw. Co. Cir. Ct., 2/42

Board is entitled to enforcement of its order even though the employer and union involved, subsequent to its issue, entered into an agreement for the adjudication of the issues by a referee. Allis-Chalmers Mfg. Co., 243, Wis. 332, 6/43

The Board, even though none of the parties interested complain of the Circuit Court judgement, is authorized, and has a duty to take appropriate action, to seek enforcement of its orders, since it asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices. Wisconsin Motor Corp., 245 Wis, 417, 6/44

Petition by Board to Circuit Court for enforcement of its order is not “moot” although the activities which gave rise to the order may have been discontinued, since the dismissal of the enforcement proceedings would invite evasion of the Board’s authority and circumvention of the established policy of the State. Allis-Chalmers Mfg. Co., 249 Wis. 590, 12/46; Boehm Bindery Co., Milw. Co. Cir. Ct., 6/51

Where an employer has brought action to review the Board’s order, there is no need for the Board to commence a new action for enforcement of its order. It is proper for the Board to petition for enforcement in the same action. Nash-Kelvinator Corp., 247 Wis. 202, 6/45

When the determination of the Board is reviewed and affirmed by the Circuit Court, there is no further controversy in any respect that can be called a labor dispute. An injunction can be issued to enforce the judgment, giving effect to the Board’s order. Allis-Chalmers Mfg. Co., 252 Wis. 436, 12146

Board not only has the right, but also the duty, to exercise a discretion as to whether enforcement proceedings should be initiated. Section 111.07(7) does not define or declare the type of investigation to be made by the Board after its order is filed. Kohler Co., Sheboygan Co. Cir. Ct., 8/54 (Aff. 269 Wis. 578, 5/65)

Failure of employer to appeal from Board order within the period set forth in See. 111.07 of the Act precluded the employer from arguing in a contempt action on enforcement that said order was invalid on the ground that be was not present at Board hearing.WERB v. Levi Mews d/b/a Mews Ready Mix Corp., 29 Wis.(2d) 44, 12165

660 CONTEMPT PROCEEDINGS

661 GENERALLY

Circuit Court finding of employer’s being guilty of contempt by failing to comply with Board’s order is not a final sentence nor judgment of law pronounced by the court, and therefore not reviewable before the Wisconsin Supreme Court. Appleton Chair Corp., 239 Wis. 337, 12/41

The express power vested in the Board in Section 111.07(7), to bring proceedings seeking enforcement of its orders by court action, implies the power to bring contempt proceedings. Wilful disobedience of Board’s order constitutes criminal contempt. Allis-Chalmers Mfg. Co., 249 Wis. 550, 12/46

The act of disobedience to Board’s injunctional order relating to picketing must tend to defeat, impair, impede or prejudice the rights of remedies of a party to the proceeding to constitute civil contempt. Allis-Chalmers Mfg. Co., 249 Wis. 550, 12/46

Where respondent made no timely attempt to review, before the Wisconsin Supreme Court, the judgment of the lower court sustaining an order issued by the Board in an unfair labor practice proceeding, he cannot obtain review of said judgment on an appeal from a subsequent judgment of the lower court involving a finding of contempt. WERB v. Levi Mews, d/b/a Mews Ready Mix Corp., 29 Wis.(2d) 44, 12/65

Where circuit court found that employer’s conduct was “calculated to and did defeat, impair, and prejudice” the rights and remedies of the WERB and where the employer intentionally defied the circuit court’s enforcement order, the Supreme Court sustained the lower court’s judgment finding employer in contempt. WERB v. Levi Mews, d/b/a Mews Ready Mix Corp., 29 Wis.(2d) 44, 12/65

700 PUBLIC UTILITIES 11

710 DEFINITIONS

711 PUBLIC UTILITY EMPLOYERS

A rural electrical power cooperative association held to be a public utility employer within the meaning of the Act. Dairyland Power Coop Asso., Dane Co. Cir. Ct., 3/48 (Rev. Wis. Sup. Ct. on other grounds, 6/48)

Coke company, the stock of which is entirely owned by a public utility employer, which supplies from fifty to eighty per cent of the gas distributed by that public utility, which would not be able to continue its services without such gas supply, held to be a public utility within the meaning of the Act. Milwaukee Gas Light Co., Milwaukee Co. Cir. Ct., 3/50 (Aff. 258 Wis. 1, 11/50 (Rev. U.S. Sup. Ct. on other grounds, 340 U.S. 411, 2/51)

Employer who is engaged in the manufacturing and supplying of central office equipment, which it installs in various exchanges of telephone companies, is not a public utility within the meaning of the Act. Western Electric Co., (2396) 4150

Employer furnishing public passenger transportation held to come within definition of public utility employer under the Act. MilwaukeeElectric Ry. , 257 Wis. 43, 5/50 (Rev. U.S. Sup. Ct., on other grounds, 340 U.S. 383, 2/51)

712 STALEMATE AND IMPASSE

When the collective bargaining negotiations have been carried on and no agreement has been reached by the parties and when there is no prospect that an agreement will be reached, the parties have reached a stalemate and there is an impasse. Wisconsin Telephone Co. (2358-A, 2358-B), 3/50

720 APPLICABILITY OF THE ACT

721 GENERALLY

It is not the purpose of Subchapter III to interfere with the rights of the parties to make agreements submitting any question that they might desire to voluntary arbitration, nor is it the intention, in all cases, to substitute compulsory arbitration for any other agreeable means of settlement. Madison Bus Co. (2102) 5/49 (Aff. Dane Co. Cir. Ct., 10/49)

730 PRACTICE AND PROCEDURE

731 WHO MAY FILE PETITION

Board dismissed petition for appointment of a conciliator where subsequently in an election conducted by the NLRB it was determined that the petitioning union no longer represented a majority of the employes in the collective bargaining unit set forth in the petition.Urban Telephone Co. (2449-D) 11/50

Board may appoint conciliator on its own motion. Milwaukee Gas Light Co. (2179-Q) 9/49 (Rev. U.S. Sup. Ct., on other grounds, 340 U.S. 411, 2/51)

732 PREREQUISITES

Before the Board will appoint a conciliator the Board must be of the opinion that there exists (1) a dispute between a public utility employer and its employes; (2) that the collective bargaining process has reached an impasse and stalemate; and (3) that the dispute if not settled will cause or is likely to cause the interruption of essential service. Wisconsin Telephone Co. (1912) 11/48

Strike vote is not necessary before a conciliator will be appointed. Wisconsin Telephone Co. (1702) 6/48 (Aff. 253 Wis. 584), 11/48

Board need not conduct a hearing prior to the appointment of a conciliator. Wisconsin Telephone Co. (1702) 6/48 (Aff. 253 Wis. 584), 11/48

Interruption of essential service need not come immediately. Wisconsin Telephone Co. (2358-C 2358-D) 3150

733 FUNCTION OF CONCILIATOR

Only function of the conciliator is to expeditiously meet with the disputing parties to affect a voluntary settlement and if he is unable to do so to report back to the Board within the 15 day period. Wisconsin Telephone Co., 253 Wis. 584, 11/48

734 AUTHORITY OF CONCILIATOR

Conciliator has no power to issue subpoenas or orders which would bind the employer or any of the parties, or require or compel them to meet with him if they do not choose to do so or refrain from doing anything, nor is there any penalty for their refusing to conform with the requests of the conciliator. Wisconsin Telephone Co., 253 Wis. 584, 11/48

735 ARBITRATION

735.1 Effect of Court Proceedings

Board may order arbitration even though an injunction has been issued to prevent a work stoppage. Milw. Elec. Ry., Milw. Co. Cir. Ct., 2/50

735.2 Jurisdiction

Arbitrator may not act until appointed by the Board. Milw. Elec. Ry., Milw. Co. Cir. Ct., 2/50

735.3 Findings

30 day limit on findings of arbitrator not mandatory but directory in nature. Milw. Elec. Ry., Milw. Co. Cir. Ct., 2/50

740 BOARD ORDERS

741 ORDER APPOINTING CONCILIATOR

741.1 Nature

Order made by the Board appointing a conciliator held not an administrative decision or order. Wisconsin Telephone Co., 253 Wis. 584, 11/48

750 JUDICIAL REVIEW

751 GENERALLY

The Wisconsin Supreme Court did not consider the constitutionality of Subchapter III where neither party raised that issue and where the decision as to the constitutionality was not necessary to dispose of the controversy. Dairyland Power Co-op Asso., Wis. Sup Ct., 6/48

Right to judicial review of Board’s order is entirely statutory and orders are not reviewable unless made so by statute. The appointment of a conciliator under the Act is merely a preliminary act and not an order and therefore not judicially reviewable under Chapter 227. Wisconsin Telephone Co., 253 Wis. 584, 11/48

Constitutionality of a statute is not to be determined by the courts upon hypothetical questions or upon assumed facts or unreal possibilities. The court should not anticipate a question of constitutional law before it is to be applied to the precise facts before it and should not attempt to test the operation of a law under every conceivable set of circumstances. Milwaukee Gas Light Co., 255 Wis. 154, 7/49

752 ENFORCEMENT PROCEEDINGS

752.1 Summons

Summons headed “The WERB” instead of “The State of Wisconsin” held sufficient in form so as to confer jurisdiction in Circuit Court.Milwaukee Gas Light Co., Milw. Co. Cir. Ct., 11/49

752.2 Contempt

Union officers upon whom rested the responsibility of calling a strike of public utility employes found guilty of willful and contumacious civil contempt in failing to carry out order of the court “to take immediate steps to notify all employes called out on strike to resume service forthwith”. Milwaukee Gas Light Co., Milwaukee Co. Cir. Ct., 3/50 (Aff. 258 Wis. 1, 11/50, (Rev. U.S. Sup. Ct., on other grounds, 340 U.S. 411, 2/51)

Regional Director of International Union, who had no immediate duty to recall strikers, by failing to disassociate himself from the continuance of the strike, did not clearly appear to have been an act of willful and contumacious contempt. Milwaukee Gas Light Co., (Ibid)

Pickets held not to be liable for contempt of court order to end strikes when evidence did not clearly and sufficiently establish their knowledge of the scope and requirements of the order. Milwaukee Gas Light Co., (Ibid)

760 CONSTITUTIONALITY

761 AS AFFECTED BY STATE CONSTITUTION

In a declaratory judgment the Wisconsin Supreme Court held the Act does not unlawfully delegate legislative and judicial powers to the Board since the Act establishes the limits within which the Board may act. Milwaukee Gas Light Co., 255 Wis. 154, 7/48 (Rev. U.S. Sup. Ct., on other grounds, 340 U.S. 411, 2/51)

762 AS AFFECTED BY FEDERAL LAWS

In a proceeding wherein the employer petitioned to prohibit the Board from appointing an arbitrator the Dane County Circuit Court held the Act unconstitutional on the grounds that it imposed involuntary servitude on public utility employes by requiring them to continue their employment; that said employes were deprived of liberty without due process in denying them their right to strike; that the Act denied them equal protection under the law by prohibiting strikes by them while it allowed other employes to strike. Upon appeal, the Wisconsin Supreme Court vacated the Circuit Court judgment on the grounds that since neither party in interest had raised an issue on the constitutionality of the Act, the Circuit Court should not have considered that issue, and the matter was remanded to the Circuit Court for further proceedings. The Circuit Court dismissed the proceeding prior to rehearing the matter on the motion of the petitioner since the dispute had been settled. Dairyland Power Co-op Asso., Dane County Cir. Ct., 3/48, 7/48 (Remanded Wis. Sup. Ct., 6/48)

The Supreme Court of the United States held Subchapter III, as applied to employes of a public utility employer engaged in interstate commerce, unconstitutional, since it is in conflict with federal legislation. The court held that the federal act grants such employes the right to strike, with certain qualifications, regulations, and special procedures for strikes which might create national emergencies. The court further held that the Wisconsin Act is not “emergency” legislation, but a comprehensive code for the settlement of labor disputes and that by federal legislation Congress bad closed to state regulation the field of peaceful strikes in industries affecting interstate commerce. Milwaukee Electric Ry., U.S. Sup. Ct., 340 U.S. 383, 2/51; Milwaukee Gas Light Co., U.S. Sup. Ct., 346 U.S. 411, 2/51

Subchapter III held not applicable to prevent picketing of a telephone utility in the state for the purpose of causing a work stoppage among its employes in connection with a labor dispute between the picketing unions and another employer who was selling and installing equipment in exchanges operated by the utility, on the grounds that Subchapter III is in conflict with the Federal Act.Wisconsin Telephone Co., Milw. Co. Cir. Ct., 4/52

800 REFERENDUM PROCEEDINGS

810 RAISING OF THE QUESTION CONCERNING REFERENDUM

811 EFFECT OF EMPLOYER’S INTENTION TO EXECUTE AN ALL-UNION AGREEMENT

When employer contended that the Board had no power to conduct a referendum since the employer did not intend to enter into an all-union agreement, the Board held that the Act limited the rights of the union to bargain for same unless and until the right of the employer to include such a provision had been established by a referendum. The employes are entitled to establish the legal right of the employer to the end that they may bargain and attempt to induce the employer to enter into such an agreement without fear of censure or complaint for engaging in activities for an illegal purpose. J. I. Case Co. (868) 1/46; Gisholt Machine Co. (1078) 8/46;Wisconsin Porcelain Co. (4193) 3/56; Globe Union, Inc. (4604) 9/57

Board may direct and order a referendum upon petition of a labor organization so that the employer might, if he desired, enter into an all-union agreement, either as an amendment to an existing agreement, or as part of a new agreement to be negotiated in the future.Wrought Washer Mfg. Co. (326) 11/41; Doelger & Kirsten Inc. (4054) 9/55; Marquette University (7266) 9/65

Where, upon being advised by employes that they did not desire to work in a “union shop” the employer may file a petition to determine whether the employes desire to continue the authorization for same. Bernard J. O’Connell, d/b/a Black Cat Cafe (3249) 9/52

Board deviated from its policy of conducting a referendum even when the employer indicated an intention not to enter into an “all-union agreement” where during the hearing the union indicated that it had no present intent to bargain for such an agreement.Hydraulic Tool Corp. (5299) 9/59

A question concerning referendum exists where the labor organization involved is negotiating, or intends to negotiate, an all-union agreement, or where a labor organization or the employer have agreed, or intend to agree to such an agreement, or whether there is reasonable grounds to believe that there exists a change in the attitude of the employes concerned toward an existing all-union agreement. Vern’s IGA (7349) 11/65

Commission may direct and order a referendum upon petition of a labor organization so that the employer might, if he desired, enter into an all-union agreement, either as an amendment to an existing agreement, or as part of a new agreement to be negotiated in the future. St. Luke’s Hospital (8011) 4/67

Commission may direct and order a referendum upon petition of a labor organization so that the employer might, if he desired, enter into an all-union agreement, either as an amendment to an existing agreement, or as part of a new agreement to be negotiated in the future. Fond du Lac Lumber Co. (11775) 4/73

812 SECOND REFERENDUM

Once an approval for an all-union agreement has been obtained through a referendum and such a provision has been included in a collective bargaining agreement between the employer and a labor organization, such approval continues without the necessity of annual referenda until it appears by some evidence that there is sufficient reason for the holding of another referendum. Board held that normal turnover and normal change of employment are not sufficient reason for the holding of another referendum. Madison Dry Cleaners (414 to 418) 7/42

Board directed a second referendum within five months of first referendum, which union lost by one vote, where the Board was convinced that there might be a change of attitude on the part of the employes. Appleton Woolen Mills (742) 5/45

Board applied “one-year” rule established in representation proceedings to referendum proceedings where it dismissed a petition for referendum, filed within slightly one month after the previous certification of the result of a referendum in which the employes rejected the inclusion of an all-union provision in the collective bargaining agreement. Hudson Sharp Machine Co. (3062) 1/52; Cram’s Markets (3646) 12/53

Board directed a new referendum where the previous referendum was conducted more than one year prior to the instant referendum. Automatic File & Index Co. (5491) 5/60; Marquette University (7266) 9/65

Board concluded that there was reasonable ground to believe that there existed a change in the attitude of the employes concerned toward the all-union agreement where some of the employes notified the employer that they no longer desired to work in a union shop and where the union offered no proof to the contrary. Bernard J. O’Connell, d/b/a Black Cat Cafe, (3249) 9/52

Joint request of the employer and the union for a second referendum, filed within a week of the first referendum, for the reason of “the closeness of the vote” and the “possibility that some of the employes did not understand what they were voting for” dismissed since reasons did not constitute sufficient grounds for the ordering of a second referendum. Cram’s Markets (3646) 12/53

Where a majority of the employes who were eligible to participate in a previous referendum, conducted within less than a year of the filing of a petition for a second referendum, are no longer in the employ of the employer, and where new employes constitute one-half of the total employes in the unit, and further where the petitioner presents evidence to indicate that all those presently employed executed authorization cards, Board held sufficient grounds existing for second referendum. Reed Drug Co. (3850) 11/54

Section 111.06(1) (e) applies to a situation where the first referendum resulted in an authorization by the employes for an “all-union agreement” and that such section does not apply where the first referendum has resulted in no authorization of such an agreement.Dolly Madison Dairies, Inc. (4040) 5/55; Modern Clean-up Service Inc. (5341) 10/59

Where agreement contained a valid union security clause had one year of its two year term yet to run, a petition for a second referendum was dismissed by the Board as not timely filed, since the continuance of the “all-union agreement” was not supported by such referendum it could in no event be terminated prior to one year. National League Baseball Club of Milwaukee, Inc. (4057) 9/65

Where three years after a previous referendum authorizing an “all-union agreement” a representation election disclosed that a substantial number of employes did not favor representation by the union, the Board directed a new referendum on said ground although a valid existing agreement was in effect containing such an agreement. If the required number of employes failed to vote in favor of the authorization, the “all-union agreement” would terminate when the collective bargaining agreement terminated or within one year from the date of the certification, whichever date occurred first. Kiekhaefer Corp. (4685) 1/58

Section 111.06(l)(c) held to apply to situations where the first referendum resulted In an authorization for an all-union agreement and held not to apply when the first referendum resulted in no authorization for such an agreement. Red Owl Stores, Inc. (7883) 1/67

Generally the Commission will not conduct a second referendum within one year of the first referendum, with certain exceptions where a substantial change in circumstances has been shown. Red Owl Stores. Inc. (7883) 1/67

Where two years after the initial referendum authorizing “All-union agreement” in existing agreement, having at least 17 months to run, Commission directed second referendum because of 80% turnover of employes since first referendum and fact that all present employes supported petition. Dairy State Markets, Inc. (8002) 4/67

Once an approval for an all-union agreement has been obtained through a referendum and such a provision has been included in a collective bargaining agreement between the employer and a labor organization, such approval continues without the necessity of annual referenda until it appears by some evidence that there is sufficient reason for the holding of another referendum. Utility Equipment Co. Inc. (9716) 6/70; Motor Specialty, Inc. (11754) 4/73

Commission directed a new referendum where the previous referendum was conducted more than one year prior to the instant referendum. F. W. Busch Corp. (9943) 10/70

Commission concluded that there was reasonable ground to believe that there existed a change in the attitude of the employes concerned toward the all-union agreement where some of the employes notified the Employer that they no longer desired to work in a union shop and where the Union offered no proof to the contrary. Utility Equipment Co. Inc. (9716) 6/70

Commission directed second referendum within five months following conduct of first referendum, following a stipulation filed by the parties requesting the second referendum, and where the Commission was satisfied that a substantial change in circumstances had occurred as a result of a 50% turn over of eligible employes. Manor House of Madison, Inc. (10056) 12/70

Commission dismissed petition for referendum filed within slightly one month after the issuance of a certification of the results of a previous referendum in which the employes rejected the authorization of an all-union agreement. Wisconsin Lift Truck (12274-A) 7/74

813 EFFECT OF REFERENDUM

Board held Section 111.06(1) (e) not to create any rights for employers or labor organizations but rather to put a definite limitation on a right of an employer to enter into an “all-union agreement”. Central Paper Co. (3125) 4/52; Edgewater Paper Co. (3287) 10/52;Gardner Baking Co. (3462) 5/53

814 PETITIONER

Employe covered by collective bargaining agreement held to constitute a “petitioner” with the right to file a petition for a second referendum among employes covered by that agreement. Western Union Telegraph Co. (3661) 1/54; Kiekhaefer Corp. (4685) 1/58

Board dismissed referendum petition filed by labor organization other than one recently certified by Board as the bargaining agent for the employes of a multi-employer group, although collective bargaining agreement existed between said group and the organization certified as the representative “and/or” the petitioning union. Racine Automotive Trades Assn. (6346-C) 9/63

Board dismissed referendum petition filed by employes where no previous referendum had been conducted, and where there was no valid all-union agreement in effect. Vern’s IGA (7349) 11/65

Employe covered by collective bargaining agreement held to constitute a “petitioner” with the right to file a petition for a second referendum among employes covered by that agreement. Dairy State Markets, Inc. (8002) 4/67

815 BARGAINING UNIT

In a referendum proceeding the Board will not change or alter the collective bargaining unit which has been established either by an election and certification or by voluntary recognition. Wisconsin Southern Gas Co. (4414) 12/56; Warsinske Motor Co. (4446) 1/57;Musson Bros., Inc. (4647) 11/57; Rockwell of Randolph, Inc. (5258) 8/59; Chicago Pickle Co. (5466) 4/60

Where neither party raises an issue with respect to the unit, the Board will conduct the referendum among the employes in said unit even though it had not been certified in an election or previously voluntarily recognized as an appropriate unit. Scott-Taylor Co.(4804) 6/58

Parties cannot, without some formal action by the Commission, amend the effect of a certification of referendum previously issued by the Commission. Riverview Hospital Assoc. (8029) 5/67

In a referendum proceeding the Commission will not change or alter the collective bargaining, unit which has been previously established either by an election and certification or by voluntary recognition. Memorial Hospital (8403) 2/68; Oshkosh Sausage Co., Inc. (8710) 10/68

In a referendum proceeding the Commission will not change or alter the collective bargaining unit which has been established either by an election and certification or by voluntary recognition. Woodman’s Market’s Inc. (8826) 1/69; A. Goldman & Sons (11549) 1/73:Neilsville Foundry (11684) 7/73; Claude Spielvogel & Sons, Inc. (12103) 8/73

Where Commission conducted referendum, based on stipulation, which resulted in authorization for all-union agreement, and where subsequently rival organization established that agreed list of eligible employees, in fact, amended certified unit, Commission set aside results of referendum, and directed that the parties stipulate to a corrected eligibility list for the conduct of a new referendum.Madison Convalescent Center (11079-A) 9/72

Where following certification of representatives parties subsequently altered unit, Commission directed referendum in existing, unit, rather than in unit certified some four years previously. Vernon Memorial Hospital (12348) 12/73

Where subsequent to election certification parties mutually changed bargaining unit description and entered into a collective bargaining agreement covering the latter unit, Commission determined that latter unit was appropriate for the referendum. VernonMemorial Hospital (12348) 12/73

816 SHOWING OF INTEREST

The only showing of interest required for the conduct of a referendum involving an existing bargaining representative is a showing that the petitioning union is in fact such representative. Modern Clean-Up Service, Inc. (5341) 10/59

817 NECESSITY FOR REFERENDUM

Where a majority of employes in an appropriate collective bargaining unit execute documents authorizing a labor organization to represent them for the purposes of collective bargaining, and further authorizing said labor organization and their employer to enter into an all-union agreement; and thereafter, where said employer, as a result of unfair labor practices found to have been committed by him, is ordered by the National Labor Relations Board, or the Wisconsin Employment Relations Commission, to recognize and bargain with said labor organization as the exclusive collective bargaining representative of said employes on the basis that the Employer’s unlawful activity may have dissipated the “majority status” of the labor organization; such does not permit the Wisconsin Employment Relations Commission to authorize the labor organization and the Employer to enter into an all-union agreement without the necessity of a referendum conducted among the appropriate employes, as required by Section 111.06(l)(c)l of the Wisconsin Employment Peace Act, wherein it is required that at least a majority of the employes voting, provided such majority also constitutes a majority of the employes in the collective bargaining unit, must authorize same. Austin’s Super Markets. Inc. (12362-A) 7/74

As a result of an amendment to the Wisconsin Employment Peace Act, effective October 5, 1975, no referendum is required to be conducted to authorize an all-union agreement where the union has been certified as the collective bargaining representative in an election conducted either by the WERC or the NLRB. LaCrosse Communications, Inc. (14023) 10/75; Wausau Truck Sales, Inc.14024) 10/75; Midway Manor Corp. (14820) 8/76; ABC Block, Inc. (14888) 9/76

Although after October 5, 1975 no referendum need be conducted to authorize an all-union agreement where union has been certified as the bargaining representative after an election conducted by the WERC or the NLRB, where the parties, in their collective bargaining agreement, have conditioned the implementation of an all-union agreement on the conduct of a referendum, Commission will conduct a referendum. However, if a majority of employes voting approve the implementation thereof the employer must implement same. Midway Manor Corp. (14820) 8/76

820 BARS TO PROCEEDING

821 EFFECT OF UNFAIR LABOR PRACTICE

Where the employer had been found to have committed an unfair labor practice, by entering into an illegal all-union agreement, and had been ordered to cease and desist from same and to post notices, Board, upon a proper petition, directed a referendum be conducted, but not until the notice pertaining to the unfair labor practice he posted for a period of 30 days so that a fair and free determination of the employes, uninfluenced by the employer’s activities, may reasonably be anticipated. Wis. Public Service Corp.(1018) 7/46

Fact, that unfair labor practice complaint, alleging that the Employer and bargaining representative are parties to an invalid all-union agreement, held not sufficient to require the Commission to dismiss referendum petition. United Care Facilities (11048) 6/72

822 EXISTING QUESTION OF REPRESENTATION

The Board will not process an existing referendum petition where there is a question of representation pending and where such question can be resolved by a tribunal having jurisdiction of same. (This policy, however, does not prevent the Board from simultaneously conducting an election and referendum.) Tiedjens Distributing Corp. (4645) 1/57; E. F. Schmidt Co. (5180) 4/59;Capitol Court Corp. (5191) 5/59; Chas Obligato & Sons, Inc. (5216-B) 6/59; Clem La Fond, (5400) 1/60; Superior Liquor & Beer Assoc. (6644) 2/64

823 EXISTING AGREEMENT LACKING “ALL-UNION” AGREEMENT

The fact that presently existing collective bargaining agreement contains no provision for an “all-union agreement” does not constitute a bar to the present conduct of a referendum. Modern Clean-Up Service, Inc. (5341) 10/59

The fact that existing collective bargaining agreement contains no provision for an “all-union agreement” does not constitute a bar to the present conduct of a referendum. St. Luke’s Hospital (8011) 4/67; Caravilla, Inc. (13791) (7/75)

824 EXISTING NEGOTIATIONS

The fact that the parties have not concluded their negotiations on a collective bargaining agreement does not preclude the Board from conducting a referendum on the question of the all-union agreement. Packaging Corp. of America (7400) 12/65

The fact that parties have not concluded their negotiations on a collective bargaining agreement does not preclude the Commission from conducting a referendum on the question of an “All-Union Agreement.” Oneida Motor Sales, Inc. (8450) 3/68; Fleetwood Archery Div., Outers Laboratories, Inc. (10898) 3/72; Bruce Mfg. Co. (13577) 4/75; Simplicity Mfg. Co., Inc. (13595) 4/75; Caravilla, Inc. (13791) 7/75

825 “EMPLOYER” STATUS

Where employer was established as a result of a plan terminating the reservation status of the Menominee Indian Tribe, and where subsequently the NLRB conducted an election among the employes of said employer, which resulted in the certification of the bargaining representative, Board found said employes had the right to determine for themselves whether they desired to authorize an “all-union agreement” between the employer and their bargaining representative. Menominee Enterprises Inc. (6199) 12/62

826 EMPLOYE INSTABILITY

Continuous employe instability held no bar to present referendum. St. Luke’s Hospital (8011) 4/67; Adam’s County Memorial Hospital(9421) 1/70

827 EXISTING AGREEMENT CONTAINING INVALID PROVISION

Where existing agreement contained invalid union security provision, Commission held that no evidence was necessary to determine whether there existed a change in the attitude of the employes involved in order, to direct the referendum. Janesville Sand & Gravel Co. (8571) 6/68

830 ELIGIBILITY TO PARTICIPATE IN REFERENDUM

831 ELIGIBILITY DATE

The general policy of the Board establishes the eligibility date for a referendum to be that of the date on which the Board issues its Direction of Referendum. Chicago Pickle Co., Inc. (5466) 4/60

Where employe was hired prior to established eligibility date but who was not required to report for work until after such date held not eligible to participate in the referendum. Lakeside Industries (4438-B) 4/57

Used car salesmen who have not obtained their licenses from the state to act as used car salesmen held eligible to vote in the referendum since they were actually employes prior to the eligibility date and were being trained at the time of the referendum. Bud Weiser Motors, Inc. (5520-B) 10/60

Where there was an anticipated accretion of a substantial number of employes in the bargaining unit, Board established eligibility date which would result in the newly hired employes being eligible to participate in the referendum. Marquette University (7266) 9/65

It has been the Commission’s policy, and will continue to be the Commission’s policy, to permit only those employes who are employed as of the eligibility date to participate in the referendum, provided they do not quit or are discharged for cause prior to the balloting, and that employes hired after the eligibility date will not be permitted to vote in the referendum, nor will any such attrition be considered in determining the number of employes in the unit. However, on the other hand, if employes quit or are discharged for cause prior to the balloting, as has been the practice, their names will be deleted from the eligibility list and the complement of the unit shall consist of only those employes who remain on the eligibility list as of the date of the balloting. Seamon Co. (10929-A) 5/72

The general policy of the Commission establishes the eligibility date for a referendum to be that of the date on which the Commission issues its Direction of Referendum, and therefore employe hired between the date of the execution of the petition and the date of hearing held eligible to vote. Hammerblow Co. (11588) 2/73

Where prior to commencement of balloting observers and union agreed to add employes hired after eligibility date to list of eligibles, Commission dismissed objection to conduct of referendum contesting the eligibility of the added employes. Alkar Div. of Dec International, Inc. (11957-A) 8/73

832 EMPLOYE STATUS

832.1 Temporary Employes

Temporary employes, who were employed less than ninety days and who had not established a relationship as employes within the meaning of the existing contract, held not eligible to vote in the referendum. Garton Toy Co. (21) 10,139

Employe, temporarily replacing a regular employe who is ill, held not eligible to participate in referendum. Bernard J. O’Connell, d/b/a Black Cat Cafe (3249) 9/52

832.2 Employes in Armed Forces and Temporarily Laid Off

Board, in its direction for referendum, included as eligible all former employes in the armed forces and employes temporarily laid off if they presented themselves at the polls and offer to vote, since -by offering to vote said employes indicate that they still consider themselves employes. Gisholt Machine Co. (1078) 8/46

Employes on layoff status are eligible to participate in referendum. Spincraft, Inc. (5363-B) 2/60

832.3 Part-time Employes

Part-time employes of a restaurant, working only one and one-half hours per week at regular intervals, held not eligible to participate in referendum. Bernard J. O’Connell, d/b/a Black Cat Cafe (3249) 9/52

Where airplane pilot in employ of employer was not included in the collective bargaining unit Board found him nevertheless eligible to vote in referendum since he was spending 75% of his time performing work in a classification which was included in the unit. L. G. Arnold, Inc. (6233) 2/63

Regular part-time employes found eligible to vote in referendum. Schlicht Select Sausage (6948) 11/64; Vern’s IGA (7009) 1/65

The fact that regular part-time employes were employed elsewhere on a regular full-time basis at different hours, did not preclude them from participating in a referendum conduct at the place of their part-time employment. Calumet Corp. (8761-B) 6/69

832.4 Employes Who Are III

Employe who had been hospitalized for three months and a serious doubt existed as to whether he would be able to return to active employment found not eligible to vote in the referendum. Business Press (5468) 4/60

832.5 Seasonal Employes

Where an existing collective bargaining agreement exempted seasonal employes from the application of the “all-union agreement”, Board found that seasonal employes were not to be included among the eligibles. Dolly Madison Dairies, Inc. (4535) 5/57

Where seasonal employes have no expectancy of recall for following season, Board determined that they were not eligible to vote in referendum. National Can Co. (6345) 5/63; Wolf River Sausage Co.

(7246) 8/65

832.6 Probationary Employes

Probationary employes are eligible to participate in referendum since they have a reasonable expectancy of becoming permanently employed. Badger Die Casting Corp. (6536) 11163; Seven Up Bottling Co. (7387) 12/65

832.7 Transferred Employes

Employe temporarily transferred outside of bargaining unit held eligible to participate in referendum. Dairy State Markets, Inc. (6063-C) 4/63

Where employe was transferred from first unit to second unit after eligibility date, Commission concluded that employe was not eligible to vote in either unit. Structo, Inc. (8266-B) 2/68

832.8 Employes Who Quit Prior to Referendum

Employe, who quit employment between eligibility date and the date on which the referendum was conducted, held not eligible to vote in the referendum. Acme Supply Co. (11194-B) 1/73; Packerland Packing Co. (11713-B) 7/73

832.8.1 Striking Employes on Hiring List 12

Employes who participated in strike and who have been on hiring list for over two years without having been recalled to work, and where such recall is in doubt, determined not eligible to vote in referendum. Van Der Vort Brick & Bldg. Supply Co. (14160-A) 4/76

832.9 Employes Who Quit Following Referendum

Where employe did not quit until after balloting, but prior to certification, Commission overruled challenge to said employes ballot, since he was an employe at the time of the balloting. Acme Supply Co. (11194-B) 1/73

840 THE REFERENDUM

841 INTERVENTION

Board refused to permit intervening union a place on the referendum ballot where there existed valid existing collective bargaining agreements with the petitioning union. Wadhams Oil Co. (468) 12/42

842BALLOTS

842.1 BLANK BALLOTS 13

An employe depositing a blank ballot in the ballot box is not counted as having voted. Koller Super Market (2807) 5/51; Board of Trustees of Beloit College (2889) 6/51

842.2 Marked Ballots

Although employes placed remarks on ballots, said remarks clearly indicated their attitude toward all-union agreement, and therefore said ballots were not voided. Urban Telephone Co. (11105) 7/72

843 Absence of Employes

Where two of five employes eligible to participate in referendum were on vacation date of balloting and they had not been previously notified of said date, Board set aside results and directed the conduct of a new referendum. Industrial Fuel Co. Inc. (6348-A) 7/63

Where evidence failed to establish that four employes who did not vote were not on vacation as claimed, resulted in conclusion that objection to conduct of referendum based thereon was frivolous. Metropolitan Liquor Co., Inc. (8145-A) 4/68

Where employes were physically incapable of presenting themselves at the polls because of medical reasons, Commission provided said employes with mail ballots. Manitowoc Engineering Co. (10528-A) 10/71

844 INTERFERENCE WITH REFERENDUM

844.1 By Employer

Impact of supervisory questioning and conversation held not of sufficient weight, in light of employer’s letter to employes “to vote their own convictions”, to have seriously endangered the freedom of voting. Madison Drug Co. (3654) 2/54

Mere presence of operations manager at polling place did not interfere with free choice. Madison Drug Co. (3654) 2/54

Board found that hires and layoffs were made in the normal course of business, therefore objection to conduct of referendum was dismissed. Dorst Metalcraft, Inc. (4249-A) 10/56

In absence of proof that employer approved or consented to campaign activities engaged in by complaining unions on employer’s premises, and in the absence of proof that the employer aided or abetted said unions in their attempts to persuade the employes in their choice of the question of an “all-union agreement”, Board did not set aside results of referendum. Boynton Cab Co. (5000) 11/58

Individual interviews one week prior to conduct of referendum with five of approximately 200 employes eligible to participate in a referendum, where, in such interviews, the employer made no threats of reprisals nor promises of benefits held not to have constituted interference with conduct of referendum. Adelman Laundry Co. (5412-D) 12/60

Where officials of the employer addressed eligibles during their rest period on the date of the conduct of the referendum and none of their remarks were coercive in nature nor made promises of benefits or threats of reprisals, Board held employer within his rights in publicly advising the employes of the effect of their vote and that the employer preferred to operate under an “open shop”. Adelman Laundry Co. (5412-D) 12/60

Supervisors’ remarks to employes which might have constituted interference with the referendum found to have been neutralized by the employer prior to the conduct of the vote when the employer advised the eligibles that they could vote as they chose. Sky-View Nursing Home, Inc. (5654-A) 2/61

Board found, that employer in assigning an employe, who bad previously urged the employes to vote “no” in the referendum, to relieve other employes in order that they could vote, such activity by the employer did not constitute grounds for setting aside the results of the referendum. Edison Industries, Inc. (5696-B) 4/61

In determining whether to set aside the results of a referendum because of statements made either by the employer or the union, the Board will determine whether such statements were so misleading, as to prevent a free choice by the employes. Board held that employer’s statement to the effect that employes could not vote for union shop on a one year trial basis sufficiently misleading to set aside results of referendum since the act provides for the conduct of subsequent referendums under certain conditions. Employer’s statement, that the union shop provision requires that employes immediately join the union, in itself is found not to be so misleading so as to warrant setting aside the results of the referendum on that ground alone. Oak Manufacturing Co. (5943-B) 12/62

Board set aside results of referendum where the employer, without justification, did not provide Board agent access to voting area until one-half hour beyond the time the polls were scheduled to open. Pioneer Foundry Corp. (5994-B) 2/63

Statements by employer prior to the referendum, to the effect that a union shop agreement subjected all employes to union discipline and fines, did not, in themselves, interfere with employes’ free choice in the referendum. Pioneer Foundry Corp. (5994-C) 2163

Board held that employer meeting on day prior to the referendum, in which employe attendance was not required, did not constitute grounds for setting aside the results of the referendum. Dairy State Markets (6063-C) 4/63

Where four days prior to referendum employer presented to employes on company time and premises, as true, a dramatized anti-union film, depicting violence and irresponsible conduct by union officials, Board held employer mislead employes to believe their representatives were inclined to similar conduct and thereby interfered with employes’ free choice in the referendum, and Board set aside the results thereof. American Paper & Plastic Products (6157-B) 5/63

Board concluded that while agents of the employer may have made inaccurate statements with respect to effect of union membership, statements were not so misleading as to effect the results of the referendum. Ace Foods (6956-B) 9/65

Evidence failed to establish that employes failure to vote resulted from conversation with agent of Employer to effect that said employe was not eligible to vote, and therefore, objection to Employer’s conduct with reference to the referendum was dismissed.Stop-N-Go Inc. (7658) 7/66

Employer’s letters and notices to employes which contained no misrepresentation held not to interfere with employes’ free choice in referendum. Acme Die Casting Corp. (8140-C) 1/68

Commission concluded that Union failed to establish that supervisor instructed employes to vote against authorization. Kathadin Foundation (8284-B) 4/68

Where prior to referendum Employer, in accordance with its “no distribution” rule prohibited the distribution of Union propaganda, Commission set aside the results of the referendum after proper objection had been filed and heard. Commission adopted a rule to the effect that “No-distribution rules which prohibit the distribution of materials, relating to elections or referendums, during non-working time in non-working areas on the premises of the employer shall be presumed invalid.” To overcome said presumption the Employer must prove that a restriction on such distribution in non-working areas during non-working time is actually necessary in order to maintain production or discipline. Acme Die Casting Corp. (8704-B) 5/69

Where Employer, in propaganda distributed prior to referendum, misstated effect of all union shop provision with respect to membership in Union, Commission found that such misstatement had no material effect on results of referendum since Union in its propaganda material inferred that such membership was required. Research Products Corp. (8866-B) 9/69

Where Employer’s statement is propaganda distributed prior to referendum conveyed the belief that all union agreement would be implemented if a favorable vote were cast and where Union in its propaganda set forth the necessity that such a provision had to be bargained, Commission found Employer statement not to have interfered with results of referendum. Research Products Corp. (8866-B) 9/69

Where Employer’s pre-referendum propaganda indicated that a favorable vote in the referendum would result in a “closed shop”, Commission held that such misstatement had no material effect on the referendum since all employes who voted therein were employed for more than thirty days prior to conduct of the balloting, and thus would be subject to all-union agreement if same were negotiated. Research Products Corp. (8866-B) 9/69

Mere presence of Employer’s Manager at polling place did not interfere with free choice of employes. Triangle Appliance & Furniture Mart (9879-C) 3/71

Where just prior to the conduct of the referendum Employer’s agent, in the presence of the majority of the employes, vehemently protested the propriety of the list of eligibles as determined by the Commission, and Union filed objections to conduct of referendum based on such conduct, Commission determined that such activity interfered with the “laboratory conditions” required for a referendum, and therefore the result of the referendum was set aside. Triangle Appliance & Furniture Mart (9879-C) 3/71

Statement of Employer’s agent, just prior to conduct of referendum, in informing employes that a “yes” vote would require all employes to join the Union, held to constitute a material misrepresentation, since an affirmative vote only authorizes, and does not require, the Employer and the Union to enter into an all-union agreement, and such statement constituted a basis to set aside the result of the referendum. Triangle Appliance & Furniture Mart (9879-C) 3/71

Fact that Employer observer occupied a high supervisory position, where such observer properly performed her duties, held not sufficient to support objections to referendum. Lake Shore Manor (10412-B) 9/71

Where objections filed by Union to conduct of referendum were based on the claim that one employe did not see the posted notice, and that the Union agent “forgot” to pick up eligible employe at jail, who would have been permitted to leave jail to vote, Commission dismissed said objections without hearing. WAOW-TV (11103-B) 10/72

Where Employer, in letter to employes prior to referendum, went far beyond permissible campaign rhetoric in misrepresenting the legal consequences of an all-union agreement, Commission set aside results of referendum. King Cadillac, Inc. (11152-B) 11/72

844.2 By Union

The Board will not ordinarily pass judgment on campaign propaganda. It does not condone exaggerations, inaccuracies, partial truths, name-calling and falsehoods; however, they may be excused as propaganda if they are not so misleading as to prevent a free choice by the employes. North Avenue Laundry (5716-B) 11/61

Where union conditioned payment of initiation fee on whether the employes voted “yes” and joined the union before or after the referendum, Board set aside the results. North Avenue Laundry (5716-B) 11/61

Where union offered membership at reduced initiation fees if the employes joined prior to the referendum held not such conduct to interfere with the referendum since the reduction was not conditioned on the employes voting in favor of the proposition. American Paper & Plastics Inc. (6157) 11/62

Board held that marking of a sample ballot in one of the five notices posted by the employer by an unidentified employe, indicating a “yes” vote, the posting of a sign in a union official’s car in the employer parking lot urging the employes to vote “Yes”, and the wearing of tags by union members at work urging a “yes” vote, insufficient grounds to set aside results of referendum. Hydraulic Tools Corp.(6134-B) 4/63

Commission concluded that Employer’s objections to conduct of referendum, to the effect that the eligibility list was altered prior to the balloting from that originally agreed upon, and that officers of the Union were present during balloting, raised no substantial question, since list had been changed prior to the opening of the polls with the consent of both the Employer and the Union observers, and further, the Employer observer had executed the tally indicating that the balloting had been conducted In a fair and impartial manner.Leach Co. (7818) 12/66

Mere presence of Union representative as observer at referendum does not constitute a basis for setting aside the results thereof. St. Luke’s Memorial Hospital (8011-B) 10/67

Mere presence of Union representative as observer at referendum does not constitute a basis for setting aside the results thereof.Shawano Convalescent Center (9308-C) 7/70; Triangle Appliance & Furniture (9879-C) 3/71

Gathering of employes with union representative at a tavern in the evening prior to date on which the referendum was conducted does not constitute a valid objection to the conduct of the referendum. A. Goldman & Sons (11549-A) 10/73

Where, during conduct of referendum, union observer wore a button labeled “VOTE YES”, without any objection by employer observer, who following close of balloting, executed a tally sheet which contained a statement that the referendum was conducted in a “fair and impartial manner”, Commission dismissed objections subsequently filed by employer with respect to the wearing of said button. A. Goldman & Sons (11549-A) 11/73

Where union, prior to referendum, informed employes that only those employes who were union members and new employes hired after date of referendum (December 18, 1975) would be required to maintain their membership or become members of the union, when in fact provision in agreement required present members to remain members and employes hired after effective date of agreement (April 4, 1973), Commission sustained employer’s objections based on such misrepresentation. Micro Design (14165-B) 4/76

844.3 By Persons Unknown

Where sample ballot on Board’s notice of referendum was marked indicating a “yes” vote by a person unknown, Board held that such marking is not sufficient reason to set aside the results of the referendum. North Avenue Laundry (5716-B) 11/61

844.4 By Commission Agent Conducting Ballot

Union’s objection to conduct of referendum, alleging improper sealing of ballot box, that there was no voting booth, that the employes were permitted “to mill around the ballot box,” that the Commission agent permitted employer representatives to “send out for individuals coming to vote,” and that ballots were counted prior to the closing of the polls, were rejected by Commission upon determining (1) that ballot box was sealed after one vote had been cast, (2) that although no voting booth was furnished, employes marked their ballots in secret, (3) that there was no milling of employes, and (4) that the Employer’s observer instructed employes to send other employes to vote in the presence of the Union observer and without the latter’s objection, and (5) that the polls were opened and closed by the watch of the Commission agent after the polls had remained open for the designated period. Furthermore, no objections were made by the Union observer prior to the opening of the balloting with respect to the absence of the voting booth and the sealing of the ballot box. Badger State Tanning Corp. (7557) 8/66

Commission dismissed objections where no protest of any type was made by either party as to the change of the voting place during the balloting and, further, for the reason that the Union observer, who vas also the individual who objected, executed the tally sheet, wherein he certified that the poll had been conducted in a fair and impartial manner. Lake Shore Manor (9765-A) 8/70

Since minimal delay in opening of polls did not deprive any employe of the opportunity to vote, Commission dismissed objections to conduct of referendum based on such delay. Alkar Div. of Dec International, Inc. (11957-A) 8/73

The fact that Commission agent, during conduct of referendum balloting, misinformed union observer as to the “majority” necessary to approve authorization for all-union agreement held not sufficient to sustain objection to conduct of referendum. Lakeshore Manor, Inc. (11562-C) 1/74

850 POST REFERENDUM ISSUES

851 EFFECT OF STIPULATION

Where employer and union have stipulated as to eligibles to participate in referendum, Board will not permit either party to challenge eligibility of any voter after the conduct of the referendum. Marking’s Market (6939-B) 2/65

Where objections to conduct of referendum were based in part on Union claim that four supervisory employes voted therein, Commission dismissed objections since parties had stipulated to their eligibility and no objection was made to their balloting during the conduct of the referendum. Metropolitan Liquor Co., Inc. (8145-A) 4/68

Where employer and union have stipulated as to eligible to participate in referendum, Commission will not permit either party to challenge eligibility of any votes after conduct of referendum. Gene Corp. (12969) 8/74

852 INACCURATE ELIGIBILITY LIST

Where the eligibility list utilized in the referendum contained names and individuals who were not eligible and omitted four employes who were eligible, Board set aside results of referendum. Menominee Sugar Co. (5657-A) 1/61

Fact that parties inadvertently omitted employe from stipulated list of eligible does not prevent employe, otherwise eligible, from voting in referendum. Super America Division of Northwestern Refining Co. (8357-B) 5/68

853 REQUEST FOR RECOUNT

Any request for recount of ballots will not be granted after the ballots are removed from the presence of the observers and Commission agents conducting the election. Oak Manufacturing Co. (7619-A) 7/66

854 NUMBER OF VOTES REQUIRED FOR AUTHORIZATION

The fact that 87% of the employes voting voted for the “All-Union Agreement” does not, under Section 111.06(l)(c), result in authorization for all “All-Union Agreement” since such majority did not constitute a majority of employes eligible to vote. Lake ShoreManor (9765-A) 8/70

860 CERTIFICATION OR OTHER DISPOSITION FOLLOWING REFERENDUM

861 SUCCESSOR UNION

Where one local union became the legal successor of another local of the same international and assumed the existing collective bargaining agreement containing an otherwise valid all-union provision, Board concluded that the legality of said provision continued with the successor local. Bancroft Dairy Co. (6148-A) 6/63

870 EFFECT OF TRANSFER OF EMPLOYE AFFILIATION ON

PREVIOUS CERTIFICATION OF REFERENDUM

871 GENERALLY

Where employes, by a 7 to 1 margin, voted to affiliate with another labor organization, and where employer indicated that it would recognize new organization as successor to existing collective bargaining agreement executed by the predecessor union, Commission considered that union-shop and agency-shop provisions contained in the collective bargaining agreement, which were previously authorized in a referendum, were valid and enforceable In all respects within the meaning of the Act. Kearney & Trecker Corp. (5308-A) 2/68

880 EMPLOYERS AND EMPLOYES EXEMPT FROM

REFERENDUM REQUIREMENTS

881 GENERALLY

Building and construction exemption with respect to referendum requirement held not to apply to certain employes of outdoor advertiser since said employes performed a significant portion of their duties in the shop and their employment was stable rather than transitory. Derse Advertising Co. et. al. (8139) 8/67

900 REMEDIAL COMMISSION ORDERS

910 IN GENERAL

911 SCOPE OF ORDER

911.1 Parties Affected

Board held to have properly issued cease and desist order against the union where it found that employes and officers, in committing certain unfair labor practices, were acting on behalf of the union. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

Board order may be applied in favor of employes other than complainants since the order restrains only unlawful acts. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

Cease and desist order of the Board operates on individual members of the union as well as on officers, although individual members were not named as defendants, since the union is only an association of its members, and whatever is forbidden to the union is forbidden to its members. Briggs & Stratton Corp., 250 Wis. 550, 6/47 (Aff. U.S. Sup. Ct., 336 U.S. 245, 2/49)

911.2 Breadth of Order in Relation to Specific Violation

Board, even though no complaint was filed with regard to certain unfair labor practices on the part of the employer, required the employer to post copies of a notice wherein the employer stated that it will cease and desist from the practices committed by it. White House Milk Co., Dec. No. 322, 10/41

The existence of a certain fact as found by the Board does not of itself require the Board to reach a certain result, but the findings merely furnish the factual situation to which the Board, in the exercise of its discretion, applies the law. The Board, by reason of its disinterested position, is authorized, under the Act, to order the remedy most consistent with the public interest. Appleton Chair Corp., 239 Wis. 337, 12/41

The Board is not necessarily Limited in its order to specifically barring acts specifically found by the Board to have been committed. It may bar the commission of other acts which interfere with rights guaranteed by the Act. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

Board order containing provisions banning the doing of things which the defendant employes have no right to do, is not void merely because such provisions forbid others from doing what the offending employes do. Briggs & Stratton Corp., 250 Wis. 550, 6/47 (Aff. U.S. Sup. Ct., 336 U.S. 245, 2/49)

Order of the Board, banning the employes and members of the union from engaging in concerted efforts to interfere with production by arbitrarily calling union meetings and inducing work stoppages during regularly scheduled working hours, or engaging in any other concerted effort to interfere with production, except by leaving the premises in an orderly manner for the purpose of going out on strike, does not purport to ban the employes from quitting work for the purpose of going to work elsewhere, or with the intention of not resuming employment with the instant employer. Briggs & Stratton Corp., 250 Wis. 550, 6/47 (Aff. U.S. Sup. Ct., 336 U.S. 245, 2/49)

Court held that the Board exceeded its authority in issuing an order directed against the union from committing unfair labor practices against employers not named in complaint on the ground that said employers had no opportunity to be heard. Philip Parish, Rock Co. Cir. Ct., 5/51

Collective bargaining ordered by the Board to remedy a 111.06(1) (d) violation does not compel either party to surrender to the demands of the other, but such bargaining does require the parties in good faith to engage in a mutually genuine effort to reach a collective bargaining agreement. St. Francis Hospital, 8 Wis. (2d) 308, 11/59

Where complaint contained no direct allegation of violation of payment of bonus on transfer, but merely alleged the transfer to be in violation of contract and where Board subsequently ordered the employer to make whole the transferred employes for loss of bonus, matter remanded to Board to determine bonus entitlement since the employer was unaware that an issue with regard thereto existed and thus it was deprived of, on the opportunity to meet that issue. General Electric Co., 3 Wis. (2d) 227, 2/58

912 EFFECT OF CESSATION OF OPERATIONS

When an employer violates the terms of a collective bargaining agreement the Board is empowered to require the employer to take such affirmative action as it may deem proper, even though the employer may not at the time be in business or have any employes.Metal Specialties Co. (1484) 12/47; Midwest Broadcasting Co. (4016) 8/55 (Rev. Milw. Co. Cir. Ct., 11/55)

913 EFFECT OF TRANSFER OF OPERATIONS

Obligations imposed by an order of the Board on an employer, operating as an individual, are binding upon the successor corporation, the controlling interest being in the hands of the individual’s family and a former employe. Stowe Tool & Die Co., Milw. Co. Cir. Ct., 3/55

920 NATURE OF ORDER

921 GENERALLY

The Board may require the party who has committed an unfair labor practice to cease and desist from such practices and it may suspend his rights, immunities and privileges, or remedies granted or afforded by the Act for not more than one year, and it may require that party to take such affirmative action, including reinstatement of employes with or without pay, as the Board may deem proper. (See. 111.07(4) )

Commission denied motion requesting respondent to pay complainant’s attorneys fees because of the respondent’s failure to answer and this failure to indicate a desire to retain counsel until after a substantial amount of testimony had been taken. Mueller Color Plate Co. (8730) 12/68

922 SPECIFIC ORDERS DEALING WITH EMPLOYER UNFAIR LABOR PRACTICES 14

922.1 Relating to Sec. 111.06(1)(a)

Where employer’s unlawful conduct interfered with results of election, indicating a rejection of the union as the bargaining representative, and caused the dissipation of the union’s majority, as established by Authorizations executed by employes, Board set aside results and ordered employer to bargain with union. Portage Stop N’ Shop (7037) 2/65

922.2 Relating to Sec. 111.06(1)(b)

No unusual orders.

922.3 Relating to Sec. 111.06(1)(c)

Board did not order employer to reimburse an employe discharged as a result of an illegal all-union agreement for losses sustained between the date of discharge and the date of order, since the discharged employe was on the negotiating committee and was a party to a contract executed in violation of the statutes. Milwaukee Gas Light Co., 224 Wis 259, 12/43

The Board has the authority to require an employer, guilty of an unfair labor practice in discharging an employe pursuant to an illegal all-union shop, to reinstate the employe with pay, but it has no authority to require the union to reimburse the employer for half the amount. Wisconsin Motor Corp., 245 Wis. 417, 6/44; Rhinelander Paper Co., 249 Wis. 362, 10/46; Algoma Plywood & Veneer Co., 252 Wis. 549, 5/47 (Aff. U.S. Sup Ct., 336 U.S. 301, 3/49)

Board ordered employer to offer reinstatement to employe and to make said employe whole, where that employe left employment solely for the reason that she had not decided to become a member of the union after the employer had informed her that, in order to retain employment, it was necessary for her to become a member of the union as required by an illegal union shop contract.Continental Waste & Wiper Co. (692) 12/44

Board order requiring an employer to make employe whole for loss of pay resulting from the employes wrongful discharge for a refusal to pay his dues under an illegal all-union shop contract, is not an abuse of the Board’s discretion. Algoma Plywood & Veneer Co., 252 Wis. 549, 5/47 (Aff. U.S. Sup. Ct., 336 U.S. 301, 3/49)

Where employer discriminatorily discharged truck drivers and sold all but two trucks, the Board ordered the employer to reinstate two of the drivers having the longest continuous service and to place the other drivers on a preferential hiring list. Neuheisal Lime Works(1230) 2/47

Board found not to have abused its discretion in ordering employes made whole for loss of earnings due to employer’s unfair labor practice although such payment might substantially impair the employer’s financial condition. Stowe Plastic Products Co., Milw. Co. Cir. Ct., 5/51, 1/52

The Act does not grant the Board any jurisdiction to order a union to make an employe whole or to share the entire obligation although the union instigated the layoff of the employe involved in violation of the collective bargaining agreement. Halquist Lannon Stone Co. (4732) 4/58

Board cannot issue backpay order against union which illegally caused employes discharge since statute affords no such relief.Charles J. Weichering (4187) 11/56

922.3 Relating to Section 111.06(l)(c)

Commission, upon concluding that union discriminatorily denied an employe fair representation in the processing of discharge grievance, ordered union to send a notice to each employe in the unit involved to the effect that it not engage in such unlawful activity.Local 150, Service & Hospital Employees International Union (10600-B,C) 2/73

Employer ordered to expunge unlawful all-union agreement provision from collective bargaining agreement. Surfside Manor (11809) 5/73; Hearthside Nursing Home & Rehabilitation Center (11322) 5/73, Madison Convalescent Center (11825) 5/73

Employer and union ordered to preserve records and produce them at subsequent hearing so that Commission could determine amounts unlawfully deducted from earnings of employes as a result of an unlawful all union agreement. Surfside Manor (11809) 5/73;Hearthside Nursing Home & Rehabilitation Center (11822) 5/73, Madison Convalescent Center (11825) 5/73

Commission ordered that union was primarily responsible, and Employer secondarily responsible, for reimbursement to employes for dues exacted from wages pursuant to unlawful all union agreement. Surfside Manor (11309) 5/73, Hearthside Nursing Home & Rehabilitation Center (11822) 5/73: Madison Convalescent Center (11825) 5/73

Employer who was found to have discriminatorily failed to employ individual because of his non-membership in local musician’s union was ordered to make said individual whole for sums he would have earned had he been employed. Milwaukee Musicians Association Local No. 8 (11305-A,B) 7/73

An Employer was ordered to reinstate all employes it had locked out and to immediately resume bargaining with the Union over the terms of a successor agreement. Frank Carmichael, d/b/a Old Market Square Theatre, 22243-B, 22244-B (6/85). (Note: Examiner’s Findings of Fact, Conclusions of Law and Order Set Aside 22243-C, 22244-C, 12/86).

922.4 Relating to Sec. 111.06(l)(d)

Board ordered employer to bargain with certified union, in absence of a proceeding staying the Board, pending a review of the Board’s certification by the Wisconsin Supreme Court. Blochowiak Dairy Company (3228) 8/52

Employer, found to have refused to bargain in good faith, was also ordered to disestablish employe-employer committee which had been initiated, after union demand for recognition, to consider matters affecting working conditions. Sanitary Disposal Service (6999-A) 3/66

Change-over of employes since the date of the commission of employer’s refusal to bargain with union does not affect order to bargain. Hot Coffee Service (7566) 4/66 (Aff. Milw. Co. Cir. Ct., 9/67)

Where employer’s refusal to bargain, in violation of the Act, on a decision to mechanize its operation and thus eliminate jobs of employes did not result in any monetary loss to employes because the decision was made prior to the employment season, Commission ordered no back pay to employes who would lose their jobs. However, the employer was ordered to establish separate preferential hiring lists to fill seasonal and/or regular positions by qualified displaced employes in its other plants located in the State.Libby, McNeill & Libby (8616) 7/68

Where Employer’s refusal to bargain in violation of the Act, on the effects of a decision to mechanize its cucumber harvesting, which resulted in the elimination of jobs, did not result in any monetary loss to employes since such decision was made prior to the employment season, Commission ordered no back pay to employes who would lose their jobs. However, the Employer was ordered to establish separate preferential hiring lists to fill seasonal and/or regular positions by qualified displaced employes in its other plants located in the State. Libby, McNeill & Libby (8616) 7/68 (Aff. 48 Wis. 2d 272, 10/70)

Where Employer discharged employes and curtailed its business to avoid bargaining with Union in violation of the Act, Commission ordered Employer to bargain with the Union, to place discharged employes on a preferential hiring list, and to make such employes whole from the date of their discharge to the date they are placed on preferential hiring list. Merrill Motor Service, Inc. (10844-A,B) 12/72

Although Employer was found to have committed an unfair labor practice in discharging two employes because of their concerted organizational activity, Commission did not order the Employer to recognize and bargain with the Union, as requested by the latter, since the record did not establish that a majority of the employes had authorized the Union to represent them for collective bargaining. Hi Fi Salon, Inc. (14556-B,D) 4/77

An Employer was ordered to stop engaging in individual bargaining with an employe or any other employes as long as the Union was the representative of the Employer’s employes and to also stop coercing and threatening an employe with loss of employment if he did not forego Union representation. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A (6/83)

An Employer was ordered to return to the status quo ante and to pay into the fringe benefit fund, amounts it had unilaterally ceased paying upon expiration of agreement and prior to impasse. Kitchen Creations, Inc., 22415-A (7/85).

An Employer was ordered to stop refusing to supply information reasonably necessary to the Union so it could carry out its obligation as exclusive bargaining representative. Hebe Tile Company, 23512-A (5/87).

922.5 Relating to See. 111.06(1)(e)

No unusual orders.

922.6 Relating to Sec. 111.06(1)(f)

Board ordered the employer, who had violated a collective bargaining agreement in failing to arbitrate pursuant to the contract, to strike the name of one of the three arbitrators submitted by the Board, and the order further provided that if the employer refused so to do, the Board would designate one of the arbitrators. United Refrigeration Co. (2236) 11/49

Where the Board found that the employer had violated the contract in refusing to appoint an arbitrator, the Board directed the employer to meet with the union to agree on the arbitrator and if they failed to do so, the parties were ordered to request the Federal Mediation and Conciliation Service to appoint an arbitrator. Jos. Schlitz Brewing Co. (2244) 11/49

Where the Board found that the employer had refused to name an arbitrator to the Board of Arbitration, pursuant to its collective

bargaining agreement, the Board ordered the employer so to do. Aluminum Goods Mfg. Co. (2292) 1/50

Although Board found that employer had violated collective bargaining agreement by not paying employe rate called for, the Board did not order the employer to make the employe involved whole, because of litigation over the wage claim pending in the courts.Floyd Acheson (4426) 1/57

Board amended order with respect to compliance of collective bargaining provision where such compliance would require the employer to violate the terms of a recently executed collective bargaining agreement. Quality Aluminum Casting Co. (4498-B) 2/58

Although employer violated wage and vacation provisions of agreement, Board did not order the employer to make employe whole, since employe voluntarily chose to work under such conditions, made no complaint to either the employer or his bargaining representative during his employment, and only protested when the employer determined to go out of business. Hovland Food Market (5290) 8/59

Board denied employe back pay where it found that, under the collective bargaining agreement, employes absentee record was such as to prejudice his right to back pay, although not so severe as to deny him reinstatement. Styberg Engineering Co. (6368) 5/63

Where employer agreed to proceed to arbitration before particular arbitrator on belief that issues were more limited than found by Board, on complaint of refusal to proceed to arbitration on other issues, Board’s order permitted new selection of arbitrators. Green Bay Packaging Co. (6449) 863

Where arbitrable grievance involved jurisdictional dispute between two organizations having separate collective bargaining agreements with employer and where employer refused to proceed to arbitration thereon on request of one of the organizations, Board ordered tri-parte arbitration. Heinemann Bakeries, Inc. (7077-C) 7/65

Where in addition to alleging that employer violated collective bargaining agreement in refusing to proceed to arbitration, the Union also alleged a discriminatory discharge separate and apart from contract violation, Commission ordered employer to arbitration and indicated that it would review arbitration award to determine whether the award was repugnant to the Wisconsin Employment Peace Act. Milwaukee Elks (7753) 10/66

Where employes were found to have falsified piece work production records, WERC modified Hearing Examiner’s Order reducing discharges to disciplinary lay-offs. Commission sustained discharges as appropriate penalty. Briggs & Stratton Corp. (8287-D) 10/68

Where collective bargaining agreement required Employer to pay costs of collection of delinquent welfare payments, and where Commission found out Employer failed to make such payments, Commission ordered Employer to do so and to pay attorneys fees incurred in unfair labor practice proceeding before Commission. Schield & Zillman (10680-B,C) 10/72

Where employer was found to have violated collective bargaining agreement by refusing to employ union members on referral list, employer was ordered to pay sums equal that which members would have earned had they been employed. Fugarino Excavating(11846-A, B) 8/73 (Affirmed Milw. Co. Cir. Ct., 1/74); American Structural 5 systems, Inc. (14286-B, C) 6/76

While concluding that employer violated collective bargaining agreement by failing to give employe warning notice prior to discharge, Commission did not order reinstatement since agreement provided that discharges were without recourse. Zapata Kitchens, Inc.(13229-B) 4/76

Where Employer violated collective bargaining agreement by not timely implementing insurance plan, Employer was ordered to make beneficiaries whole for benefits they would have received had said plan been timely implemented. Evco Plastics (16150-A,B) 11/79

Where the parties have contractually agreed that an Employer delinquent in payment to various trust funds is liable for the Complainant’s costs and actual attorney’s fees incurred in recovering the delinquent amounts, Employer is ordered to pay costs and attorney’s fees actually incurred by Complainant. Great Lakes Construction Corporation, Dec. No. 20845-A (Shaw, 1/84)

Where Employer violated the parties’ agreement by refusing to recall employe because of an overweight condition, Employer ordered to recall employe and pay him full back pay and benefits. Ladish Company, 22481-A 9/85 Note: Examiner’s Findings of Fact, Conclusions of Law and Order Set Aside. Ladish Company, 22481-B, (1/86).

922.7 Relating to Sec. 111.06(1)(g)

Board ordered parties to return to arbitration where arbitration tribunal denied employer due process during arbitration hearing. Wm. O’Donnell, Inc. (5736-A) 12/62

The fact that arbitrator exceeded his authority does not permit the employer to avoid its contractual obligation to proceed to arbitration on grievance involved. Standard Kollsman Industries, Inc. (7035) 2/65

922.8 Relating to Sec. 111.06(1)(h)

No unusual orders.

922.9 Relating to See. 111.06(1)(i)

Even though Board found the employer to have committed an unfair labor practice in deducting dues without the authorization of the employe involved, the Board did not order the employer to reimburse the employe involved for the dues so deducted since the collective bargaining agreement contained an “all-union” provision, the employe was aware of such deductions, and he made no protest to the employer. Racine Flash Cab Co. Inc. (5494) 5/60

922.10 Relating to See. 111.06(1)(j)

No decisions.

922.11 Relating to Sec. 111.06(l)(k)

No decisions.

922.12 Relating to Sec. 111.06(1)(l)

923 SPECIFIC ORDERS DEALING WITH UNFAIR LABOR PRACTICES BY EMPLOYES, ETC. 15

923.1 Relating to Sec. 111.06(2)(a)

Cease and desist order issued by the Board, although in the form of prohibition of peaceful picketing, is considered only a prohibition of the activity of promoting picketing for unlawful purpose, as found in the Board’s findings of fact, and conclusions of law. Sears Roebuck & Co., 242 Wis. 21, 12/42

Union and its members were ordered to cease and desist from the continuous and persistent solicitations of an employe to join the union when such action interfered with that employer right not to join the union. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

923.2 Relating to See. 111.06(2)(b)

Where Board found that union had unreasonably denied an employe membership in its organization and then caused his discharge for his non-membership, the Board ordered said agreement set aside unless union accepted said employe into membership, upon payment of current dues and initiation fee. Charles J. Weichering (4187) 11/56

923.3 Relating to See. 111.06(2)(e)

Board’s order directing the union to cease and desist from violating terms of a collective bargaining agreement by a strike, walkout, or any other work stoppage is not void, as violating the rights of the union under the 14th amendment since the union is a corporation and as such is not protected by that constitutional provision. Wis. Gas and Elec. Co., 246 Wis, 190, 12/44

In remedying a violation of collective bargaining agreement by the union and its officers in that they failed to resort to the grievance procedure and arbitration procedure as set forth in the contract, the Board refused to order the union to be suspended as the bargaining representative, and further refused to order that the right of the president to serve as the union representative be suspended. Milwaukee Foundry Equipment Co. (631) 7/44

Board directed union to execute collective bargaining agreement previously negotiated and upon which the parties had agreed.Universal Foundry Co. (1102) 12/46 (Aff. Winnebago Co. Cir. Ct., 8/47); Baldwin Plywood & Veneer Co. (3161) 5/52

923.4 Relating to Sec. 111.06(2)(d)

No decisions.

923.5 Relating to Sec. 111.06(2)(e)

The mere fact that Chapter 111 does not expressly empower the Board to call a strike vote does not serve to deprive the Board from requiring such affirmative action after finding that the original strike vote had been conducted in a fraudulent manner. Allis-Chalmers Mfg. Co., Milw. Co. Cir. Ct., 4/41

Although the Board had found that union employes, to have picketed without a majority vote by secret ballot to strike, the Board dismissed the complaint against the employes where it sustained an unfair labor practice complaint against the employer. The Court held that the Board is authorized by statute to order the remedy most consistent with the public interest. Appleton Chair Corp., 239 Wis 337, 12/41

Where a majority of the employes engaged in a work stoppage did so without a vote, the Board dismissed the complaint and issued no order against the employes, holding that although the employes technically violated the Act, the purpose of Section 111.06 (2) (e) is largely to protect employes from arbitrary action by labor leaders in calling such employes out on strike against their will. In the instant case, the union leader had attempted to dissuade the employes from going out on strike. The Crandon Co. (1508) 1/48

923.6 Relating to Sec. 111.06(2)(f)

No unusual orders.

923.7 Relating to See. 111.06(2)(g)

Inclusion in Board’s order of a provision requiring a union to cease and desist from hindering, by threats, the obtaining, use, or disposition by the employer’s customers of the employer’s merchandise or services, was warranted by the evidence as to picketing at the places of business of the employer’s customers. Golden Guernsey Coop, 238 Wis. 379, 6/41

The fact that picketing has ceased does not necessarily constitute grounds for terminating a cease and desist order with regard thereto. Louis Caruso (Madison Bldg. Trades Council), 11 Wis. (2d) 837

923.8 Relating to Sec. 111.06(2)(h)

Board order banning concerted continuance of acts arbitrarily calling union meetings and in inducing work stoppages during regularly scheduled working hours for the purpose of unlawfully interfering with production, does not impose involuntary servitude nor restraint on the right of freedom of speech and assembly as guaranteed by the 13th and 1st amendments to the federal constitution. Briggs & Stratton Corp., 250 Wis. 550, 6/47 (Aff. U.S. Sup. Ct., 336 U.S. 245, 4/49)

923.9 Relating to Sec. 111.06(2)(i)

No unusual orders.

923.10 Relating to Sec. 111.06(2)(j)

No unusual orders.

923.11 Relating to Sec. 111.06(2)(l)

No decisions.

930 REINSTATEMENT AND BACK PAY

931 EFFECT OF VARIOUS CIRCUMSTANCES

The Board held that the employer need not reimburse a discharged employe during the period when the employe was incapacitated.Fox Head Waukesha Corp. (470) 12/42

Board ordered employer to make only partial payment of back pay after the employer was found to have violated the wage scale clause in the contract, where the employe neglected to insist on his rights. Schubert’s Food Markets (476) 3/43

Board ordered employer to pay hospital and physician’s bill, paid by a discriminatorily discharged employe, which would have been covered by the employer’s insurance plan bad not the employe been discharged. Algoma Plywood & Veneer Co., 252 Wis. 549, 5/47 (Aff. U.S. Sup. Ct., 336 U.S. 301, 3/49)

Where the employer and union were found to have violated Sections 111.06(1) (c) and 111.06(2) (b) respectively, in that the employer, at the request of the union, pursuant to an illegal all-union shop clause, discharged an employe for his failure to join the union, Wisconsin Supreme Court ruled that the Board could not legally require the union to contribute to the back pay award. Wis. Motor Corp., 245 Wis 417, 6/44

Employer need not restore discriminately discharged employe to same milk route, as long as he was guaranteed same earnings, to have complied with Board order. Modern Dairy Coop., Sheboygan Co. Cir. Ct., 9/47

In order to be entitled to back pay as a result of a discriminatory discharge, the employe so discharged must establish a search for employment or registration therefor, or receipt of unemployment compensation. Haddad’s Cleaners & Launderers (7506) 3/66

932 NATURE OF BACK PAY AWARD

An award of back pay has never been considered a penalty upon an employer but is purely remedial for the purpose of placing the employe in the same position he would have been in had the unfair labor practice not been committed by the employer. Stowe Plastic Products Co. (2715-B), 1/51 (Aff. Milw. Co. Cir. Ct., 5/51; Electric Service Shop, Inc. (5688) 2/61; Rice Lake Creamery Co. (4997-A) 5/61

933 COMPUTATION OF BACK YARD PAY AWARD

In computing back pay to employes whom the primary employer had illegally refused to rehire, the loss of wages from other employers, incurred by taking time off for picketing the primary employer and for attending court hearings, held to have constituted losses willfully incurred for which the primary employer was not responsible. Stowe Plastic Products Co. (2715-B) 1/51 (Aff. Milw. Co. Cir. Ct., 5/51)

Board reduced back pay award after evidence at supplemental hearing disclosed that complaint had been filed after undue delay.Wonder-Rest Corp. (3983-B) 9/55

Where employes waited eleven (11) months to file complaint alleging discharge because of misapplication of union security provision, Board, upon finding a violation, did not order full back pay, but did order back pay from the date of the filing of the complaint to the date of the employer’s offer of unconditional reinstatement. Board indicated that it did not thereby establish a precedent with regard to back pay awards, but indicated that it would be unjust in the instant case since the employes “sat” on their rights and also for the reason that the discharges were based solely on the request of the union. Curtis Co., Inc. (5639-A) 12/60

Following a supplemental hearing to determine amount of back pay owing to employe who was discharged in violation of collective bargaining agreement, Commission offset unemployment compensation received by employe and value received through food stamp program, as well as earnings as a hunter. Commission ordered the employer reimburse state unemployment compensation fund, and county for amounts in excess of purchasing value of food stamps received by employe. Link Bros. Packing (12900-E) 3/76

935 FEES AND COSTS

The Commission does not grant attorney fees or costs in unfair labor practice cases, except where parties have, by agreement, provided otherwise. United Contractors (12053-A, B) 1/74; Family Hospital (12616-A, B) 7/76

Where the Employer offers to pay what he was contractually obligated to pay, the Complainant is not entitled to attorney fees or collection costs as requested. However, pursuant to an October 21, 1981, billing by the Union, the Employer is responsible for the payment of one and one-half percent interest per month on the unpaid balance from October 21, 1981, until December 8, 1981, when the Employer’s offer to pay was received by the Union. Dan Wergin Sons, Inc., 19303-B (11/82)

Interest was ordered to be paid at the legal rate of interest to be paid upon the execution of a judgement, and the current rate of interest is 12 percent under Sec. 815.05(8), Wis. Stats. Stoughton Trailers, Inc., 18796-A, C (3/82)

Interest is granted at 12% per year in complaint cases seeking enforcement of arbitration awards on the sum of money due and owing under the award, from the date on which the award was received by the parties owing said monies. Sparta Manufacturing Company, Inc., 20787-A, B (12/83)

In complaint or arbitration proceedings, neither attorney’s fees nor costs will be granted, unless the parties have agreed otherwise, or unless the Commission is required to do so by specific statutory language. Bay Shipbuilding Corp., 19957-B, 19958-B (4/83) Sparta Manufacturing Company Inc., 20787-A, B (12/83)

The Examiner’s order is modified to provide for interest on monetary amounts owed even though neither party raised the issue of interest. The general rule in Wisconsin is that prejudgment interest is available as a matter of law on fixed and determinable claims such as employment related back pay. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., Dec. No. 20214-B (WERC, 2/84)

Complainant is entitled to prejudgment interest as well as post-decision interest on its claims from the dates they became due and owing. The rate in effect pursuant to Sec. 814.04(4), Wis. Stats., is 12% per year. Great Lakes Construction Corporation, Dec. No. 20845-A (Shaw, 1/84)

Where the parties have contractually agreed that an Employer delinquent in payment to various trust funds is liable for the Complainant’s costs and actual attorney’s fees incurred in recovering the delinquent amounts, Employer is ordered to pay costs and attorney’s fees actually incurred by Complainant. Great Lakes Construction Corporation, Dec. No. 20845-A (Shaw, 1/84)

Pre- and post-decision interest on the sum of money due was ordered to be paid. The fact that interest was not demanded in the complaint is of no consequence. West Side Community Center, Inc., Dec. No. 19212-B (WERC, 3/84); Dec. No. 19212-C (WERC, 5/87) aff’d Dec. No. 19212-D (Cir. Ct. Milwaukee County, 6/88).

Interest was ordered to be paid at the legal rate of 12 per cent per annum on amounts of back pay or fringe benefits due employes.Frank Carmichael, d/b/a Old Market Square Theatre, 22243-B, 22244-B, (6/85); Kitchen Creations, Inc., 22415-A (7185).

*Covers orders not of the usual nature

941 Generally

Court has no jurisdiction or authority to pass on the policy involved in the Act. Allen-Bradley Co., 236 Wis. 329, 1/41; 237 Wis. 164, 3/41

Statutory proceeding under Section 111.07(7) to review and enforce a cease and desist order of the Board does not conflict with Section 103.60, giving a person charged with contempt for violation of an injunction the light of a jury trial and the right to file an affidavit of prejudice since the latter section applies to only cases in equity and not to statutory proceedings. Golden Guernsey Dairy Coop., 238 Wig. 379, 6/41

Right to judicial review of the Board’s order is entirely statutory and orders are not reviewable unless made so by statute. Wisconsin Telephone Co. , 253 Wis. 584, 11/48

The Court, in order to reverse a remedial order of the Board must find that the order has no reasonable tendency to effectuate the policies of the Act. Algoma Plywood & Veneer Co., 252 Wis. 549, 5/47 (Aff. U.S. Sup. Ct., 336 U.S. 301, 3/49)

Board’s order providing for a referendum is not subject to judicial review since it is not an order in a “contested” case as defined in the Uniform Administrative Procedure Act. A. Goldman & Sons, 245 Wis. 636, 10/44

Board’s order requiring employer to reinstate unlawfully discharged employe before Wisconsin Supreme Court, on appeal, held in suspension for duration of the war until an order of the War Labor Board ceased to be effective inasmuch as enforcement with Board’s order would be in conflict with the order of the War Labor Board. Rhinelander Paper Co., 245 Wis. 541, 10/44

Where the Commission did not issue its decision interest eight months after filing the petition and where Sec. 111.07(5) states that the Commission shall issue a decision within forty-five days, the Commission’s decision is not void, because said statute is directory, not mandatory. Tompa Woodwork, Inc., Milwaukee Co. Cir. Ct., 8/83 (Affirming Dec. No. 18498-B, 4/82).

Where the Union was not satisfied with the Examiner’s determination of the extent of the Employer’s back pay liability, it was required by Sec. 111.07(7), Wis. Stats., to present its objection to the Commission. Since it did not do so, it may not raise the issue initially before the Circuit Court. Evco Plastics, Dane Co. Cir. Ct., 8/83 (Affirming in part and reversing in part Dec. No. 16548-D, 12/81).

950 ENFORCEMENT OF COMMISSION ORDERS

951 Generally

The Wisconsin Employment Peace Act vests the Board with authority to seek enforcement of its orders by action in circuit court. There is a necessary implication from the express grant of power to seek enforcement through the courts that the Board may seek and obtain effective court action. AIlis-Chalmers Mfg. Co., 249 Wis. 590, 12/46

Court held officers of the union had intentionally and knowingly violated provisions of the Circuit Court judgment confirming and directing enforcement of the Board order and were properly charged guilty of contempt. Golden Guernsey Dairy Coop., 238 Wis. 379, 6/41

Where Court found Employer in contempt of its affirmance that Employer proceed to arbitration in compliance with WERC order, Court ordered Employer to comply therewith within one week period or be committed to a jail term not to exceed ninety days.Johnson Roofing & Insulation Co. Rock Co. Cir. Ct. , 12/79; (16308-A,B 10/78

1500 UNFAIR LABOR PRACTICES BY EMPLOYERS

1510 IN GENERAL

1511 RESPONSIBILITY OF EMPLOYER FOR ACTS OF AGENTS AND OTHERS

1511.1 Family Relationship

Employer held liable for statements of wife of secretary-treasurer of employer, made in the presence of that officer. Weldone Rug and Furniture Cleaners, (454) 10/42

Proprietor’s failure to repudiate statements and actions of his brother, acting on behalf of the proprietor and the outward acceptance of brother’s assistance, held to be acquiescence, ratification and approval of brother’s conduct and responsible for his activities.Lindey Cleaners & Dyers (2701) 12/50

1511.2 Supervisors

Employer held not to have authorized statement of supervisor in layoff to employes. When questioned as to the reason for their layoff, as to whether it was because of their work or union activities, supervisor had stated, “it could be or could not be.” Reed Motor Co. (1681) 3/48

1520 INTERFERENCE, RESTRAINT, AND COERCION: SECTION 111.06(l)(a)

1521 Free Speech

Employer’s statements to employes on day prior to election found to have been made for the purpose of explaining his views of the reason for the election, and constituted no violation of the Act. Heiss Bakery (622) 6/44

Employer’s action prior to election, in explaining to employes individually, a pension plan approved by Department of Internal Revenue, held not to have constituted interference, since activity was not motivated for the purpose of inducing or coercing employes. Oshkosh City Lines (734) 4/45

Employer, by posting notice in regard to hospital plan, was found by the Board to be for the purpose of determining whether or not the employes desired to continue the plan, and not for the purpose of attempting to discourage membership in the union. Hotel Superior (2611) 11/50

Employer, in advising only employe who was eligible to participate in pending election that the employer was opposed to a union and that the employer, in his opinion, did not think that the employe would benefit by becoming a union member, held not to have committed an act of interference. Melin Firestone Stores (3021) 12/51

Employer’s action, prior to representation election, in response to an employes questions, in discussing existing profit sharing plan held not to have discouraged concerted activities. Bowman Farm Dairy (3044-C) 6/52

Expressions of opinion as to character of various officials of the parent body of the union which was seeking representation, and other statements concerning the employer’s personal experience as a member of another labor organization, held not to have constituted an unfair labor practice. County Vendors, Inc. (4828) 7/58

Employer found not to have engaged in unlawful interference by advising employes prior to election that, should the employes select the union as their representative, their grievances would be processed by the union. St. Camillus Nursing Home (5638-A) 1/61

Supervisor’s urging of an employe to vote against representation by union and displaying to said employe collective bargaining agreement between union and a similar employer, without promise of benefit or threat of reprisal to said employe, held not to constitute illegal interference, restraint or coercion of said employe. Mt. Carmel Nursing Home (6352) 5/63

Employer in advising employes with respect to Board procedures held not to have unlawfully encouraged employes to file petition for an election. Misericordia Hospital (6931) 11/64

Employer’s statements with regard to amount of Union’s monthly dues and initiation fees at meeting of employes two days prior to conduct of election and referendum did not constitute an unfair labor practice. Pavilion Nursing Home, Inc. (8127) 7/67

Where the Employer entered a Union organizing meeting held on its premises, stated that it was the Employer’s policy not to stand in the way of unionization but that in his personal opinion there were possible disadvantages to doing so, stated those disadvantages and then left the meeting, such actions did not constitute interference, restraint or coercion since the statements did not constitute either threat of reprisals or promise of benefits. Wisconsin’s Environmental Decade, Dec. No. 19962-A (McCormick, 3/84)

1522 INTERROGATION OF EMPLOYES CONCERNING UNION ACTIVITY

Interrogation by employer of employes concerning their union activity held to constitute unlawful interference. Sheboygan Dairymen’s Coop Ass’n. (1014) 7/46 (Aff. Sheboygan Co. Cir. Ct., 10/46); Neuheisel Lime Works (1230) 2/47; S & R Cheese Co. (1337) 6/47;Mariondale Farms (2208) 10149; Tiny Tot Mfg. Co., (2444-B) 6/50; St. Joseph’s Hospital, (3142) 5/52; Ranney’s Dairy (3185) 6/52;Motor Bus Co. of Chippewa Falls (4455) 2/57; Rainbow Auto Wash Corp. (4788) 6/58; Rice Grocery Co. (5632) 11/60; Pleasant Valley Coop. Creamery (6304) 4/63; Mt. Nebo Fur Farm (6898) 10/64; Edgewater Enterprises, Inc. (7097) 4/65; Sanitary Disposal Service (6999-A) 3/66; Hot Coffee Service (7566) 4/66 (Aff. Milw. Co. Cir. Ct., 9/67); Chuck Wagon Industrial Catering Service (7093-B) 8/66 (Aff. Milw. Co. Cir. Ct., 2/68); Shady Lawn Nursing Home (7516-B) 8/66; James Burns & Sons Farm, Inc. (7842) 12/66;Colonial Restaurants, Inc. (7604-C) 1/67; Italian-American Society (7626-C) 2/67; Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC 8405-B 10/68); Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct. 7/70); Merrill Motor Service (10844-A,B) 12/72

After being questioned by certain employes as to effect of unionization, Employer, by inquiring of an employe as to whether said employe had been contacted by the Union, held not to have committed unlawful interference. Prophet Food Co. (9855) 8/70

Employer’s interrogation of employes with respect to their concerted activity constitutes unlawful interference. Penfield Children’s Center (13534-C,D) 7/79

1523 FAVORITISM OR DECLARATION OF UNION PREFERENCE

Employer, in refusing to sign an all-union agreement (in the absence of a referendum), and in refraining from attempting to influence its employes in respect to joining or not joining either one of two unions, and in refraining from interfering with his employes in respect to their choice of bargaining representative, or their attitude as to an all-union agreement, held not to have committed any unfair labor practices since the employer merely refused to do or refrain from doing what the law forbids him to do. Golden Guernsey Dairy Co-op., 238 Wis 379, 6/41

Employer, in permitting employes to circulate petitions, disclaiming the union as their bargaining representative, during working hours, did not constitute interference since the acts were done without knowledge and consent of employer. C & M Tool and Die Co. (1849) 10/48

Employer, in calling meeting of employes during and after working hours and in discussing the selection of the union as bargaining representative, and in advising employes that it was immaterial as to what union they selected, was held not to constitute interference. C & M Tool and Die Co. (1849) 10/48

Where two competing unions were campaigning in the employer’s place of business and where upon learning of such activity the employer ordered same stopped, employer was found not to have committed an unfair labor practice. Boynton Cab Co. (5006) 11/58 (Aff. Milw. Co. Cir. Ct., 10/59)

1524 THREATENED ACTION WITH REGARD TO HIRE, TENURE, TERMS, AND CONDITIONS OF EMPLOYMENT

1524.1 Discharge

Employer’s action in threatening employes with discharge for union activity, held to have constituted interference. Altenburg’s Dairy(158) 1/41; Appleton Chair Corp., 239 Wis 337, 12/41; Sheboygan Dairymen’s Co-op Assoc. (1014) 7/46 (Aff. Sheboygan Co. Cir. Ct., 10/46); S & R Cheese Co. (1337) 6/47; Nelson Foundry (1629) 5/48; Mariondale Farms (2208) 10/49; Ranney’s Dairy (3185) 6/52;Mt. Nebo Fur Farm (6898) 10/64

Employer, by advising employes who voted for union in representation election to seek employment elsewhere, found to have interfered and coerced employes in violation of the Act. Kress Packing Co., Inc. (5580) 8/60

Employer’s action in threatening employes with discharge for union activity held to have constituted interference. Joyce Heating Inc. (8049) 5/67

Threat to discharge employe because of his testimony at Commission hearing found to constitute an act of unlawful interference. Valley Sanitation Co., Inc. (9475-A) 1/71.

1524.2 Reduction in Working Hours

Employer, who on day of election threatened to reduce working hours if the union won the election, held to have committed acts of interference. Pulp Wood Sales Co. (746) 5145 (Aff. Waupaca Co. Cir. Ct., 10/45)

1524.3 Removal of privileges

Employer, who, on day of election threatened to remove privileges of employes in buying materials from the employer if the union won, held to have engaged in interference. Pulp Wood Sales Co. (746) 5/45 (Aff. Waupaca Co. Cir. Ct., 10/45)

After learning of organizational activity, employer, in threatening to remove privileges of the employes in obtaining free milk for their families, held by Board to be acts of interference. S & R Cheese Co. (1337) 6/47

1524.4 To Close Business

Upon receipt of unfair labor practice complaint filed by the union, the employer, by tearing up union card in presence of his employes, and stating that “we don’t want the union any more,” together with a posting of notice that the plant would be closed, held to have committed acts of interference. Sheboygan Sausage Co., Inc. (484) 3/43

After learning of organizational activities, employer, in threatening to close business if employes joined union, held to have committed interference. S & R Cheese Co. (1338) 6/47

Threats to close plant because of organizational activities found to be in violation of the Act. South Side Tool & Die Co. (4725), 4/58;Kress Packing Co. Inc. (5580) 8/60

Threatening employes with closing of establishment in order to discourage concerted activity held to be violative of Sec. 111.06(l)(a).Colonial Restaurants, Inc. (7604-C) 1/66; Tony’s Pizza Pit (8045-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Threats to close plant because of organizational activities found to be in violation of the Act. Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct. 7/70)

Threats to close educational institution found to have been motivated by a desire to oust collective bargaining representative and therefore violative of Sec. 111.06(l)(a). Layton School of Art & Design (12231-B) 5/75

1524.5 Miscellaneous Threats of Reprisals or Promises of Benefit

Employer, by promise of wage increase during organizational activities, found to have committed acts of interference. D. J. Rohrer Lumber Co. (359), 12/42; St. Joseph’s Hospital (3142) 5/52 (Aff. 264 Wis. 396); Sunnyside Feed Mill Div., (3890) 1/55

Remarks by employer, endeavoring to discourage employe from union affiliation, and promise of re-employment after discriminatory discharge, to the effect that if the discharged employe would obtain a withdrawal card, he would be re-employed, held to constitute interference. Weldone Rug & Furniture Cleaners (454) 10/42

Threats, addressed by foreman to employes, of reprisals to follow if union were organized, held to have constituted interference.Nelson Foundry (1629) 5/48

Employer by discharging employes shortly after they became union members by arranging a luncheon wherein he advised the employes of declining business, and then subsequently, within a short time, granting a substantial wage increase, found to have committed acts of interference. Wisco Hardware Co. (2154) 7/49 (Aff. Dane Co. Cir. Ct., 12/49)

Threats of economic reprisal and promises of rewards made to employes on strike if they would return to work and abandon the union, held to have been acts of interference. Lindey Cleaners and Dyers (2701) 12/50

Where, during the pendency of a representation proceeding initiated by the union, the employer requested the employes to bold a meeting at which the employer would grant any fair request made by the employes, and where the employer promised a wage increase to an employe to refrain from union activity, Board found the employer to have committed unfair labor practices. Modern Clean-up Service (4252) 5/56

Where agents of employer made threats to close plant, accompanied by statements that the employer would never sign a collective bargaining agreement with the union, while at the same time suggesting that a change of wages probably would follow upon strike settlement and at the same time encouraging employes to file a petition for an election, Board found employer to have committed illegal acts of interference, restraint and coercion. C. A. Starkweather & Son (4360) 9/56

Promise to grant “union” conditions to forego concerted activity held to constitute interference within the meaning of the Act. YMCA of Milwaukee (4465) 2/57

Employer’s statement to employes that they “would be on the outside looking in” if they joined union, which employer claimed was a prediction that union would take the employes out on a strike during which the employer might replace them held by the Board to be a threat of discharge if employes continued their union activity since employer alone, not the union, controlled tenure of employes.Rainbow Auto Wash Corp. (4788) 6/58

Employer’s promise of a new pay plan found to have been illegally made to discourage concerted activity. Rainbow Auto Wash Corp.(4788) 6/58

Employer’s threats of discharge for union activity, solicitation of employes to sign letter rejecting the union and threats to impose stricter working conditions, if the union was selected as the bargaining agent, held unlawful interference, restraint and coercion of employes in the exercise of their rights under the Act. Sage Nursing Home, Inc. (6129) 10/62

Employer’s warning to an employe, following the employer’s knowledge of union activity among its employes, to the effect that “if they thought they had bad conditions before, they didn’t know what was coming,” and the subsequent removal of coffee pot privileges, found to have constituted illegal interference. Johnson & Rush, Inc., d/b/a Julie Ann Fabrics (6698) 4/64

Threats to employes, made by employer prior to election, to change working conditions, held to constitute unlawful interference.Edgewater Enterprises, Inc. (7097) 4/65

Employer, in interrogating employes concerning their union activity, threatening to sell his business and to lay off employes, to reduce their hours and intimating wage increases if they would forego such activities, found to have committed acts of unlawful interference.Spring Brook Feed Co., Inc. (7245) 11/65

Employer, in interrogating employes concerning their union activity, threatening to sell his business and to lay off employes, to reduce their hours and intimating wage increases if they would forego such activities, found to have committed acts of unlawful interference.Hot Coffee Service (7566) 4/66 (Aff. Milw. Co. Cir. Ct. 9/67)

Employer, by interrogating employes with respect to their concerted activity and union membership, by threatening to close his business and to demote or discharge employes, by threatening loss of benefits previously enjoyed, found to have illegally interfered with rights of employes. Sanitary Disposal Service (6999-A) 3/66

Promise by Employer to increase insurance benefits and provide

holiday pay to employes for the purpose of foregoing their concerted activity, and the subsequent implementation of same constituted unlawful interference. A-D Cartage and Movers, Inc. (7704-A) 1/67

Employer, by interrogating employes concerning their concerted activity, by threatening discharge because of such activity, and by designating a bargaining committee immediately following conduct of representation election, which resulted in the rejection of a bargaining representative, found to have committed acts of unlawful interference. Doyle Lithographing & Printing Co. (8126-C) 5/68

Employer threat to reduce wages because of concerted activity found to have constituted acts of unlawful interference. Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Implied promises of benefits to discourage employes from concerted activity found to constitute unlawful interference. Merrill Motor Service (10844-A,B) 12/72

Employer threat to reduce wages because of concerted activity found to have constituted acts of unlawful interference. Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct. 7/70)

Employer, by implying that an employe would be assigned lighter work at regular pay if employe would forego his concerted activity, found to have committed an unlawful act of interference. Graceland Cemetery (11607) 2/73

Implied promises of benefits to discourage employes from concerted activity found to constitute unlawful interference. Goodwill Industries – Milwaukee (12985-B,C) 12/75

Employer, in threatening the lives of union representatives, by destroying union leaflets in the presence of its employes, and by denouncing the union, found to have committed acts of unlawful interference. Gus Horemus & Gus Paraskevoulakas (13152) 11/74

Threats by Employer, to reduce employe hours and to “get rid of the Union” if the latter persisted in not agreeing to remove part-time employes from the bargaining unit represented by the Union, held to constitute a violation of Sec. 111.06(l)(a) of WEPA. VFW Club(18138-A,B) 7/81

The Commission will ordinarily not pass judgement on campaign propaganda where there is nothing in the record to indicate that the Employer’s executive director purposely, misstated the amount of the dues, but rather the record indicates that he gave the employes what he characterized as his understanding of what the dues were. When an employe objects to the figures as being inaccurately high, the executive director told the employe to find out what the true amount would be. His statements regarding the amount of dues were not so misleading as to rise to the level of being impermissible where there is nothing further in the record to indicate that he lied about the Union’s activities. West Side Community Center, Inc., 19211-A (4/83)

Where the Employer’s meeting, although a captive audience meeting, was not held within the twenty-four hour period immediately preceding the commencement of the election, then the meeting does not run afoul of the Commission’s “twenty-four hour rule”. West Side Community Center, Inc., 19211-A (4/83)

The Commission does not condone exaggerations, inaccuracies, partial truths, or name-calling, but it has held that such campaigning may be excused as propaganda so long as it is not misleading so as to prevent a free, choice by the employes. West Side Community Center, Inc., 19211-A (4/83)

An Employer may only predict what he reasonably believes will be the likely economic consequences of unionization that are outside of his control. Where an Employer’s statements of opinion of possible adverse effects on the Employer’s funding cause the employes to change their minds about having a union, and where the Employer never made any attempt to tell the employes why he thought it possible that the funding sources would be less likely to grant funding to the Employer if its employes unionized, and where there also is no basis in the record for finding that the Employer could reasonably have believed that the funding sources would withhold funding to the Employer if its employes unionized, then the statements amounted to a threat, albeit not retaliatory, but nonetheless improper. Therefore, the statements were impermissible and not protected under either the federal or state constitutions. West Side Community Center, Inc., 19211-A (4/83)

1525 INDIVIDUAL CONTRACTS

Employer held to have interfered with, restrained, and coerced his employes by calling a meeting of his employes and by executing individual contracts with them after the employer was aware that some of the employes were represented by a union. Carl Krieg, (441) 9/42 (Aff. Manitowoc Co. Cir. Ct., 12/42)

Employer committed no unfair labor practice by entering into a wage agreement with an employe where there was no collective bargaining agreement in effect covering said employe. Halbur Trucking Co. (3960) 5/55; Androy Hotel (3988-A) 7/55

1526 WAGE INCREASES

Employer’s granting of wage increases, during organizational activity was found to have been granted in accordance with employer’s practice, did not constitute interference. Heiss Bakery (622) 6/44; Yahr-Lange Inc. (1087) 9/46

Employer’s granting of wage increases during negotiations with union was found to have been granted in accordance with employer’s past practice and did not constitute interference. Lov-it Creamery (2954) 8/51

Employer held to have committed an unfair labor practice by converting yearly bonus to an hourly wage increase during organizational activity as a reward to the employes to refrain from such activity. Walker Cleaners Inc. (3608) 10/53

Granting of wage increases found not to have been for the purpose of discouraging concerted activity. Freddie’s Food Shop (4611) 9/57

Where under recently expired contract employes who were not union members were receiving rates lower than union members, and prior to election employe granted increases to non-union members to equalize the rates, Board concluded that such increases did not constitute an unfair labor practice. Milwaukee Athletic Club (7271) 9/65

Wage increases granted during concerted activity found to have been granted for the purpose of discouraging such activity. Kress Packing Co., Inc. (5580) 8/60; Rice Grocery Co. (5632) 11/60; Portage Stop ‘N Shop (7037) 2/65

Wage increases granted during concerted activity for the purpose of discouraging such activity found to constitute unlawful interference. Shady Lawn Nursing Home (7516-B) 8/66; Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC, 10/68)

Wage increases granted to employes during concerted activity was found to have been granted pursuant to Employer’s past practices and not for the purpose of discouraging concerted activity. Sage Nursing Home (8179-B) 3/68 (Aff. WERC, 4/68)

Wage increases granted during concerted activity for the ‘Purpose of discouraging such activity found to constitute unlawful interference. Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct. 7/70)

Employer in granting wage increase during organizational activity was found to have been granted in accordance with employer’s past practice, and therefore did not constitute an act of unlawful interference. Goodwill Industries – Milwaukee (12985-B,C) 12/75

1527 ELECTIONS

1527.1 Conducting Private Elections

Employer, by conducting a balloting of employes at a time when the union maintained it represented a majority of employes, committed acts of interference, restraint and coercion. Ranney’s Dairy (3185) 6/52

1528 REDUCTION IN WORKING HOURS

Board found that employer’s reduction of working hours was not motivated by any concerted activity of his employes, but rather by the loss in the volume of business. Ferguson’s Wholesale and Retail Market (3541) 8/53

Employer, by reducing hours of its employes during organizational activity, found to have done so to discourage such activity in violation of the Act. Kress Packing Co., Inc. (5580) 8/60

1529 MISCELLANEOUS

Employer violated the Act by attempting to require an employe to discontinue her membership in the union on the theory that she assumed the duties of a supervisor and was not included in the bargaining unit. Board found that additional duties assigned to employe were not of such a nature so as to exclude her from the unit. Milwaukee Gas Light Co. (3328) 12/52

Where employer entertained committee of employes, recognized and bargained with said committee, and placed in effect improved working conditions and economic benefits on condition that the employes abandon their activity on behalf of the union, all at the time when a representation proceeding, initiated by the union, was pending before the Board, Board found employer to have violated Sec. 111.06 (1) (a). Mrs. Drenk’s Foods, Inc. (4367) 9/56

Commission found that employe request directed to the employer, for an election to determine whether employes desired to continue their representation by the Union, was not unlawfully encouraged by the employer. Wallie Motor Co. (7143-A) 1/66

Employer, in requiring employe who initiated concerted activity to commence paying rent and cost of fuel, previously furnished to the employe without charge, held to constitute unlawful interference. Sanitary Disposal Service (6999-A) 3/66

Granting increased employe benefits found to have been implemented by employer’s desire to thwart concerted activity. Shady Lawn Nursing Home (7516-B) 7/66

Where there was no causal relationship between employes’ concerted activity and the employer’s decision to mechanize former hand harvesting operation, which decision eliminated jobs, Commission found that such determination by the employer did not interfere with the rights of employes. Libby, McNeill & Libby (8616) 7/68

Evidence established that Employer did discuss grievance, presented by individual employs, with said employs, and therefore, Employer found not to have violated duty set forth in See. 111.05 of the Act. Bartell Broadcasters, Inc. (9763-A) 7/70

Employer’s action in reducing an employe’s wages was found for cause and not motivated by employes activities in, or on behalf of, labor organization. Larsen Bakery (10372-A,B) 1/73

Supervisors in attending union organizational meeting with intent to interfere with rights of employes and therefore found to have engaged in unlawful acts of interference. Goodwill Industries – Milwaukee (12985-B,C) 12/75

Employer, by removing union campaign literature, which was distributed by employes contrary to employer’s established rule, found not to have violated the Act. Goodwill Industries – Milwaukee (12985-B,C) 12/75

Where the Commission has jurisdiction to determine that the Employer violated the collective bargaining agreement it also has jurisdiction to determine whether said violation constituted a derivative act of interference and a violation of Sec. 111.06(l)(a).Metcalfe, Inc. d/b/a Sentry Foods, 17660-B (2/92)

Where a directive was issued changing work rules and procedures in response to problems that had arisen and was in part due to the absence of an experienced director and where the record is not clear as to whether the directive was issued before or after the employes began discussing the idea of organizing a Union, then the Complainant has failed to meet its burden in regard to any alleged changes in work rules or procedures, and therefore, there is no violation of the WEPA. West Side Community Center, Inc., 19212-A (4/83)

Where there is no evidence that the Employer ever allowed other meetings on its premises to be open to non-employes, it was not interference for the Employer to restrict attendance at Union organizing meetings held on the Employer’s premises with Employer’s approval to current employes. Wisconsin’s Environmental Decade, Dec. No. 19962-A (McCormick, 3/84)

1530 INTERFERENCE WITH FORMATION AND ADMINISTRATION

OF EMPLOYE ORGANIZATION

Sec. 111.06(l)(b)

1531 Formation

Organization by an employer of a shop council, consisting of one representative from each department, for the purpose of meeting from time to time in employer’s office for the purpose of discussing improvements resulting in better work in the shop, held not an unfair labor practice. Northwestern Engraving Co. (50) 3/50

Employer held to have initiated, created and dominated in the formation of a labor organization when he negotiates individual contracts with his employes when he has knowledge of union’s majority, and which individual contracts contain a provision that the employes shall form their own union which will be their representatives in all future bargaining. John Kadow, Inc. (440) 9/42 (Aff. Manitowoc Co. Cir. Ct., 9/42)

Where an employe with supervisory status had considerable participation in the Union’s organizing campaign along the Employer’s employes, and his participation in soliciting signed authorization cards from the employes on behalf of the Union, it is concluded that at no time was the Union authorized as the bargaining representative by the free choice of a majority of the employes. West Side Community Center, Inc., 19211-A (4/83)

Since at the time of the alleged conduct there was no labor organization in place as the certified or recognized exclusive bargaining representative of the employes, only the language of Sec. 111.06(l)(b) that deals with the formation of a labor organization could have any application. The type of conduct contemplated by that statutory provision involves active Employer participation in the formation of the labor organization. Interference requires Employer participation to the degree that the Employer is the moving force behind the creation of the labor organization; however, the degree of Employer control over the organization is less than that required to find domination. Domination requires such Employer control over the formation of the labor organization as to constitute it a mere tool of the Employer rather than the free chosen representative of the employes. There being no evidence whatsoever in the record that the Employer attempted to participate in the formation of a Union, then there is no violation of Sec. 111.06(1)(b). West Side Community Center, Inc., 19212-A (4/83)

1532 ADMINISTRATION

Employer, by refusing to negotiate with the union until the union appointed a representative other than the one designated by the union, held to have interfered with the administration of the union, in violation of the Act. A. 0. Shafton Co. (2041) 3/49

Employer, by threatening employes to close plant if union won representation election, and by promising to increase wages if union lost, held to have interfered with the formation and administration of a labor organization in violation of the Act. Winneconne Stamping Co. (2044) 3/49

Employer, in unlawfully discharging stewards to discourage concerted activity, also found to have unlawfully interfered with administration of the labor organization certified as the exclusive collective bargaining representative. St. Joseph’s Hospital (7030-A) 1/66

1533 CONTRIBUTION OF FINANCIAL SUPPORT

Payment of union dues by an employer member constitutes a contribution of financial support to the union. Under the statute, “financial support” is much broader than the mere payment of union dues and includes financial support of any kind, character, or description, whether large or small in amount. Vern J. Gantzer, 256 Wis. 77, 11/49; Joseph T. Landree (2136) 7/49 (Aff. Brown Co. Cir. Ct., 1/50); Louis R. Branger (2339) 3/50; Philip Parish (2698) 12/50 (Aff. Rock Co. Cir. Ct., 5/51)

1540 ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION

BY DISCRIMINATION: SEC. 111.06(l)(c)

1541 Persons Entitled to Protection

The record contains no evidence showing that Respondent ever told the employe in question that he was a supervisor, and further fails to establish that he ever performed sufficient supervisory duties; therefore, he met the statutory definition of employe and had the right to support or not support a union without Employer interference or discrimination. West Side Community Center, Inc., Dec. No. 19212-B (WERC, 3/84)

1541.1 Persons Who Are Not Members of Labor, Organization

Discharge of non-union employe, either rightfully or wrongfully supposing union activity on the part of such employe, is a discriminatory discharge under the Act. Century Building Co-op., 235 Wis. 376, 4/40

The Commission does not consider supervisory employes to be protected under the Act when participating in otherwise protected concerted activity. West Side Community Center, Inc., 19212-A (4/83)

1542 EMPLOYER’S RIGHT TO DISCHARGE, SELECT OR CHANGE TERMS OR CONDITIONS OF EMPLOYMENT

1542.1 All-Union Agreements

1542.2 Arbitration Awards

Employer who discharged employe pursuant to the order of an arbitrator, did not commit an unfair labor practice, since the parties bad stipulated to be bound by the award. Int’l. Harvester Co. (1179) 12/46 (Aff. Milw. Co. Cir. Ct., 3/48)

The discharge of an employe pursuant to a union security provision, which had not been authorized in a Board conducted referendum but which had been in continuous existence since prior to the effective date of the Act, held not to constitute an unfair labor practice. Racine Millwork & Supply Co. (6526-B) 7/64

Employer, by discharging an employe pursuant to an invalid all-union shop agreement, held to have violated the Act even though the contract was entered into pursuant to a directive of the War Labor Board, since the authority of the War Labor Board ceased prior to the act complained of. International Harvester Co. (1015) 7/46

Pursuant to a contract with the union, other than an all-union agreement, requiring, as a condition of employment, that the employes retain their union membership and that non-members join the union or obtain work permits, employer, in discharging employes who were not members and who did not obtain work permits from the union, held to have encouraged membership in the union by discrimination in regard to the hiring and tenure of employment. Wisconsin Motor Corp., 245 Wis. 417, 6/44

Employer, in discharging employe for failure to join the union where the collective bargaining agreement provided for maintenance of membership and not an all-union shop, held to have illegally discriminated against the employe. Milwaukee Tool & Die Co. (1737) 7/49, (1737-B) 2/49 (Aff. Milw. Co. Cir. Ct., 5/49)

Discharge of employes for failure to maintain their membership in the union, pursuant to a valid all-union agreement, held not to be illegal in encouraging membership in a labor organization. Fielding & Shipley (259) 6/41; Four Wheel Drive Auto Co. (645, 646, 647) 8/44; Fox Head Waukesha Corp. (1006) 7/46; Northern Transportation Co. (1332) 6/47; Meyer Stores (1466) 11/47

Board held where any member of a labor organization is properly disciplined by suspension or expulsion from a union which has an all-union agreement with the employer of such member, and where the labor organization requests the employer to discharge said employe for such reason, the employer cannot be held to have committed an unfair labor practice by such discharge. Four Wheel Drive Auto Co. (3655) 12/53

By executing all-union shop agreement with the union in the absence of a referendum authorizing the same, the employer was held to have illegally encouraged membership in the union. C. A. Neuburger Co. (378) 4/42; E. Weiner Co. (483) 3143; Four Wheel Drive Auto Co. (506) 8/43; American Plywood Corp. (570) 3/44; Trester Service Elec. Co. (617) 6/44; Continental Waste & Wiper Co. (692) 12/44; Wis. Public Service Corp. (1027) 7/46; Waukesha Foundry (1459) 11/47

By discharging employes who failed to become or remain union members, at request of union, pursuant to an all-union agreement, which was executed in the absence of a referendum authorizing same, employer held to have illegally discharged employes so as to encourage membership in the union. Milwaukee Novelty Die Works (127) 10/40; C. A. Neuburger Co. (378) 4/42; Oshkosh Trunk & Luggage, Inc. (392) 4/42; Milwaukee Gas Light Co., 244 Wis. 256, 12/43; Fox Head Waukesha Corp. (470) 12/42; Allis-Charmer Mfg. Co., 243 Wis. 332, 6/43; American Plywood Co-op. (570) 3/44; Wisconsin Motor Corp., 245 Wis. 417, 6/44; Northern States Power Co., 245 Wis. 532, 10/44; Riggs-Distler Co. (652) 10/44 (Aff. Dane Co. Cir. Ct., 6/46); Rhinelander Paper Co., 249 Wis. 362, 10/46;Int’l Harvester Co. (1179) 12/46; Mathie-Ruder Brewing Co. (1506) 1/48; J. P. Cullen & Soil, 253 Wis. 105, 7/48; Algoma Plywood & Veneer Co., 336 U.S. 301, 3/49; Schroeder Trucking Co. (2231) 11/49 (Aff. Wood Co. Cir. Ct., 3/50)

By executing all-union shop agreement with the union in the absence of a referendum authorizing the same, the employer was held to have illegally encouraged membership in the union. Surfside Manor (11809) 5/73; Hearthside Nursing Home & Rehabilitation Center (11822) 5/73; Madison Convalescent Center (11825) 5/73

1542.3 Breach of Working Rules

1542.3.1 Absenteeism

Discharge of employe was due to his failure to return to work after conclusion of his leave of absence and not because of union activity. Clark Co. Elec. Co-op. (1460) 11/47

Discharge not held to be discriminatory for union activity but rather for excess absenteeism. Terminal Storage Co. (2206) 2/49

Where a chronic illness beyond the control of the employe causes excessive absenteeism and where this absenteeism puts an undue burden on the Employer and where progressive discipline will have no effect, discharge of the employe may be proper even without progressive discipline. S-B Manufacturing Company, Ltd., 18020-B (1/82)

1542.3.2 Change of Shift without Authority

Change of shift by employe without authorization, along with other alleged misconduct, found to have been a pretext for the employes illegal discharge. St. Joseph’s Hospital (3142) 5/52

1542.3.3 Employment of Relatives

Board found employe not to have been discharged discriminatorily because his father was president of the union, but rather because the employer had previously established a rule that it would not employ relatives of present employes and, further, because the employe involved falsified his family relationship. Archdiocese of Milwaukee (6695) 4/64

1542.3.4 Garnishments

Employer’s unilateral establishment of excessive garnishments as cause for discharge found not invalid since it was reasonable and not prohibited by collective bargaining agreement. Afram Bros. Co. (6401) 7/63

Board found levies by Internal Revenue considered the same as garnishment and following written rule against excessive garnishments established by employer as grounds for discharge. Afram Bros. Co. (6401) 7/63

1542.3.5 Intoxication

Discharge for cause (intoxication) held not discriminatory. Jackson Box Co. (157) 1/41; NeuheiseI Lime Works (1230) 2/47; Wells Mfg. Co. (7062) 3/65

1542.3.6 Tardiness

Discharge for tardiness held not discriminatory. Joannes Bros. (2427) 6/50

1542.3.7 Failure To Return After Leave of Absence

Evidence disclosed that rather than being discharged employe failed to seek employment following leave of absence. Sage Nursing Home (8179-B) 3/68 (H.E. Dec.) (Aff. WERC 4/68)

1542.4 Economic Conditions

Discharge of employe held to have been motivated by economic reasons and not union activity. Dewey’s House of Flowers (22) 10/39; Knapp Creamery Co. (2093) 5/49; Rudolph Motors, Inc. (2461) 6/50; Ferguson’s Wholesale Market (3541) 8/53; Tri-County Redi-Mix Inc. (3809) 9/54; Gilbert Durand (3858) 11/54; Dun-Rite Cleanerss (4461) 2/57; Freddie’s Food Shop (4611) 9/57; Blue Ribbon Sales (5578) 8/60

Threatened layoff of employes on day union began organizational activities and their subsequent discharge on a pretext of economic necessity, violated the Act. Stoughton Cleaners (47) 2/40; Rydahl Laundry Co. (600) 5/44; Wisco Hardware Co. (2154) 7/49 (Aff. Dane Co. Cir. Ct., 12/49

1542.5 Misconduct

1542.5.1 Dishonesty

Discharge for dishonesty held not discriminatory. Quality Products Co. (142) 12/40; Oshkosh City Lines, Inc. (734) 4/45; Larsen Bakery (10872-A,B) 1/73

Discharge of three employes found to have been motivated by their union activity and not because of “larceny” since articles “stolen” were removed without stealth. Mariondale Farms (2341) 3/50 (Aff. Walworth Co. Cir. Ct., 5150)

1542.5.2 Failure to Follow Instructions

Discharge of employes was for failure to follow instructions and not motivated by their union activity. Green Bay Stages, Inc. (671) 11/44; Shamrock Dairy (1336) 6/47; Edward D. Cahoon (1470) 11/47; Midwest Transformer Co. (1490) 12/47; Benson Optical Co., (1851) 10/48; Paris Cleaners (2050) 3/49; Woodland Foundry Co. (1209-A) 6/49; Lakeside Industries (4508) 4/57

Discharge of employe was for failure to follow instructions rather than in violation of existing collective bargaining agreement. Famco Machine Co. (3407) 3/53

Employer, by warning, then suspending, and ultimately discharging employes for failure to concertedly perform part of their duties, found not to be violative of the Act, since such concerted activity is not protected concerted activity within meaning of Sec. 114.04.Milwaukee Legal Services, Inc. (13367-B, D) 1/76

1542.5.3 Failure to Get Along With Fellow Employes

Employer, who had previously refused to discharge an employe at the request of the union because fellow employes could not work with him because he made derogatory remarks concerning the union, in subsequently discharging said employe at the direction of the War Labor Board, did not commit an unfair labor practice. American Brass Co. (534) 1/44

Discharge of employe found to have been motivated by employes inability to work with many of his fellow employes and not because of employes membership in the union. Gorton Machine Co. (504) 8/43

1542.5.4 Insubordination

Discharge for insubordination and insolent conduct held not discriminatory. Ryser Cheese Co. (1089) 6/47; Waukesha Foundry Co.(1459) 4/47; Western Machine Co. (2066) 3/49; Yawkee-Bissell Corp. (2088) 5/49; Riggs Optical Co. (2257) 12/49; Tiny Tot Mfg. Co.(2444-B) 6/50

Discharge of employe found not to be in violation of a stipulation of settlement, considered as a collective bargaining agreement by the Commission, whereby employe had previously been reinstated to active employment, since subsequent discharge resulted from employe’s insubordination following his re-employment. Packerland Packing Co., Inc. (7414-C) 11/66

Employes discharge found to have been motivated by latter’s insubordination, rather than anti-union animus of the Employer. The Eggplant (16639-A,B) 9/79

1542.5.5 Loafing and Premature Quitting

Discharge of employe found not to have been discriminatory, but rather for employes loafing on job and for leaving his work for the day on two occasions twenty and twenty-five minutes early respectively. Howard Industries, Inc. (3329) 12/52

1542.5.6 Undermining Business of Employer

Employer held not to have discriminatorily discharged employe because of any lawful union activities, but held that such discharge was justified because employe had participated and cooperated in union campaign conducted to reduce employer’s business.Alternburg’s Dairy (158) 1/41

1542.6 Replacement of strikers

Where striking employes requested reinstatement of illegal conditions, failure to reinstate such employes was not in violation of the Act. The Valley Lumber & Fuel Co. (355) 2/42

Refusal to reinstate strikers upon abandonment of strike constituted unfair labor practice. Dad’s Root Beer Bottling Co. (1891) 10/48

Replacement of striker held not to constitute an unfair labor practice. City Dray (7262) 9/65

Replacement of employes on strike held not to constitute an unfair labor practice. Memorial Hospital Assn. (10010-A,B) 11/71

1542.7 Replacement by Veteran

Discharge of employe held not discriminatory where the employe was discharged during organizational activity in order to return the position to a returned war veteran. Fox River Motor Sales, Inc. (1172) 11/46

1542.8 Unsatisfactory Performance

Discharge of employe found to have been motivated by failure to properly perform assigned duties and by failure to turn out satisfactory work, and not union activity. Carl Bros. Store (1088) 9/46; A. L. Weiss (1367) 7/47; Waukesha Foundry Co. (1459) 11/47;Aerial Cutlery Mfg. Co. (1469) 11/47; Flo-Torque Corp., (1708) 8/48; Blue-Moon Foods, Inc., (2029) 2/49; Andis Clipper Co., (2437) 6/50; Heiss Bakery, Inc. (3405) 3/53; M & M Chevrolet Co., Inc., (4083-A) 4/56; Mt. Carmel Nursing Home (6352) 5/63

Board found employer discharged employe for his union activity and that the reason given by the employer, to the effect that the employe did not perform his work satisfactorily, was not the actual motive for the discharge. Micron Tool & Machine Co. (1736) 7/48

Board found that employer’s transfer of employe from duties as a route salesman to work on employer’s farm was because of employe’s incompetence and not because of employes union activity. Wern Farms (2829) 4/51

Discharge of employe found to have been motivated by his shortcomings as an employe and not because he was active union adherent, since it was not established that the employer had knowledge of such activity. Coca Cola Bottling Co., Inc. of Rhinelander(5261) 7/59

Discharge of employe found to have resulted from employe’s unsatisfactory performance rather than concerted activity. MilwaukeeSanitarium Foundation (7458) 1/66; Chuck Wagon Industrial Catering Service (7093-B) 8/66

Discharge of employe found to have been motivated by failure to properly perform assigned duties and by failure to turn out satisfactory work, and not union activity. Prophet Food Co. (9855) 8/70; West Allis Memorial Hospital (10209-C) 10/71; Sanitary Disposal Inc. (10927) 7/72

Employe found to have been discharged for violating employer’s policy rather than for concerted activity. Goodwill Industries – Milwaukee (12985-B, C) 12/75

Discharge of employe found to have resulted from employes unsatisfactory performance rather than his concerted activity. WisconsinHumane Society (14768-E,F) 11177; Mini Bus Charter Service (15369-A,B) 4/78; Back Door Ltd. (15280-A,B) 6/78

1542.9 Miscellaneous

Employes discharge found to have been motivated as a result of his dissatisfaction with wage rate agreed upon by him and his employer rather than his concerted activity. Harry Viner, Inc. (13828-A, E) 6/76

Termination of employe found to have been motivated by the employes unprovoked verbal attack upon a fellow employe, rather than said employes concerted activity. VFW Club (18138-A,B) 7/81

1543 FORMS OF DISCRIMINATION

1543.1 Discharge

Discharge of employes for concerted activity and/or membership in a labor organization, held illegal. Skogmo Cafe (136) 11/40; Lake Superior Shipbuilding Corp. (232) 5/41; Sheboygan Dairymen’s Co-op Ass’n (1012) 7/46; Fox River Motor Co., Inc. (1174) 12/46; S & R Cheese Co. (1337) 6/47; Standard Container Co. (1401) 8/47; Krambo Food Stores, Inc. (1567) 4/48; Gilson Bros., 225 Wis. 316, 7/49; (U.S. Sup. Ct. denied certiorari); Wisco Hardware Co. (2154) 7/49 (Aff. Dane Co. Cir. Ct., 12/49); Mariondale Farms (2208) 10/49; Spic & Span Cleaners (2284, 2285) 1/50; Denmark Warehouse Co. (2303) 1/50 (Aff. Manitowoc Co. Cir. Ct., 6/50); Lindey Cleaners & Dyers (2431) 6/50; Brown’s Book Store, (2468) 7/50; Stowe Plastic Products Co., (2715) 1/51 (Aff. Milw. Co. Cir. Ct., 5/51); St. Joseph’s Hospital (3142) 5/52 (Aff. 264 Wis. 396, 7/53); Ranney’s Dairy (3185) 6/52; Art’s Modern Market (3542) 8/53;Walker Cleaners, Inc. (3608) 10/53; Hank’s Sanitary Disposal (4168) 2/56 (Aff. Waukesha Co. Cir. Ct., 5/56); Modern Clean-Up Service (5252) 5/56; G. J. Erickson, (4351) 9/56; Motor Bus Co. of Chippewa Falls (4455) 2/5; Rainbow Auto Wash Corp. (4788) 6/58; Owen Dairy (5699-A) 4/61; Rice Grocery Co. (5632) 11160; Johnson and Rush, Inc. (6698) 4/64; Major Theaters, Inc. (6823) 8/64; Mt. Nebo Fur Farm (6898) 10/64 (Aff. Richland Co. Cir. Ct., 1/65); Edgewater Enterprises, Inc. (7097) 4/65; Yindra’s Home Bakery (7176) 6/65; Spring Brook Feed Co., Inc. (7245) 11/65

Discharge of employes, where motivated to discourage concerted activity, constitutes unfair labor practice. St. Joseph’s Hospital(7030-A) 1/66; Sanitary Disposal Service (6999-A) 3/66; Haddad’s Cleaners (7506) 3/66; Chuck Wagon Industrial Catering Service(7093-B) 8/66; (Aff. Milw. Co. Cir. Ct., 2/68; Italian-American Society (7626-C) 2/67; Joyce Heating Inc. (8049) 5/67; Burleigh Pharmacy, Inc. (8149) 8/67; Tony’s Pizza Pit (8045-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Discharge of employes for concerted activity and/or membership in a labor organization, held illegal. Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct. 7/70); Checker Taxi & Transfer Co. (8821-A,B) 8/69; Merrill Motor Service (10844-A,B) 12/72

Discharges of employes motivated by their concerted activity is violative of Sec. 111.06(l)(c). Layton School of Art & Design (12231-B) 5/75; Rococo (13556-A, B) 4/76; Quercus Alba Inc. (14727-C, D) 10/76

Where discharge of employes is motivated to discourage their concerted activity, such discharges are violative of Sec.

111.06(l)(c) of WEPA. Plympton Square, Ltd. (14945-A,B) 4/77; Red Cab Co. (15410-A, B) 2/78

While the Employer’s decision to discharge employes was primarily motivated by other factors, the pro-union activity of those two employes was also a motivating factor in the decision for their termination. An employe may not be fired when one of the motivating factors is his union activities, no matter how may other valid reasons exist for firing him. West Side Community Center, Inc., 19212-A (4/83)

Although a discharged employe was guilty of numerous work related deficiencies and also committed several acts of misconduct, he was fired in part because of his Union activities and such a termination violates Sec. 111.06(1)(a) and (1)(c) of WEPA, according to the Supreme Court’s decision in Muskego-Norway. West Side Community Center, Inc., Dec. No. 19212-B (WERC, 3/84)

Where the Employer had discharged six other employes for failure to meet weekly canvassing minimums, the Examiner concluded that the discharge of two other employes for failure to meet the canvassing minimum was not motivated in any way by animus towards the employes for their participation in union organizing activities, especially where one of the employes had received a warning of future termination for failure to meet the minimum. Wisconsin’s Environmental Decade, Dec. No. 19962-A (McCormick, 3/84)

Where employe knew from previous discipline for absences without leave that he could not leave work without notification to a supervisor, and where he left work anyway without notification, his discharge was not motivated by any animus for his active participation in Union organizing activities. Wisconsin’s Environmental Decade, Dec. No. 19962-A (McCormick, 3/84)

1543.2 Lockout

Board held that new owner, in terminating employer-employe relationship by replacing employes with members of his family did not commit any illegal lockout. Northwestern Hotel (311) 10/41

Employer who shut down his quarry shortly after learning of organizational activities and after he advised the employes that “for all who signed with the union there is no work. No union members will be allowed in the quarry,” held to have discriminated against his employes. Neuheisel Lime Works (1230) 2/47

Employer, by refusing to reinstate and re-employe employes who had gone on strike in protest of a discriminatory discharge of a fellow employe, and who had subsequently unconditionally requested re-employment, found to have committed an unfair labor practice. Stowe Plastic Products Co. (2715) 1/51 (Aff. Milw. Co. Cir. Ct., 5/51)

A lockout cannot be used to further unlawful objectives. A lockout motivated by hostility toward the Union and a desire to escape bargaining obligations violated Sec. 111.06(l)(c). Frank Carmichael, d/b/a Old Market Square Theatre, 22243-B, 22244-B 5 (Note: Examiner’s Findings of Fact, Conclusions of Law and Order Set Aside 22243-C, 22244-C, 12/86).

An impasse is not a prerequisite to the lawfulness of a lockout but is only one factor to be considered in determining whether a lockout is unlawful. A lockout is unlawful if motivated by anti-union animus or to avoid the obligation to bargain but where the evidence failed to establish such motivation and the lockout was economically motivated, there was no violation of Sec. 111.06(l)(c). Frank Carmichael, d/b/a Old Market Square Theatre, 22243-C, 22244-C (12/86).

1543.3 Refusal to Employ

Employer, by refusing to reinstate and re-employ striking employes because of their union membership, found to have engaged in illegal acts of discrimination. Appleton Chair Corp. (170) 2/41 (Aff. 239 Wis. 337, 12/41)

Employer, by refusing to rehire employes who were discharged because they had concertedly sought a wage increase and by retaining in employment less skilled employes who had not engaged in such, held to have committed an unfair labor practice. Lake Superior Shipbuilding Corp. (232) 5/41

Musician employer found to have committed an unlawful act of discrimination by refusing to employ musician who was not a member of local union. Milwaukee Musicians Association Local No. 8 (11305-A,B) 7/73

Refusal of employer to reinstate employe found to have been motivated by employes concerted activity, and therefore violative of Sec. 111.06(l)(a) and (c). Katahdin Foundation, Inc. (10599-B,C) 2/73

1543.4 Miscellaneous

Employer acted discriminatorily after reinstating employe who was previously unlawfully discharged for union activity, by ordering him to perform menial tasks not previously performed by him and then discharging him for not performing those tasks. Skogmo Cafe(136) 11/40

Assistant manager of restaurant, in promising an employe a wage increase if he withdrew from the union, and in subsequently granting the raise on the employes withdrawal from the union, discouraged membership in that labor organization. Eau Claire Cafe(166) 2/41

Failure of employer to hire individual found not to have been illegally motivated. Martell Construction, Inc. (6968) 12/64

Employer, in allowing competing union representatives to speak to two employes in employer’s office, in the absence of employer representatives, as was the custom when parties desired to see employes, and in notifying employes, at the request of that union, of a meeting to be held, with the employer’s knowledge of the purpose of that meeting, held to have acted solely as a messenger, and not to have encouraged membership in that labor organization. Fehr Concrete Pipe Works (173), 2/41)

The collection of union dues by the employer, without the employe’s authorization, constituted an unfair labor practice. Gehl’s Guernsey Farms, Inc. (771) 7145

By requiring employes, prior to hiring, to execute check-off authorizations, in the absence of an authorization for an all-union agreement, employer held to have committed an unfair labor practice. Manpower, Inc. (3854) 11/54

Demotion of an employe because of his union activity, held to be an unfair labor practice. Sheboygan Dairymen’s Co-op. Assoc.(1012) 7/46

Employer, by entering into a contract with union, providing for an increase in wages for members only, held to have discriminated in regard to the terms and conditions of employment of nonmembers for the purpose of encouraging membership in the union.Milwaukee Tool & Die Co. (1737) 7/48 and (1737-B) 2/49 (Aff. Milw. Co. Cir. Ct., 5/49)

Employer found to have engaged in acts of discrimination by entering into a collective bargaining agreement providing for union preference in hiring, lay-offs, and transfers. Cutler Hammer, Inc., Milw. Co. Cir. Ct., 7/47

Mere statement by foreman that, in towns where union labor was available he would call upon the union to determine what help was available, held, in itself, not to constitute an unfair labor practice. J. P. Cutler & Son, Rock Co. Cir Ct., 3/50

Employer, by laying off employes and failing to recall them because of their concerted activity, found to have discriminated against such employes in violation of the Act. South Side Tool & Die Co., Inc. (4725) 4/58

Employer found not to have discriminatorily treated employes in bargaining unit by granting pension and life insurance benefits to employes outside the unit and withholding same from employes in the unit pending negotiation with union on a new collective bargaining agreement. Misericordia Hospital (6931) 11/64

Employer, by changing schedules, reducing hours and eliminating the practice of changing shifts, after employes had selected union as their bargaining representative, found to have engaged in unlawful discrimination. Edgewater Enterprises, Inc. (7097) 4/65

Termination of employe’s franchise and lease agreements of catering route because of employe’s participation in a strike protesting employer’s unfair labor practice, found to have constituted an act of unlawful discrimination. Chuck Wagon Industrial Catering Service(7093-B) 8/66 (Aff. Milw. Co. Cir. Ct., 2/68)

Although employe was active in concerted activity, evidence disclosed that employe voluntarily quit and that the Employer had not engaged in any conduct with respect to said employe which could establish a finding that the Employer induced said employe to quit his employment. Valley Sanitation Co., Inc. (9475-A) 1/71

Suspension of employe found to have resulted from engaging in protected activity and therefore in violation of Sec. 111.06 (l)(c).Family Hospital (12616-B, E) 7/76

Employer found not to have discriminatorily discharged employe for her insistence that she be treated as a bargaining unit employe.Northwest General Hospital (12839-B, C) 11/76

Commission reversed Examiner’s conclusion that employe was denied promotion because of the latter’s concerted activity. The Commission determined that such motivation was not established by a clear and satisfactory preponderance of the evidence.Wisconsin Humane Society (15312-B,C) 4/79

Denial of holiday to employe was found not to have been motivated by anti-union considerations. Wisconsin Porcelain Co. (15986-B,C) 5/79

Where an Employer tells an employe that he could continue working with the Employer only if he agreed to no longer have the Union represent him and that he would have to sign an affidavit to that effect, and if the employe did not agree to that condition he would lose his job, then such a proposition was clearly coercive because it deprived the employe of his statutorily protected right under Sec. 111.04 to decide for himself whether he wanted a Union to represent him. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A (6/83)

Where there is an unlawful threat by an Employer to an employe that he would lose his job if he did not withdraw from the Union, it follows that such withdrawal cannot be given legal effect and it therefore must be presumed that, but for that threat, the employe would have chosen Union representation, just as he had for the last several years that the Union represented him and his fellow employes. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A (6/83)

Other than the employes pro-union activity and the Employer’s failure to hire an employe who best [net the job requirements, the Complainant here has offered no other evidence to support its contention that the layoff of the employe was motivated by the Employer’s hostility toward the employes pro-union activities. Therefore, the Complainant has failed to prove by a clear and satisfactory preponderance of the evidence that the Employer’s decision to layoff the employe was motivated in part by hostility toward his support and activity on behalf of the Complainant. West Side Community Center, Inc., 19212-A (4/83)

Where a directive was issued changing work rules and procedures in response to problems that had arisen and was in part due to the absence of an experienced director and where the record is not clear as to whether the directive was issued before or after the employes began discussing the idea of organizing a Union, then the Complainant has failed to meet its burden in regard to any alleged changes in work rules or procedures, and therefore, there is no violation of the WEPA. West Side Community Center, Inc., 19212-A (4/83)

1544 DISCRIMINATORY MOTIVES

1544.1 In General

Employer discriminatorily discharged employes after learning that the employe had joined the union and after the union had requested recognition. Mc’s Bakery (439) 9/42; Neuheisel Lime Works (1230) 2/47; Evelyn’s Bakery (1890) 10/48 (Aff. Milw. Co. Cir. Ct., 3/49)

Employer, in discharging an employe after receipt from the union requesting adjustment of that employes grievance, held illegal.Dutch Curtain Cleaners (1330) 6/47

Board found sole reason for employes discharge was for his activity to bring about improvement of working conditions by concerted effort and union activity. Nelson Foundry (1629) 5148

Employer found to have discriminatorily discharged employe because he had engaged in, and bad been the leader in attempting to induce other fellow employes to engage in, lawful concerted activities. Carver Ice Cream Co. (1803) 10/48; St. Joseph’s Hospital(3142) 5/52 (Aff. 264 Wis. 396, 7/53)

Employer, by calling employes together after a conference with the union, preparatory to the conduct of an election, and by stating to them, “You asked for a closed shop. I will pay you off and she is closed forever,” and the subsequent discharge of the employes, committed an unfair labor practice. Dunrite Industries (2095) 5/49

Board found that real motivation of discharge of employes was to discourage concerted activity and not for reasons claimed by employer. Motor Bits Co. of Chippewa Falls (4455) 2157; YMCA of Milwaukee (4465) 2/57; Rainbow Auto Wash Corp. (4788) 6/58;Owen Dairy (5699-A) 4/61; Pleasant Valley Coop. Creamery (6304) 4/63; Spring Brook Feed Co. (7245) 11/65

Discharge was found to have been motivated by concerted activity and not for reasons alleged by employer. St. Joseph’s Hospital(7030-A) 1/66; Sanitary Disposal Service (6999-A) 3/66; Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Discharge was found to have been motivated by concerted activity and not for reasons alleged by Employer. Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct. 7/70); Checker Taxi & Transfer Co. (8821-A,B) 8/69; Valley Sanitation Co., Inc. (9475-A) 1/71

Where Union failed to establish Employer knowledge of concerted activity and that discharges were motivated to discourage such activity, discharges were found not to have constituted unfair labor practices. Sage Nursing Home (8179-B,C) 4/68; Milwaukee Star News, Inc. (8696-A,B) 12/69

The Commission dismissed complaint where Union failed to establish that constructive discharge of employe was motivated by his concerted activity. Wetenkamp Transfer & Storage (9781-A,B) 7/71

Discharge was found to have been motivated by concerted activity and not for reasons alleged by Employer. Graceland Cemetery(11607) 2/73; Obenauf-Geneva Services, Inc. (11515-A,B) 5/73 (Aff. Walworth Co. Cir. Ct., 9/73)

Where union failed to establish employer knowledge of concerted activity and that discharges were motivated to discourage such activity, discharges were found not to have constituted unfair labor practices. Paco’s Restaurant (12165-B, C) 7/74; Layton School of Art & Design (12231-B) 5/75

Discharge found to have been motivated by concerted activity and not for reasons alleged by Employer. Radiant Carpet Cleaners(15548-B,C) 12/78

Where Union failed to establish Employer knowledge of concerted activity and that discharges were motivated to discourage such activity, discharges were found not to have constituted unfair labor practices. Student Transportation Co. Inc. (16247-A,B) 9/78

Commission dismissed complaint where Union failed to establish that constructive discharge of employe was motivated by his concerted activity. Wausau Theatres, Inc. (16488-B,C) 8/79

Discharge of employes found to have been motivated by their concerted activity rather than for economic reasons as claimed by Employer, and therefore violative of Sec. 111.06(l)(c) of WEPA. Hi Fi Salon, Inc. (14556-B,D) 4/77

Where evidence failed to establish that Employer was motivated by anti-union considerations in failing to employ individuals, Employer found not to have violated Sec. 111.06(l)(c). Full Belly Deli-East, Ltd. (17071-A,B) 2/80.

WERC rejects Respondent’s argument that it should disregard the Muskego-Norway test for employer motivation in favor of the dual motivation test set out in the Wright Line cases by the NLRB and affirmed by the U.S. Supreme Court. West Side Community Center, Inc., Dec. No. 19212-B (WERC, 3/84)

Although a discharged employe was guilty of numerous work related deficiencies and also committed several acts of misconduct, he was fired in part because of his Union activities and such a termination violates Sec. 111.06(l)(a) and (1)(c) of WEPA, according to the Supreme Court’s decision in Muskego-Norway. West Side Community Center Inc., Dec. No. 19212-B (WERC, 3/84)

1550 REFUSAL TO BARGAIN COLLECTIVELY WITH

MAJORITY REPRESENTATIVE: SEC. 111.06(l)(d)

1551 CONDITION PRECEDENT TO EMPLOYER’S DUTY TO BARGAIN

1551.1 Designation of Representative Status

1551.1.1 By Certification

Employer, in failing, refusing and neglecting to bargain with union after certification, held to have violated Act. Hall Garage Corp.(1031) 7/46 (Aff. Marathon Co. Cir. Ct., 9/46); Winneconne Stamping Co. (2044) 3/49; Appleton Chair Corp., 239 Wig. 337, 12/41

1551.1.2 Continuance of Majority Status

Where union previously had disclosed claims and demands for employes and indicated that it was no longer interested in negotiating a contract because a majority of the union members had terminated their employment status, employer’s refusal to enter into negotiations after a subsequent demand by another representative of the union did not constitute a refusal to bargain in violation of the Act. Dizon Paper & Supply Co. (285) 8/41

An employer cannot arbitrarily refuse to bargain for an indefinite period of time without a reason for such refusal, and after the filing of an unfair labor practice complaint by the union, concede a majority and thereafter obtain individual contracts from the employes, then file a representation petition. John Kadow, Inc. (440) 9/42 (Aff. Manitowoc Co. Cir. Ct., 9/42)

When the union is selected by the employes in an election conducted by the NLRB as their collective bargaining representative, the union’s status as such bargaining representative is presumed to continue until the termination thereof in some legally effective manner, regardless of whether or not many members had forfeited their membership or were suspended from the union. Lakeside Bridge & Steel Co. , 241 Wis. 286, 11/42

Where, prior to representation election, the employes were informed by union representatives that the employes could establish their own local and where, subsequently, the International was certified as the bargaining agent, and where the employes notified the employer that they did not desire a certain local to represent them, the employer held not to have illegally refused to bargain with said certain local when the employer refused to negotiate with said certain local. Metro R. K., Inc. (3788) 8/54

Where Union stated in March letter that it would submit a proposal for a successor agreement, where the agreement expired on May 31st, and the Union did not submit its proposal until June lith, the Employer could not reasonably conclude that the Union had abandoned the bargaining unit or waived its right to bargain. Such a delay is not unusual in the construction industry where multi-employer master contracts with Employer Associations are commonly negotiated. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., Dec. No. 20214-B (WERC, 2/84)

1551.1.3 Knowledge of Union Majority

The Act does not require any formal written notice to be given by the employes’ representative that he or the union has been selected as their bargaining agent. After the employer became aware of the fact that the union represented a majority of his employes, the employer had a duty to recognize the union as the bargaining agent. Stowe Plastic Products Co. , Milw. Co. Cir. Ct., 5/51

After the employer became aware of the fact that the union represented its two employes, employer bad duty to recognize and bargain with the union as the representative of said employes, even in the absence of a certification of representatives. Generally the Board will not require an employer to recognize a union as the bargaining agent of its employes absent a representation election. However, where there is no doubt as to the employer’s knowledge concerning the majority representative status of the union, the Board will find that the union, in fact, is the collective bargaining representative. Pleasant Valley Co-op. Creamery (6304) 4/63

Where two months after an election to determine bargaining representatives, the employes, on their own, signed a petition delivered to the employer indicating that they repudiated the union as their bargaining representative, the Board found that the employer did not fail to bargain in violation of the Act by refusing to continue negotiations. The board held that the employe petition could not terminate and expunge the certification issued by the Board, and the Board thereupon directed a new election. H.C. Prange Co.(4823) 7/58

Where Employer is aware of Union Majority status and engages in activity to dissipate Union’s majority, election is not necessary to establish, representative status, and the Employer will be required to bargain with the Union. Sanitary Disposal Service (6999-A) 3/6; Hot Coffee Service (7566) 4/66; (Aff. Milw. Co. Cir. Ct., 9/67); Chuck Wagon Industrial Catering Service (7093-B) 8/66, (Aff. Milw. Co. Cir. Ct., 2/68); Colonial Restaurants Inc. (7604-C) 1/67; Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Where Employer is aware of Union majority status and engages in activity to dissipate Union’s majority, election is not necessary to establish representative status, and the Employer will be required to bargain with the Union. Tony’s Pizza Pit (9405-A,B) 10/68 (Aff. Dane Co. Cir. Ct. 7/70); Buckley Laundry Co. (8943-B,C) 7/70; Valley Sanitation Co., Inc. (9475-A) 1/71

Where employer is aware of union majority status-and engaged in activity to dissipate union’s majority, election is not necessary to establish representative status, and the employer will be required to bargain with the union. Howard Aeh & Associates of Fond du Lac Inc. (11955-A) 10/74 (Affirmed Fond u Lac Co. Cir. Ct., 10/75)

1551.1.4 Question Concerning Representation

Where a question exists concerning the appropriate bargaining unit, employer cannot be found to have failed to bargain within the meaning of the Act. YMCA of Milwaukee (4465) 2/57

Proviso in Sec. 111.06(l)(d) with reference to effect of employer petition for election is considered as applying only where employer had good faith doubt as to union’s majority. Chuck Wagon Industrial Catering Service (7093-B) 8/66, (Aff. Milw. Co. Cir. Ct., 2/68); Colonial Restaurants Inc. (7604-C) 1/67

Although Employer engaged in conduct during organizational activity which was found to constitute unlawful interference, where less than majority of the employes had authorized the Union to represent them, the Employer could not be deemed to have failed to bargain with the Union in violation of Sec. 111.06(l)(d). A-D Cartage & Movers, Inc. (7704-A) 1/67

Although Employer engaged in unlawful conduct during organizational activity, during which a majority of employes had executed Union Authorization, Employer was found not to have failed to bargain with the Union in violation of have failed to bargain with the Union in violation of Sec. 111.06(l)(d) since a majority of the authorizations had been solicited by a supervisor. Doyle Lithography & Printing Co. (8126-C) 5/68

Where majority of employes executed applications for representation, which cards were solicited for the dual purpose of petitioning the Commission for an election and authorizing, the union to represent the employes as their collective bargaining agent, said cards were held to constitute sufficient evidence that a majority of the employes had designated the union as their bargaining, representative. Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Proviso in See. 111.06(l)(d) with reference to effect of Employer petition for election is considered as applying only where Employer has a good faith doubt as to Union’s majority. Buckley Laundry Co. (8943-B,C) 7/70

Where majority of employes executed applications for representation, which cards were solicited for the dual purpose of petitioning the Commission for an election and authorizing the Union to represent the employes as their collective bargaining agent, said cards were held to constitute sufficient evidence that a majority of the employes had designated the Union as their bargaining representative. Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct., 7/70)

Employer cannot be found to have committed an unfair labor practice be refusing to bargain with Union during pendency of an election proceeding. Krause’s Town & Country Restaurant (11626-A,B) 9/73

1551.1.5 Majority Designation Obtained by Supervisor

Where majority of employes had executed and signed authorization cards under the coercive influence of a supervisory employs, Commission held that such authorizations were not made by the free will of the employes, and therefore Employer, by refusing to meet and negotiate with designated representative, held not to have refused to bargain within the meaning of Sec. 111.06(l)(d) of the Act. Bridgeview Motor Inn (8797-A,B) 8/69

1552 DUTY OF EMPLOYER TO MEET AND NEGOTIATE

1552.1 In General

Employer’s refusal to offer counter proposals and maintaining a position that it was up to the union to make proposals satisfactory to the employer constituted a refusal to bargain in good faith. Appleton Chair Corp. (170) 2/41 (Aff. 239 Wis. 337, 12/41)

Employer’s repudiation of oral agreement of attorney who purported to represent employer and other employers in bargaining with the union, did not amount to a refusal to bargain where, in fact, the attorney had not been authorized by the particular employer to negotiate for him. Green Bay Auto Parts (1680) 1/48

Failure to grant requests made by union in bargaining conference held not to have constituted a refusal to bargain in good faith where the employer met with the union and discussions were had on the various issues. Triangle Mfg. Co. (1861) 10/48

Employer’s refusal to meet with the union after being informed of its representative status, or in formally adopting a motion by its board of directors in which it refused to bargain with or recognize the union, held to have constituted an act of refusal to bargain.Chetek Equity Co-op Product Co. (542) 1/44

Employer held to have refused to bargain with union which had been certified, in refusing to consider union’s proposals and in refusing to meet with union. Arrow Tool & Stamping Co. (1399) 7/47; Blochowiak Dairy Company (3228) 8/52

Employer, by declaring to union representative that it would refuse to deal with the union, constituted a refusal and failure to bargain within the meaning of the Act. Caswell Bldg. Corp. (2152) 7/49 (Aff. Milw. Co. Cir. Ct., 10/49)

Employer, by unilaterally increasing wages of employes represented by union after refusing to discuss wage increases with union, held to have failed to bargain. Caswell Bldg. Corp. (2152) 7/49 (Aff. Milw. Co. Cir. Ct., 10/49); Kress Packing Co. (5580) 8/60; Spring Brook Feed Co. (7245) 11/65

Employer, by attempting to bargain individually with striking employes, after certification, held to have refused to bargain collectively.Lindey Cleaners & Dyers (2701) 12/50

Failure to grant request made by union, held not to have constituted a refusal to bargain in good faith, where the employer had met with the union and discussions were had on various issues. Ferguson’s Wholesale & Retail Market (3541) 8/53

Employer’s refusal to execute an agreement upon, containing a union security provision, without having first had such provision approved by the employes, as required by the Act, cannot be the basis for a charge that the employer refused to bargain in good faith. Greenheck Bro. Mfg. Co. (3791) 8/54

Employer held not to have refused to bargain in good faith by refusing to meet without the presence of its president and at a place other than its office. C. A. Starkweather & Son, Inc. (4360) 9/56

Where neither the history of collective bargaining nor recognition given the union as the representative of all of the employer’s production employes indicated an intention to include production employes in an additional operation of the employer in the established bargaining unit, Board found that employer had no duty to bargain with regard to the employes in the additional operation. Quality Service Laundry & Dry Cleaners (4449) 2/57

Board found that employer did not enter and continue negotiations with an open and fair mind or with a sincere purpose, and therefore failed to bargain as required by the Act. St. Francis Hospital (4736) 4/58 (Aff. Wis. Sup. Ct., 11/59, 8 Wis. 2d 308);Edgewater Enterprises, Inc. (7097) 4/65; Spring Brook Feed Co. (7245) 11/65

Employer found to have not bargained in good faith by ignoring telephone calls and correspondence from the bargaining agent and by granting unilateral wage increases as such time as the union was seeking to negotiate a collective bargaining agreement.Landwehr and Hackl (4812) 7/58 (Aff. Outagamie Co. Cir.Ct., 9/58)

Employer’s refusal to furnish copy of profit sharing trust and pension plan and copy of latest financial statement of said plan to the union found by the Board to have constituted a refusal to bargain within the meaning of Sec. 111.06(1) (d). Boynton Cab Co. (6001) 11/58

Board found employer to have refused to bargain collectively within the meaning of the Act by conducting a meeting with employe between the date of the election and certification, without notice or consultation with the union, by unilaterally offering and granting changes in wages and hours, in sponsoring a petition for a new election, and also by requesting to start negotiations anew after reaching agreement on a substantial number of proposals. Kress Packing Co., Inc. (5580) 8/60

Employer found to have not bargained in good faith by avoiding calls and refusing to meet with representatives of the collective bargaining agent. L. H. Basten (5633) 11/60; Charles Johnson (7396) 12/65

Where union representative refused to meet with employer at latter’s promises and broke off negotiations prior to second meeting, Board found no violation of the duty to bargain. Rainbow Auto Wash Corp. (5669) 1/61

Where employer changed working hours without negotiating with bargaining representative when the latter was seeking to negotiate a collective bargaining agreement, Board found employer to have refused to bargain in good faith. Nopak, Inc. (5708) 3/61

Employer, who refused to bargain with union and attempted to justify such refusal on the ground that the union representative lacked tact and diplomacy and was unwavering in her demands, and who conditioned the execution of an agreement on a guarantee by the union of the income of the employer and an indemnity for any losses, held not to have bargained in good faith. Lapham Nursing Home (5660-B) 7/61

Filing of election petition by employer two months after previous representation election held not indicative of a refusal to bargain because of substantial turnover of employes. Belleview, Inc. (5793) 7/61

An employer has no duty to bargain with respect to individuals who are not employes within the meaning of the Act. Dairyland Power Coop. (5880) 12/61

Where employer’s bargaining committee only had authority to discuss and make recommendations on union’s proposals with no authority to accept same or make counterproposals and where, during the course of negotiations, the employer made changes in the payroll periods, in the health insurance program and granted employes unilateral increases, Board found such lack of authority and unilateral acts a refusal to bargain in violation of the Act. La Crosse Lutheran Hospital (5946) 10/61 (Aff. La Crosse Co. Cir. Ct., 3/62)

Employer found to have refused to bargain in violation of the Act where the only two employes in the unit had requested the employer to bargain with an independent labor organization established by said employes. Mt. Nebo Fur Farm (6898) 10/64 (Aff. Richland Co. Cir.Ct., 1165)

Employer held not to have unlawfully refused to bargain where its representative met with union representatives on two occasions and where on said occasions had made counter proposals, and, further, where the union did not establish that it subsequently attempted to contact the employer for further meetings. Misericordia Hospital (6931) 11/64

Where employer had good faith doubt as to whether union could properly represent casual employes, Board concluded employer’s failure to recognize union after having been advised of the casual employes’ membership therein did not constitute a violation of the Act. City Dray (7262) 9/65

Employer found to have not bargained in good faith by avoiding calls and refusing to meet with representatives of the collective bargaining agent. Charles Johnson (7396) 12/65 (Aff. Brown Co. Cir. Ct. 8/66)

Where Union had discontinued meetings with Employer and permitted agreement to renew itself, Commission dismissed complaint alleging refusal to bargain in good faith filed by the Union after the Employer had timely filed a petition for an election to determine bargaining representative. Wallie Motor Co. (7143-A) 1/66

Totally of Employer’s conduct did not establish that it failed to bargain in good faith. Price County Telephone Co. (7755) 10/68

Although Union was neither certified for voluntarily recognized as the collective bargaining representative, where Employer attempted to dissipate majority favoring representation by the Union by threats of reprisals and promises of benefits, Commission found Employer to have refused to bargain in good faith with the Union by unilaterally discussing and implementing changes in working conditions. Chuck Wagon Industrial Catering Service (7093-B) 8/66, (Aff. Milw. Co. Cir. Ct., 2/68); Colonial Restaurants Inc. (7604-C) 1/67; Tony’s Pizza Pit (8405-A) 8/68 (H.E. Dec.) (Aff. WERC 10/68)

Where Union represented majority of employes engaged in a strike in protest of Employer’s unfair labor practice, and where Employer did not question bargaining unit and had previously recognized the Union as the bargaining representative, Commission found Employer to have committed an unfair labor practice by refusing to continue negotiations. Joyce Heating, Inc. (8049) 5/67

Where bargaining unit includes regular seasonal employes, the employer has the duty to negotiate the terms and conditions for these employes even though they are not actually employed at the time of negotiations. The same holds true where the unit is composed entirely of regular seasonal employes. Libby, McNeill & Libby (8616) 7/68

Under Section 111.06(i)(d) of the Act, an employer has a statutory duty to advise the bargaining, representative of contemplated changes in its operation where such changes substantially affect or eliminate the jobs of the bargaining unit employes. Such duty is not satisfied by the employer’s willingness to discuss the decision after it is made. Libby, McNeill & Libby (5616) 7/68

The employer was found to have refused to bargain in good faith in refusing to negotiate the effects of its decision on employes who would be replaced by mechanization. Libby, McNeill & Libby (8616) 7/68

The employer held to be under no obligation to negotiate with respect to employes operating mechanical harvesting equipment where the unit was limited to hand harvest employes. Libby, McNeill & Libby (8616) 7/68

Although Union was neither certified nor voluntarily recognized as the collective bargaining representative, where Employer attempted to dissipate majority favoring representation by the Union by threats of reprisals and promises of benefits, Commission found Employer to have refused to bargain in good faith with the Union by unilaterally discussing and implementing changes in working conditions. Tony’s Pizza Pit (8405-A,B) 10/68 (Aff. Dane Co. Cir. Ct., 7/70)

Employer, by refusing to recognize and bargain with Union which represented the only employe in bargaining unit, found to have violated its statutory duty to bargain in violation of Sec. 111.06(l)(f) of the Act. Sinclair Refining Co. (8526-A,B) 3/69

Although Employer was present during bargaining sessions of two additional employers and Union, during which said two employers reached agreement with the Union, such agreement was not binding on the Employer since there was no evidence to establish that the two employers has acted on behalf of the Employer, and therefore said Employer did not commit an unfair labor practice by refusing to execute a written agreement. Henke’s Floors and Furnishings (8813-B,C) 7/69

Managerial decision to mechanize cucumber harvesting operation held not to be a mandatory subject of collective bargaining. Libby, McNeill & Libby 48 Wis. 2d 272, 10/70 (Rev. in part (8616) 7/68]

While Employer’s decision to mechanize cucumber harvesting operation was not a mandatory subject of bargaining, the effects of the decision were subject to collective bargaining and the Employer’s failure to bargain on such effects constituted a refusal to bargain in good faith within the meaning of Sec. 111.06(l)(d) of the Act. Libby, McNeill & Libby, 48 Wis. 2d 272, 10/70 [Aff. in part (8616 7/68]

Fact that, after exchange of proposals, Employer refused to accept Union’s proposal, does not in itself establish that the Employer failed to bargain in good faith. Joseph H. Waxer (9996-A,B) 4/71

Failure to provide Union with an accurate list of employes subject to recall, in accordance with strike settlement agreement, constitutes a refusal to bargain in good faith. Memorial Hospital Assn. (10010-A,B) 11/71

Where Employer discharged employes to discourage their concerted activity, said employes did not cease to constitute employes within meaning of Sec. 111.02(3) and Employer remained under a duty to bargain with the Union. Merrill Motor Service, Inc. (10844-A,B) 12/72

Employer, by refusing to permit union steward to attend bargaining meeting, found to have committed a prohibited practice. Obenauf-Geneva Services, Inc. (11515-A,B) 5/73 (Aff. Walworth Co. Cir. Ct., 9/73)

Failure to reduce to writing, an agreement previously orally agreed upon, constitutes a violation of Sec. 11.06(1)(d). Erik’s Studio(11643) 3/73; Obenauf-Geneva Services, Inc. (11335-B) 7/73

Although union was neither certified nor voluntarily recognized as the collective bargaining representative, where employer attempted to dissipate majority favoring representation by the union by threats of reprisals and promises of benefits, Commission found employer to have refused to bargain in good faith with the union by unilaterally discussing and implementing changes in working conditions. Howard Aeh & Associates of Fond du Lac Inc. (11955-A) 10/74 (Affirmed Fond du Lac Co. Cir. Ct., 10/75)

Where employer was aware that union represented a majority of employes and had engaged in two bargaining sessions with the union, and thereafter called meetings with employes and promised increased wages and other benefits, Commission found employer to have violated Sec. 111.06 (1)(d). Blue Ribbon Enterprises (12998) 10/74

Since parties had not reached a complete agreement, employer, by failing to execute collective bargaining agreement, found not to have refused to bargain in violation of Sec. 111.06(l)(d). Spencer Frank Food Service Inc. (11774-C) 12/74

Failure to reduce to writing, an agreement previously orally agreed upon, constitutes a violation of Sec. 111.06(1) (d). Howard Aeh & Associates of Fond du Lac, Inc. (11955-A) 10/74 (Affirmed Fond du Lac Co. Cir. Ct., 10/75)

Where collective bargaining unit historically consisted of full-time and part-time employes working a minimum number of hours per week, Employer’s refusal to bargain with respect to said part-time employes in negotiating a successor agreement found to have committed an unfair labor practice in violation of Sec. 111.06(l)(d) of WEPA. VFW Club (18138-A,B) 7/81

An Employer is relieved of the bargaining obligation only if it has a good faith doubt, based upon objective considerations, that employes no longer want the Union to represent them for collective bargaining purposes. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A (6/83)

Upon the termination of a contract, the mandatory subjects of bargaining provided for therein continue to be part of the terms and conditions of employment governing the employer/employe relationship just as they were when the contract was in effect. The bargaining obligation does not rest upon the expired contract itself, but rather, upon the separate terms and conditions of employment which arose during the contract’s existence. A failure to maintain the wages, hours and other mandatory terms and conditions of employment after a contract’s termination before any impasse in negotiations is violative of Secs. 111.06(l)(a) and (d).Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A (6/83)

Upon expiration of the agreement, contractual and bargaining obligations do not cease. An employer has a continuing duty to recognize and bargain with the existing representative after a contract has been terminated. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., Dec. No. 16214-B (WERC, 2/84)

The refusal to supply requested information on its ability to pay claim, initial refusal to give its bargaining agent authority to move on a wage offer which was substantially lower than existing wage rate, submitting a “final offer” after only two meetings and failing to respond to the Union’s proposal at a third meeting constituted a refusal to engage in good faith bargaining in violation of Sec. 111.06(1)(d). Frank Carmichael, d/b/a Old Market Square Theatre, 22243-B, 22244-B (6 85). (Note: Examiner’s Findings of Fact, Conclusions of Law and Order Set Aside, 22243-C, 22244-C, 12/86).

The totality of the circumstances must be examined to determine whether there has been bargaining in good faith. Where the evidence failed to establish conduct that was markedly different from past negotiations or so unreasonable as to indicate an intent to thwart bargaining and where proposals were not so unusually harsh, vindictive or otherwise unreasonable to be predictably unacceptable, a refusal to bargain in bad faith not found. Frank Carmichael, d/b/a Old Market Square Theatre, 22243-C, 22244-C (12/86).

An Employer has a continuing duty to bargain with the existing bargaining unit representative after expiration of a contract unless it has a good faith doubt, based on objective considerations, that a majority of the bargaining unit no longer desires the Union to represent them. An Employer must maintain the terms of an expired collective bargaining agreement which concern mandatory subjects of bargaining until it has discharged its duty to bargain by negotiating a change or reaching an impasse. A failure to continue contributions for employes to a fringe benefit fund after a contract’s termination and prior to negotiating such change and before reaching impasse is a violation of Sec. 111.06(1)(d). Kitchen Creations, Inc., 22415-A (7/85).

Failure of Employer to supply the Union with requested information which was reasonably necessary for the Union to carry out its obligation to enforce the terms of a collective bargaining agreement constitutes a refusal to bargain in violation of Sec. 111.06(1)(d), Stats. Hebe Tile Company, 23512-A (5/87).

1552.2 Successor Employer

Where employer corporation is dissolved and its assets, equipment, and accounts assigned to stockholders, who subsequently sell certain of the assets and equipment to another corporation operating a similar type of business, the purchasing corporation is under no obligation to bargain with the union representing the employes of the dissolved corporation where the purchasing corporation has already in existence a similar collective bargaining agreement covering all of its employes with another labor organization. Fox Guernsey Dairy (3086) 2/52

Where institution snack bar was taken over by new employer through a transaction with the institution and without any transaction with the former operator, Commission held that new employer was not a successor employer and therefore was not obligated to recognize organization which represented employes of former operator. Albert J. Janich (8165-A) 12/67 (H.E. Dec.) (Aff. WERC 1/68)

Where food service at institution was taken over by a new employer through a transaction with the institution and not with the former operator, Commission found that new employer was not a successor employer and therefore was not obligated to recognize union which represented employes of former operator. Spencer Frank Food Service, Inc. (11774-C) 12/74

Where the agreement states it includes employes other than those employed at the Monona store, i.e., an additional store clause, such a clause is valid when the NLRB is satisfied that employes in the new store or stores have authorized the Union, which is a party to the collective bargaining agreement, to represent them either by a majority of such employes having executed authorization cards indicating such intent, or by a majority of such employes selecting them as their Union in an NLRB conducted election. Where the Monona store closed prior to the opening of the Madison store, the closing of the Monona store did not render the collective bargaining agreement inapplicable to the Madison store. Metcalfe, Inc., d/b/a Sentry Foods, 17660-B (2/82)

Where two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervisors, and ownership, then the two enterprises are alter egos, even though one is in partnership form and one is in corporate form.Typography Unlimited and Kenosha Typographers, Inc., 19218-A B (12/82)

Where there is no evidence an Employer is seeking to avoid or run away from a Union when one “plant” is closed and another is opened, but rather such a change was due to economic reasons, then there is no violation of Sec. 111.06(i)(c). Typography Unlimited and Kenosha Typographers, Inc., 19218-A, B (12/82)

1552.3 Impasse

There must be evidence that the positions of the parties are known, firm, and, after bargaining, irreconcilable for there to be an impasse, but where very little negotiation occurs, then no impasse is reached. Absent impasse, the status quo must remain in effect.Typography Unlimited and Kenosha Typographers, Inc., 19218-A, B (12/82)

1553 Bargaining With Individual Employes

By bargaining directly with employes individually after union had been selected as the bargaining representative, employer found to have refused to bargain collectively within the meaning of the Act. M & M Chevrolet Co., Inc. (4083-A) 4/56

Because an Employer is under a continuing obligation to recognize and bargain with the Union after the contract terminates, and because that bargaining obligation prevents an Employer from engaging in direct negotiations with its own employes, then an Employer violates that duty when he negotiates an employes terms and conditions of employment directly with him, rather than through the Union. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214-A (6/83)

1560 BARGAINING WITH MINORITY REPRESENTATION: SECTION 111.06(1)(e)

1561 CONDITIONS PRECEDENT

Board dismissed complaint alleging employer recognition of a union after an election involving another union, but prior to Board certification, where employer had not as yet executed a collective bargaining agreement and where it had ceased negotiations and refused to recognize any organization until certified. Pepsi-Cola Bottling Co. (342) 3/41

1562 RECOGNITION IN FACE OF EXISTING CONTRACT

Employers, in an association, in recognizing a labor organization other than the labor organization who was a party to a collective bargaining agreement with the employers, committed an unfair labor practice. Oak Park & Farmers Model Dairies (352) 2/42

1570 VIOLATION OF COLLECTIVE BARGAINING AGREEMENT:

SEC. 111.06(l)(f)

1571 FORM OF CONTRACT

1571.1 Contracts With Individual Employees

Employer’s violation of an agreement between the employer and individual employes covering wages, hours, and working conditions is not an unfair labor practice under the Act since such an agreement is not a collective bargaining agreement. Hotpoint, Inc. (2122) 6/49

1571.2 Coverage

Where employe is not employed in the unit covered by the collective bargaining agreement, Board held no provision of the agreement applies to him. Great Lakes Coal & Dock Co. (4891) 10/58; L. A. Arnold Inc. (6666) 3/64

Employer held not to have violated collective bargaining agreement following closing of plant where the work involved after such closing was not the type of work contemplated in the agreement, since it concerned itself with dismantling and removing equipment.Pet Milk Co. (6209) 1/63

1571.3 Expired Contracts

Employer held not to have violated contract since it had expired and no new contract had been entered into. Kearney & Trecker(2435) 7/50

Employer’s refusal to arbitrate issue as to whether or not certain employe should be discharged for failure to pay dues in accordance with the provisions of the collective bargaining agreement held not to have constituted an unfair labor practice since the agreement had expired prior to said refusal. Splicewood Corporation (3139) 5/52

Circuit Court ruled that Board erred in dismissing complaint alleging violation of vacation pay provision of an expired collective bargaining agreement. Rice Lake Creamery Co., Dane Co. Cir. Ct., 1/60

The expiration of the collective bargaining agreement does not prevent the Board from determining whether said agreement has been violated. Harley Davidson Motor Co. (6290) 4/63; Peavey Paper Mills Inc. (6477) 9/63; H. Fuller & Sons Inc. (6525) 10163

Closing of plant does not terminate collective bargaining agreement which, by its terms, contained provisions with regard to plant closing and which extended beyond the date on which the plant was closed. Pet Milk Co. (6209) 1/63

Where employer did not agree nor execute standard agreement, regardless of continuance of check-off of dues in favor of union and payment of sums to welfare fund, required by court judgement, absent a showing that the judgement was based on a collective bargaining agreement, Commission found to collective bargaining agreement existed between the parties. Tiran Industrial Towels(7438) 1/66

Where collective bargaining agreement was not extended, but expired by its terms, Commission dismissed complaint alleging a violation thereof which occurred after its termination date. Pierce Mfg. Co. (9549-A,B) 8/71; Murphy Construction Co. (12173-A, B) 6/75; Napiowocki Construction, Inc. (11941) 3/76

Where Union failed to timely re-open collective bargaining agreement, Commission found that it expired according to its terms.Reimer Sausage Co. (10965-A,B) 10/72

Where the only work performed by the employes of the Employer covered by the agreement was during two particular months, it is not necessary to make any finding as to when the agreement executed by the Employer expired as there is no claim by the Employer that the agreement was not in effect during said months. Dan Wergin Sons, Inc., 19303-B (11/82)

When an Employer has chosen to allege termination of a collective bargaining agreement as an affirmative defense to its contractual obligations, it bears a burden of proving the fact of termination by a clear and satisfactory preponderance of the evidence. Where the Employer wrote “not union” on monthly remittance reports to a pension fund, such is too vague to suggest a termination of a bargaining agreement. Modern Poured Walls, Inc., 19102-A, B (4/82) (Enforced by Outagamie Co. Ct., 12/82)

Severance pay survives the expiration of a bargaining agreement. Typography Unlimited and Ken Typographers, Inc. 19218-A, B (12/82)

Where a contract has expired which includes a training provision and where said provision was not objected to on the claim it was a permissive subject of bargaining and where the employe or his union did not request training, then there is no breach of the status quo where the Employer failed to provide re-training for the employe. Typography Unlimited and Kenosha Typographers, Inc., 19218-A, B (12/92)

Because an Employer is under a continuing obligation to recognize and bargain with the Union after the contract terminates, and because that bargaining obligation prevents an Employer from engaging in direct negotiations with its own employes, then an Employer violates that duty when he negotiates an employes terms and conditions of employment directly with him, rather than through the Union. Oconomowoc Plumbing, Inc. and Oconomowoc Plumbing Systems, Inc., 20214 (6/83)

1571.4 Oral Contracts

Employer held not to have committed an unfair labor practice by refusing to execute a collective bargaining agreement since the parties had reached no meeting of the minds on the issues involved, even though the union bad abandoned certain demands.Badger Foundry Co. (2202) 10/49) and (2202-B) 12/49; InSink-Erator Co. (5382) 12/59)

A binding collective bargaining agreement does not necessarily have to be in writing to be enforced. When an oral agreement is clearly established, it may be enforced in the same manner and to the same extent that a written agreement might be. Kauffman’s Lunch Co. (1632) 5/48 (Aff. Milw. Co. Cir. Ct., 7/48); Giant Grip Mfg. Co. (2318) 2/50; Elm Tree Baking Co. (6383) 6/63

Where employer refused access to its premises to union representatives, contrary to the provisions of a collective bargaining agreement which had been orally agreed upon but had not as yet been reduced to writing, Board found that such refusal violated the Act. Whitefish Bay Cleaners and Tailors, Inc. (5852) 10/61

Where union and employer orally agreed at the time of the execution of the agreement that certain provisions in industry-wide agreement would not be applicable to employer, Board refused to find that said provisions had been violated. Harker Heating & Sheet Metal Inc. (6704) 4/64 (Aff. Dane Co. Cir. Ct., 12/65)

Oral agreement extending “working conditions”, after written agreement had expired, during period of negotiations on new contract held to have included arbitration provision of expired agreement. Superior Die Set Corp. (7571) 5/66

A binding collective bargaining agreement does not necessarily have to be in writing to be enforced in the same manner and to the same extent that a written agreement might be. Modern Plumbing, Heating & Supply Co. (10171-A,B) 9/71; Erik’s Studio (11643) 3/73

1571.5 Shop Rule Agreement

Separate shop rule agreement held to be a binding collective bargaining agreement within the meaning of the Act. Nash Motors(4118) 12/55

1571.6 Working Card Agreement

Working card agreement does not constitute a contract between employer and the union, but merely constitutes a receipt given to the union for a union house card. Peacock Restaurant, Inc. (35) 1/40

1571.7 Settlement Agreement

Commission considered settlement agreement, entered into by Union and Employer wherein Employer agreed to reinstate employe, as a collective bargaining agreement. Packerland Packing Co. (7414-C) 11/66

Where Employer and Union entered into an agreement in settlement of claim arising out of Employer’s violation of collective bargaining agreement, Commission found failure to comply with said settlement agreement to constitute a violation of Sec. 111.06(l)(f). Fugarino Excavating (11346-A,B) 3/73

1571.8 Grievance Settlement

Grievance settlement constitutes a collective bargaining agreement within the meaning of the Act. Stolper Industries Inc. (8157) 8/67;F. Taff Co., Inc. (12478) 2/74 (Affirmed Outagamie Co. Cir. Ct., 6/74); Northwest General Hospital (12839-B, C) 11/76; Del Kraus, Inc.(16520-A,B) 9/79 (Aff. La Crosse Co. Cir. Ct., 2/81); Checker Taxi Co., Inc. (16752-A,B) 11/79; Bay Shipbuilding Corp., 19957-B, 19958-B (4/83)

1571.9 Lack of Binding Agreement

Where union, as employer, voluntarily applied the terms of a master agreement executed by union, as a bargaining representative, with an employer association comprised of own employe association acting as employers, no binding, contract existed covering union’s employes, since there was no authorized bargaining representative, and union could not as an employer enter into an agreement with itself as a representative of its employes. Office and Professional Employees Union (8504-A) 11/68

Although sole proprietor was found to be a successor to business formerly operated by a corporation, the latter whom voluntarily continued Welfare Fund payments on behalf of its employes in the absence of a collective bargaining agreement, successor, by refusing to continue such payments, found not to have committed an unfair labor practice since no binding agreement existed. Cargill Heating & Air Conditioning Co. (11319) 9/72

Where union did not establish the existence of a binding collective bargaining agreement with employer, Commission dismissed complaint alleging violation thereof. Paul La Pointe (13140-A, B) 10/75

1571.10 Lack of Termination Date

The fact that agreement contained no termination date does not void said agreement, and the Employer who executed same is bound by its terms until he has terminated same. Equipment Installers, Inc. (18372-A,B) 9/81

1571.11 Strike Settlement Agreement

Where a strike settlement agreement obligated the Employer to make a good faith effort to re-hire its striking employes when any job for which employes were qualified became available, and where no evidence was presented through the Commission to indicate that an employes work as a machinist had somehow rendered him unqualified to work as a moldmaker, but the employes testimony that he had worked “for years” as a mold-maker in Illinois was uncontroverted, without more, his classification as a machinist immediately prior to a strike was proof of nothing concerning his qualifications as a mold-maker. Evco Plastics, Dane Co. Cir. Ct., 8/83, (Affirming in part and reversing in part Dec. No. 16548-D, 12/81)

A strike settlement agreement is a collective bargaining agreement and the Commission has jurisdiction to determine whether the agreement has been violated. Where the terms of the agreement required the Employer to make a good faith effort to recall former strikers when any job became available for which they were qualified, the Employer’s recalling them only to jobs for which the former striker expressed a preference was violative of the agreement. Evidence that a former striker was a journeyman moldmaker precluded a finding that the striker lacked tile qualifications to perform the duties of a moldmaker. Evco Plastics, Ct.App. IV, (1/85). (Affirming Dane Co. Cir.Ct. which affirmed in part and reversed in part Dec. No. 16548-D, (12/81).

1572 Circumstances Surrounding Execution

1572.1 Authority of Employer Association

Where employers in a multi-employer group made it clear to the union that the employers in the group were not to be represented by a committee and where multi-employer group did not agree to be bound by any agreement reached between the union and any of the employers, the Board found that the employer involved did not agree or approve the collective bargaining agreement executed by other employers of the group and therefore said employer had no obligation to execute the collective bargaining agreement. Walter Evans & Sons Trucking (6374) 5/63; A. M. Gigous and Sons, Inc. (5965-A) 5/63

1572.2 Fraud

Where employer, who could neither read nor write, was induced to enter into a collective bargaining agreement through the misrepresentation of representatives of the union, and where the employer paid wages to the employes at a rate represented to be in the agreement, employer held not to have committed an unfair labor practice in failing to pay higher wages called for in the contract.J. E. Herro (516) 10/43

1572.3 Use of Trade Name

Execution of agreement by employer under its trade name rather than corporate name held binding on corporate employer. Halan’s Foods (5105-A) 2/59 (Aff. Milw. Co. Cir. Ct., 1/60

1572.4 Where Question As to Whether Any Employes

An Employer who, while it is deemed to have an employe, signs a collective bargaining agreement and also commits itself to the successor agreement, is obligated to execute a copy of the new agreement, even though it no longer has an employe. Tompa Woodwork, Inc., 18498-A, B (4/82)

1572.5 Where Proposed Agreement Initially Rejected

Where the Employer offers to execute a contract, minus an un-negotiated addendum which the Union had added and the Union initially rejects the Employer’s offer to sign, then the Employer is not subsequently obligated to sign the agreement when the Union indicates it would now accept such an offer. Malco, Inc., 18103-B (1/82)

1573 NATURE OF PROVISIONS

1573.1 Arbitration

1573.1.1 Condition Precedent

Before either an employer or a union can be found to have committed an unfair labor practice by violating the terms of a collective bargaining agreement, when they have refused to submit a dispute to arbitration, there must be a finding by the Board that the question raised by the dispute is one subject to arbitration under the contract. Nekoosa-Edwards Paper Co. (2371) 4/50

Board found that contractual time limits affecting right to proceed to arbitration did not expire since the employer did not give its “final answer”, a condition precedent to the time limitation. Aluminum Goods Mfg. Co. (3923) 3/55 (Aff. Wis. Sup. Ct., 1/56, 271 Wis. 597)

Failure of union to strictly comply with grievance procedure did not estop arbitration of grievance, since Board found that employer waived strict compliance of procedure by entering into discussions and issuing its disposition of same. Dickten & Masch Mfg. Co.(4529) 5/57

Where one party to a collective bargaining agreement completely ignores and rejects the voluntary method for the settlement of disputes thereunder, without any defense or reason whatsoever, Board shall, in order to effectuate the policies of the Act, unless the complaining party requests an order compelling arbitration, determine whether or not the agreement has been violated without requiring the complaining party to be frustrated in seeking an adjudication of the dispute through arbitration. Mews Ready Mix Corp.(6683) 3/64 (Aff. Milw. Co. Cir. Ct. 5/64)

Where agreement on its face precluded grievances filed by probationary employes from proceeding to arbitration, Commission exercised jurisdiction and determined that Employer was not obligated to arbitrate such grievances. G & H Products. Inc. (16415-A,B) 5/79

1573.1.2 Expired Agreement

Employer’s refusal to arbitrate an issue, as to whether or not certain employes should be discharged for failure to pay dues in accordance with the provisions of the collective bargaining agreement, held not to have constituted an unfair labor practice since the agreement had expired prior to said refusal. Splicewood Corporation (3139) 5/52

Where grievances were filed after the expiration of the collective bargaining agreement, Board found there was no obligation upon the employer to submit to arbitration since there was no collective bargaining agreement in existence which required the employer to arbitrate. Rice Lake Creamery Co. (4997-A) 5/59 (Rev. Wis. Sup. Ct., 10/63, 21 Wis. (2d) 242)

Where dispute arose during effective period of agreement, the fact that the agreement had expired does not excuse the employer from proceeding to arbitration in accordance with the provisions of the expired agreement. Safeway Stores, Inc. (6883) 9/64

The fact that agreement expired does not excuse Employer from duty to proceed to arbitration in dispute which arose during the term of the agreement. Safeway Stores Inc. (6883) 9/64; The Kroger Co. (7563-A) 9/66

Where grievances were filed after expiration of collective bargaining agreement, Commission found employer had no obligation to proceed to arbitration pursuant to said agreement. Sinaiko Bros. Co. (13137-A, B) 3/75

Employer’s refusal to arbitrate recall of employes held not violative of the Act where collective bargaining agreement had expired.Murphy Construction Co. (12173-A, B) 6/75

Where grievance arose during effective period of agreement, the fact that agreement had expired does not excuse the employer from proceeding to arbitration as required in the agreement. Sinaiko Bros. Co. (13137-A, B) 3/75

1573.1.3 Right to Arbitration

Where, pursuant to the collective bargaining agreement, only the union and the employer can insist on arbitration, employer did not violate the collective bargaining agreement when it refused to arbitrate on the request of an individual union member. Savidusky’s Inc. (475) 3/43 (Aff. Dane Co. Cir. Ct., 9/43)

Where collective bargaining agreement contained a clause by which the employer was given absolute and uncontrolled power to determine whether a leave of absence should be granted to employes, the employer did not violate the arbitration clause of the contract which provided for arbitration in matters or controversies “arising out of or having to do with or concerning the application and/or interpretation of any clause or clauses”, in refusing to submit the question of whether or not an employe was entitled to such a leave, since by the terms of the contract, the question of whether the employer should or should not grant a leave of absence was clearly left to the employer, and no arbitrable question existed. Cutler-Hammer, Inc. (1476) 11/47

Employer’s refusal, at union’s request, to grant an employe a leave of absence after the termination of his employment, had not raise an arbitrable issue under the contract and, therefore, employer did not violate the contract. Milwaukee Lace Paper Co. (2042) 3/49

Employer did not commit an unfair labor practice in refusing to participate in an arbitration proceeding since there was no obligation to do so because the collective bargaining agreement providing for arbitration bad expired prior to the arising of the dispute. Giant Grip Mfg. Co. (2318) 2/50; Lullabye Furniture Corp. (3279) 10/52

Employer did not violate contract in refusing to submit question of discharge of employes to arbitration since grievance was not filed within time limited by contract and such failure constituted a waiver both by the employes and the union of any right to arbitrate the discharges. Nekoosa-Edwards Paper Co. (2371) 4/50; Hotpoint, Inc. (3794) 8/54 (Aff. Milw. Co. Cir. Ct., 3/55)

Board found employer to have violated the Act by refusing to proceed to arbitration on the question of entitlement of former employes to vacation pay, such claims being based on the period of their employment and such claims were presented to the employer prior to the dissolution of its business. Midwest Broadcasting Co. (4016) 8/55 (Aff. Wis. Sup. Ct., 5/56)

Board determined that it had the power, under the Act, to determine whether an arbitrable dispute existed between the parties and ordered the employer to submit the matter to arbitration. Wisconsin Motor Corp. (4117-A) 1/56 (Aff. Wis. Sup. Ct., 11/56, 274 Wis. 85)

Failure and refusal of employer to proceed to arbitration on grievances with respect to rates of pay held to have violated the agreement since the grievance did not concern wages generally, which under the agreement was not subject to arbitration. Wisconsin Porcelain Co. (4404) 11/56

Where employer’s refusal to proceed to arbitration on discharge of employe was based on argument that similar issue had been determined in a previous arbitration concerning the discharge of another employe for the same reason, Board held that the previous arbitration was res adjudicate with respect to the matter of the arbitrability of the second employes discharge. Wisconsin Telephone Co. (4471) 3/57

Where agreement provided “grievances not settled may be appealed to arbitration”, Board held that the use of the word “may” obliges one party to proceed to arbitration if the request is made by the other. Dickten & Masch (4529) 5/57

Where dispute does not concern itself with grievances of employes Board found that the arbitration provision was not applicable.Zwicker Knitting Mills (4617) 9/57

Board found employer, who refused to designate its representative to a Board of Arbitration and who refused to proceed to arbitration on employes’ entitlement to cost of living adjustments, to have violated collective bargaining agreement. Northwestern Products Co., Inc. (4852) 8/58 (Aff. Milw. Co. Cir. Ct., 10/58

Where agreement provided that wages generally were not subject to arbitration Board found that dispute as to whether an employe had been paid the proper wage scale did not fall within such exclusion and the employer was ordered to proceed to arbitration.Kiekhaefer Corp. (4880) 9/58 (Aff. Winnebago Co. Cir. Ct., 12/58)

Board found employer not to have violated agreement by refusing to proceed to arbitration on piece work rates since the agreement expressly excluded such matter from the arbitration provision. John Deere Horicon Works (5083) 1/59

In unfair labor practice proceedings to enforce agreement to arbitrate, the Board will order arbitration where the party seeking arbitration is making a claim, which on its face is governed by the agreement. Board will resolve doubts in favor of coverage. Edward Hines Lumber Co. (5854-A) 1/62; Seaman-Andwall Corp. (5910) 1/62; Elm Tree Baking Co. (6383) 6/63; Green Bay Packaging Inc.(6449) 8/63; Schlueter Co. (6557) 12/63; Safeway Stores, Inc. (6883) 9/64

Where agreement provided for arbitration of disputes concerning the application, interpretation or violation of the agreement, Board held issue of whether union complied with contractual procedure in requesting arbitration to be for the determination by the arbitrator and not the Board. Dunphy Boat Corp. 267 Wis. 316, 6/54; Seaman-Andwall Corp. (5910) 1/62; Allen-Bradley Co. (6284) 3/63; Pierce Auto Body Works, Inc. (6635) 2/64

Where the agreement provided for the arbitration of any grievance or dispute arising between the parties, Board held dispute as to whether the insurance provision in the agreement required the employer to pay premiums for employes’ dependents subject to arbitration, and the employer was ordered to proceed to arbitration thereon. South Side Wood & Coal Co. (5919) 2/62

The fact that the employer and union are presently engaged in negotiations on a new agreement is the defense for a refusal to proceed to arbitration on an alleged violation of the expiring agreement even though the parties are negotiating on the matter in dispute. Red Owl Stories, Inc. (5933) 3/62; Kroger Co. (6036) 6/62

An individual employe, not being a party to a collective bargaining agreement, has no right to demand arbitration, but only the union or employer can seek to enforce agreement to arbitrate. Wisconsin Power & Light Co. (5911-A) 6/62

Board found employer’s refusal to proceed to arbitration with respect to the termination of an employe on the grounds that such termination was within the employer’s discretion, under the collective bargaining agreement, and, further, on the grounds of waiver and laches, no defense to arbitration, since such defenses concern themselves to matters relating to the performance of the agreement, and such matters are for the determination of the arbitrator and not the Board. Neat and Trim Cleaners (6341) 5/63

Whether parties, during the processing of a grievance, reached an agreement with respect to limiting issue to be arbitrated is for determination by arbitrator rather than the Board. Green Bay Packaging Inc. (6449) 8/63

Where agreement contemplated that both parties assent to arbitrate, Board found employer, in absence of assent on its part, did not unlawfully refuse to proceed to arbitration. Lou Ehlers Buick, Inc. (6450) 1/64

The fact that two labor organizations, both having separate collective bargaining agreements with the employer, are engaged in a jurisdictional dispute with reference to work assignments of employes, held not to constitute a valid defense for the employer’s refusal to proceed to arbitration, where one of the organizations contends that the employer is violating its agreement in that regard and where said agreement contains a provision for final and binding arbitration. Heinemann Bakeries, Inc. (7077-C) 7/65

Where provision in collective bargaining agreement was written “Arbitration” and merely permitted either party “to request the services of the WERB”, Board held that Employer had no duty to arbitrate since the agreement neither specified nor implied that the parties contemplated final and binding arbitration. Selrite Grocery Co. (7270) 9/65

Commission will order arbitration where the party seeking same is making a claim, which on its face, is governed by the arbitration agreement. Harnischfeger Corp. (7558) 4/66; Milwaukee Elks (7753) 10/66; The Kroger Co. (7563-A) 9/66; Weber Veneer & Plywood Co. (8233-B) 12/67 (H.E. Dec.) (Aff. WERC 1/68)

Where agreement provided for arbitration of disputes concerning the application, interpretation or violation of the agreement, Commission held issue of whether union complied with contractual procedure in requesting arbitration to be for the determination by the arbitrator and not the Commission. Snap-On Tools Corp. (8198) 9/67; Milwaukee Gear Co. (8191-A) 12/67 (H.E. Dec.) (Aff. WERC 1/68); St. Mary’s Hospital (8675-A) 12/68 (H.E. WERC 1/69)

Where parties had not reached an accord on all provisions of proposed agreement with exception of the wage provision, Commission concluded that no contractual obligation required the employer to proceed to arbitration on alleged vacation pay and wages alleged due employes since expiration of previous agreement. Tiran Industrial Towels, Inc. (7438) 1/66

Fact that union breached no-strike clause in agreement does not relieve employer from proceeding to arbitration with respect to grievances filed by union in accordance with contractual obligation with respect to employe grievances. Weber Veneer & Plywood Co.(8233-B) 12/67 (H.E. Dec.)

Where agreement provides for final and binding arbitration defense of “laches” is for determination by arbitrator and not the Commission. Liedtke Vliet Super Inc. (8685-B,C) 7/69

Where agreement provided “grievances not settled may be appealed to arbitration”, Commission held that the use of the word It may” obliges one party to proceed to arbitration if the request is made by the other. Wisconsin Porcelain Co. (10215-A,B) 7/71

In unfair labor practice proceedings to enforce agreement to arbitrate, the Commission will order arbitration where the party seeking arbitration is making a claim, which on its face is governed by the agreement. Commission will resolve doubts in favor of coverage.Frito-Lay Inc. (9513-B,C) 7/70; Super Valu Stores, Inc. (9559-A,B) 8/70; Rodman Industries, Inc. (9650-A,B) 11/70 (Aff. Brown Co. Cir. Ct., 2/72); Plymouth Plastics (9720-A,B) 3/71

Where agreement provided for arbitration of disputes concerning the application, interpretation or violation of the agreement, Commission held issue of whether Union complied with contractual procedure In requesting arbitration to be for the determination by the arbitrator and not the Commission. Plymouth Plastics (9720-A,B) 3/71; Stokley Van-Camp, Inc. (10349-A) 7/71; Algoma Wood Products, Inc. (10253-A,B) 9/71; Mt. Carmel Nursing Home (10505-A,B) 2/72; Racine Motor Hotel (10751-A,B) 6/72

Where grievance involved a dispute which in no way was connected with any provision in the collective bargaining agreement, which provided for binding arbitration of grievance, said dispute on its face was not subject to arbitration. Borden, Inc. (9694-A,B) 4/71

Where Union did not comply with grievance procedure by failing to specify the provision in the collective bargaining agreement alleged to have been violated by the Employer, latter found not to have violated agreement in refusing to proceed to arbitration. Fred Rueping Leather Co. (10986) 5/72

In unfair labor practice proceedings to enforce agreement to arbitrate, the Commission will order arbitration where the party seeking arbitration is making a claim, which on its face is governed by the agreement. Commission will resolve doubts in favor of coverage.Grunau Co., Inc. (10937-B) 11/73; UOP Norplex (13214-A, B) 1/76; Handcraft Co. Inc. (13510-B) 1/76

Where agreement provided for arbitration of disputes concerning the application, interpretation or violation of the agreement, Commission held issue of whether Union complied with contractual procedure in requesting arbitration to be for the determination by the arbitrator and not the Commission. Labor Temple Bar, Inc. (11943-A,B) 11/73; Sinaiko Bros. Co. (13137-A, B) 3/75; Handcraft Co. Inc. (13510-B) 1/76

Commission will order the Employer to proceed to arbitration where the Union makes a claim, which on its face, is governed by the arbitration provision in the collective bargaining agreement. M & J Electric, Inc. (15493-A,B) 4/77; Richardson Bros. Co. (16311-A,B) 10/78; Johnson Roofing & Insulation Co. (16308-A,B) 10/78; (Aff. Rock Co. Cir. Ct., 2/79); Reimer’s Meat Products, Inc. (15577-A,B) 5/78 (Aff. Brown Co. Cir. Ct., 11/79)

Where agreement provided for arbitration of disputes concerning the application, interpretation or violation of the agreement, Commission held issue as to whether Union complied with contractual procedure in requesting arbitration to be for the determination by the arbitrator and not the Commission. Reimer’s Meat Products, Inc. (15577-A,B) 5/78 (Aff. Brown Co. Cir. Ct., 11/79); Johnson Roofing & Insulation Co. (16308-A,B) 10/78 (Aff. Rock Co. Cir. Ct., 2/79); Richardson Bros. Co. (16311-A,B) 10/78; Dings Co. (18722-A,B) 10/81

Where collective bargaining agreement provided, generally, for the arbitration of grievances, but that grievances relating to employe promotions would proceed to a fact finding panel, which would make recommendations to Employer’s Office Committee, whose determination would be final, Employer had no legal obligation to proceed to final and binding arbitration on a grievance with respect to a denial of a promotion of an employe covered by the agreement. Northwestern Mutual Life Insurance Co. (16926-B) 4/80

Where two groups of employes are claiming the same work, the bargaining agreement provides for a jurisdictional disputes board, and the arbitration provision excluded such disputes, then such a dispute is not arbitrable. Hennes Erecting Company, Inc., 18844-B, C (5/82)

An allegation that the Employer violated Sec. 111.06(i)(f) by refusing to arbitrate a grievance filed by the Union is governed by substantive law. Sparta Manufacturing Company Inc., 20787-A, B (12/83)

Since it cannot be said that either party’s view of a disputed provision in a collective bargaining agreement is not plausible, a resolution of the appropriate assessment of the Employer’s actions must be reserved to an arbitrator. Sparta Manufacturing Company, Inc., 20787-A, B (12/83)

An order to arbitrate must be granted if the Union’s grievance makes a claim which, on its face, is covered by the parties’ collective bargaining agreement. The grievance would state such a claim if the arbitration clause is broad enough to cover the grievance, and if the collective bargaining agreement contains no specific bars to the arbitration of the grievance. Sparta Manufacturing Company, Inc., 20787-A, B (12/83)

An allegation the Employer violated Secs. 111.06(i)(f) and (g) by failing to immediately pay the amounts due under an arbitration award and by failing to pay interest from the date of that award on any amounts not immediately paid is governed by federal substantive law. Sparta Manufacturing Company, Inc., 20787-A, B (12/83)

In unfair labor practice proceedings to enforce an agreement to arbitrate, the Commission has consistently held a grievance is arbitrable if it states a claim which on its face is governed by the parties agreement. Commission resolves doubts in favor of coverage. Northwestern Mutual Life Insurance Company, 22366-A (10/85). (Note: Examiner’s Decision Modified and Affirmed, 22366-B, 7/86).

Where the agreement provided for a broad right for arbitration of disputes involving the interpretation or application of the agreement except to such matters as the determination of promotions, a grievance, part of which involved a determination of a promotion, but also alleged violations of a number of specific provisions of the agreement, held to be arbitrable and a refusal to proceed to arbitration violated Sec. 111.06(l)(f). Northwestern Mutual Life Insurance Company, 22366-A (10/85). (Note: Examiner’s Decision Modified and Affirmed, 22366-B, 7/86).

Where the agreement provided for arbitration of disputes involving the interpretation or application of the agreement except for “determination of promotions, a grievance held not to be arbitrable with respect to those claims that could be said with positive assurance to apply to the determination of promotions but held arbitrable to claims that could not be said with positive assurance to apply to determination of promotions. Northwestern Mutual Life Insurance Company, 22366-B (7/86).

Where the agreement provided broad arbitration language defining a grievance as any misunderstanding or dispute on the interpretation of any provision of the agreement, a grievance over the interpretation of a specific provision of providing interest arbitration, which did not contain any language exempting it from the scope of the grievance procedure, was held arbitrable and the Employer’s refusal to proceed to arbitrate found to be a violation of Sec. 111.06(1)(f), Stats. Northland College, 22094-B (5/86).

1573.1.4 Successor Employer

Claim that agreement, between union and predecessor employer which contained clause that agreement was binding on employer’s successors and assigns, was binding on successor employer held not a dispute which on its fact was governed by the agreement, since it was a dispute as to whether the contract applied to parties outside the scope of the original agreement. Central WisconsinCooperative Dairies (5935) 7/62

In an action seeking a Board order to compel an employer to proceed to arbitration pursuant to an alleged violation of the collective bargaining agreement, a dispute as to whether the employer is a “successor” to the employer originally executing such agreement is for Board determination, rather than for determination by the arbitrator. Menominee Sugar Company (6357) 5/63 (Aff. Wis. Sup. Ct., 11/65, 29 Wis. (2d) 272); Ladysmith Super Value (7399) 12/65

Where alleged successor did not acquire a going business, purchased no assets or liabilities of former employer, or in no way engaged in a transfer of the previous business, nor agreed to obligate itself to fulfill any contracts or other business transactions of the former employer, and where there was no continuity of operation across the change of ownership, Board found new employer not the successor pursuant to the terms of the collective bargaining agreement executed by the former employer. Menominee Sugar Company (6357) 5/63 (Aff. Wis. Sup. Ct., 11/65, 29 Wis. (2d) 272)

Board found that corporation, which hired mechanics formerly in the employ of the former contracting employer and who performed mechanical work with said employes at a garage formerly occupied by the contracting employer, to constitute a successor employer and obligated to proceed to arbitration with respect to alleged obligations under the agreement with the former employer, as it applied to mechanics. Lake States Leasing Corp. (7282) 12/65

New employer, by purchasing super market operation found to constitute a “successor” and bound by the terms of the collective bargaining agreement executed by former owner and Union. Liedtke Vliet Super, Inc. (8685-B,C) 7/69

Buyer of a portion of the Seller’s business found not to constitute a successor to the Seller’s collective bargaining agreement, since neither the agreement nor the bargaining relationship between the Seller and the Union were not affected by said sale, for no employes in the Seller’s bargaining unit were terminated and there was no change in their duties. Hobbs Electric Supply Co., Inc.(9033-A,B) 9/70

New employer, by purchasing super market operation found to constitute a “successor” and bound by the terms of the collective bargaining agreement executed by former owner and Union. Liedtke Vliet Super, Inc. (8685-B,C) 7/69 (Aff. Dane Co. Cir. Ct., 4/73)

The conclusion that new employer is a successor employer for purpose of allowing Union to seek enforcement of “old” employer’s collective bargaining agreement does not result in the conclusion that new employer is bound by each and every provision in said agreement. Such a determination is for the arbitrator to decide. Parkwood IGA (10761-B,C) 2/73

Failure of initial employer to proceed to arbitration on grievance, which arose after successor employer assumed collective bargaining agreement, found not violative of See. 111.06(l)(f). Milbrew, Inc. (13296-A, B) 7/75

1573.1.5 Validity

Any provision in a collective bargaining agreement providing for the arbitration of future disputes is valid and that if either of the parties to such an agreement refuse to submit such dispute to a Board of Arbitration after hearing, so provided in their agreement, the party refusing can, at the request of the opposing party, be required to do so by an order of Board under Sec. 111.06(l) (f) and (2) (c). Madison Bus Co. (2083-A) 5/49 (Aff. Dane Co. Cir. Ct., 10/49); Dunphy Boat Corp., 267 Wis. 316, 6/54

Circuit Court refused to order parties to arbitrate their labor dispute in an original action brought before the court. Allen-Bradley Co., Milw. Co. Cir. Ct., 11/49 (Aff. 259 Wis. 609, 11/51)

1573.1.6 Violations Generally

Employer held to have committed an unfair labor practice in refusing to arbitrate grievance in accordance with provisions in the collective bargaining agreement. Clark’s Super Gas Co., Inc. (914) 3/46; Wausau Motor Parts Co. (1388) 7/47 (Aff. Marathon Co. Cir. Ct., 11/47); The United Refrigerator Co. (2236) 11/49; Jos. Schlitz Brewing Co. (2244) 11/49; Aluminum Goods Mfg. Co. (2292) 1/50 (Aff. Manitowoc Co. Cir. Ct., 7/50); Christy Corp. (3324) 12/52; Dunphy Boat Corp. (3588) 10/53 (Aff. 267 Wis. 316, 6/54; Aluminum Goods Mfg. Co. (3923) 3/55 (Aff. Manitowoc Co. Cir. Ct., 6/55); Midwest Broadcasting Co. (4016) 8/55 (Rev. Milw. Co. Cir. Ct., 11/55);Fehr Concrete Products Co. (4091) 10/55; Wisconsin Motor Corp. (4117) 12/55; Halan’s Foods (5105-A) 2/59 (Aff. Milw. Co. Cir. Ct., 1/60); Luther Hospital Assoc. (5171) 4/59; National Food Stores, Inc. (6044) 6/62; Joe C. Krall & Sons (8282-B) 1/68; St. Mary’s Hospital, Inc. (8675-A,B) 1/69; Liedtke Vliet Super, Inc. (8685-B,C) 7/69; Milbrew, Inc. (8926-A,B) 11/69; Rodman Industries, Inc.(9560-A,B) 11/70 (Aff. Brown Co. Cir. Ct., 2/72); Wisconsin Porcelain Co. (10215-A,B) 7/71; Bi-State Trucking Corp. (9924-A,B) 8/71;P. & J. Contracting Co. (10879-A,B) 7/72; Liedtke Vliet Super, Inc. (8685-B,C) 7/69 (Aff. Dane Co. Cir. Ct., 4/73); Bausch Machine Tool Co. (11287) 9/72 (Aff. Milw. Co. Cir. Ct., 3/73; Parkwood IGA (10761-B,C) 2/73; P & J Contracting Co. (11536-A,B) 3/73 (Aff. Waukesha Co. Cir. Ct., 7/73); Grunau Co., Inc. (10937-B) 11/73; Labor Temple Bar (11943-A,B) 11/73; Edward Ryan, Inc. (12390-A, B) 5/74 (Affirmed Milw. Co. Cir. Ct., 7/75); Everbrite Electric Signs, Inc. (13091-A, B) 12/74; Sinaiko Bros. Co. (13137-A, B) 3/75;Milbrew, Inc. (13296-A, B) 7/75; UOP Norplex (13214-A, B) 1/76; Handcraft Co., Inc. (13510-A, B) 1/76; M & J Electric, Inc. (15493-A,B) 9/77

1573.1.7 Review by Arbitrator

Employer found not to have violated collective bargaining agreement by corresponding with arbitrator to seek a review of his award.Allis-Chalmers Mfg. Co. (8227) 10/67

Where both parties jointly requested arbitrator to clarify his award the arbitrator has jurisdiction to issue a supplemental award.Appleton Electric Company (9651-A,B) 11/70

1573.2 Check-Off

Where officers of union designated in cheek-off authorizations no longer held office because of action of International, employer found not to have violated check-off provisions of agreement. Zwicker Knitting Mills (4716) 9/57 (Aff. & Modified, Dane Co. Cir. Ct., 1/60)

Where employer learned of schism among members of contracting local and of the chartering of a new local by the parent organization and upon being confronted with rival claims of representation and conflicting check-off authorizations, in addition to learning of court actions between the two locals, the employer held not to have violated provisions in the collective bargaining agreement by failing to forward check-off of dues to contracting local. Artistic Cleaners & Launderers et al., (4918-A) 11/58

Board found that by deducting dues of an employe in the absence of an authorization permitting same in violation of the Act. Racine Flash Cab Co., Inc. (5494) 5/60

Employer found to have violated check-off provision in collective bargaining agreement by failing to remit dues to union. Bi-State Trucking Corp. (9924-A,B) 8/71; Union Grove Lumber & Fuel Co. (14093-A, B) 1/76

1573.3 Discipline

Beard found that employer did not violate agreement by suspending employe for one week since activity of employe was :found to constitute a “refusal to obey orders” and the agreement provided for such penalty. Northern Plastics Corp. (4480) 3/57

Employe who refused to perform work assigned where contract provided employer might discipline employe for “repeated insubordination”, Board held discipline unwarranted since act of insubordination was the first offense for Particular employe. LakesideMalleable Castings Co. (6029) 6/62

Employer found to have suspended employe for just cause as contemplated in collective bargaining agreement. Appleton Memorial Hospital (12051) 7/73

Where the Employer has consistently applied its corrective disciplinary procedure when employes have violated its rules and regulations and where the grievant had a past disciplinary record, then the Employer had cause to discharge the grievant when the grievant ran scrap after being warned not to. Webster Electric Company, Inc., 19215-A, B, C (6/82)

Employer did not violate collective bargaining agreement or Plant Rule providing for progressive discipline where two employes were each suspended for three-days for poor or careless work performance causing rejected material. Although these employes did not have previous discipline, the Plant Rule provides that disciplinary steps may be skipped if the violation is severe. Webster Electric Company, Inc., Dec. No. 21672-A (Roberts, 9/84)

The Employer had just cause to discharge an employe with a poor work and attendance record, who had been subject to increasingly severe disciplinary measures and had been given a reprieve from termination after his admission of an alcohol problem for which he was getting treatment, when the employe subsequently failed to call in until 3 hours after the start of his shift and reported for work 3 1/2 hours late. Ladish Co. Inc., Tri-Clover Division, 23390-A (7187).

1573.5 Grievance Provisions

Employer held to have committed an unfair labor practice by refusing to designate representative to meet with union representatives to discuss grievances as provided in the collective bargaining agreement between the parties. Fred B. Prophet Co. (2972) 7/51

Employer found to have violated the grievance provisions of the of the collective bargaining agreement by unilaterally changing the disposition of grievances previously agreed upon, and further, by failing to comply with the time limitations therein. General Electric X-ray (4219) 4/56

Board found that punching of time clock affected conditions of employment and that the dispute with regard to such requirement constituted a grievance under the collective bargaining agreement and that the employer’s refusal to proceed to arbitration on the matter violated the collective bargaining agreement. Hutter Construction Co. (5188) 5/59

Employe found to have sufficiently complied with contractual procedure with respect to notification of employes discharge to the Union’s representative in order to provide the opportunity for an immediate discussion thereof. The Prime Manufacturing Corp.(16342-C,D) 6/79

Time limits with respect to the filing of grievances held to have commenced from the date employes affected became aware of the denial of their alleged rights. Evco Plastics (16150-A,B) 11/79

1573.6 Incentive Pay

Where collective bargaining agreement provided for computation of incentive pay on a daily basis, Board found that employer could not average earnings of two incentive jobs performed on the same day. Lakeside Malleable Castings Co. (6029) 6/62

Employer found not to have violated incentive pay provisions of the collective bargaining agreement. Harley-Davidson Motor Company (6294) 4/63

Board found Employer to have violated collective bar,,gaining agreement by not paying employes for incentive jobs performed by them outside of their regular department. Howard Industries Inc. (6645) 2/64 (Aff. Racine Co. Cir. Ct., 6/64)

1573.7 Individual Agreements

Employer held to have committed an unfair labor practice by entering into individual agreements with employes with regard to the settlement of wages due for overtime where the collective bargaining agreement prohibited individual agreements. Fiore Coal and Oil Company (3234) 8/52

1573.8 Job Descriptions

Where the right of the employer to classify work was established in strike settlement agreement, employer found not to have violated such agreement by changing job description. General Electric Co. (4219) 4/56

1573.9 Leave of Absence

Employer held not to have violated collective bargaining agreement in failing to grant a leave of absence to an employe, where pursuant to the agreement the employer denied such leave for reasonable cause. Badger State Dental Lab. (3327) 12/52

Where contract provided that employes returning from leaves of absence shall be returned to the job they left, or one of like status and pay, and employe who had group incentive job on assembly line was returned to individual incentive job where she earned $15 per week less, Board held employer violated contract. Tecumseh Products Company (5936) 4/62 (Aff. Wis. Sup. Ct., 3/64, 23 Wis. (2d) 118)

Fact that office staff was on vacation did not excuse Employer’s violation of collective bargaining agreement in not returning employe to active employment upon termination of her leave of absence. Briggs & Stratton Corp. (8267-D) 10/68

Employe found to have been discharged for cause in failing to respond to Employer’s letter requesting employe to substantiate disability as required under collective bargaining agreement. Briggs & Stratton Corp. (8570-A,B) 3/69

1573.10 Lunch Periods

Employers held not to have violated lunch period provisions of collective bargaining agreements. Milw. Brewers (1665-B to 1670-B) 12/48 (Aff. Milw. Co. Cir Ct., 5/50)

1573.11 Merit Increases

Failure of employer to grant merit increase, where agreement merely required the employer to review rates quarterly, and where the review was made in good faith and the determination as to entitlement was not arbitrary or capricious, held not to be in violation of the collective bargaining agreement. Wisconsin Foundry Co. (4836) 8/58

1573.12 Notice of Hire

Employer held to have violated collective bargaining agreement in failing to notify the union as to the need for new employes. Dy-Dee Wash Inc. (1634) 5/48; Bunde-Upmeyer Dental Lab. (3126) 5/52

1573.13 Notice of Layoff or Discharge

Where the contract contained a clause that employes who were permitted to report for work on a day where there was no work, without having been properly notified the previous day that there would be no work, would receive a minimum of four hours’ pay, the employer was found not to have violated said clause in not paying employes who reported to work, when the shutdown was caused by an act of God. Metal Specialties Co. (1484) 12/47 (Aff. Milw. Co. Cir. Ct., 2/51)

Where the contract contained a clause that in case of a temporary layoff the employer was to give the employes 24 hours’ notice of such layoff, the employer was found not to have violated the terms of the contract when the layoff was due to a shortage of material resulting from a railroad strike and subsequent embargo an rail shipments, over which neither the employes nor the employer had any control. Nash-Kelvinator Corp. (1487) 12/47

Employer found to have given union notice of employes discharge pursuant to contract. John Oster Mfg. Co. (1509) 1/48

Employer held to have violated contract in failing to notify union of layoff in accordance with contract provisions. Curt G. Joa, Inc.(2130) 6/49

Employer found to have violated contract by failing to give union notice of employes discharge pursuant to contract. Modine Mfg. Co.(1539-B) 3/49; Raulf Realty Corp. (2357) 3/50

1573.14 Overtime Rates

Employer found not to have violated terms of collective bargaining agreement with respect to payments for overtime. George Hougard (300) 9/41; Jos. Schlitz Brewing Co. (2111) 5/49; Woodland Foundry, Inc. (3252) 9/52

Employer found not to have violated collective bargaining agreement in failing to pay employes overtime pay since employes worked such overtime contrary to instructions of the employer. Sheboygan Sausage Co., Inc. (482) 3/43

Employer found not to have violated collective bargaining agreement with reference to overtime where night shift extended beyond 40 hour week, where by past practice employes bad accepted straight pay. Milwaukee Breweries (1665-B to 1670-B) 12/48 (Aff. Milw. Co. Cir. Ct., 5/50)

Failure of employer to pay employe overtime pursuant to contract held to constitute an unfair labor practice. Badger Nu-Way Cleaners (19) 9/39 (Aff. Dane Co. Cir. Ct., 12/39); Lewis Dairy Farm (488) 4/43; Pabst Brewing Co., 252 Wis. 346, 3/48; Fiore Coal and Oil Company (3234) 8/52 (Aff. Dane Co. Cir. Ct., 1/53); Geo. Erickson d/b/a Hub Cafe (3193) 9/52; Androy Hotel, (2988-A) 7/55;John Oster Mfg. Co., (4071) 11/55

Failure of employer to pay overtime pursuant to contract held to constitute an unfair labor practice. American Motors Corporation(8186-B) 7/68; (H.E. Dec.) (Aff. WERC 9/68)

Where the agreement clearly and unambiguously sets forth an employes right to overtime pay for hours worked in excess of eighteen for weekend operation and in excess of forty for full week operations, where the agreement also specifies an employes right to receive a payout on unused sick leave and the reservation of season-end dismantling work to the operator, and where the evidence showed that the employe had worked the overtime hours without compensation, then the bargaining agreement has been violated.Kohlberg Theatres, Inc. (Lakes Driver In Theatre), 20482-A, B (8/83)

1573.15 Pay Periods

Board found employer to have violated agreement by not paying employes on pay days specified in the agreement. Electric Service Inc. (5688) 2/61

1573.16 Pension and Retirement

Where employe failed to exhaust his remedies under a pension agreement, Board held that action brought to enforce said agreement was prematurely brought. Wisconsin Motors Corp. (3943) 4/55

Board found employer not to have violated collective bargaining agreement with respect to employes entitlement to insurance and pension benefits because employes seniority did not qualify him for same. FWD Corporation (6216) 1/63

Employer found to have violated collective bargaining agreement in failing to make contributions to pension fund in violation of Sec. 111.06(l)(f) of the Act. Bob Harrison Trucking (9051-A,B) 4/70; Bi-State Trucking Corp. (9924-A,B) 8/71

Employer, by failing to make contribution to pension fund and to submit damages for such delinquencies, as required in collective bargaining agreement, found to have violated Sec. 111.06(1)(f). Mike’s Super Value (13383-A, B) 8/75

The fact that the collective bargaining agreement has expired does not in itself permit the Employer to cease making payments to pension fund, since the Employer must maintain the status quo unless the Union waived its right to bargain on the successor agreement, or unless the Employer can establish the necessity of changing the status quo. Wausau Theatres Co., Inc. (16488-B,C) 8/79

An Employer is required to make pension contributions on behalf of employes covered by the bargaining agreement, and a failure to do so is a violation of Sec. 111.06(l)(f). However, contributions are not required to be made to those who are considered “employers” under the agreement. Modern Poured Walls, Inc., 19102-A, B (4/82) (Enforced by Outagamie Co. Ct., 12/82)

1573.17 Recognition

The refusal of the employer to recognize a particular labor organization as a representative of two employes was not an unfair labor practice since the collective bargaining agreement between the employer and the various labor organizations in the plant were ambiguous and the refusal was a result of a jurisdictional dispute between the unions. Wisconsin Gas & Elec. Co. (25) 10/39

Refusal by employer to recognize union as the bargaining representative for metallurgical and laboratory employes under a collective bargaining agreement recognizing the union for all employes o(f the employer except those working on “Control of production”, constituted a violation of the contract and an unfair labor practice since the only work of those employes was to test materials for inclusion in the employer’s products, and were not within the exception in the contract. Nash-Kelvinator Corp., 247 Wis. 202, 6/45

1573.18 Retroactive Pay

Employer held to have committed an unfair labor practice by violating the terms of a collective bargaining agreement by refusing to make payment of retroactive pay due employes under the terms of the agreement. Sterling, Inc. (1100) 9/46; Wausau Motor Parts Co. (1369) 7/47; Woodland Foundry, Inc. (3252) 9/52

1573.19 Seniority

1573.19.1 Distribution of Work

Employer found not to have violated collective bargaining agreement by not distributing work to complaining employe since such obligation required distribution to only “regular” employes and the employe did not meet that requirement. Wonder Rest Corp. (3982-C) 5/58

1573.19.2 Layoff, Discharge and Recall of Employes

Discharge of employe not held to have violated seniority provision of contract since the employe was a probationary employe and not covered by said provision. Urban Telephone Co. (1775) 8/48

Layoff of employe held not to have violated seniority provision of contract since at the time of layoff the employe was not employed in a job covered by the agreement. Blackhawk Mfg. Co. (3893) 1/55

Employer, in terminating employe status of an employe, did not violate contract since employes failure to report for duty and his failure to notify his foreman that he was unable to work, and his leaving the state without notice to the employer, were acts in violation of the company rules and the terms of the collective bargaining agreement. Marathon Corp. (732) 4/45

Employer held not to have violated seniority provision of contract in the discharge of an employe. American Brass Co. (1852) 10/48;Milwaukee Flush Valve Co. (3715) 4/54; Standard Foundry Co. (3721) 4/54

Discharge and layoff of employes were held not in violation of seniority provision of contract, but justified because employes had attempted to induce other employes to limit production and because employes were insubordinate. J. I. Case Co. (1593-A) 5/48

Employer did not violate contract with regard to seniority provisions in refusing to reinstate injured employe for reason that employe failed to report monthly as to her condition as required by the contract, and thus the employe allowed her seniority to cease to accumulate. Prairie du Chien Woolen Mills (2091) 5/49

Employer held not to have violated seniority provision with regard to the recall of laid off employes. J. I. Case Co. (2620) 11/50

In laying off employe out of seniority and the hiring of new employes, the employer held to have violated terms of the collective bargaining agreement and therefore committed a violation of the Act. E. Weiner Co. (483) 3/43; Sheboygan Sausage Co. (484) 3/43

Board found employer to have violated the act in the layoff of a blind employe in violation of the seniority provision of the contract and in refusing to offer said employe employment or work which was being performed by women, as provided for in an amendment to the contract, enacted after the employes layoff. Ampco Metal, Inc. (767) 6/45

Employer held to have violated Act by discharging employe out of line of seniority as established by the collective bargaining agreement. Perfect Glove Co. (2062) 3/49

Employer held to have violated Act in violating contract by failing to furnish the union with a seniority list as required by the contract.Knudsen Brothers Shipbuilding Co. (1641) 2/48

Discharge of an employe held not to have been in violation of provisions of collective bargaining agreement relating to seniority. Board found discharge to have been motivated by employes advanced age and his inferior work. Paul Schumann (2972) 9/51

By discharging two employes, employer held not to have violated seniority provisions of agreement since employes committed acts constituting cause for discharge. Wells Mfg. Co. (3901) 2/55

Employer, by laying off employes with seniority status in certain classifications while retaining probationary employes in other classifications, found not to have violated collective bargaining agreement. Crittal, Inc. (3677) 2/54

By refusing to return employe to his former position, in accordance with the employes accumulated seniority, employer found to have violated seniority provision of agreement. Blackhawk Electric Co. (3714) 4/54

Employer held not to have violated seniority provisions of collective bargaining agreement by scheduling fewer hours of work on particular days for “senior” employes where the agreement permitted the employer to schedule production, and where all the employes worked the same number of hours per week. Swift and Company (3862) 12/54

Employer, by laying off an employe while retaining in employ two employes with less seniority found to have violated the collective bargaining agreement. Wonder Rest Corp. (3983) 6/55 (Rev. Wis. Sup. Ct., 3/57, 275 Wis. 273)

Employer held not to have violated seniority provision in the lay-offs of employes. Harnischfeger Corp. (4048) 9/55 (Aff. Milw. Co. Cir. Ct., 1/56; Swift & Co. (4059) 9/55; Independent Milwaukee Brewery (4410) 11/56

Discharge of employe found to be for cause and not in violation of collective bargaining agreement. Nash Motors (4118) 12/55

Employer found to have violated seniority provisions of agreement by failing to recall laid-off employes, by-passing employes in contemplation of layoff, and by hiring new employes to fill classifications, where senior employes were capable of being trained to perform the work in those classifications. General Electric Co. (4219) 4/56

Where employe refused to take work on second shift, rather than layoff, arid subsequently accepted second shift work, employer held not to have violated collective bargaining agreement in refusing to reimburse employe while in layoff. Midwest Food Service, Inc.(4408) 11/56

Termination of employe was found not to have been in violation of the seniority provision of the agreement since the employe consented to his termination. Stolper Steel Products Corp. (4559) 8/57

Board found both employer and union to have violated seniority provision of collective bargaining agreement by placing employe at bottom of seniority list as a result of leave of absence. Fact that employer made such change at insistence of union did not excuse employer’s violation. Halquist Lannon Stone Co. (4732) 4/50

Employe, who upon three separate occasions permitted damage to occur to product, contrary to instructions, found to have been discharged for cause with-in the meaning of the collective bargaining agreement. Horlicks Corp. (4844) 8/68

Board found that discharge of employe was for cause under the collective bargaining agreement in that employes performance was inadequate, resulting in repeated production of scrap. John Oster Mfg. Co. (5441) 3/60

Board found that employe voluntarily quit his employment by walking off the job rather than being terminated in violation of collective bargaining agreement. Moxness Products Co. (5493) 5/60; Wells Mfg. Co. (6728-A) 10/64

Board found that discharge was not in violation of the agreement but for cause as a result of frequent garnishments violated work rule. E. C. Styberg Engineering Co. (5659) 1/61

Board found that seniority provision in the agreement did not prevent the employer from denying senior employe from a portion of work in a particular job. Lakeside Malleable Castings Co. (6029) 6162

Employe found not to have been discharged in violation of the agreement but for poor attendance and production record. Briggs and Stratton Corp. (6053) 7/62

Employer after closing its plant held not to have violated collective bargaining agreement which continued in effect by hiring former employes out of line of their normal seniority to assist in moving operations since the work performed by said employes was outside of the work normally performed by employes in the collective bargaining unit. Pet Milk Company (6209) 1/63

The Board found employer not to have violated collective bargaining agreement by imposing a disciplinary layoff upon an employe, for the reason that said layoff was for just cause because of the employes carelessness in producing scrap, after he had been issued a warning with regard to similar carelessness just the week previous. Standard Foundry Company (6319) 4/63

Employer found to have violated discharge provision of collective bargaining agreement by suspending an employe from active employment because of a statutory rape charge pending against said employe. Board concluded that to sustain the suspension would permit the Employer to determine the guilt of the employe. The Board concluded that the employer could not, under the collective bargaining agreement, suspend the employe until his guilt had been established. Standard Foundry Company (6319) 4/63 (Aff. Racine Co. Ct., 9163)

Employer found to have violated collective bargaining agreement by laying off senior employe who was capable of performing available work. Afram Bros. Co. (6401) 7/63

Discharge found not in violation of agreement but for cause there under because of excessive loafing. Eagle Knitting Co. (6428-A) 12/63

Employer found not to have violated strike settlement agreement by recalling a junior employer rather than another employe having greater seniority. John Oster Mfg. Co. (6781) 6/64

Board found that discharge was too severe a penalty under collective bargaining agreement and that the discharge was not for just cause under the agreement. John Oster Mfg. Co. (7045) 2/65

Employer did not violate seniority provisions of agreement by failing to recall employe, where said employe, since leaving employment because of a physical condition, engaged in a course of conduct which led employer to reasonably believe that employe was physically unable to perform duties which would be required of the employe upon return to, active employment. Harley Davidson Motor Co. (7166) 6/65

Discharge of employe found to be for cause under collective bargaining agreement because of employes altercation with foreman.American Motors, Inc. (7203) 7/65

Board found discharge not motivated in reprisal for employes complaint to Union that he was not paid the proper wage, but rather because of the employes use of profanity and absenteeism. Selrite Grocery Co. (7270) 9/65

Discharge of employe found to be cause under collective bargaining agreement because of assault of fellow employe. While assault was committed during off-duty hours, it was connected with the employment relationship and was motivated by conduct of participants as employes. Briggs & Stratton Corp. (7712) 8/66 (Aff. Milw. Co. Cir. Ct., 5/67)

Employer, in discharge stewards who participated in authorized walk-out and who did not instigate same, while imposing only a written reprimand upon other employes who engaged in such activity, found to have discriminated against such stewards in violation of a prohibition in the collective bargaining agreement and thereby to have committed an unfair labor practice. Stolper Industries, Inc.(7948) 3/67 (Aff. Waukesha Co. Cir. Ct., 11/67)

Employer did not violate seniority provisions of agreement by failing to recall employe, where said employe, since leaving employment because of a physical condition, engaged in a course of conduct which led employer to reasonably believe that employe was physically unable to perform duties which would be required of the employe upon return to active employment. Harley Davidson Motor Co. (7166) 6/65 (Aff. Milw. Co. Cir. Ct., 8/67)

Failure to reinstate employe pursuant to grievance settlement found to constitute an unfair labor practice. Stolper Industries, Inc.(8157) 8/67

Employer found to have violated preferential seniority provision of collective bargaining agreement in the layoff of head steward.American Motors Corporation (8186-B) 7/68; (H.E. Dec.) (Aff. WERC 9/68

Employer found not to have violated recall provision of collective bargaining agreement in refusing to reinstate employe with full salary, since employe did not comply with conditions set forth in the agreement regarding recall. Bucyrus-Erie Co. (8377-C) 9/68; (H.E. Dec.) (Aff. WERC 10/68)

Discharge of employe found to be for cause under collective bargaining agreement because of assault on foreman. Harley-Davidson Motor Co. (8590-A) 9/68 (H.E. Dec.) (Aff. WERC 10/68)

Discharge of employe for alleged false reporting of piece work was found to be in violation of seniority provision of agreement where Employer failed to present sufficient convincing evidence to support such claim. Briggs & Stratton Corp. (8287-D) 10/68

Employer found not to have violated seniority provision of collective bargaining agreement where it established that discharged employes engaged in false reporting of piece work. Briggs & Stratton Corp. (8287-D) 10/68

Layoff of journeymen and apprentices found not to have violated layoff provisions of collective bargaining agreement. American Motors Corp. (8336-B) 12/69

Where employe had an otherwise unblemished record over a considerable number of years, and where fellow employes were not disciplined for similar practices, and where supervisory employes also engaged in such practice, contrary to rule with respect to the matter, discharge of employe for pilfering food items from kitchen held not for “cause” as contemplated in the collective bargaining agreement. Appleton Memorial Hospital (9500-A,B) 7/70

Employer found to have violated strike settlement agreement by failing to recall certain employes in accordance with said agreement. However failure to recall other employes was found not violative of said agreement. Memorial Hospital Assn. (10010-A,B) 11/71

Since Employer did not establish claim that employe had a poor work performance, discharge of employe found to be violative of discharge employe found to be violative of discharge provision in collective bargaining agreement. Holm Mfg. Co. (10071-A,B) 4/71

Employes who falsified piece work records and daily time records found to have been discharged for cause under collective bargaining agreement. Briggs & Stratton Corp. (9530-A,B) 12/71

Employer found not to have violated collective bargaining agreement in failing to return employe to active employment since employe had quit his employment. Memorial Hospital (10560-A,B) 11/72

Employer found to have violated collective bargaining agreement because of “excessive absenteeism”, since absenteeism was caused by an illness, which under the agreement “protected” said employe’s seniority. Andis Clipper Co. (10634-A,B) 2/73

Discharge of employe found not to be for “just cause” under the collective bargaining agreement, and therefore employer found to have violated Sec. 111.06(1)(f). Katahdin Foundation, Inc. (10599-B,C) 2/73

Employer found not to have discharged employe in violation of collective bargaining agreement, but for cause under said agreement, in that employe had abused equipment, had poor work performance, and because of disputes with fellow employes. Woodland Foundry (11294-A,B) 3/73

Where collective bargaining agreement did not provide for compulsory retirement at age 65, Commission found that termination of employe upon reaching such age was not for cause and an unfair labor practice within meaning Sec. 111.06(1)(f). Erik’s Studio(11643) 3/73

Discharge of employe, because of record of loitering on the job, found to be for cause under collective bargaining agreement. Gehl Co. (10891-A,B) 5/73

Employer found not to have violated seniority provision in collective bargaining agreement by effectuating the layoff of an employe and the retention of another employe. Appleton Wire Works (12041-A, B) 10/74

Discharge of employe found to have been for insubordination and for improper handling of patients, and therefore for cause under collective bargaining agreement. Appleton Memorial Hospital (12141-C) 10/74

Discharge of employe found not to have been for cause under agreement, since action of employe was only insubordinate, and since collective bargaining agreement permitted suspension only after warning notice, discharge violated agreement. Link Bros. Packing(12900-B, C) 3/75

Discharge of employe because of physical assault on supervisor found to have been for just cause under collective bargaining agreement. Stolper Industries, Inc. (12626-A, B) 10/75

Where under collective bargaining agreement employes were entitled to warning notices prior to discharge, however that discharges were without recourse, Commission found discharge without such notice not to be in violation of the agreement. Zapata Kitchens, Inc.(13229-B) 4/76

Termination of employe found to have been for insubordination, which was deemed cause for discharge under collective bargaining agreement. Doyle Handymark Corp. (13639-A, B) 4/76

The fact that production employes were on strike did not constitute a valid defense in not granting office employes notice prior to their layoffs. Ladish Co. (13226-A, B) 5/76

Employer found not to have violated collective bargaining agreement in terminating employes as a result of automation. Grand Theatre (13847-A, B) 10/76

Employer found not to have violated “just cause” provision of agreement in the discharge of an employe who refused to perform duties, claiming that the equipment was unsafe. The record did not establish the latter claimed condition. Stolper Industries, Inc, (13365-A,B) 1/77

Employes failure to properly perform assigned duties, and in failing to respond to instructions of supervisor, found to constitute “just cause” for discharge under the collective bargaining agreement. B L S S Subsidiary Corp. (14700-A,B) 2177

Discharge of three employes for drinking beer on plant premises held too severe a penalty, in light of suspensions given to others for somewhat similar conduct, and therefore such acts warranted suspension rather than discharge. Employer was ordered to reinstate said three employes with out back pay. Webster Electric Co. (14909-B,C) 1/78

Employe found to have been discharged for cause as a result of excessive absenteeism, and therefore such discharge did not violate collective bargaining agreement. S B Manufacturing Co., Ltd. (16123-A,B) 10/78

Discharge of employe found to have been too severe a penalty for insubordination involved, and Employer was ordered to reinstate employe but without back pay. Frank L. Wells Co. (16381-A,B) 11/78

Employer found not to have violated collective bargaining agreement by refusing to accept withdrawal of employes resignation, after the Employer, relying on same, had hired a replacement employe prior to the attempted withdrawal of the resignation. St. Agnes Hospital (16611-A,C) 10/79

Where employe was laid-off because of lack of work in construction industry, and since agreement did not contain a provision requiring the recall of employes in layoff, the Employer had no contractual obligation to recall said employe. Tilsen Roofing Co., Inc.(16473-A,B) 11/79

Discharge of employe fund to be for cause under collective bargaining agreement because of “horseplay” at work, which resulted in an injury to a fellow employe. Ladish Co. (17414-A,B) 5/81

A grievance is not of a continuing nature where it involves the recall of employes on a specific date. Metal Forms Corporation, 19994-A, B (3/83)

Where the bargaining agreement provides that in the case of recall of laid off employes, those last laid off employes shall be the first to be recalled, providing the senior employe is capable of performing the available work, and where employes with less seniority were recalled before employes with more seniority because the employe with more seniority could not perform the available work, then there was not a violation of the collective bargaining agreement or Sec. 111.06(l)(f). Metal Forms Corporation, 19994-A,B (3/83)

The Employer did not violate a strike settlement agreement by failing to recall an employe to a mold-maker position where the evidence failed to show that the employe in 1978 still met the qualifications for a mold-maker. The Company’s mold-making had become more complex from 1974 to 1978, several years had elapsed since employe had performed that function, and it was his supervisor’s opinion that he was not qualified to perform that work. Evco Plastics, Dec. No. 16548-E (WERC, 6/84)

Employer’s refusal to recall laid off employe on the basis of his obesity and hypertension, which were longstanding medical conditions known by the Employer prior to the employes layoff, and which had not previously interfered with the performance of his regular job duties, was unreasonable and violated recall provisions of the parties’ agreement. Ladish Company, 22481-A (9/85). Note: Examiner’s Findings of Fact, Conclusions of Law and Order Set Aside. Ladish Company, 22481-B, (1/86).

Where the evidence failed to demonstrate that an employe, who requested to bump into the Assistant Foreman position, presently possessed any qualifications to perform the duties of that position or had the necessary ability and characteristics to perform the job, the Employer’s determination that the employe was not qualified to bump was not arbitrary, discriminatory or in bad faith and did not violate the agreement and thus did not violate Sec. 111.06(1)(f), Stats. Webster Electric Company Inc., Dec. No. 23510-A, (10/86).

1573.19.3 Pension Rights

The Board held that an employe could not question his seniority status since time for protesting same had expired under the terms of the collective bargaining agreement. FWD Corporation (6216) 1/63

1573.19.4 Transfer of Employes

Employer’s transfer of employe from one route to another did not violate terms of collective bargaining agreement. Gehl’s Guernsey Farms (670) 11/44

Transfer of an employe from one department to another was not in violation of seniority provision of contract since employe was transferred to a supervisory position, which position was not covered in the contract. Aluminum Goods Mfg. Co. (1428) 9/47

Promotions of certain employes by employer were :found not to have been made in violation of contract. Dunmore Co. (1588) 4/48

Employer violated contract by demoting employe who had greater seniority than two other employes who were not demoted.Milwaukee Western Fuel Co. (451) 9/42 (Aff. Milw. Co. Cir. Ct., 1/43)

Employer held to have committed an unfair lab(yr practice by violating seniority provision in the contract in transferring an employe to another department and retaining in the department an employe with less seniority. Electric Auto-Lite Co. (1101) 9/46

Transfer of employe from one department to another found not to have been in violation of the contract. Enger-Kress Co. (4032) 8/55

Employer found not have violated seniority provisions of agreement by transferring employe and designating one employe, rather than another, as group leader. General Electric Co. (4219) 4/56

Employer found to have violated provisions of collective bargaining agreement relating to transfers of employes. Quality Aluminum Casting Co. (4498-A) 1/58

Transfer of senior employe to late shift found not to have violated seniority provision since said provision applied only to promotions, layoffs and recall. West Side Hospital (8852) 1/69

Transfer of employe, who had less seniority than another employe, to a more desirable position was found to be in violation of collective bargaining agreement, since agreement permitted transfers based on skills of employe as determined by employer.Appleton Memorial Hospital (12082) 8/73

1573.20 Severance Pay

Refusal of employer to grant severance pay to employe on discharge, contrary to provision in collective bargaining agreement, held to be an unfair labor practice. Clark’s Super Gas Co., Inc. (914) 3/46

1573.21 Subcontracting Unit Work

Employer’s subcontracting of work to a contractor who was not a party to an “industry-wide” agreement, contrary to contract, held not to constitute an unfair labor practice, since the provision requiring the use of a “union” subcontractor constituted a violation of Section 111.06(2) (g) and Board will not lend its services to the enforcement of an illegal clause. Frank J. Henry, Inc. (3849) 11/54

Sub-contracting of work during periods of lay-off found not to have been in violation of collective bargaining agreement. American Motors Co. (8336-B) 12/69

Employer found to have violated provision in agreement with regard to subcontracting. Bob Kendall Inc, (16754-A,B) 10/79

Employer found not to have violated contractual provision relating to subcontracting of unit work under certain conditions. However, it did not violate the agreement with respect to its failure to notify the Union with respect to its intent to do so. Ladish Company (15982-A,B) 4/80

1573.23 Union Jurisdiction of Work

Employer did not violate collective bargaining agreement by assigning son to part-time work in department involved. Earl Litho Printing Co., Inc. (7315-A) 6/66

A Carpenter’s collective bargaining agreement applied to three employes because those employes during certain months in question were the only employes who performed work covered by said agreement. Dan Wergin Sons, Inc., 19303-B (11/82)

Where the residential work in question did not fall within the work jurisdiction of the Union as established by the applicable statewide residential working agreement, then the Employer did not violate the parties’ collective bargaining agreement by failing to make certain contributions to various fringe benefit funds and therefore did not commit an unfair labor practice under Sec. 111.06(l)(f). R & R Drywall Co., Inc., 19109-B (3/83)

Where the 1979-1981 statewide residential working agreement which existed between the Union and the Employer did not require the utilization of the grievance and arbitration procedure set forth therein, in seeking compliance with the provisions relating to payments due and owing to welfare, pension, vacation and education funds for hours of work performed by employes of said Respondent on residential construction, the Commission has jurisdiction to determine whether the Employer violated the collective bargaining agreement by failing to make payments to such funds, and which would then be an unfair labor practice within the

meaning of Sec. 111.06(l)(f). R & R Drywall Co., Inc., 19109-B (3/83)

1573.22 Unemployment Compensation

Employer found to have violated collective bargaining agreement by failing to provide unemployment compensation coverage for employes as required therein. Russell Miller (5881) 12/61; Select Painters (5882) 12/61; James E. Hurley (5883) 12/61; Al Buxbaum(6238) 2/63

Although State unemployment compensation law does not require coverage by employer with less than four employes, said law permits participation by such an employer (Sec. 108, Wis. Stats.), and failure to provide such coverage as required in collective bargaining agreement found to constitute unfair labor practice. Bartelme Plumbing Service, Inc. (6445) 9/63; Smejkal Plumbing Shop(6446) 8/63 (Aff. Manitowoc Co. Cir. Ct. 12/63)

1573.23 Union Jurisdiction of Work

Employer held to have violated collective bargaining agreement in assigning work in the process of the manufacture of “graining plates” to employes who were not journeymen. American Electrotyping Co. (63) 5/40 (Aff. Milw. Co. Cir. Ct., 10140)

Employer found not to have violated collective bargaining agreement in permitting foreman to perform certain work since past practice of parties indicated union acquiescence therein. Gateway Products Corp. (4873) 9/58

1573.24 Union Security

1573.24.1 Employes Covered

Employer held not to have committed an unfair labor practice in violating collective bargaining agreement in refusing to discharge an employe not in good standing, since union shop provision excluded supervisory foreman from union membership, and Board held employe to be a supervisor. Standard Lumber Yards, Inc. (406) 6/42

Employer held to have committed an unfair labor ‘Practice by maintaining in its employ a driver, who refused to become a member of the union, when there existed a valid union security agreement covering said job classification. Modern Cleaners (129-A) 12/40 (Aff. Dane Co. Cir Ct., 9/41)

Although employe bad been assigned additional duties, Board found that said duties were not performed in a supervisory capacity, and therefore that the employe was subject to the union security provisions of the collective bargaining agreement. Milwaukee Gas Light Company (3328) 12/52

Employer held not to have committed an unfair labor practice in violation of a collective bargaining agreement in retaining in its employ an employe who refused to join the union, since said employe was employed in a supervisory and managerial capacity, and the union security provision could not be applied to cover said employe. Grant’s Cafeteria (3587) 10/53

Employer has no obligation to discharge employes for failure to become union members since the employes were not included in the bargaining unit covered by the collective bargaining agreement. Quality Service Laundry (4449) 2/57

Where agreement contained a maintenance of membership provision Board found failure of employer to discharge employe thereunder not to be in violation of the provision since the employe was not a member of the union on the date the agreement was executed. Counter & Control Corp. (4526) 5/57

Where agreement required paid up members to retain their membership in the union during the term of the agreement, Board found discharge of employes, for failure to pay dues, to be in violation of the agreement since said employes permitted their membership to lapse prior to the effective date of the agreement. Curtis Co. (5639-A) 12/60

Building contractor found to be a party to a valid prehire agreement, and his refusal to comply therewith found to be violative of See. 111.06(l)(f). Don Cvetan Plumbing (12356-A, B) 5/74 (Affirmed Sheboygan Co. Cir. Ct., 2/75)

1573.24.2 Expired Contract

Employer, in failing to hire good standing members of the union, and in not securing employes through the local office of the union, and in failing to display union shop card, held not to have committed an unfair labor practice since the collective bargaining agreement, containing a closed shop provision, was not automatically renewed, since the union’s notice as to renewal was deemed ineffective. Peacock Restaurant, Inc. (35) 1/40

1573.24.3 Illegal Provision

Employer held not to have committed an unfair labor practice by rehiring an employe and refusing to discharge employes who failed to maintain their good standing membership in the union, since the collective bargaining agreement contained an illegal closed shop provision. Four Wheel Drive Auto Co. (506) 8/43

Where collective bargaining agreement provided that union security would become effective only after authorized under the federal Act, where the NLRB conducted no union security election employer did not commit an unfair labor practice in failing to discharge two employes who failed to become union members. Russell Creamery Co. (1984) 1/49

Where, under an all-union agreement, the union advised the employer that the union considered it was in violation of the agreement and requested that the employes who did not make application for membership immediately be discharged, the employer was held not to have violated the contract in failing to discharge non-member employe, since the union had never advised as to which employes were or were not members of the union, and the employer had no knowledge of same. Bowman Farm Dairy, Inc. (956) 5/46

Refusal by employer to hire an applicant, who was a member of the union, was not in violation of all-union shop contract where applicant’s previous employment history disclosed his discharge by another employer because of an assault on a foreman. Blatz Brewing Co. (1421) 9/47 (Aff. Milw. Co. Cir. Ct., 6/48)

Employer held to have committed an unfair labor practice in violating a collective bargaining agreement containing a union security provision by keeping in its employ employes who were not union members. Badger Nu-Way Cleaners (19) 9/39 (Aff. Dane Co. Cir. Ct., 12/39); Dy-Dee Wash, Inc., (1634) 5/48

Employer held to have committed an unfair labor practice in violating contract provision in failing to notify union as to need for new employes. Dy-Dee Wash, Inc. (1634) 5/48

Commission will not enforce the provisions of a collective

bargaining agreement, where compliance therewith would constitute

an unfair labor practice under the National Labor Relations Act. M-K Hartmann Sons Inc. (13934-C,E) 5/78

1573.25 Vacation and Holiday Pay

Employer’s failure and refusal to pay vacation pay to employes who entered armed forces prior to the effective date of the collective bargaining agreement and who returned to employment and who were not in company’s employ at the time of the vacation period, did not amount to a violation of the contract. Globe Steel Tubes Co. (1432) 9/47

Employer held not to have violated contract clause regarding vacation pay. Pate Oil Co. (1331) 6/47; Metal Specialties Co. (1484) 12/47; The Electric Auto-Lite Company (3186) 7/52; Woodland Foundry, Inc. (3252) 9/52; Giersch Dental Lab. (3567) 9/53; Miller Brewing Co. (4090) 10/55; Ehlert Tool Engineering Co. (4095) 11/55; Wheeler Transportation Co. (4580) 9/57; Tecumseh Products Co. (4675) 12/57 and (5202) 5/59; Allwork Glove Co. (5219) 6/59; Cornell Paper Board Products (7353) 11/65

Employer held not to have violated collective bargaining agreement as to vacation provision since collective bargaining agreement had expired. Nelson Muffler Co. (1507) 1/48; Ferguson’s Wholesale and Retail Market (3541) 8/53

Board dismissed complaint alleging employer’s failure to pay holiday pay pursuant to collective bargaining agreement when the grievance should have been submitted to board of arbitration as provided for in the contract, and the union had not done so. U.S. Motor Corp. (2067-B) 5/49

Employer held not to have violated provision of collective bargaining agreement relating to vacation pay since strike settlement agreement covered the issue in question. Globe Steel Tubes Co. (2696) 12/50

Employer held to have committed an unfair labor practice in failing to pay employes vacation pay due under collective bargaining agreement. J.A. Bazal (517) 10/43; Racine Screw Works (1283) 4/47; Perfect Glove Co. (2062) 3/49; Baier Tank Transport (2206) 10/49; Brandt Automatic Cashier Co. (2302) 1/50 (Aff. Jeff. Co. Cir.Ct., 7/50); Johnson Truck Bodies and Retinning Service (3052) 1/52; Boulder Parts Corp. (3323) 12/52; Standard Foundry Co. (3721) 4/54; Androy Hotel (3988-A) 7/55; J. H. Nowinsky Trucking Co.(4406) 11/56; Lamping Commission Co. (5533) 7/60

Employer held not to have violated provision covering holiday pay where, pursuant to the collective bargaining agreement, the employer fulfilled the duty to review, in good faith, the reasons for absences of employes claiming holiday pay. Waukesha Motor Co.(3309) 11/52

Employer found to have violated collective bargaining agreement in failing to pay employes holiday pay in accordance with the collective bargaining agreement. Stone Motors Co., et al (3331) 12162; C. B. Rich Co. (3442) 4/53; Wis. Grey Iron Foundry Co.(3565) 9/53.

Former employe was not entitled to vacation pay benefits, since contract providing for same became effective after termination of employment. The Silcrest Co. (3994) 6/55

Failure to pay holiday pay to employes in layoff found not in violation of the collective bargaining agreement. Lauson Engine Division(4675) 1/58

The fact that the employes received unemployment compensation benefits after their termination upon closing of the plant does not continue the employe status of said former employes, and therefore the employer was not obligated to make fringe benefit payments or to credit period of unemployment compensation as service toward vacation entitlement. Pet Milk Company (6209) 1/63

Board found that employer did not violate collective bargaining agreement by failing to pay vacation pay alleged due and owing a deceased employe to the widow of said employe, for the reason that no such obligation was imposed by the agreement. Harley-Davidson Motor Co. (6290) 4/63

Although agreement provided that vacations were compulsory, Board found that employe who did not take vacation prior to termination of agreement was entitled to vacation pay, since such provision was intended to prevent employes from working and receiving vacation pay at the same time, and where employer had previously paid vacation pay under similar circumstances. Peavey Paper Mills, Inc. (6477) 9/63 (Aff. Rusk Co. Cir. Ct., 8/64)

Where employer granted employes advance vacations with pay before their anniversary dates and upon termination of agreement withheld such sums paid from wages, Board found employer violated agreement since period of advanced vacation would constitute a layoff contrary to agreement, and since the employer deprived benefits from such scheduling. Peavey Paper Mills, Inc. (6477) 9/63 (Aff. Rusk Co. Cir. Cir. Ct., 8,/64)

Employer did not violate agreement in failing to pay vacation pay to employes who quit their employment before qualifying date.American Motors Corp. (7488) 2/66

Employer found to have violated collective bargaining agreement by failing to pay holiday pay to employes in lay-off status. Hamilton Canning Co. (10315-A,B) 12/71

Employer found not to have violated collective bargaining agreement regarding vacation pay. Memorial Hospital Assn. (10010-A,B) 11/71

Employer found to have violated collective bargaining agreement in not granting employe third week of vacation for which he qualified under said agreement. Appleton Memorial Hospital (11661) 3/73

Where vacation fund was not governed by collective bargaining agreement, but by the provision of a trust agreement, administered by a board of trustees, neither employer nor union could be found to have violated collective bargaining agreement with respect to employes failure to receive vacation pay. M. K. Hartmann & Sons, Inc. (13089-A, B) 5/75

Employer violated Sec. 111.06(l)(f) by failing to pay employes vacation pay due them under collective bargaining agreement.Wisconsin Truck Center (14097-C, D) 5/76; Grand Theatre (13847-B) 10/76

Employer did not violate collective bargaining agreement in failing to pay vacation pay to employes who quit their employment prior to qualifying for vacation. Appleton Memorial Hospital (15679-A,B) 4/79

Where collective bargaining agreement provided that employes must work the days before and after the holiday in order to qualify for holiday pay, Employer found to have violated the agreement by denying holiday pay to employe who was unable to work on the first scheduled work day following the holiday because of a disciplinary layoff imposed by the Employer. Peter Pirsch & Sons, Inc. (15024-A,B) 10/77

Employer’s failure to make payments to Union building trade vacation fund, as required in collective bargaining agreement,

constituted a violation of Sec. 111.06(l)(f). Bailey Construction Co. (18371-A,B) 5/81; Fineline Specialties, Inc. (18266-A,B) 7/81

1573.26 Wage Rates

Employer, in granting increases pursuant to mutual agreement with the union, did not violate terms of collective bargaining agreement. Portage Hosiery Co. (405) 6/42

Employer found not to have violated collective bargaining agreement since employes were paid in accordance with the terms of the agreement. Union contended that by increasing the hours of work, the employer reduced wages. Board held that the parties had agreed upon a specific wage scale and upon a specific work week. A & P Tea Co. (710) 2/45

Employer found not to have violated wage provisions of collective bargaining agreement relative to payment of apprentices, since prior to the hiring of the employe, the union and the employer had agreed on the apprenticeship status of the employe. A & P Tea Co.(1471) 11/47

Employer found not to have violated contract provisions with respect to wage rates. Milwaukee Breweries (1665-B to 1670-B) 12/48 (Aff. Milw. Cir. Ct. 5/50); Michael Yundt Co. (1982) 1/49; Krambo Food Stores, Inc. (2040) 3/49; Cutler-Hammer, Inc., (2234) 11/49 (Aff. Milw. Co. Cir. Ct., 3/52); C. A. Zahn (3043) 12/51; Wisconsin Liquor Co. (3120) 4/52; Woodland Foundry, Inc. (3252) 9/52; Harold Kevill, (3344) 1/53; Neiland Dental Lab. (3339) 5/53; Hub Restaurant (3723) 4/54; American Vitrified Products Co. (3940) 4/55;Enger-Kress Co. (4032) 8/55; Ehlert Tool Engineering Co. (4095) 11/55.

Employer held to have committed an unfair labor practice in violating collective bargaining agreement by failing to pay wage scale called for in contract. Quality Dairy (172) 2/41 (Aff. Winnebago Cir. Ct., 7/41); Automatic File & Index Co. (368) 2/42; Fabian Behrendt, (428) 7/42; Frank Bzdawka (430-B) 1/43; A. Bodenberger (4310) 7/42); Schubert’s Food Markets (476) 3/43; E. Weiner Co. (483) 3/43; Max Shimon, (501) 7/43; Anton Novak (543) 1/44; Uhlir Trucking Co. (1280) 4/47; South Side Dairy (1281) 4/47;Modine Mfg. Co. (1284) 6/47 (Modified Racine Co. Cir. Ct., 11/47); Kaufmann Lunch Co. (1632) 5/48 (Aff. Milw. Co. Cir. Ct. 7/48);Baier Tank Transport (2206) 10/49; Marinette Glove Co. (2289) 1/50; Wilke Paint & Glass Co. (2313) 2/50 (Aff. Manitowoc Co. Cir. Ct., 5/50); Eagle Knitting Mills, Inc. (6428-A) 12/63

Board held employer to have committed an unfair labor practice in failing to pay wage rates previously agreed upon. Gateway Glass Company (3256) 10/52 (Aff. 265 Wis. 118, 11/53)

Employer found to have violated terms of collective bargaining agreement by failing to pay employes on dates designated as paydays and by issuing payroll cheeks on insufficient funds. C. B. Rich Co. (3121) 4/52

Failure of employer to discuss rates paid to an employe found to be n violation of the contract and, therefore, constituted an unfair labor practice. Bunde-Upmeyer Dental Lab. (3162) 5/52

Employer found to have complied with duties imposed by collective bargaining agreement involving provisions relative to the discussion of wage rates. Badger State Dental Lab. (3326) 12/52

Employer, by instituting a wage incentive plan without the agreement of the union shop committee and against its protest, contrary to the terms of the contract, held to have committed an unfair labor practice. Morgan Co., Inc. (69) 5/40

Although prior to the execution of the contract, new employes were hired at a rate of pay less than that paid regular employes, where the contract contained no provision concerning the pay rate of new employes, the agreement purported to cover all employes and where, during long, drawn-out negotiations, there was no indication by the employer that be desired a lesser rate of pay for new employes, by paying new employes a rate less than the day rate provided for in the contract, the employer committed an unfair labor practice. Board found that the contract was clear and unambiguous, and no policy of the employer, no matter haw long engaged in, could have justified payment of wages lower than the rate agreed upon in the contract. Aluminum Goods Mfg. Co. (1428) 9/47

Employer held to have violated contract by failing to give union copies of rate schedule of wages. C. M. Tool & Die Co. (1849) 10/48

Employer found not to have violated collective bargaining agreement by failing to pay employe regular rate since employe was physically unable to perform regular work due to injury and employer gave employe temporary unskilled work while employe was recovering from injury. Brandt Automatic Cashier Co. (4217) 4/56

Board found employer to have violated provisions of the collective bargaining agreement by failing to compensate employes for incentive earnings lost as a result of transfers to other departments at the request and convenience of the employer. General Electric Co. (4219) 4/56 (Rev. and remanded, Wis. Sup. Ct., 3 Wis. (2d) 227, 2/58)

Employer found not to have violated provisions of collective bargaining agreement relating to bonus payments. General Electric Co.(4219) 4/56

Employer found to have violated wage provisions in collective bargaining agreement by failing to pay employe work performed in skilled classification. Floyd Acheson (4426) 1/57

Failure of employer to pay cost of living increases, as required by collective bargaining agreement, found to have constituted an unfair labor practice. Stadium Motors, Inc. (5170) 4/59

Failure to pay were rates as provided in collective bargaining agreement constituted on an unfair labor practice. Earl Litho Printing Co. (7315-A) 6/66; Pinno Plumbing & Heating (7989) 4/67

Employer found not to have violated collective bargaining agreement by failing to continue employes’ differential above starting rate after job re-evaluation since agreement established no such obligation. Malleable Iron Range Co. (7491) 2/66

Employer, in failing to compensate employes for extra duty in violation of agreement, found to have committed an unfair labor practice. Strand Theatre (8129) 8/67

Employer found not to have violated provision in collective bargaining agreement which required negotiating of additional rate of pay with employe for additional duties since employe did not perform the duties covered by said provision. WISN Division-The Hearst Corp. (7901-B) 9/67

Failure to pay wage rates as provided in collective bargaining agreement constituted an unfair labor practice. Reimer Sausage Co.(10965-A,B) 10/72; Midwest Pacific Corp. (10746-A,B) 11/72

Since it was not established that employe was performing the duties of a maintenance man he was not entitled. to wage rate for that position. St. Joseph’s Hospital (8787-A,B) 12/69

Employer found not to have violated collective bargaining agreement with respect to wages paid to employes in the particular classification since work performed by said employes was work contemplated to be performed by them. Gehl Company (9474-B,C) 12/70

Employer violated Sec. 111.06(l)(f) by failing to pay wage rates set forth in collective bargaining agreement. F. Taff Co., Inc. (12478) 2/74 (Affirmed Outagamie Co. Cir. Ct., 7/73); Kohlberg Theatres, Inc. (12147-A, B 3/74; Food Queen Stores, Inc. (13860-A, B) 2/76

Failure to pay wage rates as provided in collective bargaining agreement constituted an unfair labor practice within the meaning of Sec. 111.06(l)(f). Food Queen Stores, Inc. (13860-A,B) Bailey Construction Co. (18371-A,B) 5/81

1573.27 Welfare Plans

Employer held to have committed an unfair labor practice in failing to make payments to welfare fund in accordance with the terms of the collective bargaining agreement. Sanitary Lunch (2929) 7/51; Archie’s Cafe (2959) 8/51; Geo. Erickson d/b/a Hub Cafe (3191) 9/52; Burlington Quarries Corp. (4632) 10/57 (Aff. Racine Co. Cir. Ct., 1/58); Paris Royal Cleaners (5014) 12/58; Egyptian Cleaners(5017) 12/58; International Cleaners & Dyers (5022) 12/58; Boulevard Cleaners & Dyers (5022) 12/58; A. Drascic & Sons (5232) 6/59; Harrison Trucking Co. (7004-A) 7/65

Board found Employer to have violated collective bargaining agreement by failing to pay penalties for late welfare payments. Modern Home Decorators, Inc. (6316) 4/63

Although union representatives were members of Board of trustees administering a welfare fund, the auditor employed to audit books of participating employers was not an agent of the union, and therefore employer’s refusal to furnish its books and records to said auditor violated the collective bargaining agreement requiring employer to do so. H. Fuller & Sons, Inc. (6525) 10/63

Employer, in failing, to make health and welfare payments to fund as required in collective bargaining agreement, found to have committed an unfair labor practice. Glen Lokken Electric Inc. (8069) 6/67

Employer, in failing to make health and welfare payments to fund as required in collective bargaining agreement, found to have committed an unfair labor practice. Lorentzen Tile Co. (9630) 5/70; Wonderland Foods, Inc. (10256-A,B) 7/71; The Skobis Co.(10024-A,B) 5/72; Schield & Zillman (10680-B,C) 10/72; Schield & Zillman (10680-B,C) 10/73 (Aff. Marathon Co. Cir. Ct., 2/73; Lake City Tile Co. (10831-A,B) 3/73; Gotzion Ceramic Tile Co. (10832-A,B) 3/73; Madison Commercial & Industrial Corp. (11462-A,B) 3/73 (Aff. Dane Co. Cir. Ct., 6/73); Wonderland Foods, Inc. (10256-A, B) 7/71 (Affirmed Marathon Co. Cir. Ct., 2/73); Pinkerton Erection(11759-A, B) 8/73 (Affirmed Marathon Co. Cir. Ct., 1/74); Autumn House, Inc. (12772-A, B) 8/74; Larson Landscape Service, Inc.(17474-B,C) 7/80 (Aff. Dane Co. Cir. Ct. 11/80); Bailey Construction Co. (18371-A,B) 5/81; Fineline Specialists. Inc. (18266-A,B) 7/81

Employer found not to have committed an unfair labor practice by failing to make payments to Health & Welfare Fund, since no collective bargaining agreement existed during period covering said alleged acts. Reimer Sausage Co. (10965-A,B) 10/72

Employer committed unfair labor practice by violating contractual provision requiring payments to carpenter welfare fund, where Union established that employes were performing carpenter duties during periods involved. Equipment Installers Inc. (18372-A,B) 9/81

Employer held to have committed an unfair labor practice in failing to make payments to welfare, pension and education trust funds as required by collective bargaining agreement. Great Lakes Construction Corporation, Dec. No. 20845-A (Shaw, 1/84)

1573.28 Work by Supervisors

Where collective bargaining agreement prohibited performance of production work by foreman, Board found the employer not to have violated said provision in permitting a foreman to prepare setups and mix paint since such work bad been performed by foreman for eight years previous under similar provisions without objection or protest by the employes. Gateway Products Corp.(4873) 9/58

Employer found not to have violated collective bargaining agreement where supervisors performed bargaining unit work only after bargaining unit employes refused to perform the work when ordered to do so. American Motors Corporation (8209-C,D) 2/70

Supervisor who engaged in construction of bargaining unit employes did not violate provision in collective bargaining agreement relating to bargaining unit work being performed by supervisors. American Motors Corporation (8209-C,D) 2/70

1573.29 Working Conditions

Employer found not to have violated provisions of agreement by requiring inspectors to perform additional recordation in their work.General Electric Co. (4219) 4/56

Board found that the employer, by posting notices prohibiting loafing, did not violate collective bargaining agreement since such matter related to practices which had been in existence prior to and since the execution of the agreement. Brandt Automatic Cashier Co. (5594) 10/60

Where the collective bargaining agreement did not require employe to personally notify his foreman of his absence, the Board found the employer to have violated the collective bargaining agreement by discharging the employe for not having personally notified his foreman of his absence. E. C. Styberg Engineering Co. (6368) 5/63

1573.30 Wrongful Discharge

Employer violated provisions of contract in failing to make whole wrongfully laid off employes even though award of arbitration only found that employes had been wrongfully discharged. Issue before arbitrator was merely wrongful discharge and arbitrator having found wrongful discharge, employer must make employes whole pursuant to its terms in the contract, providing for rein statement and pay for all time lost. Appleton Machine Co. (2598) 10/50

1573.31 Job Posting

Where agreement required posting of vacant jobs, failure of employer to post temporary work insufficient to require a full-time employe held not to have constituted a violation of the agreement. Earl Litho Printing (7315-A) 6/66

1573.32 Successor Employer

Where Institution snack bar was taken over by new employer through a transaction with the institution and without any transaction with the former operator, Commission held that new employer was not a successor and therefore was not covered by collective bargaining agreement executed by former operator. Albert J. Janich (8165-A) 12/67 (H.E. Dec.) (Aff. WERC 1/68)

Where alleged successor did not acquire a going business, having been awarded a franchise two months after original employer lost its franchise, and where there was no document of sale, lease or any evidence of merger, not any financial arrangements between said parties, and no transfer of employes since original company had no employes at time it lost its franchise, Commission found that new company did not succeed to collective bargaining agreement executed by original company and Union. Overhead Door Co. of Wausau, Inc. (9055-A,B) 9/70

Where original franchisee entered into valid pre-hire agreement with Union said agreement gives no rise to a continuing majority status affecting possible successor employer unless there is independent proof of Union’s actual majority, and where original employer has no employes at time of alleged successorship, collective bargaining agreement is not binding on the alleged successor.Overhead Door Co. of Wausau, Inc. (9055-B) 9/70

Evidence failed to establish that Employer, alleged to have violated collective bargaining agreement, was a “successor” covered by said agreement. Bi-State Trucking Corp. (9924-A,B) 8/71

Where agreement contained no provision that it would be binding upon a successor employer, new employer was not obligated to honor the terms of that agreement. Full Belly Deli-East, Ltd. (17071-A,B) 2/80

1573.33 Reclassification

Employer was found to have violated collective bargaining agreement with respect to classification of employe. Ladish Co. (8550) 5/68

1573.34 Work Week

Lay-off of employes found not to be a “reduction of the work week” as contemplated in the collective bargaining agreement. American Motors Corp. (8336-B) 12/69

1573.35 Apprentices

Lay off of apprentices along with journeyman found not to be in violation of collective bargaining agreement. American Motors Corp.(8336-B) 12/69

1573.36 Probationary Period

Employer found not to have violated provision in agreement with respect to probationary period in failing to grant employe increase upon normal completion thereof, since provision permitted exception thereto if employers performance was below normal. St. Joseph’s Hospital (8787-A,B) 12/69

1573.37 Work Assignments

Employer found not to have violated collective bargaining agreement with respect to work assignments. American Motors Corp.(9122-C,D) 8/70

Employer by changing lunch periods found not to have violated collective bargaining agreement. Wigwam Mills (12838-A, B) 11/74

1573.38 Warning Notices

Employer found to have violated collective bargaining agreement by failing to give employe warning notice prior to discharge. Zapata Kitchens, Inc. (13229-B) 4/76

1573.39 Hiring Hall Agreement

Employer, in not employing union members from union referral list, found to have violated collective bargaining agreement. Fugarino Excavating (11846-A, B) 8/73 (Affirmed Milw. Co. Cir.Ct., 1/74); American Structural Systems (14286-B, C) 6/76

Where agreement permitted Employer to reject hiring hall referrals for “just cause”, Employer found not to have violated the agreement by not employing individual referred since said individual had falsely claimed that he was not a minor. Wisconsin Associates, Inc. (18661-A,B) 11/81

1573.4 Downtime

Where collective bargaining agreement provided for downtime pay when incentive employes encountered delays beyond their control, Board found violation of agreement when employer failed to pay such downtime when necessary materials were not made available to employes. Tecumseh Products Co. (5936 4/62 (Aff. Wis. Sup. Ct., 3/64, 23 Wis. (2d) 118)

1573.40 Apprenticeship and Training Funds

Employer violated agreement by failing to make payments to apprenticeship and training fund as required in said agreement. M. K. Hartman Sons, Inc. (13934-C,E) 5/78; Larson Landscape Service, Inc. (17474-B,C) 2/80 (Aff. Dane Co. Cir.Ct., 11/80); Fineline Specialists, Inc. (16266-A,B) 7/81

1573.41 Insurance

Failure of Employer to timely implement insurance plan as required in collective bargaining agreement held violative of Sec. 111.06(1)(f). Evco Plastics (16150-A,B) 11/79

1573.42 Work Assessments

Employer found to have violated agreement by failing to remit to the Union “work assessment” deductions from wages of employes.Bailey Construction Co. (18371-A,B) 5/81

In the absence of authorizations executed by employes requiring the Employer to make deductions from their pay and submit same to the Union as “work assessments”, Employer found not to have violated collective bargaining agreement by failing to remit such assessments to the Union. Equipment Installers, Inc. (18372-A,B) 9/81

1573.43 Defense of Lack of Funds

Lack of funds is not a defense to the statutory obligation to bargain. Typography Unlimited and Kenosha Typographer Inc., 19218-A, B (12/82)

The mere allegation of a lack of funds is not a defense to paying money owed to an employe under a bargaining agreement; non-payment, without substantiating a lack of funds, constitutes a breach of contractual obligation. Typography Unlimited and Kenosha Typographers, Inc., 19218-A, B (12/82)

1574 Interpreting the Contract

Where the language in a Memorandum of Understanding is ambiguous the Commission may consider the context in which the memorandum was agreed to, including the past practice of the parties, in order to determine what the parties intended to achieve in their settlement agreement. Bay Shipbuilding Corp., 19957-B, 19958-B (4/83)

1574.1 Using Contract Law

Given the very strong state and federal policy favoring arbitration as the means for resolving disputes regarding the meaning of collective bargaining agreements, it would be a mistake to mechanically apply general principles of contract law in the field of labor relations. Bay Shipbuilding Corp., 19957-B, 19958-B (4/83)

1575 Repudiation

The Examiner correctly rejected the Company’s arguments that the Union committed an anticipatory breach of a written grievance settlement and that the Agreement should be rejected because there was no “mutual intent” between the parties. Bay Shipbuilding Corp., Dec. Nos. 19957-C, 19958-C (WERC, 2/84)

A total repudiation of the terms of a memorandum of understanding is an inappropriate method of testing its meaning, and such a repudiation constitutes a violation of Sec. 111.06(l)(f). Bay Shipbuilding Corp. 19957-B, 19958-B (4/83)

Where the parties disputed the correct interpretation of a written grievance settlement, the Examiner correctly concluded that the mere fact that implementing the settlement would have been cumbersome and expensive did not vitiate the Company’s obligation to implement the Agreement in good faith; the Union could then choose whether to dispute the Company’s interpretation of the Agreement through the grievance-arbitration process. Bay Shipbuilding Corp., Dec. Nos. 19957-C, 19958-C (WERC, 2/84)

Where the Employer signed a prehire agreement and repudiated it 5 days later during which time the Employer had no employes, the repudiation was legally effective because the agreement could be repudiated before the Union attained majority status and without employes such status was not attained. John H. Gassman, 24893-B (3/88), aff’d Dec. No. 24893-C (WERC, 7/88).

Although the NLRB held in John Deklewa & Sons, 282 NLRB No. 184, that a prehire agreement could no longer be unilaterally repudiated during the term of the agreement and applied this ruling retroactively to pending cases, retroactive application was not given where the events took place prior to Deklewa and there was reliance on the prior law and the underlying purposes of Deklewawould not be served. John H. Gassman, 24893-B (3/88), aff’d Dec. No. 24893-C (WERC, 7/88).

1576 Where Union Withdraws Grievance

Where the Union withdrew its grievance because it determined there was no violation of the agreement by the Employer, the grievance was therefore not meritorious, and where there was no demonstration the Union’s action was arbitrary, discriminatory, or in bad faith, then there is no violation of Sec. 111.06(l)(f) by the Employer. Bardon Rubber Products Company and UAW Local 627, 19743-A (6 83)

1580 NON-RECOGNITION OR ACCEPTANCE OF AWARD OF COMPETENT OR ACCEPTED TRIBUNAL: SEC. 111.06(l)(g)

1581 TRIBUNAL HAVING COMPETENT JURISDICTION

Complaint dismissed where it alleged failure of employer to abide with directive of War Labor Board, where the parties had not voluntarily accepted jurisdiction. Board held that the War Labor Board was not deemed to be a tribunal having competent jurisdiction to conclusively determine the issues under any controversy between the parties, since its orders were advisory and did not create any legal rights nor impose legally enforceable obligations upon either of the parties. Sterling, Inc. (889) 2/46; Briggs & Corp. (158) 5/46

Employer’s refusal to accept award of arbitrator, who had been appointed by the terms of the collective bargaining agreement, by which his award was to be final and binding, constituted an unfair labor practice. Wisconsin Axle Division (1467) 11/47

Employer’s refusal to accept award of War Labor Board, which had been stipulated to as having jurisdiction of the issue, constituted an unfair labor practice. Allis-Chalmers Mfg. Co., 254 Wis. 484, 4/49

Board of Arbitration found not to have lost its jurisdiction where the Chairman there-of prematurely served same on parties without concurrence or dissent of the two remaining members of the Board of Arbitration, since the collective bargaining agreement required that award in order to become final and binding had to be the award of the “majority” of the Board of Arbitration. WRAC, Inc. (5648) 1161 (Aff. Racine Co. Cir.Ct., 4/61)

Board set aside that portion of arbitration award where arbitrator exceeded his authority where employer had not consented to arbitrate multiple grievances before a single arbitrator,, and where, at the time of the arbitration hearing, such a position by the employer was in itself in issue. Standard Kollsman Industries, Inc. (7035) 2/65

The Commission imposes substantial and basic limitations upon its right to order compliance with an award when the complainant alleges that such compliance requires application of the award to facts not presented to the arbitrator. Wisconsin Gas Co. (8118-C) 11/67 (H.E. Dec.)

Previous arbitration award found not to be determinative of somewhat similar grievances filed subsequent to issuance of award.Wisconsin Gas Co. (8118-E) 3/68 (H.E. Dec.) (Aff. WERC 4/68)

Previous arbitration award found not to be determinative of somewhat similar grievance filed subsequent to issuance of award.Handcraft Co., Inc. (10300-A,B) 7/71

Where Employer was not a party to any collective bargaining agreement, Commission dismissed complaint alleging that Employer refused to comply with arbitration award finding that employer violated such agreement. Modern Plumbing Co. (10171-A,B) 9/71

The Commission has consistently enforced decisions of joint union and employer committees, interpreting provisions in collective bargaining agreements, according them the same finality as those of traditionally neutral arbitrators, where such decisions are fair and regular. Giraffe Electric Co. (16513-A,D,E) 12/80

1582 FINAL DETERMINATION

Employer’s refusal to accept arbitration award did not violate the Act since the award had been appealed to circuit court and no final determination had been made. Le Roi Co. (1465) 11/47

Although the Board might disagree with the award of the arbitrator, the Board could not upset it since the parties had submitted the matter to the arbitrator for final disposition. Wisconsin Axle Division (1467) 11/47

A directive order of the War Labor Board, the agency stipulated to as having jurisdiction, is a “final determination” where it is final in a procedural sense, although advisory in character and without legal sanctions. The Wisconsin Supreme Court in interpreting the section stated that 111.06(1) (g) means that when an employer agrees to submit to the jurisdiction of a tribunal, and the tribunal makes what is for it a final determination of the matter, the employer may not without committing an unfair labor practice decline to accept the determination as conclusive of the controversy. Allis-Chalmers Mfg. Co., 254 Wis. 484, 4/49

When parties have agreed, in their collective bargaining agreement, to resort to arbitration to finally resolve grievances, they have thereby created the proper tribunal to finally settle their differences. The Circuit Court found that the employer, in accepting an alternative contained in the arbitration award, had fully complied with the award and that the matter was res judicata and would not be heard de novo by the Wisconsin Employment Relations Board. Universal Foundry Co., Winnebago Co. Cir. Ct., 10/51

Where the collective bargaining agreement provides that the award issued by the Board of Arbitration shall be final and binding upon the parties, “perfection” of such an award need not be had pursuant to Chapter 298 of the Wisconsin Statutes before the Board will entertain a complaint seeking the enforcement of such an award. Mixit Corp. (5531) 7/60

Employer found not to have violated arbitration award prior to the reduction of the award to writing. Arbitration award must be in writing, as required in Section 298.08, Wis. Stats. before Board will enforce same. Marmet Corp. (5680) 1/62

Where the full three-member Board of Arbitrators failed to participate and deliberate in the drafting of the award, the Wisconsin Employment Relations Board held award valid after being signed by two of the three-man Board of Arbitration since other than Chairman were representatives of the respective parties, they did not request conferences and deliberations, and customarily the impartial Chairman of the tripartite Board prepares the award and then submits it to the arbitrators appointed by the parties for their concurrence or dissent. WRAC, Inc. (5648) 1/61 (Aff. Racine Co. Cir. Ct., 4/61)

Where parties had a legitimate dispute concerning the mode of back pay computation required in arbitration award, Commission determined that said award was not definite as contemplated in Sec. 298.10(1), Wis. Stats., and therefore remanded said dispute to the arbitrator for the purpose of issuing a definite award with respect to amount of back pay. C & H Products Inc. (13225-A) 6/75

1583 DENIAL OF DUE PROCESS

Board did not compel enforcement of an arbitration award where a party to the proceeding was denied due process by not receiving a full and fair opportunity to present its case to the tribunal making the determination in that it did not permit an adjournment to produce an unavailable witness. Wm. O’Donnell, Inc. (5736-A) 12/62

In complaint proceeding to enforce arbitration awards, Commission observes statutory tests expressed in Chap. 298, Wis. Stats. In the absence of any facts which would establish lack of impartiality, lack of due process or misconduct on part of the arbitrators, or where they exceeded their powers, Commission will not set aside the award. H. Froebel & Son (7804) 11/66

Commission did not enforce arbitration award where tribunal denied counsel for the Employer right to appear for Employer at hearing before the arbitration tribunal. Wm. O’Donnell, Inc. (6567) 12/63 (Aff. 26 Wis. 2d 1, 11/64)

The fact that Employer had on two occasions been denied due process in arbitration proceeding did not constitute grounds for dismissing complaint alleging unfair labor practice. Commission’s remand to arbitration tribunal was held proper. Wm. O’Donnell, Inc.(6567) 12/63 (Aff. 26 Wis. 2d 1, 11/64)

Commission determined that contention of employer that he was denied the right to be represented by counsel at arbitration hearing was without merit. United Contractors (12053-A, B) 1/74 (Affirmed Waukesha Co. Cir. Ct., 9/74)

In complaint proceeding to enforce arbitration award, Commission observes statutory tests set forth in Chap. 298, Wis. Stats. In the absence of any facts which would establish lack of impartiality, lack of due process or misconduct on part of the arbitrator, or where he has exceeded his jurisdiction, Commission will not set aside the award. United Contractors (12053-A, B) 1/74 (Affirmed Waukesha Co. Cir. Ct., 9/74); G & H Products, Inc. (13225-A) 6/75

1584 IMPARTIALITY OF TRIBUNAL

The fact that a managerial associate of an employer representative designated as a member of a Committee to issue final decisions with respect to alleged contract violation previously wrote a letter to the Union contending that the employer who was being charged by the union of violating the contract in another respect did not establish the employer representative on said Committee was “partial” within the meaning of Section 298.10(1) (b). Wm. O’Donnell, Inc. (5736-A) 12/62

Where local Joint Adjustment Board contained no neutral member, and where, in the issue presented to such tribunal for final determination, the members thereof were arrayed in common interest against one of the parties in the dispute, Board refused to enforce the award. Harker Heating & Sheet Metal, Inc., et al (6704) 4/64

Where local Joint Adjustment Board contained no neutral member, and where, in the issue presented to such tribunal for final determination, the members thereof were arrayed in common interest against one of the parties in the dispute, Commission refused to enforce the award. Harker Heating & Sheet Metal Inc., et al., (6704) 4/46 (Aff. Dane Co. Cir. Ct., 12/65)

Award issued by Joint Grievance Committee, consisting of equal number of Employer and Union representatives, and where the award was issued in the absence of misconduct, impartiality, and not in excess of jurisdiction or other imperfections, found not to have been complied with by Employer, and therefore subject to enforcement by the Commission. Svendson Bros. Inc. (8983-A,B) 12/69; Giraffe Electric, Inc. (16513-A,D,E) 12/80

Where jurisdictional dispute between sheet metal union and carpenter union was determined by a tribunal consisting of sheet metal employes and designees of sheet metal union, Commission refused to order compliance of award of such tribunal, since, under the circumstances, the tribunal was not “impartial”. C & L Erectors Inc. (9718) 6/70

Where Joint Adjustment Board, consisting of three Employes and three Union designees issued an award finding another Employer in violation of agreement, Commission refused to order compliance with award, since one of the Union designees on said Board had initiated the grievance and had presented the matter to said Board on behalf of the Union. Sal Anny Sheet Metal (11345) 11/72

1585 EXPIRATION OF CONTRACT

1585.1 Generally

The posting of notice by the employer to the effect that its contract with the union had expired did not violate any arbitration award when the award was based on grievances arising after the contract had expired. Sivyer Steel Casting Co. (1420) 9147

1585.2 As Affecting Award

The Board will enforce an arbitration award as applying to subsequent conduct engaged in by employer after issuance of award on previous similar conduct of the employer, where subsequent collective bargaining agreement was not materially changed from provisions in previous agreement which were relied upon by Board of Arbitration in the issuance of its award. To reach a contrary conclusion would not recognize the policy with respect to the finality of arbitration awards and such result would be contrary to the public policy of this state. Pure Milk Assoc. (6584-A) 12/66

The Commission will enforce an arbitration award as applying to subsequent conduct engaged in by Employer after issuance of award on previous similar conduct of the Employer, where subsequent collective bargaining agreement was not materially changed from provisions in previous agreement which were relied upon by Board of Arbitration in the issuance of its award. To reach a contrary conclusion would not recognize the policy with respect to the finality of arbitration awards and such result would be contrary to the public policy of this state. Handcraft Co. Inc. (10300-A,B) 7/71

1586 NATURE OF AWARDS

1586.1 Dealing With Contracting Out Work

Where arbitration award required Employer to distribute its products by own employes, Board found employer to have violated award by distributing products by a contract carrier. Pure Milk Association (6584) 12/63 (Aff. Dane Co. Cir. Ct., 10/64)

1586.2 Dealing with Layoff, Discharge, Back Pay and Reinstatement

Employer violated Act in refusing to accept arbitrator’s award in refusing to discharge an employe pursuant to maintenance of membership provision in collective bargaining agreement. Wisconsin Axle Division (1467) 11/47; Van Drisse Motors Co., Brown Co. Cir Ct., 5/52

Employer failed to comply with terms of arbitration award is deducting sum from award and by reinstating employe to a position other than ordered by the arbitrator and therefore committed an unfair labor practice. Kiekhafer Aeromarine Motors, Inc. (2319) 2/50 (Aff. Fond du Lac Co. Cir. Ct., 12/50)

Employer committed an unfair labor practice in that employer failed to comply with arbitration award in failing to pay reinstated employes back pay as ordered by the arbitrator. Appleton Machine Co. (2598) 10/50

Employer rehired driver-salesman pending the arbitration award on the employes discharge. After the Board of Arbitration found the discharge to be illegal the employer offered the employe a position of special delivery man at an equivalent wage. Employe refused to accept and refused to report for work unless he obtained his previous position. Board held that the proposed transfer was not in violation of the arbitration award. Sheboygan Dairymen’s Co-op. Assoc. (1014) 7146 (Aff. Sheboygan Co. Cir. Ct., 10/46)

Employer found to have complied with arbitration award with regard to reinstatement and back pay. Milwaukee Tool and Die Co.(1502) 1/48

Employer in computing back pay did so in accordance with the terms of the collective bargaining agreement and in compliance with the arbitration award. General Foundries, Inc. (2099) 5/49

Employer held to have committed an unfair labor practice in failing to comply with an arbitration award directing the employer to reinstate and make whole employes for wage loss sustained by loss of their employment. Van Drisse Motors Co. (2725) 2/51 (Aff. Brown Co. Cir. Ct., 5/52); Stone Motor Co. (2726) 2/51; Globe-Union, Inc. (2787) 3/51; Rice Lake Creamery Co. (3722) 4/54; Great Lakes Millwork Corp. (3883) 8/55; Standard Kollsman Industries, Inc. (7035) 2/65

Where Board of Arbitration ordered wrongfully discharged employe reinstated with back pay, Board found Board of Arbitration did not exceed its jurisdiction and ordered reinstatement with back pay. Marmet Corporation (5368) 10/59

Where arbitration required employer to “immediately” reinstate employe to active employment found not to have complied with arbitration award when reinstatement was made almost two weeks after the receipt of the award. Quality Cleaners & Launderers, Inc.(6205) 1/63

Where arbitration award imposed no duty upon employer to reinstate employe to former employment or position, the Board found employer did not violate award by reinstating employe to similar position. Quality Cleaners & Launderers, Inc. (6205) 1/63

Employer, by discharging employe following reinstatement pursuant to arbitration award, found not to have violated award since the Union did not establish by a clear preponderance of the evidence that the second discharge was part and parcel of an intent not to comply with the award. Quality Cleaners & Launderers, Inc. (6205) 1163

Employer found to have committed an unfair labor practice in failing to comply with arbitration award which required Employer to offer employe full back pay and reinstatement. Svendson Brothers, Inc. (8983-A,B) 12/69; Bi-State Trucking Corp. (9924-A,B) 8/71

Where arbitration award required the Employer to reinstate discharged employs, and Employer, rather than granting employe active employment, placed employe on sick leave, Commission found Employer not to have complied with award. Milwaukee Suburban Transport Corp. (10551-A,B) 5/72

Employer found to have committed an unfair labor practice in failing to comply with arbitration award which required employer to offer employe reinstatement. Emcee Trucking Ltd. (14094-C, D) 12/76

Where award required Employer to reinstate employe, and where the Employer offered reinstatement provided the employe returned the severance pay previously paid employe at the time of his discharge and provided the employe work the same shift, Employer found not to have failed to comply with award when the employe “quit” because the shift hours conflicted with employes second job with another employer. W I S N Division-Hearst Corp. (17572-C,D) 12/81

An arbitration award must draw its essence from the collective bargaining agreement. An arbitrator must be granted broad latitude in fashioning a remedy. Where the arbitrator finds the agreement allows for transfers and the arbitrator concludes that such transfers should be used to remedy a breach of the agreement, then the remedy is no different from a reinstatement or backpay remedy.Stoughton Trailers, Inc., 19796-A, C (3/83)

Courts will not overrule an arbitrator’s award unless there has been a perverse misconstruction of the contract. The arbitrator’s interpretation of the agreement to require recall of laid off employes into new classifications he determined they were capable of working was neither irrational nor perverse. Stoughton Trailers, Inc., Ct.App. IV, (10185) (Affirming Dec. No. 18796-A,C (3/83).

An arbitrator has flexibility in shaping the remedy which will not be second guessed where it is appropriate and derives its “essence” from the agreement. While the Arbitrator’s remedy might be characterized as innovative, the remedy was consistent with his construction of the agreement and his decision was confirmed. Stoughton Trailer, Inc., Ct.App. IV (10/85) (Affirming Dec. No. 18796-A,C 3/83).

1586.3 Dealing with Rates of Pay

Employer’s refusal to recognize and accept award with regard to commissions paid to salesmen constituted an unfair labor practice.Gibbs & Co. (633) 7/44; Milwaukee Sentinel Division (2486) 7/50 (Aff. Milw. Co. Cir. Ct., 4/51)

Employer’s refusal to accept and abide with arbitration award concerning night premiums constituted an unfair labor practice. The Kempsmith Machine Co. (743) 5/45

Employer found to have complied with arbitration award by reclassifying certain employes into higher labor grades. Failure to grant one employe an hourly wage increase was not in violation of the award since the award neither provided nor implied an increase for this employe. Ampco Metal Co. (3263) 9/52

Employer’s failure to comply with arbitration award requiring payment of proper wage rates constitutes an unfair labor practice. Allen-Bradley Co. (7659) 7/66; Cirkl Sheet Metal (7852) 12/66 (Remanded, Dane Co. Cir. Ct., 12/67)

Commission refused to consider release executed by employe as compliance with award since release, if honored, would vitiate award and repudiate union’s authority as the exclusive collective bargaining representative. H. Froebel and Son (7804) 11/66

Employer’s failure to comply with arbitration award requiring payment of proper wage rates constitutes an unfair labor practice. Cirkl Sheet Metal (7852-A) 3/69

Employer’s failure to comply with award relating to pay rate found violative of Sec. 111.06(l)(g). United Contractors (12053-A, B) 1/74 (Affirmed Waukesha Co. Cir. Ct., 9/74)

1586.4 Dealing with Working Conditions

Board found employer to have complied with arbitration award relating to rules and regulations concerning working conditions. WHBY, Inc. (1472) 11/47

Employer found to have committed an unfair labor practice by not complying with award relating to work shifts and hours of work.United Contractors (12053-A, B) 1/74 (Affirmed Waukesha Co. Cir. Ct., 9/74)

1586.5 Dealing with Vacation Pay

Failure to comply with award wherein employer was required to pay vacation pay to employe found to constitute an unfair labor practice. Eagles Club (6122) 10/62

The issuance of an arbitration award, requiring the Employer to make vacation payments, created a debtor/creditor relationship between the Employer and the Union. Sparta Manufacturing Company, Inc., 20787-A, B (12/83)

1586.6 Dealing with Industry-Wide Funds

Failure of employer to make payments to Health and Welfare, Vacation and Provision Trust Funds as required by arbitration award, constituted an unfair labor practice. Frahm Builders, Inc. (7523) 4/66 (Aff. Milw. Co. Cir. Ct., 12/66); Liedtke Vliet Super, Inc. (9717-A,B) 4/71

Claim that compliance with arbitration award would require payments to an illegal fund, absent any proof as to the claimed illegality, held insufficient basis for denial of enforcement of award. Liedtke Vliet Super, Inc. (9717-A,B) 4/71

Failure of employer to make payments to Health and Welfare, Vacation and Pension Trust Funds, as required by arbitration award, constituted an unfair labor practice. Advance Demolition (11950-A, B) 2/74; Emcee Trucking Ltd. (14094-C, D) 12/76

1586.7 Dealing with “All-Union Agreements”

Failure of Employer to comply with arbitration award requiring Employer to require its employes to become members of Union pursuant to valid all-union agreement constitutes an unfair labor practice. Johnson Bros. Construction Co. (8111) 7/67

1586.8 Dealing With Employe Status

Employer found to committed an unfair labor practice by failing and refusing to comply with award requiring Employer “to provide the grievant with those benefits a regular employe is entitled to under the terms of the collective bargaining agreement.” Peoples Brewing Co. (11350-A,B) 2/73

1586.9 Dealing With Holiday Pay

Failure of Employer to pay holiday pursuant to award found to have constituted a violation of Sec. 111.06(l)(g) of WEPA. Wisconsin Porcelain Co. (15986-B,C) 5/79

1586.10 Creating a Debtor/Creditor Relationship

The issuance of an arbitration award, requiring the Employer to make vacation payments, created a debtor/creditor relationship between the Employer and the Union. Sparta Manufacturing Company, Inc., 20787-A, B

1586.11 Dealing with Insurance

The Employer complied with a Supplemental Arbitration Award when it made available to its regular employes the Blue Cross Co-Pay Plan but no employe chose to participate in said Plan and instead remained with the Fireman’s Fund. This result was upheld despite the Employer’s comments to employes expressing strong negative feelings toward the Blue Cross plan. The Employer’s HMO contribution based on Fireman’s Fund rather than Blue Cross was also in compliance with said Award because by no employes signing up for the Blue Cross plan, the Fireman’s Fund was the contractual group plan and therefore, there was no violation of Sec. 111.06(l)(g), Stats. EGA Products, Inc., 24555-A (12/87).

1587 Liability as a Result of an Arbitration Award

The Employer’s argument of its inability to pay cannot be accepted as a defense to its liability under an arbitration award because under the WEPA, the Commission is not an appropriate forum for the resolution of an Employer’s claimed inability to pay a contractual obligation. The WEPA was enacted to encourage voluntary agreement between an Employer and employes and to provide a convenient, expeditious and impartial tribunal by which employer/ employe rights and obligations can be adjudicated. Incorporating the Employer’s ability to pay into the present litigation would only frustrate these purposes. The WEPA was also enacted to foster consensual means for the resolution of employer/employe disputes wherever possible, and to provide expeditious and final resolution of those controversies which cannot be voluntarily resolved. Whether, or at what rate, the Employer has the ability to pay a contractual obligation to its employes is a complex business decision best left to the parties most immediately concerned with the issue to address in the negotiations process. Sparta Manufacturing Company, Inc. 20787-A, B (12/83)

1587.1 Interest Owed

Interest is granted at 12% per year in complaint cases seeking enforcement of arbitration awards on the sum of money due and owing under the award, from the date on which the award was received by the parties owing said monies. Sparta Manufacturing Company, Inc., 20787-A, B (12/83)

1590 DISCRIMINATION AS A RESULT OF FILING CHARGES, ETC. SECTION 111.06(1)(h)

1591 GENERALLY

Discharge of one employe and the demotion of another, because they had given information and testified in a prior proceeding before the Board, held to be unlawful. Sheboygan Dairymen’s Coop. Assoc. (1012) 7/46 (Aff. Sheboygan Co. Cir. Ct., 9/47)

Threat to discharge employe because of his testimony at Commission hearing, although violative of Sec. 111.06(l)(a), is not violative of See. 111.06(l)(h) unless said threat is carried out. Valley Sanitation Co. Inc. (9475-A) 1/71

1600 DEDUCTION OF DUES OR ASSESSMENTS WITHOUT AUTHORITY: SECTION 111.06(1) (i)

(No decisions)

1610 EMPLOYMENT OF LABOR SPIES SECTION 111.06(1)

(No decisions)

1620 MAKING OR CIRCULATING OF BLACKLIST: SECTION 111.06(1) (k)

(No decisions)

1630 COMMISSION OF CRIME OR MISDEMEANOR CONNECTED WITH EMPLOYMENT RELATIONS CONTROVERSY: SECTION 111.06(1) (1)

1631 GENERALLY

Advertising for help without stating that a strike is in existence at a place of employment constitutes an unfair labor practice. National Pressure Cooker Co. (3686) 2/54; Chuck Wagon Industrial Catering Service (7093-B) 8/66, (Aff. Milw. Co. Cir. Ct., 2/68); Flambeau Plastics Corp. (7727) 9/66; Infant Socks, Inc. (7879) 1/67; Fall River Foundry (8103) 7/67; Streckert Mfg. Co., Inc. (8777-A,B) 2/69;North Shore Publishing Co. (11310-B,C) 2/73

Where Employer’s advertisement of employment did not specify that a strike was in progress, but employer notified applicants, “We have a temporary and illegal picket line, but no strike”, Board held employer committed unfair labor practice since the employer’s advising the applicants of the controversy did not change the illegal nature of the act of placing the advertisement without disclosing that a strike existed. Milwaukee Cheese Co. (5792) 8/61

Board found that employer did not commit misdemeanor within the meaning of Section 103.86 Wis. Stats., which requires the employer, after contracting to do so, to make welfare fund payments within six weeks after they become due and payable and after employer has been notified in writing of his failure to do so, where employer had not been notified in writing of his failure to make such payments. Modern Home Decorators, Inc. (6316) 4/63

Employer held not to have committed a crime within the meaning of Section 134.50, Wis. Stats., which prohibits the use or employment of any body of armed men for the protection of persons or property or for the suppression of strikes, by employing off-duty policemen as single watchmen during a strike and therefore the employer committed no unfair labor practice in violation of See. 111.06(1) (1). Bruns Garage, Inc. (6615) 1/64

An employer does not commit a violation of Section 111.06(1)(l) where advertisements for employment placed by him do not refer to the fact that his establishment is being picketed where such picketing does not result from a strike engaged in by, or a lockout of, the employes of said employer. The statute requires that the picketing activity be a resultant concomitant of either a strike or lockout of the employes of the employer placing the advertisement. Bachman Furniture Co. (7919-A) 12/67

Employer, by advertising for help for positions of Sales Manager or Business Manager, without stating that a strike existed among Mechanics did not constitute a misdemeanor as contemplated in See. 103.43(1) since advertised positions were not involved in the strike. Allen Buick Co. (11198) 8/72

Assault and battery committed by Employer on pickets during organizational picketing held to constitute an unfair labor practice, although said picketing was in itself illegal. My’s Restaurant (8822-B) 7/69

Failure of Employer to make timely payments to welfare fund constituted a misdemeanor within the meaning of Sec. 103.86, Wis. Stats., and therefore is an unfair labor practice in violation of Sec. 111.06(l)(l) of the Act. Lorentzen Tile Co. (9630) 5/70; Wonderland Foods, Inc. (10256-A,B) 7/71

Failure of Employer to make timely payments to welfare fund constituted a misdemeanor within the meaning of Sec. 103.86, Wis. Stats., and therefore is an unfair labor practice in violation of Sec. 111.06(1)(1) of the Act. Lake City Tile Co. (10831-A,B) 3/73;Gotzion Ceramic Tile Co. (10832-A,B) 3/73

Commission found that agent of employer falsely testified under oath in an arbitration hearing, thereby committing perjury within the meaning of Sec. 946.31, Wis. Stats., and therefore committed a crime, which constitutes an unfair labor practice within the meaning of Sec. 111.06(l)(L). Layton School of Art & Design (12231-B) 5/75 (Affirmed Milwaukee Co. Cir. Ct. 1/76)

Commission found that agent of Employer falsely testified under oath in an arbitration hearing, thereby committing perjury within the meaning of Sec. 946.31, Wis. Stats., and therefore Employer, by said agent committing a crime, committed an unfair labor practice within the meaning of Sec. 111.06(l)(i) of WEPA. Layton School of Art & Design (12231-B) 5/75 (Aff. 82 Wis. 2d 3249 2/78).

1700 UNFAIR LABOR PRACTICES BY EMPLOYES, INDIVIDUALLY OR IN CONCERT

1710 IN GENERAL

1711 RESPONSIBILITY FOR ACTS OF OTHERS

1711.1 Officers

Union held to be responsible for acts of its president in demanding, under threat of strike, that the employer discharge non-member employes. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

1711.2 Members

Union held responsible for acts of its members in the continuous solicitation of employe non-members against their will to pay back dues and return to union membership, and the participation of such members in acts of violence against the nonmembers. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

1711.3 Miscellaneous

Board dismissed complaint against a trade council and its business agent since neither directed, ordered, controlled, or ratified picketing by employe members. Wausau Building Trades Council (2193) 10/49

1720 COERCION AND INTIMIDATION OF EMPLOYES:

SECTION 111.06(2)(a)

1721 Generally

Coercion and intimidatory acts need to have accomplished the purpose intended to constitute an unfair labor practice. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

Coercion or intimidation of an employe need not necessarily be limited to threats of violence for a man may be coerced into doing or refraining from doing an act by fear of the loss of his wages as well as by the dread of physical violence or force. Sears Roebuck & Co., 242 Wis. 26, 2/42; Philip Parish, Rock Co. Cir. Ct., 5/51

Where the complaint names only the employer as Respondent, mentions a fellow employe only as an agent of the employer, and focuses on the act of termination rather than the alleged failure of the fellow employe to protect the Complainant from sexual harassment, that portion of the complaint alleging a violation of Sec. 111.06(2)(a) was properly dismissed. Trucker’s & Traveler’s Restaurant, Dec. No. 20882-C (WERC, 10/84)

1722 FORMS THEREOF

1722.1 Accusation of a Crime

The union and its members, by falsely accusing employes whom they were attempting to coerce to join the union, of the commission of criminal offenses, were held to have committed acts which constituted a form of unlawful coercion. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

1722.2 Calling of Names and Epithets

Officers and members of the union were held to have coerced and intimidated employes by calling of offensive names and epithets.Western Leather Co. (287) 8/41

Strikers, in calling strike breakers “scabs” and “rats” merely referred to them in terms by which recognized dictionaries refer to such persons, committed no unfair labor practice. Foster-Lothman Mills (1343) 6/47

While picket line name calling and use of obscene language in the absence of any expression of threats of personal injury or reprisals for refusals to respect or participate in picketing activities, or promises of benefits for doing so may not in some cases constitute unfair labor practices, the Board found that obscene language and gestures directed to female office employes in connection with other actions of the pickets, when viewed in the light of the illegal activities of certain employes following employes in their cars in a reckless fashion, exceeded the bounds of free speech, and constituted an unfair labor practice. Bruns Garage Inc. (6614) 1/64

1722.3 Continuous Union Solicitation Over Objections

By the continuous union solicitation of employes to join the union over the objection of said employes, union was found to have harassed and hindered the solicited employes in the enjoyment of their legal right not to join the union, and was found to have been done for the purpose to cause them to eventually join the union against their will, and therefore, such acts were held illegal. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

1722.4 Discharge Caused

Union, in absence of valid all-union shop agreement, held to have violated the act where it caused the discharge of an employe because be had been suspended from membership. Milwaukee Novelty Dye Works (127) 10/40

Board held where any member of a labor organization is properly disciplined by suspension or expulsion from a union which as an all-union agreement with the employer of such member, said labor organization can require the member’s discharge by his employer without committing an unfair labor practice. Four Wheel Drive Auto Co. (3655) 12/53

Where the union had unreasonably denied an employe membership in its organization and then proceeded to cause the employer to discharge said employe for his failure to become a member in accordance with an all-union provision in the collective bargaining agreement existing between them, the Board found the union to have committed an unfair labor practice. Chas. J. Weichering (4187-A) 11/56

1722.5 Fines Against Members

Board found union to have committed an unfair labor practice by fining members for crossing a picket line during a strike involving the Union and by attempting to collect such fines through court action. Joseph Carey, et al (5008-B) 4/59 (Rev. Wis. Sup. Ct., 10/60 on jurisdictional grounds, 11 Wis. 2d 292); Allis-Chalmers Mfg. Co. (5314 & 5314-A) 9/59 & 10/59, (Rev. Wis. Sup. Ct., 10/60 on jurisdictional grounds, 11 Wis. 2d 292); Globe Union, Inc. (5539) 7/60 (Rev. Milw. Co. Cir. Ct. on jurisdictional grounds, 7/61)

1722.6 Physical Violence or Threats Thereof

Employe members of the union, pursuant to union policy to endeavor to compel all employes to join the union, coerced and intimidated employes by threats of bodily harm and by actual assault, for the purpose of having them join the union, in violation of the Act. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

Union and certain employes, by threatening other employes with punishment if they failed to engage in unlawful work stoppages and by injuring property of those who failed and refused to take part in such work stoppage, were found to have coerced and intimidated employes in the enjoyment of their legal right to continue their work. Briggs & Stratton Corp., 250 Wis. 550, 6/47 (Aff. U.S. Sup. Ct., 69 Sup. Ct., 516)

Union, by its members and agents following cars of employes, making threats and engaging in physical attacks on the occupants, injuring the property of employes and attempting to coerce the families of employes, was found to have committed illegal acts of coercion and intimidation of employes. Marathon Electric Mfg. Corp. (3141-A) 9/52 (Aff. Marathon Co. Cir. Ct., 11/52); Fred Rueping Leather Co. (4049) 9/55 (Aff. Fond du Lac Co. Cir. Ct., 9/55)

Where picket and non-striking employe exchanged threats on the picket line and where car of union representative touched bumpers with car of non-striker, Board found incidents to be of minor nature not constituting coercion or intimidation. Rainbow Auto Wash Corp. (4788) 6/58

Pickets, who followed cars of employes in a reckless fashion found to have committed unfair labor practices. Bruns Garage Inc.(6614) 1/64

1722.7 Picketing and Boycotting

Officers and members of the union, in picketing the homes of employes who continued their employment during a strike, for the purpose of intimidating such employes and their families in an attempt to coerce those employes into ceasing their employment, found to have constituted acts of coercion and intimidation. Western Leather Co. (287) 8/41; Kohler Co. (3740) 5/54; Fred Rueping Leather Co. (4049) 9/55 (Aff. Fond du Lac Co. Cir. Ct., 9/55)

Campaign of picketing and boycotting a retail store, where employes of which had declined to join the union, is an unfair labor practice because such activity was found to be a cover for concerted action to force the employes to join the union against their free will for fear of loss of earnings. Sears Roebuck & Co. 242 Wis. 21, 12/42; Wisconsin Liquor Co. (685) 11/44; Block Brothers Co.(3210) 7/52 (Aff. 264 Wis. 189)

Picketing of restaurant, for the purpose of forcing employes to become and remain members of the picketing union when the employes wished to refrain therefrom, held to be an unfair labor practice. Mini Dorece et al (4172) 3/56

Picketing of restaurant in an attempt to coerce and intimidate employee from their right to refrain from concerted activity found to constitute an unfair labor practice. My’s Restaurant (8789-C,D) 8/69; Schmitt Bros. Club (8791-A,B) 8/69

1722.8 Threats to Cause Discharge

Employe members of the union, pursuant to union policy to endeavor to compel all employes to become members, coerced and intimidated employes by threats of loss of jobs for the purpose of having them join the union, in violation of the Act. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43; St. Joseph’s Hospital (3142) 5/52 (Aff. Ashland Co. Cir.Ct., 10/52)

1722.9 Miscellaneous

Union representatives found not to have coerced employes into joining the union when said employes signed application cards after consuming liquor at a bar at the invitation and in the company of the union representative. Fox River Motor Sales, Inc. (1173) 12/46

Union representatives found not to have threatened employes with violence or with loss of their jobs in requesting the employes to become members of the union. Musson Bros. (3013) 10/51

Union, by entering into an all-union agreement and applying same, without an authorizing referendum, found to have committed an unfair labor practice within the meaning of Sec. 111.06(2)(a). Surfside Manor (11809) 5/73: Hearthside Nursing Home & Rehabilitation Center (11822) 5/73; Madison Convalescent Center (11825) 5/73

Union found not to have denied employes “fair representation” in resolving grievance short of arbitration. American Motors Corp.(15334-C,D) 11/77; Clevepak Corp. (15555-C,D) 10/78; Racine Steel Castings (17054-A,B) 6/80; Pabst Brewing Co. (17023-B,C) 9/80

1730 COERCION, INTIMIDATION AND INDUCEMENT

OF EMPLOYERS: SECTION 111.06(2)(b)

1731 FORMS THEREOF

1731.1 Inducement to Discharge Pursuant to Contract

Union held to have violated the Act in inducing the employer to discharge employe not in good standing, pursuant to an agreement containing an illegal union shop provision. Milwaukee Novelty Dye Works (127) 10/40; Oshkosh Trunk & Luggage, Inc. (392) 5/42;American Plywood Corp. (570) 3/44; Trester Service Elec. Co. (617) 6/44; Riggs-Distler Co. (652) 8144 (Aff. Dane Co. Cir. Ct., 1/45);Schroeder Trucking Co. (2231) 11/49 (Aff. Wood Co. Cir Ct., 3/50)

Union held to have illegally, induced the employer to enter into an illegal contract, providing, in addition to maintenance of membership, for employes who did not become members to obtain work permits from union, and further induced the employer to discharge employes pursuant thereto who did not obtain such work permits. Wisconsin Motor Corp., 245 Wis. 417, 6/44

Union did not commit an unfair labor practice in requesting that the employer discharge employe not in good standing when made pursuant to an agreement containing a valid union shop provision. Fielding & Shipley (259) 6/41; Four Wheel Drive Auto Co. (645, 646, 647, 8/44); Fox Head Waukesha Corp. (1006) 7/46

1731.2 Loss of Business

Coercion or intimidation of an employer need not necessarily be limited to threats of violence, for a man may be coerced into doing or refraining from doing an act by fear the loss of his business as well as by the dread of physical violence or force. Sears Roebuck & Co., 246 Wis. 26, 12/42; Philip Parish, Rock Co. Cir. Ct., 5/51

1731.3 Picketing and Boycotting

Union, by picketing employer in the absence of a strike vote, in an attempt to induce the employer to recognize the union and to enter into a collective bargaining agreement, held to have violated the Act. Lester Scheibel (70) 5/40 (Aff. Rock Co. Cir. Ct., 9/41);Waterways Engineering Corp. (77) 6/40; Morris Resnick, Inc. (334) 11/41; George La Due, Racine Co. Cir. Ct., 7/47; Waterways Engineering Corp. (3166) 6/52; Block Bros. Co. (3210) 7/52 (Aff. 264 Wis. 189)

Campaign of picketing and boycotting employer, where the employes had declined to join the union, where such activities were made the cover for concerted activities to compel the employer to coerce his employes to join the union, held to constitute an unfair labor practice because by such activities the union attempted to achieve an unlawful purpose. Golden Guernsey Dairy Co-op., 238 Wis. 379, 10/41; Sears Roebuck & Co., 242 Wis. 26, 12/42; Plankinton House Co. 315 U.S. 437, 3/42; Waterways Engineering Corp.(1275) (1276) 4/47; (Aff. Brown Co. Cir Ct., 10/47); A. L. Weiss Co. (1368) 7/47; Roy F. Jansen (1419) 9/47; Hugo A. Tagatz (2436) 6/50 (Aff. Milw. Co. Cir. Ct., 1151); Gateway Liquor Corp. (2599) 10/50; Adept Window Cleaning Co. (2699) 12/50; Waterways Engineering Corp. (3166) 6/52; National Warehouse Corp. (3177) 6/52; Terminal Storage Co. (3336) 12/52; Edward Kraemer & Sons(3357) 2/53) (Aff. Dane Co. Cir. Ct., 4/53); Gerolmo Wholesale Beverage Co. (3383) 2/53; Kenosha Liquor Co. (3438) 4/53; P & V Atlas Industrial Center, Inc., (3507) 7/53 (Rev. on other grounds, Milw. Co. Cir. Ct., 6/55)

Picketing, or threat thereof, by union to induce employer to enter into an all-union shop provision without a referendum and to induce the employer to become a member of and to contribute financial support to the union, held to constitute an unfair labor practice.Poole & Poole (286) 8/41; Joseph Landree , (2136) 7/49 (Aff. Brown Co. Cir. Ct., 1/50); Vern J. Gantzer, 256 Wis. 77, 11/49; Hi-Lite Corp., (2558) 9/50; Philip Parish (2698) 12/50 (Aff. Rock Co. Cir. Ct., 5/51); Elmer S. Steinhilber (2559) 9/50

Union and representatives of union council found to have committed an unfair labor practice by threatening to picket the employer unless he directed his employes to attend a union organizational meeting, and when the employer did not do so the union resorted to actual picketing, by requesting retail liquor dealers to refrain from doing business with the employer. Gateway Liquor Co. (2599) 10/50

Employe members of the union, by attempting to induce the employer to discharge certain employes because of their failure to become union members, committed an unfair labor practice. Allis-Chalmers Mfg. Co., 243 Wis. 332, 6/43

Union, by picketing employer, held to have illegally attempted to coerce, intimidate and induce the employer to re-employ a low pressure fireman who was not licensed and could not be legally employed. A. L. Weiss (1368) 7/47

Peaceful picketing by union of employer’s place of business during labor dispute involving wages and working conditions held to be lawful activity. Frank Bluhm, d/b/a Grand Theatre (3127) 4/52

All picketing of an employer does not, in itself, constitute an unfair labor practice. In order to obtain relief there must be some evidence to show an attempt to coerce, intimidate, or induce an employer to interfere with the rights of his employes. Pearce L. Roberts, et al, (3978) 5/55

Picketing of employer’s place of business for purpose of attempting to coerce and intimidate employer to execute “all-union” agreement in the absence of referendum approving same held to have constituted an unfair labor practice. Lee Dolf Bar (4182) 3/56

Picketing for purpose of intimidating and coercing an employer to deduct union dues and assessments from employes’ earnings even though said employes had not presented the employer with authorizations therefore held to constitute an unfair labor practice. Lee Dolf Bar (4182) 3/56

Picketing of employer’s place of business for the purpose of inducing and coercing employer to interfere with right of employes to refrain from concerted activity held to be an unfair labor practice. Mini Dorece et al (4172) 3/56; Lee Dolf Bar (4182) 3/56; Tenor Bros. Construction Co. (4212) 4/56

Picketing and related activities for the purpose of coercing employer against his will to hire members of the union held to be illegal.Walter H. Pieper (4727) 3/68

Picketing of Employer’s place of business for the purpose of inducing and coercing Employer to interfere with right of employes to refrain from concerted activity held to be an unfair labor practice. My’s Restaurant (8789-C,D) 8/69; Schmitt Bros. Club (8791-A,B) 8/69

1731.4 Unfair List

The activities of the union in sending notices to its members to the effect that the employer refused to become “union” and requesting its members not to patronize the employer, were held to amount to acts of coercion, intimidation and inducement of the employer to interfere with the rights of his employes, where the employer was willing to execute a collective bargaining agreement but where be did not desire that it contain a union shop provision until so authorized in a referendum. Sheboygan Sausage Co. (1410) 8/47

Union, after its demand that the employer, a sole trader, join the union and pay dues thereto had proved unsuccessful, advised the employer’s largest single customer that the employer was no longer on the “approved” list”, that he was not in good standing with the union, and that under the collective bargaining agreement between the union and the customer, the customer could no longer send the employer any more work orders, was held to have committed an unfair labor practice since its purpose was to coerce and induce the employer to become and remain a member of the union and contribute financial support thereto. Louis R. Branger (2339) 3/50

Threats to place business on “unfair lists” in furtherance of secondary boycott activities held to constitute an unfair labor practice. Wis. Orchestra Leaders Assn. (8392-A,B) 11/70

1731.5 Miscellaneous

Union, in advising employer that be not assign member employes to perform work for a non-union employer and that he not take any disciplinary action against the union employe for refusing to work with non-union employe, and the refusal of the union employe to work with non-union employe, and the resultant temporary layoff of the non-union employe, held to have attempted to coerce and intimidate the employer to interfere with the rights of the non-union employe. Federal Malleable Co. (717) 2/45

Union, by attempting to coerce employer to become member, and then to induce him to contribute financial support to the union, held to have committed an unfair labor practice. Joseph T. Landree (2136), 7/49 (Aff. Brown Co. Cir. Ct., 1150)

Union representative, in requesting the employer to arrange for a meeting of its employes with the union representative and in subsequently advising the employer of the development of the union campaign among similar employers in the same community, held not to have committed an unfair labor practice. Green Bay Liquor Co. (2622) 11/50; Colonial Liquor Co. (2623) 11/50; De Pere Liquor Co. (2624) 11/50

Union’s right of ownership in union shop card does not give the union a complete and unrestricted right to remove the card at will where to do so would violate the public policy of the state. Removal of card, along with other acts, after employer barber refused to pay union dues, constituted coercion. Philip Parish, Rock Co. Cir. Ct., 5/51

Board found that union representative’s statement, while discussing matter of voluntary recognition by employer, that matter be settled by peaceful meads to avoid the possibility of picketing, not to constitute an unfair labor practice. Freddie’s Food Shop (4611) 9/57

Where union representative and employer officer discussed their respective views on “union shop” and former remarked union would never execute an agreement without a “union shop” provision, Board held statement not a demand upon the employer to interfere with its employes’ rights by concluding an “all-union” agreement in the absence of a referendum, authorizing same. Rainbow Auto Wash Corp. (4788) 6/58

Where union, upon inquiry of general contractor, advised that subcontractor had no agreement with union and where sub-contractor completed job without incident Board found union not to have committed unfair labor practice. Darott Enterprises, Inc. (5089 1/59

Union and its agents found to unlawfully coerced employers in that said employers, who were also union members, would be in violation of union by-laws in employing musicians who were not members of said union. Milwaukee Musicians Association Local No. 8(11305-A,B) 7/73

1740 VIOLATION OF COLLECTIVE BARGAINING AGREEMENT:

SECTION 111.06(2)(c)

1741 Form of Agreement

Union held to have violated terms of collective bargaining agreement by refusing to execute the collective bargaining agreement agreed upon and by threatening to call a strike in violation of such agreed upon contract unless the union’s demands that the contract be modified were met. Universal Foundry Co. (1102) 9/46 (Aff. Winnebago Co. Cir. Ct., 8/47)

Union held to have violated terms of collective bargaining agreement by refusing to execute contract orally agreed upon and by demanding higher wages than those contained in the existing oral agreement. Baldwin Plywood and Veneer Co. (3161) 5/52

A grievance settlement constitutes a “collective bargaining agreement” within the meaning of the Wisconsin Employment Peace Act, and thus a violation of such a settlement would constitute a violation of Sec. 111.06(2)(c). Bay Shipbuilding Corp., 19957-B, 19958-B (4/83)

1742 NATURE OF PROVISIONS

1742.1 Provisions Relating, to Grievance Procedure and Arbitration

Before a union can be found to have committed an unfair labor practice by violating the terms of a collective bargaining agreement where it has refused to submit a dispute to a board of arbitration there must be a finding by the Wisconsin Employment Relations Board that the question raised by the dispute is one subject to arbitration under the contract. Nekoosa-Edwards Paper Co. (2371) 4/50

Union and its officers held to have committed an unfair labor practice in violating a provision in the collective bargaining agreement providing for no strike, lock-out, stoppage of work, slow down of production, or other interruption of work pending the decision of the “Board of Arbitration” when the union engaged in work stoppages in protest of the employer’s classification of employes after it bad refused to take the steps provided for in the contract relating to grievance procedures and arbitration. Milwaukee Foundry Equipment Co. (631) 7/44 (Aff. Milwaukee County Cir. Ct., 9/44)

Union held to have committed an unfair labor practice in not following contract provisions with regard to grievances. Federal Malleable Co. (717) 2/45

Union held to have violated collective bargaining agreement by engaging in a work stoppage over a grievance which was in arbitration. Terminal Storage Co. (1453) 10/47

Any provision in a collective bargaining agreement providing for the arbitration of future disputes is valid and that if either of the parties to such an agreement refuse to submit such dispute to a Board of Arbitration after having so provided in their agreement, the party refusing can, at the request of the opposing party, be required to do so by an order of the WERB under Section 111.06(1) (f) and (2) (c). Madison Bus Co. (2083)-A 5/49 (Aff. Dane Co. Cir. Ct., 10/49)

Union held to have committed an unfair labor practice by violating a collective bargaining agreement when its members left their work and engaged in a strike, after failing to reach an agreement on wages, where a provision in the existing agreement provided for arbitration of wage disputes. Boehm Bindery Co. (2762) 2/51 (Aff. Milw. Co. Cir. Ct., 6/51)

Union held not to have committed an unfair labor practice in refusing to arbitrate the matter of the discharge of one of its employe members where the discharge was held not to be an arbitrable issue under the agreement between the parties. St. Joseph’s Hospital(3142) 5/52

Union held to have committed an unfair labor practice in not following contract provisions with regard to selection of neutral agency for appointment of arbitrator. Wisconsin Motor Corp. (4117) 12/55

The union, when during the course of processing a grievance of an employe concerning that employes layoff learned that said employe chose layoff rather than work on second shift and agreed with the employer’s disposition of the grievance, held not to have refused to process grievance according to the collective bargaining agreement. Midwest Food Service Inc. (4408) 11/56

Union and its agent, by discriminatorily refusing and failing to fairly and non-discriminatorily process an employe’s grievance, found to have committed an unfair labor practice within the meaning of Sec. 111.06(2)(c). Labor 150, Service and Hospital Employees International Union (10600-B,C) 2/73

The duty of fair representation obligates an Union to represent the interests of all its members without hostility or discrimination, to exercise its discretion in good faith and to act in a non-arbitrary manner. Absent a showing of arbitrary, discriminatory or bad faith conduct, a Union’s refusal to carry a grievance through all steps of the grievance procedure including arbitration, will not be found a breach of its duty of fair representation. Where the Union was informed of the facts and circumstances of complainant’s grievance, discussed them with Union counsel and determined the grievance had no merit, the Union did not violate its duty of fair representation. Where the complainant fails to prove the Union breached its duty of fair representation, the Commission will not exercise its jurisdiction to determine the merits of complainant’s allegation that the employer violated the collective bargaining agreement in violation of Sec. 111.06(l)(f), Stats. Ruan Transportation Management Systems, Dec. No. 25074-B (Jones, 7/88) aff’d by Operation of Law, Dec. No. 25074-C (WERC, 8/88).

1742.2 Provisions Relating to Seniority

Union, in requesting employer to place re-employed employe on a lower position on the seniority list, held to have violated contract.August Weinberg (2271) 12/49

1742.3 Provisions Relating to Strikes

Union held to have violated collective bargaining agreement by walking out and going on strike. Wis. Gas & Elec. Co., 246 Wis. 190, 8/44; Marathon Electric Mfg. Corp. (3141-A) 9/52

Where collective bargaining agreement contained an arbitration provision and therefore an implied agreement not to strike, Board refused to find that strike occurred in violation of such agreement, where the evidence disclosed that the negotiation and administration of said agreement was a sham and that said “sweetheart” agreement contained illegal provisions with reference to dues and initiation fees as well as an illegal “all-union agreement.” Lake Incinerator Co. (6375) 6/63

Union meeting called during working hours found to constitute a strike in violation of “no-strike” provision in collective bargaining agreement, and therefore an unfair labor practice. Allis-Chalmers Co. (7827) 11/66

Where in collective bargaining agreement employer agreed not to require employes to cross any duly authorized picket line, union members held not to have violated “no-strike” clause in agreement in refusing to cross picket line duly established by sister local at their place of employment. Milprint, Inc. (8181) 9/67

1742.4 Provisions Relating to Size of Bargaining Committee

Union in enlarging its bargaining committee from five to seven members contrary to limitation In collective bargaining agreement, held to have committed an unfair labor practice within meaning of Section 111.06(2)(c). Allen-Bradley Co. (8254) 10/67

1742.5 Interpretation by Union

A Union clearly has the right to express its interpretation of a memorandum of understanding as long as it was not acting in bad faith and such is not a violation of Sec. 111.06(2)(c). Bay Shipbuilding Corp., 19957-B, 19958-B (4/83)

1743 AGREEMENT CONTAINING ILLEGAL CLAUSE

Board dismissed complaint alleging violation of collective bargaining agreement by union, where under the provisions in question the union and employers had combined to hinder or prevent the obtaining, use, and disposition of materials, equipment, and services of employes. Board will not lend its services to the enforcement of an illegal cause in a collective bargaining agreement. Parsons Bros.(2945) 8/51

1744 Refusal to Acquiesce to Employer’s Interpretation

A Union’s failure to acquiesce to an Employer’s interpretation of a contract is not a violation of Sec. 111.06(2)(c), which would also in turn render a grievance and arbitration procedure ineffective. Bay Shipbuilding Corp., 19957-B, 19958-B (4/83)

1750 REFUSAL OR FAILURE TO RECOGNIZE OR ACCEPT AS CONCLUSIVE, THE FINAL DETERMINATION OF TRIBUNAL, HAVING JURISDICTION: SECTION 111.06(2)(d)

No decisions.

1760 ENGAGING IN, PROMOTING OR INDUCING PICKETING, BOYCOTTING, OR ANY OTHER CONCOMITANT OF STRIKE WITHOUT MAJORITY VOTE BY SECRET BALLOT: SECTION 111.06(2) (E)

1761 GENERALLY

Section 111.06(2) (e) does not prevent a minority of a collective bargaining unit of employes from withdrawing from employment singly or in concert, or does it make it an unfair labor practice to do so, nor does it prevent minority of the employes from picketing peacefully. However, if such a minority in the absence of a strike authorized by a vote of the employes in a collective bargaining unit, attempt to coerce their employer by concerted picketing, boycotting, or by any other similar overt act concomitant of a strike, such minority then commits an unfair labor practice. Plankinton House Co., 236 Wis. 329, 1/41 (Aff. 315 U.S. 437, 3/42)

Picketing done at places of business of employer’s customers, although not directly involved in the labor dispute, constitutes picketing of places of business where the picketing occurred. Golden Guernsey Dairy Coop., 238 Wis. 379, 6/41

Picketing is not lawful merely because it is free from violence. Golden Guernsey Dairy Coop., 238 Wis. 379, 6/41

Picketing for a collective bargaining agreement for the purpose of securing reasonable hours is a legitimate subject of an industrial dispute and the persons so picketing do not constitute a conspiracy in restraint of trade. George La Duc, Racine Co. Cir. Ct., 7/47

1762 FREE SPEECH

Wisconsin Act does not limit the right of an employe to speak freely but if he engages in an unfair labor practice within Section 111.06(2) (e), the fact that in the course of committing the designated acts he may use speech as a means of carrying on his activities does not bring his acts within the protection of the constitutional guaranty of the right of freedom of speech. The character of such picketing is dealeth with by the state in its power to preserve peace and protect the privacy, the lives, and the property of its residents. Plankinton House Co., 236 Wis. 329, 1/41 (Aff. 315 U.S. 437, 3/42); Golden Guernsey Dairy Co-op., 238 Wis. 379, 6/41;Sears Roebuck & Co., 242 Wis. 21, 12/42; Allis-Chalmers Mfg. Co., 243 Wis 332, 6/43; Gateway Liquor Co., Brown Co. Cir. Ct., 1/52;National Warehouse Corp., Milw. Co. Cir. Ct., 9/52; Block Bros. Co., 264 Wis. 189, 6/53

Where union had been previously certified by the NLRB, its majority is deemed to continue on behalf of all employes in the unit until the termination thereof in some legally effective manner is shown or authoritatively determined, and therefore peaceful picketing with legends, advising that the employer had no contract with the union, held to be an exercise of the right of free speech. Lakeside Bridge & Steel Co., 241 Wis. 286, 11/42

Free speech guarantees of the state and federal constitutions do not absolutely guarantee the right to picket during strikes but may be limited by the state under its police power. Board order, calling for union to cease picketing during strike which had been called in violation of a collective bargaining agreement, sustained. Boehm Bindery Co., Milw. Co. Cir. Ct., 6/51

Mere picketing of an employer’s premises by a labor organization causing a reduction in the employer’s volume of business is not in itself unlawful. There must be proof that the picketing was carried on for an unlawful purpose within the meaning of the Act. Stowe Tool & Die Co., Milw. Co. Cir. Ct., 3/51; Black Cat Cafe (3570) 9/53

Peaceful organizational picketing, in the absence of a demand for recognition, held to be in the nature of protected free speech and therefore not in violation of the Act. Courtesy Cleaners (4012) 6/55

1763 ACTS OF OVERT CONCOMITANT OF A STRIKE

To constitute a strike there must be an act of quitting work by mutual understanding by a body of workmen as a means of enforcing compliance with demands made on their employer and not only a withdrawal from employment, but also a continuance of unemployment. Briggs & Stratton Corp., 250 Wis. 550, 6/47 (Aff. U.S. Sup. Ct., 69 Sup. Ct., 516); Trackson Co., 250 Wis. 570, 6/47

Work stoppage by a few employes held not to constitute a strike called or instigated by the union since the stoppage was :found to be a spontaneous, voluntary work stoppage because of dissatisfaction aroused by the discharge of a fellow employe. Sheboygan Dairymen’s Co-op. Ass’n. (1011) 7/46

Employes’ concerted action at the instance of their union in walking out during their regular scheduled working hours and refraining from work and not appearing for work until the next shift, for the purpose of exerting economic pressure against their employer, constituted cooperation in engaging in overt acts concomitant of a strike, and is an unfair labor practice in the absence of a strike vote. Briggs & Stratton Corp., 250 Wis. 550, 6147 (Aff. U.S. Sup. Ct., 69 Sup. Ct., 516)

1764 PICKETING WITHOUT MAJORITY VOTE

Although Board found that union members picketed without a majority vote by secret ballot to strike, the Board dismissed the complaint against the employes. On appeal, the Wisconsin Supreme Court sustained an unfair labor practice complaint against the employer and held that the Board is authorized by statute, (111.07) to order the remedy most consistent with the public interest.Appleton Chair Corp., 239 Wis. 337, 12/41

A majority of employes who decided to call a work stoppage without a vote technically violated the Act, However, the Board dismissed the complaint and issued no order against the employes, holding that the purpose of the section is largely to protect employes from arbitrary action by labor leaders in calling employes out on strike against their will. In the instant case the union leader had attempted to dissuade the employes from going out on strike. The Crandon Co. (1508) 1/48

Union, in picketing an employer for recognition, in the absence of a strike vote, where its employes are not members of the union, and where no labor dispute exists, held to have committed an unfair labor practice. Lester Scheibel (70) 5/40 (Aff. Rock County Cir. Ct., 9/41); Wisconsin Liquor Co., (685) 11/44; Roy F. Jansen (1419) 9/47; Hugo A. Tagatz (2436) 6/50 (Aff. Milwaukee Co. Cir. Ct., 1/51)

Union, in cooperating in engaging in, promoting, and inducing picketing and boycotting an employer without a secret ballot of a majority of the employes voting to call a strike, held to have committed an unfair labor practice. Poole & Poole (286) 8/41; Wis. Gas & Elec. Co., 246 Wis. 190, 8/41; Federal Malleable Co. (717) 2/45; Terminal Storage Co. (1453) 10/47; Hi-Lite Corp. (2558) 9/50; Brill’s, Inc. (2305) 1/50 (Aff. Milwaukee Co. Cir. Ct., 3/50); Strutz Heating and Air Conditioning Co. (3238) 9/52; Home Lumber & Improvement Co. (3304) 10/52 (Aff. Dane Co. Cir. Ct., 4/53); (Aff. Dane Co. Cir. Ct., 4/53; Strutz Heating and Air Conditioning Co.(3606) 11/53; Tri-County Redi-Mix, Inc. (3809) 9/54; Tenor Bros. Construction Co. (4212) 4/56

1770 HINDERING AND PREVENTING PURSUIT OF WORK; OBSTRUCTING

OR INTERFERING WITH ENTRANCE OR EGRESS, OR

OBSTRUCTION OF TRAVEL: SEC.: 111.06(2)(f)

1771 GENERALLY

Right to strike does not include the right to commit assaults, destroy property or deprive other people the right to earn a living in the place where they are employed. Allis-Chalmers Mfg. Co., 252 Wis. 43, 12/47

Sec. 111.06(2)(f) covers physical interference with the pursuit of work and threats thereof. Wis. Orchestra Leaders Assn. (8392-A,B) 11/70

1772 HINDERING AND PREVENTING PURSUIT OF WORK

Picketing of employer’s place of business after union had removed union shop card because of employer’s refusal to maintain union prices, was found to have been peaceful and that no attempt bad been made to coerce or intimidate the employer, his employes, or prospective customers. Board found that the picketing was carried on for the purpose of advising the public that the employer’s shop was not operated under union conditions. Edward Konop (1505) 1/48

Union, by threatening to picket job, caused store owner to advise non-union independent contractor to leave the job, hindered and prevented the pursuant of lawful work in violation of the Act. Steamfitters Local Union 601 (3250) 9/52

Union, by picketing and related activities, found to have illegally hindered and prevented the pursuit of lawful work by the employer.Andrew F. Doyle (5623) 10/60

1773 OBSTRUCTION OF ENTRANCE OR EGRESS

Where mass picketing by union of all entrances to employer’s plant did not hinder or prevent the pursuit of lawful work and employment of the non-striking employes, but was for the purpose of demonstrating the solidarity of the union and the desire of the union for a change in the working conditions, and where such picketing did not obstruct or interfere with entrance or egress from the employer’s plant, or with the free use of the roads, the union was held not to have committed an unfair labor practice. Western Leather Co. (287) 8/41

Mass picketing resulting in obstruction and interference with entrance to and egress from employer’s place of business held illegal.Creamery Package Co. (117) 9/40; Spring City Foundry Co. (126) 10/40 (Aff. Waukesha Co. Cir. Ct., 5/41); Allen Bradley Co. (6) (2/40) (Aff. U.S. Sup. Ct. on other grounds, 315 U.S. 740, 3/42); Golden Guernsey Dairy Co-op., 238 Wis 379, 6/41; Chain Belt Co.(929) 4/46; Allis-Chalmers Mfg. Co. (1190) 12/46; Harold Cederstrom (1276) 4/47 (Aff. Milw. Co. Cir. Ct., 10/47); George La Due, Racine Co. Cir. Ct., 7/47; Garton Toy Co. (2169) 9/49 (Aff. Sheboygan Co. Cir. Ct., 10/49); Lauson Investment Co. (2363) 4/50;Marathon Electric Mfg. Corp. (3141-A) 9/52 (Aff. Marathon Co. Cir. Ct., 11/52); Kohler Co., (3740) 5/54

Board found that manner of picketing was peaceful and did not result in the blocking of ingress or egress of the employer’s premises. Oral peaceful persuasion by pickets held not to constitute an obstruction of road into the employer’s business. Lake Incinerator Co., (6375) 6/63; Boulevard IGA Food Store (6791) 7/64

Picketing which interferes with entrance or egress need not constitute “mass” picketing to constitute an unlawful act. Flambeau Plastics Corp. (7987) 4/67 (Aff. Milw. Co. Cir. Ct., 6/67)

Union, by maintaining a picket line which resulted in obstructing and interfering with entrance to and egress from employer’s premises, found to have engaged in unfair labor practices within the meaning of Sec. 111.06(2)(f). LaCrosse Telephone Corp.(13294-A, B) 3/76

1774 OBSTRUCTION OF ROADS, ETC.

Conduct of pickets, in flagging down cars and trucks containing employes or prospective employes and those delivering materials to the employer without force or illegal threats and without preventing an entrance by a blockade for the purpose of discussing the strike and advising them that they were strike-breakers and to induce them to discontinue such activities, were held not to constitute unlawful acts amounting to any unfair labor practices. Foster-Lotham Mills (1343) 6/47

1780 ENGAGING IN SECONDARY BOYCOTT, HINDERING OR PREVENTING THE OBTAINING, USE OR DISPOSITION OF MATERIALS, EQUIPMENT OR SERVICE: SECTION 111.06(2)(g)

1781 SECONDARY BOYCOTT

1781.1 Generally

Picketing done at the place of business of a dairy company’s customers constituted a picketing of the places of business before which it occurred and not merely a picketing of the company’s delivery trucks and drivers, and the acts done, although they did not constitute putting the customers in fear of physical harm, did constitute coercion within Section 111.06(2)(g). Golden Guernsey Dairy Co-op., 238 Wis. 379, 6/41

Mass picketing for the purpose of hindering and preventing pursuit of lawful work or employment; threatening employes desiring to pursue their lawful work and employment with bodily injury and injury to the property and picketing the domiciles of employes of the company, held to be an unfair labor practice. Allen-Bradley Co. (6) 2/40 (Aff. U.S. Supreme Ct. on other grounds, 315 U.S. 740, 3/42)

Union, by picketing a building occupied by an employer, for the purpose of coercing the owner of the building to use his influence as an officer and stockholder of the employer to interfere with the right of the employes to refrain from union activity, held to have violated the Act. Elmer G. Steinhilber (2559) 9/50

Union found not to have committed acts of secondary boycott. H. Schowalter (3716) 4/54; Oscar Claus (3717) 4/54; Jonas Co. (3742) 6/54; South Side Sheet Metal & Furnace Co., (3754) 6/54

1781.2 Involving Tenants of Buildings

Union held to have engaged in secondary boycott of tenants of an apartment building by preventing, or attempting to prevent, the tenants from obtaining materials, equipment, and services, notwithstanding the fact that no labor dispute existed between the tenants and the union. A. L. Weiss (1368) 7/47

Where union is picketing an apartment building in an attempt to make it difficult for the owner to render services to tenants, and if the picketing incidentally causes losses or inconvenience to the tenants by the refusal of the tenants’ suppliers to pass through the picket line, the Board held that this is a loss for which the union is not liable and for which they cannot be ordered to cease and desist. Unless the acts of the union are directly directed against the tenants of the building, no secondary boycott exists. Lauson Investment Co. (2363) 4/50

1781.3 Off Situs Picketing

Picketing of truck, of employer involved in a labor dispute, at sites other than of employer, held not to constitute illegal picketing.Chuck Wagon Industrial Catering Service (7093-B) 8/66 (Aff. Milw. Co. Cir. Ct., 2/68)

1782 ACTS HINDERING OR PREVENTING THE OBTAINING, USE, OR DISPOSITION OF MATERIALS, EQUIPMENT, OR SERVICE

Union representative, in requesting parties dealing with non-union trucker, to cease doing business with the non-union trucker, held not to have committed an unfair labor practice since the evidence did not disclose that the trucker was prevented from doing business “with the parties by reason of threats, intimidation or force. Lester L. Leistiko (146) 1/41

Mass pickets in preventing trucks loaded with material from leaving the plant, accompanied by treats, intimidation, force and coercion, and in hindering automobile containing employes from entering plant parking lot, held to have committed a violation of the Act. Spring City Foundry Co. (126) 10/40 (Aff. Waukesha Co. Cir. Ct., 5/41)

Union, in endeavoring to secure, by threats of loss of employment, the consent and cooperation of an employe to discontinue patronizing a non-union employer, held to have violated the Act. Milwaukee Novelty Dye Works (127) 10/40

Union, by picketing in front of employer’s barber shop and in sending letters to customers of the employer whereby they were advised that if they continued to patronize the employer their names would be posted on published “unfair lists”, held to have violated the Act by attempting to prevent customers of the employer from obtaining the employer’s services. Poole and Poole (286) 8/41

Union, by engaging in a secondary boycott and combining and cooperating to hinder and prevent the obtaining, use and disposition of materials by third parties, having contractual relations with the employer., violated the Act. Hugo A. Tagatz (2436) 6/50 (Aff. Milwaukee Co. Cir. Ct., 1/51); Strutz Heating and Air Conditioning Co. (3238) 9/52; Steamfitters Local Union 601 (3250) 9/52; Home Lumber & Improvement Co. (3304) 10/52 (Aff. Dane Co. Cir. Ct., 4/53); Seider Hardware & Heating Co. (3659) 1/54; J. E. Robertson Co. (3857) 11/54

Union by engaging in picketing at the places of business of customers of the primary employer held to have violated the Act.Gerolomo Wholesale Bev. Co. (3383) 2/53

Picketing of employer’s trucks in support of a strike where there is a labor dispute held not to constitute illegal activity. Tri-County Redi-Mix, Inc. (3809) 9/54

Union held to have violated the Act by inducing an employe to leave his employment. Schmidt Glass Service (3660) 1/54

Where the union, while engaging in the acts of illegal picketing, contacted persons doing business with picketed employer, threatened to cause injury to those people if they continued to do business with the employer, which threats resulted in the discontinuance of deliveries to and from the employer, such activity, was held to constitute an unfair labor practice. Lee Dolf Bar (4182) 3/56

Union, by inducing a work stoppage to prevent primary employer from doing business with secondary employer on a construction project, held to have committed a secondary boycott in violation of Sec. 111.06(2)(g) of the Act. Capitol Erecting Co. (4405) 11/56 (Aff. Milw. Co. Cir. Ct., 1/58)

Union, by picketing primary employer for the purpose of coercing the employer into the payment of a fine levied upon him by the union, by inducing employes of other contractors on building site to refuse to pass the picket line, found to have committed an unfair labor practice within the meaning of Sec. 111.06 (2) (g) of the Act. Earl E. Patterson (4432) 1/57

Council composed of local labor organizations found to have committed an unfair labor practice within the meaning of Sec. 111.06 (2)(g) by combining and conspiring with one of its locals in the latter’s illegal activity. Earl E. Patterson (4432) 1/57

Union found to have engaged in acts of secondary boycott and other illegal activities for the purpose of hindering and preventing the obtaining, use and disposition of services and causing firms having contracts with building contractor to cease doing business with said contractor in order to coerce the contractor to sub-contract work to a “union” contractor. Louis Caruso (4703) 2/58 (Aff. Wis. Sup. Ct., 11 Wis. 2d 337, 11/60)

Musicians Union In threatening club owner with the withholding of the labor of union musicians and the use of union band services, in order to convince such club owner not to use non-union bands, committed an unfair labor practice within the meaning of Sec. 111.06(2)(g). Wis. Orchestra Leaders Assn. (8392-A,B) 11/70

1790 UNAUTHORIZED POSSESSION OF PROPERTY AND

CONCERTED EFFORT TO INTERFERED WITH PRODUCTION:

SECTION 111.06(2)(h)

1791 ACTS OF POSSESSION

Union, while picketing in support of a strike, in refusing to allow employer representatives to enter the plant premises, except on three occasions during a five-week period, and preventing these representatives from any use or occupancy of the premises, held to have taken unauthorized possession of property in violation of the Act. Creamery Package Co. (117) 9/40

Picketing employes held to have taken unauthorized possession of plant by not permitting officers and non-striking employes to enter the plant. Spring City Foundry Co. (126) 10/40 (Aff. Waukesha Co. Cir. Ct., 5/41)

Temporary retention of employer’s keys and route books by striking employe held not to have constituted unlawful possession of employer’s property. Lake Incinerator Co. (6375) 6/63

1792 ACTS OF INTERFERENCE WITH PRODUCTION

Employes who engaged in continuous work stoppages during regularly scheduled working hours, committed acts of interference with production. Briggs & Stratton Corp., 336 U.S. 245, 2/49

Union held to have attempted, by a concerted effort, to interfere with production in adopting a by-law imposing standards of production, where, after advising employers, who were operating legal union shops, that their “employes who violated said bylaw would be fined and suspended from the union” the employes reduced normal production to comply with the by-law to escape penalty.American Dry Cleaners et al (2723) (2724 (2732) (2734) 2/51

Union and its officers held to have engaged in a concerted effort to interfere with production in violation of the Act where slowdown and a reduction in production of the work of the employes resulted pursuant to an action taken by union membership. Stolper Steel Products Corp. (2109) 5/49 (Aff. 258 Wis. 481, 2/51)

Union, by authorizing, encouraging and condoning employes’ activity in refusing to work overtime, found to have violated Sec. 111.06(2)(h). Kearney & Trecker Corp. (11083-A,C) 4/73 (Aff. Milw. Co. Cir. Ct., 9/73)

1800 FAILURE OF STRIKE NOTICE: SECTION 111.06(2) (i)

1810 GENERALLY

Union, by engaging in two strikes involving an employer who was engaged in the initial processing of farm and dairy products used in the state by fast freezing of vegetables and eggs, violated the Act by not giving the Board at least ten days’ notice of its intention to strike. Terminal Storage Co. (1453) 10/47

Picketing at home construction site does not fall within requirement of 111.06(2) (i). Pearce L. Roberts, et al (3978) 5/55

Strike activity involving employer engaged in trash collection and disposal is not subject to ten-day notice requirement required by 111.06(2) (i). Lake Incinerator Co. (6375) 6/63

1820 COMMISSION OF A CRIME OR MISDEMEANOR IN CONNECTION WITH CONTROVERSY AS TO EMPLOYMENT RELATIONS:

SEC. 111.06(2)(j)

1821 GENERALLY

Union, while picketing in support of a strike, in physically blocking the entrance to employes premises, committed a misdemeanor and held to have violated the Act. Creamery Package Co. (117) 9/40

Union’s officers, agents and members found to have committed unfair labor practices by committing crimes and misdemeanors in attacking and threatening employes who crossed picket lines to work. Marathon Electric Mfg. Corp. (3141) 5/52

Union by its agent, who committing an assault and battery upon a representative of the employer in inquiring as to the discharge of an employe and who after threatening to “close the place up” unless the employe was reinstated, found to have committed a crime or misdemeanor in violation of the Act. Milwaukee Nash (3275) 10/52

Pickets, engaging in conventional rather than mass picketing, who engaged in name calling and who hurled epithets at employes who crossed picket line, having not threatening or violent connotation, found to have constituted a misdemeanor within the meaning of Section 134.03 since such acts did not prevent the pursuit of work, and therefore not an unfair labor practice in violation of Section 111.06(2)(j). Flambeau Plastics Corp. (7987) 4/67 (Aff. Milw. Co. Cir. Ct., 9/67)

Where Union representatives engaged in acts of secondary boycott without acts of physical interference or threats thereof, no violation of Sec. 111.06(2)(j) vas deemed to have occurred. Wis. Orchestra Leaders Assn. (8392-A,B) 11/70

Employes committed unfair labor practice by committing acts of violence on picket line. LaCrosse Telephone Corp. (13294-A, B) 3/76

1830 JURISDICTIONAL STRIKES: SECTION 111.06(2)(l)

No decisions

1840 COERCING AND INTIMIDATING AN EMPLOYER WORKING AT

THE SAME TRADE AS HIS EMPLOYES: SECTION 111.06(2) (m)

Wisconsin Supreme Court reversed Board and Circuit Court and concluded that the removal of a union shop card from barbershop does not in itself constitute coercion or intimidation within the meaning of Sec. 111.06(2) (m) since it was in the exercise of free speech to cease recommending said barbershop. WERB v. Journeymen Barbers (Leland J. Le Lieux) 272 Wis. 84, 2/56

Board found that picketing was partially in an attempt to coerce and induce the employer partners to become members of the union, and therefore in violation of the Act. Tenor Bros. Construction Co. (4212) 4/56

Board found Building Trades Council to have engaged in illegal acts of picketing for the purpose of inducing the employer into paying a fine levied upon him by the union. Earl Patterson (4432) 1/57

Picketing and related activities for the purposes of coercing the employer in an attempt to coerce him against his will to become a member of the picketing union held to be an unfair labor practice. Walter H. Pieper (4727) 3/58

Where club owner was already a member of the musicians union, acts of secondary boycott committed against said club owner, while constituting unfair labor practices under other provisions of the Act, held not to constitute an unfair labor practice within the meaning of Sec. 111.06(2)(m). Wis. Orchestra Leaders Assn. (8392-A,B) 11/70

1841 GENERALLY

Union held to have violated the Act in coercing and intimidating an employer, working at the same trade as his employes, in an effort to induce the employer to become a member of the same labor organization. Schmidt Glass Service (3660) 1/54

Where union pursuant to its constitution, caused an employe to quit his employment for the reason that the union had removed the union shop card from the employer’s barbershop, Board found such activity in violation of See. 111.06(2)(m). Archie McMaster (3834) 10/54 (Aff. 272 Wis. 94, 2/56)

1900 UNFAIR LABOR PRACTICES BY PERSONS OTHER THAN EMPLOYERS AND EMPLOYES

1910 INFLUENCING THE OUTCOME OF LABOR CONTROVERSY SECTION 111.06(3)

1911 GENERALLY

Union, by picketing employer’s plant, obstructing ingress and egress, threatening, interfering with employer’s customers, held have committed said acts for the purpose of compelling the employer to enter into an all-union contract in the absence of a referendum authorizing same. Golden Guernsey Dairy Co-op, 238 Wis. 379, 10/41; Morris Resnick, Inc. (334) 11/41) (Aff. Milwaukee Co. Cir. Ct., 2/42)

Union and individual employes, by causing walkouts and refraining from work for the purpose of interfering with production, held to have committed unfair labor practices whether they in fact were among the employes who committed those acts or not. Briggs & Stratton Corp., 336 U.S. 245, 2/49

2000 UNIT APPROPRIATE FOR COLLECTIVE BARGAINING

2010 POLICY REGARDING DETERMINING FACTORS

2011 STATUTORY LIMITATION ON COMMISSION’S POWER TO DETERMINE

Board Has no power to determine what constitutes an appropriate collective bargaining unit under the Act. L. Wiemann Company(181) 3/41 (Aff. Milw. Co. Cir. Ct., 6/41); Gimbel Bros. Dept. Store (251) 6/41; Evinrude Motor Div. (780) 8/45; Zahn’s Department Store (3198) 7/52; Beaumont Hotel (3630) 11/53

Board must determine whether the group of employes set out by the petitioner as being an appropriate unit, does in fact constitute a separate craft, division, department, or plant of the employer. Employes involved, if they do constitute a separate craft, division, department, or plant of the employer, are then given the opportunity to decide for themselves whether they desire to constitute a separate bargaining unit. Wis. Gas & Elec. Co. (118) 10/40; Gimbel Bros. Dept. Store (251) 6/41; Gimbel Bros. Dept. Store (356) 2/42; Blochowiak Dairy Co. (2970) 9/51 (Aff. 262 Wis. 280, 8/52); Normington Laundry and Dry Cleaning (3864) 12/54

The vote of a majority of all the employes in a bargaining unit rather than a majority of those voting is required before such unit can be constituted a separate bargaining unit. Normington Laundry & Dry Cleaning (3864-A) 1/55

Commission must determine whether the group of employes set out by the petitioner as being an appropriate unit, does in fact constitute a separate craft, division, department, or plant of the employer. Employes involved, if they do constitute a separate craft, division, department, or plant of the employer, are then given the opportunity to decide for themselves whether they desire to constitute a separate bargaining unit. St. Michael’s Hospital (8005) 4/67; Methodist Hospital (8506-A) 7/68

When there is a request for an election among certain employes not constituting all of the employes of the Employer, the Commission has no power to determine what constitutes the appropriate collective bargaining unit. Instead, the Commission determines only whether the group of employes alleged to constitute an appropriate unit does, in fact, constitute a separate craft, division, department or plant. If the employes involved constitute a separate craft, division, department or plant, they are then given the opportunity to determine for themselves whether they desire to constitute a separate collective bargaining unit. St. Vincent’s Hospital (9023-A) 8/69;Memorial Hospital Association (9218) 9/69; Evangelical Deaconess Hospital (9671) 5/70; Professional Food Service Management(9851) 8/70; Wausau Hospital South (10193-10194) 3/71; St. Michael’s Hospital (10771) 2/72

Where the unit desired did not consist of all of the otherwise eligible employes but would include employes in various departments to the exclusion of employes in other departments the Commission dismissed the petition since such group of employes could not constitute an appropriate bargaining unit as contemplated in See. 111.02(6) of the Act. Clintonville Community Hospital (9398) 12/69;Clintonville Community Hospital (9518) 2/70

Where group of employes claimed to be appropriate by the petitioning Union consists of an amalgamation of several distinct departments to the exclusion of several occupations and professions, and where the Union requested separate unit votes for separate departments, Commission directed election among all, otherwise eligible, employes of the Employer. Watertown Memorial Hospital (9857) 8/70

The language in Sec. 111.02(6) permitting two or more collective bargaining units to bargain “through the same representative where a majority of the employes in each separate unit shall have voted . . . so to do,” simply permits the same organization to represent employes in more than one separate bargaining unit. There is no requirement in the Act that the employes in the units involved must affirmatively vote in favor of the union representing both units. Manitowoc Memorial Hospital (11952) 6/73

The vote of a majority of all the employes in a bargaining unit rather then a majority of those voting is required before such unit can be constituted a separate bargaining unit. United Community Services of Milwaukee, Inc. (11281-C) 10/73

When there is a request for an election among certain employes not constituting all of the employes of the employer, the Commission has no power to determine what constitutes the appropriate collective bargaining unit. Instead, the Commission determines only whether the group of employes alleged to constitute an appropriate unit does, in fact, constitute a separate craft, division, department or plant. If the employes involved constitute a separate craft, division, department or plant, they are then given the opportunity to determine for themselves whether they desire to constitute a separate collective bargaining unit. Trinity Memorial Hospital (12764) 6/74; Wausau Hospital (12946) 8/74

2012 EFFECT OF PRIOR DETERMINATION

Previous determination of unit consisting of all employes of the employer in the state does not preclude a subsequent determination of a smaller unit i-f the employes so sought are in a single craft, division, department, or plant. L. Wiemann Co. (181) 3/41 (Aff. Milw. Co. Cir. Ct., 6/41); Blochowiak Dairy Co., 262 Wis. 280, 8/52

Previous determination of unit consisting of all employes of the employer does not preclude a subsequent determination of a smaller unit should the employes therein be in a single craft, division, department or plant. Wausau Hospital (12946) 8/74

2013 BARGAINING HISTORY

Board dismissed representation petition for smaller unit than that contained in long past bargaining history and that parties have treated as appropriate where petition involved employes in a group which did not constitute a separate craft, department, or division.Fox Head Waukesha Corp. (997) 7/46

Elevator operators and janitors of a commercial building may constitute two separate bargaining units. Bargaining history indicated groups treated separately for bargaining purposes. Caswell Bld. Corp. (1903) 10/48 (Aff. Milwaukee Co. Cir. Ct., 1/49)

Office clerical employe excluded from unit for reason that employe had no common interest with the other employes and has regularly been excluded from collective bargaining units similar to the one established. Empire Radio & Appliance Stores (2414) 5/50

Where employer petitioned for an election to seek “decertification of present bargaining representative,” Commission limited voting group to unit established by parties in their collective bargaining agreement. Picasso Plaza, Ltd. (8608) 7/68

2014 FACTORS CONSIDERED IN DETERMINING SEPARATE CRAFT, DIVISION, DEPARTMENT OR PLANT

2014.1 Physical Separation, Difference in Working Conditions

In order to constitute a separate department or division, there must be something more than an arbitrary division. There must be either an actual physical separation or some difference in working conditions that will divide the employes into natural groups. Gimbel Bros. Dept. Store (251) 6/41

Dock workers and dispatchers were not excluded from unit of warehouse employes since they were neither craft employes nor were they in any other manner separated from remaining employes in transportation department. Goodwill Industries of Wisconsin, Inc.(7446) 1/66

Where Employer has recognized clerical personnel in a separate department, Commission permitted said employes to determine for themselves whether they desire to constitute a separate unit. Superior Memorial Hospital (7791) 11/66

In determining whether employes are engaged in a separate division or department, the Commission examines their working conditions, they work location, their duties and functions and their supervision. St. Michael’s Hospital (8005) 4/67; Methodist Hospital(8506-A) 7/68

Since office and clerical employes were not employed in a separate department or division, they were not entitled to a separate unit vote. St. Nicholas Hospital (8339) 1/68

Fact that hiring procedures, fringe benefits, and other conditions of employment are common to all employes does not affect the statutory tests for the establishment of appropriate bargaining units. Methodist Hospital (8506-A) 7/68

Hospital office employes, separately located and supervised, and who perform duties not performed by other employes, although subject to personnel policies applied to other employee, found to be employed in a separate department and therefore entitled to determine for themselves as to whether they desire to constitute a separate bargaining unit. Door County Memorial Hospital (9073) 6/69

Where Union seeks a unit consisting of maintenance department employes, clerk-typist employed in said department held eligible to vote in election to determine unit and bargaining representative. St. Michael Hospital (11845) 7/73

Commission will not exclude employes from departmental voting group because the duties of such employes may differ from duties of other employes therein. St. Vincent’s Hospital (12008) 7/73

Where office clerical employes hospital had no common supervision or work location they were not employed in a separate department, and therefore included in over-all non-professional unit of employes. St. Mary’s Hospital Medical Center (12017) 7/73

In determining whether employes are engaged in a separate division or department, the Commission examines their working conditions, their work location, their duties and functions and their supervision. St. Michael’s Hospital (12139) 9/73

Differences in working conditions must be substantial before the Commission can find that a group of employes is entitled to a unit determination election. St. Michael’s Hospital (12139) 9/73

All employes in Nurses Service Department, employed in a separate department, are entitled to an election to determine whether they desire to constitute a unit separate and apart from remaining employes of hospital. St. Michael’s Hospital (12139) 9/73

Where union sought unit consisting of employes in various departments to the exclusion of employes in remaining departments, Commission determined such unit to be inappropriate. Mercy Hospital (12414) 1/74; St. Mary’s Hospital of Rhinelander (12520) 3/74;Howard Young Medical Center (12413-A) 4/74

In determining whether employes are engaged in a separate division or department, the Commission examines their working conditions, their work location, their duties and functions and their supervision. Wausau Hospitals (12946) 8/7

2014.2 Similar Craft-Profession

The craftsmen in a plant cannot by a vote constitute themselves a separate bargaining unit, where to do so would eliminate from such unit other craftsmen engaged in the same craft in the same plant. The Heil Co. (185) 3/41; Gimbel Bros. Dept. Store (251) 6/41;Wis. Elec. Power Co. (846) 11/45; Wis. Elec. Power Co. (890) 2/46

Nurses being professional are entitled to determine for themselves whether they desired to constitute a unit separate and apart from other hospital employes. Manitowoc Memorial Hospital (11952) 6/73

Professional employes were given opportunity to vote as to whether they desired to be included in a single bargaining unit with non-professionals, and should a majority of the eligible professionals vote in favor of such inclusion, they would be so included. West Side Community Center, Inc. (18987) 9/81

2014.3 Licensed Employes

Mere fact that employes hold a license indicating that they have met the standards required by a municipality to perform duties of stationary engineers does not, in itself, establish them as employes engaged in a single craft within the meaning of the Act, where those employes spend approximately only 10% of their time at functions which identify them as being in a single craft. Zahn’s Inc.(2898) 6/51

2014.4 Professional Employes

Unlike the Municipal Employer Labor Relations Statute (Sec. 111-70) professional employes in private employment do not automatically constitute a separate appropriate unit. Professionals employed in private employment must establish their separate unit pursuant to Sec. 111.05(2). Ft. Atkinson Memorial Hospital (9580) 4/70; St. Michael’s Hospital (10771) 2/72

Unlike the Municipal Employer Labor Relations Statute (Sec. 111.70) professional employes in private employment do not automatically constitute a separate appropriate unit. Professionals employed in private employment must establish their separate unit pursuant to Sec. 111.05(2). Goodwill Industries – Milwaukee (13424) 3/75

The fact that some nurses were employed in separate departments did not warrant their exclusion from overall nursers unit, since they were engaged in the same profession. Trinity Memorial Hospital (12764) 6/74

2015 EXTENT OF ORGANIZATION

Board, under the Act, is not called upon to determine jurisdictional rights of labor organizations. Employes have right to select any bargaining representative they choose. Employer’s objection to inclusion of two firemen from unit of hotel employes on ground that usually another labor organization represents that category of employes, is no ground for excluding the firemen from the unit.Athearn Hotel (385) 5/42

Board held that it was not the legislative intent to determine the appropriateness of collective ,bargaining units by determining the extent to which employes had been organized by a particular labor organization. Blochowiak Dairy Co. (2376) 4/50 (Aff. Milw. Co. Cir. Ct., 7/60; Beaumont Hotel (3630) 11/53

There is nothing in the Wisconsin Employment Peace Act which limits the rights of employes to select any representative they choose regardless of the traditional jurisdiction of the employe organization. Ulmen Construction Co., Inc. (8750) 11/68

2016 SIZE OF UNIT

Commission has consistently held election in collective bargaining unit of only one employe on the basis that individual employe may engage in concerted activity along with fellow employes of other employers, and that the concerted activity need not necessarily be related to one employer. Jerusalem Evangelical Lutheran Church (8272) 11/67

A unit consisting of one employe may constitute an appropriate unit within the meaning of Section 111-05 of the Wisconsin Employment Peace Act. Sinclair Refining Co. (8526-A,B) 3/69 (Aff. 52 Wis. 2d 126, 6/71); Sisters of St. Francis (10501) 9/71

2020 MULTIPLE EMPLOYER UNITS

2021 GENERALLY

Board held certain classifications of employes of garages located in one county and bounded together in an association, constitute a single division and an appropriate unit. Brown County Automobile Dealers Ass’n. Inc. (34) 1/40

Unit consisting of all carpenters and millworkers of 18 Milwaukee millwork companies held not appropriate for single collective bargaining unit. A. Anderson Millwork Co. (97) 9/40

Where all parties affected in any way are not agreeable to a collective bargaining unit consisting of employes of employers in an association, no one unit of employes of all of the employers can be established. Coal Dock Operators of Milwaukee (1058) 8/46;Wisconsin Window Cleaners Ass’n. (2133) 7/49; Juneau Court Apts. Inc. (4900) 10/58

2030 MISCELLANEOUS UNIT PROBLEMS

2031 EMPLOYES RELATED TO EMPLOYER

Outside division consisting of only one employe not related to management, and inside division consisting of only one employe not related to management, may constitute an appropriate unit. Scribner’s Dairy (17) 9/39

2032 INDEPENDENT CONTRACTORS

Individual, who by contract leases a milk route territory from a milk plant and who, pursuant to that contract, is to be paid a “commission amounting to the difference between the cost of the milk to him and the sales price,” held not to be an employe within the meaning of the Act but independent contractor. Mariondale Farms, Walworth Co. Cir. Ct., 5/50

2033 BUSINESSES HAVING COMMON PROPRIETORSHIP

Two separate corporations, having operations that are intertwined, held to constitute “one employer” for the purpose of establishing an appropriate bargaining unit. General Concrete Products Co. (4076) 10/55

2034 RESIDUAL UNIT

Where Union had originally requested an “over-all” unit, but where Commission, at request of Employer, directed separate unit votes in various separate departments, Commission directed that if separate units were not established in more than one voting group, the employes in such voting groups would be combined in a “residual unit” of employes. Memorial Hospital Assn. (9218) 9/69

2040 SUPERVISORY, CONFIDENTIAL, MANAGERIAL EMPLOYES

2041 INSPECTORS

Inspectors, whose duty to see that no defective material left the plant are not supervisors. Board found that they owed no greater duty to the employer than other production employes. They were included in unit of janitors and inspectors. Sivyer Steel Casting Co.(582) 5/44

2042 SUPERVISORS

Board dismissed petition where only employe who would properly constitute a part of any collective bargaining unit, was acting as an agent of the employer and as a supervisor with authority to hire. A. L. Weiss (1366) 7/47

Supervisor of inventory control, supervisor of engineering, supervisor of process engineers, senior electrical engineer and senior chemical engineer found to be employed in an executive capacity and therefore excluded from unit of office, clerical and engineering employes. Milwaukee Gas Specialty Co. (1514) 1/48

Working foremen, spending a large part of their time in a non-supervisory capacity, included in unit. Merrill Mfg. Co. (889) 9/44 (Aff. Lincoln Co. Cir Ct., 12/44)

2043 OFFICE EMPLOYES

Fact that certain office employes, in the course of their duties, obtain information that might be of value to competitors, or damaging to the employer if divulged to competitors, should not be excluded from office employe unit since these employes do not represent management in interests contrary to other office employes. Creamery Package Mfg. Co. (250) 6/41

Confidential secretary excluded from unit of office, clerical and engineering employes. Milwaukee Gas Specialty Co. (1514) 1/48

2050 UNITS IN PARTICULAR INDUSTRIES

2051 AUTOMOBILE DEALERS AND GARAGES

All skilled employes of association of automobile dealers consisting of mechanics, machinists, auto electricians, body and fender repairmen, radiator repairmen, trimmers, upholsterers, auto painters and helpers, may constitute an appropriate unit. Brown Co. Auto Dealers Ass’n. Inc. (34) 1/40

Mechanics, machinists, ignition and battery repairmen, radiator men, body and fendermen; welders, blacksmiths, auto trimmers, and painters, specialists on brakes, speedometers and carburetors, frame and axle straightening, small parts reconditioning, radio repairmen, apprentices, service salesmen and assistants, lead men and shop maintenance of a garage may constitute an appropriate unit. Vliet Street Motors, Inc. (1741) 8/48

All auto mechanics, body and fender men, frame and axle straightening, apprentices, washers, greasers and floormen of a garage may constitute an appropriate unit. Walsh Motors (1376) 7/47; Olstad Motors (1377) 7/47; Wood Motors (1378) 7/47

Mechanics, painters, apprentices and helpers of auto agency may constitute an appropriate unit. Packard Milwaukee Co. (1639) 5/48

Unskilled employes in service department consisting of washers, greasers and polishers, may constitute an appropriate unit. Brown Co. Auto Dealers Ass’n., Inc. (34) 1/40; Packard Milwaukee Co. (1639) 5/48

Car washers and gas pump attendants of car wash were given the opportunity to determine whether they desired to constitute a unit separate and distinct from cashiers. Minit Man Car Wash, Inc. (5507) 6/60

2052 BAKERIES

Garage employes of bakery may constitute an appropriate unit. Omar, Inc. (36) 12/39

All inside production employes may constitute an appropriate unit. General Baking Co. (290) 9/41

All division salesmen may constitute an appropriate unit. M. Carpenter Baking Co. (386) 5/42

All shipping room employes may constitute an appropriate unit. Oswald Jaeger Baking Co. (744) 5/45

2053 BEVERAGE BOTTLING AND BREWING

All driver salesmen may constitute an appropriate unit. Fauerbach Brewing Co. (193) 4/41; Coca Cola Bottling Co. of Madison (1950) 11/48

All driver-salesmen and inside production workers may constitute an appropriate collective bargaining unit. Pepsi-Cola Bottling Co. (Eau Claire) (327) 11/41

All office employes and salesmen of local office may constitute an appropriate unit. Fox Head Brewing Co. (1940) 11/48

“Inside employes”, consisting of production workers and loaders, may constitute an appropriate unit. Squirt-Nesbitt Bottling Corp.(4098) 11/55

2054 DAIRY AND MILK PLANTS

2054.1 Concerns Operating one Plant

Milk route drivers and inside workers engaged in manufacture, preparation and processing of dairy products may constitute an appropriate unit. Fisher Dairy (15) 9/39; Altenberg’s Dairy (16) 9/39; Bendfelt Dames (18) 9/39; Scribner’s Dairy (17) 9/39; Lewis Dairy Farm (199) 4/41; Cloverleaf Dairy Co. (200) 4/41;

Studey’s Sanitary Dairy (201) 4/41; Marigold Dairy (202) 4/41; Progressive Dairy (203) 4/41; Westfield Dairy Co. (204) 4/41;Cloverlane Dairy Coop (1389) 7/47; Blochowiak Dairy Co. (1396) 7/47 (Aff. Milw. Co. Cir. Ct., 12/47); Blochowiak Dairy Co. (2021) 2/49

Production and maintenance employes, including tank truck drivers may constitute an appropriate unit. River Falls Coop Creamery(1744) 8/48

All inside plant workers may constitute an appropriate unit. Neenah Milk Products Co. (154) 1/41; Bowman Farm Dairy (3015) 10/51

Milk drivers may constitute an appropriate unit. Wern Farms (823-A) 11/45; Guernsey Dairy Co. (1177) 12/46

All driver salesmen and helpers may constitute an appropriate unit. Blochowiak Dairy Co. (2970) 9/51

Garage employes may constitute an appropriate unit. Clover Lane Dairy Co-op. (1389) 7/47; Blochowiak Dairy Co. (1396) 7/47 (Aff. Milw. Co. Cir. Ct., 12/47); Blochowiak Dairy Co. (2021) 2/49

Dairy store saleswomen excluded from unit consisting of route salesmen and inside workers since store was located at another site and because their hours, working conditions and wages distinguished their identity of interest as separate and apart. Utschig Dairy(4865) 9/58

2054.2 Concerns Operating More Than One Plant

All inside plant workers of one of dairy company’s plants may constitute an appropriate unit. Borden Milk Co. (Clintonville) (139) 11/40; White Horse Milk Co., Inc. (840) 11/45

All inside employes and drivers of one of dairy company’s plants may constitute an appropriate unit. Dolly Madison Dairies (190) 1/41;Borden Milk Co. (Racine) (198) 4/41

Production, maintenance and delivery employes of one of company’s plants and substations thereof may constitute an appropriate unit. White House Milk Co. (322) 12/41

2055 DAIRY EQUIPMENT MANUFACTURERS

All production and maintenance employes may constitute an appropriate unit. Cherry-Burrell Corp. (1379) 7/47

All office employes may constitute an appropriate unit. Creamery Package Mfg. Co. (258) 6/41

All regular full time production employes may constitute an appropriate unit. Wisconsin Butter Tub Co. (227) 5141

2056 RETAIL STORES

2056.1 One Store Operation

All employes of a department store, who are engaged in the manufacture, servicing and repairing of fur garments may constitute an appropriate unit. Simpson Garment Co. (301) 9/41; Master Furriers, Inc. (305) 9/41

Differences in duties performed, wages, work week, shift schedules and supervision resulted in finding that delivery truck drivers and helpers were employed in a department separate and apart from sales and office personnel of retail sales establishment and, therefore, were entitled to separate unit vote. Sandy’s Inc. (8563) 7/68

Drivers and helpers found to have working conditions differing from sales persons, and therefore entitled to separate unit vote.Badger Furniture Co. (13194) 12/74

2056.2 Chain Operation

Sales employes of company’s two stores in one city may constitute separate units in each store. Schiff Co. (41) 2/40

Merchandising and servicing employes of one retail store of a chain may constitute an appropriate unit. J. C. Penney Co. (46) 2/40

Regular full and part time employes of one store of a chain may constitute an appropriate unit. Montgomery Ward Co. (175) 3/41

Clerks of department store warehouse may constitute an appropriate unit. L. Wiemann Co. (181) 3/41

Employes of receiving and stock room, including receiving clerks, freight elevator operators, checkers, stock clerks, and stock markers of incoming merchandise, of retail outlet did not constitute themselves a separate craft, division, department or plant. Less than 10% of non-selling employes of the company were contained in the unit petitioned for, and among the remaining 90% a great number performed similar work under same and similar conditions, e.g., passenger elevator operators. Gimbel Bros. Dept. Store(251) 6/41

Drivers for customer deliveries, freight and long distant drivers, mechanics and assistant mechanics, freight receiving clerks and freight elevator operators, warehousemen, grocery checkers, and farm produce receivers, in one operation of chain, may constitute an appropriate unit. H. C. Prange Co. (845) 1/42

All selling and non-selling employes in a retail store outlet may constitute an appropriate unit. Gimbel Bros. Dept. Store (356) 2/42

Board held clerks in single store constituted a separate division of employer’s business. L. Wiemann Co. (560) 2/44

Where the employer is operating several separate stores in various locations in the same city, or in different cities, each store constitutes a separate plant or department of the employer’s business. Employes of each store, if they so desire, may constitute an appropriate unit. Ed Schuster & Co., Inc. (1131, 1132, 1133) 10/46

All firemen employed by a department store firm may constitute an appropriate unit. Ed Schuster & Co., Inc. (1135) 10/46

Employes located in annex of department store, among whom one baled paper and did porter work in both buildings, three who marked merchandise, two who packed and unpacked merchandise, and one who operated delivery truck, held not to constitute a separate craft, plant, department, or division, where the employes were under the direction of at least three different supervisors and other employes in the main building performed similar duties. H. C. Prange Co. (1431) 9/47

2057 FOOD STORES

Grocery clerks of a retail store, including regular part time employes, excluding store managers, may constitute an appropriate unit.Carr’s Inc. (52) 3/40

Retail butchers of a retail store, including regular part time butchers, may constitute an appropriate unit. Carr’s Inc. (52) 3/40

Truck drivers and warehouseman of a warehouse of a retail store may constitute an appropriate unit. Carr’s Inc. (52) 3/40

All meat market managers, cutters, and apprentices in all local stores of a chain may constitute an appropriate unit. Kroger Grocery & Baking Co. (420) 6/42

All regular full time grocery and food clerks of one store of a chain may constitute an appropriate unit. Kroger Grocery & Baking Co.(1358) 6/47

All regular full time and part time employes of local stores of grocery chain, excluding employes in meat departments, may constitute an appropriate unit. Krambo Food Stores (1422) 9/47; Salamone Co. (4129) 12/55

All meat department employes of the wholesale and retail meat department may constitute a separate unit. Ferguson’s Wholesale and Retail Market (3417) 3/53

Grocery and produce department employes may constitute a unit separate and apart from bake shop employes in an adjacent building and at different hours. Roy Schaumburger (5309) 9159

2058 DRY CLEANING AND LAUNDRY

All sales drivers may constitute an appropriate unit. Milwaukee Novelty Dye Works (579) 4/44; Quality Service Co. (2232) 11/49

All cleaning department employes may constitute an appropriate unit. Quality Service Co. (2230) 11/49

All office and store employes may constitute an appropriate unit. Quality Service Co. (2230) 11/49

All inside laundry production workers may constitute an appropriate unit. Normington’s Inc. of Wisconsin Rapids (3597) 10/53;Normington Laundry and Dry Cleaning (3864) 12/54

2059 HOSPITALS AND NURSING HOMES

All non-professional employes may constitute an appropriate unit. Evangelical Deaconess Hospital (296) 9/41

All power house employes may constitute an appropriate unit. Deaconess Hospital (1001) 6/46

Kitchen, dining-room, laundry, linen room, maintenance, boiler room, engineering employes, ward helpers and elevator operators may constitute an appropriate unit. Madison General Hospital (2645) 11/50

All inside laundry workers of a hospital may constitute an appropriate unit. Evangelical Deaconess Hospital (2971) 5/51

Hospital employes in departments, other than business office, personnel office and medical records library and other than professional employes, may constitute an appropriate unit. St. Anthony’s Hospital (4762-A) 7/58

Registered nurses in employ of nursing home found to constitute a single craft within the meaning of Sec. 111.02(6) and therefore can determine for themselves as to whether they desire to constitute a separate unit. Mill-Way Nursing Home (6355-A) 9/63

Maintenance employes employed in a separate department may constitute an appropriate unit. St. Joseph’s Hospital (7223) 7/65

Nurses aides not entitled to separate unit vote since they were not employed in a separate department, but rather were included with housekeeping, maintenance and kitchen employes since they were under the same supervision and other factors establishing a community of departmental interest. Doctor’s Hospital (8096) 7/67

All craft employes in maintenance department of hospital are entitled to separate unit vote. St. Nicholas Hospital (8339) 1/68

Registered nurses in employ of hospital found to constitute a single craft within the meaning of Sec. 111.02(6), and therefore can determine for themselves as to whether they desire to constitute a separate unit. Bellin Memorial Hospital (8518) 1/68

Commission ordered separate unit votes among (1) employe of Housekeeping Department, and (2) employes of Heat, Light and Power Department. Methodist Hospital 8506-A) 7/68

Commission ordered separate unit votes among employes of (1) Housekeeping, (2) Laundry, (3) Food Service, and (4) Maintenance departments. St. Vincent’s Hospital (9023-A) 8/69

Dietary, Housekeeping, Laundry, Maintenance, and Nurses’ Aides found to be separate divisions within the meaning of the Act, and therefore the Commission ordered that separate unit votes be conducted in said divisions to permit the employes therein to determine for themselves as to whether they desire to constitute separate units. Memorial Hospital Assn. (9218) 9/69

Since Nurses Aides did not comprise a separate department or division of a hospital, but were employed in a “Nursing Service Department”, which included additional employes, Commission declined to direct a unit determination vote among Nurses Aides only.Clintonville Community Hospital (9509) 2/70

Commission directed separate unit votes among employes in Housekeeping Division and Food Services Department. Evangelical Deaconess Hospital (9672) 5/70

Separate unit votes were directed in five separate departments of hospital. Holy Family Hospital (9682) 5/70

Nurses employed in Nursing Service Department, being professionals, held entitled to determine whether they desired to constitute a separate unit and should they reject a separate unit for nurses, then they would revert to a voting group consisting of employes in Nursing Service Department. Holy Family Hospital (9682) 5/70

Nurses, being professionals are entitled to determine whether they desired to constitute a separate unit and should they reject same, since petitioner sought hospital-wide unit, they would be included in over all hospital unit. St. Michael’s Hospital (10771) 2/72

Nurses, being professionals, are entitled to determine whether they desired to constitute a separate unit and should they reject same, since petitioner sought hospital-wide unit, they would be included in overall hospital unit. Eagle River Memorial-Hospital (12888) 8/74

Medical Technologists and Certified Laboratory Aides found to be professional employes and therefore entitled to determine whether they desire to constitute a separate unit. Wausau Hospitals (12946) 8/74

2060 HOTELS, APARTMENT AND OFFICE BUILDINGS, CLUBS,

ETC.

Janitors, elevator operators, watchmen and maintenance men of office building may constitute an appropriate unit. Caswell Bldg. Corp. (1903) 10/48 (Aff. Milw. Co. Cir. Ct., 1/49)

Engine room employes and maintenance men of a hotel may constitute an appropriate unit. Abbot Crest Hotel (184) 3/41

Bus boys, desk clerks, and regular banquet waitresses of hotel included in bargaining unit. Hotel Manitowoc (1499) 1/48

Waitresses, kitchen help, and houseman of a club may constitute an appropriate unit. The City Club of Milwaukee (185) 11/40

Waiters, waitresses, bus boys, bartenders, bar porters, helpers, food checkers, cashiers, dishwashers, pot washers, pantry girls, salad girls, and car parkers of a club may constitute an appropriate unit. Wisconsin Club (2924) 7/51

All regular full-time and part-time employes may constitute an appropriate unit. Hotel Dixon (3092) 2/52

Board held that a proposed unit consisting of hotel firemen, laundry, maids, housemen, porters, and maintenance employes and excluding engineers, head bookkeeper, garage employes, carpenter, kitchen, dining room, front office, elevator operators, barmen, and bartenders, did not constitute a collective bargaining unit within the meaning of the Act inasmuch as the employes petitioned for were not engaged in a single craft, division, department, or plant. Beaumont Hotel (3445) 4/53

Board held that employes selling souvenirs, food, and beverage at counters in Milwaukee County Stadium to be included in bargaining unit along with employes selling such products in stands since there was a considerable interchange of work, that all the employes were under a single supervision and working the same hours. The fact that the vendors were paid on a commission basis rather than on an hourly rate was not sufficient to exclude them as a separate division or department. National League Baseball Club of Milwaukee (4577) 7/57

Where Employer operated 15 residence halls and although housekeeping personnel in each hall had separate supervision, Board held one hall did not constitute a single division, department or plant of the Employer. Marquette University (5711) 3/61

Where in university cafeteria, ‘Operated by an Employer under the Act, student help have working conditions different than regular cafeteria employes, Board permitted regular employes opportunity to determine whether they desired to constitute themselves as a separate bargaining unit. Ace Foods, Inc. (6875) 9/64

2060 RESTAURANTS

“In house” employes of pizza restaurant not employed in a division separate from deliverymen, since latter also performed “in house” duties. Rocky Rococo Corp. (13415) 3/75

2061 PAPER MILLS AND SUPPLIES

2061.1 Single Plant Operation

Truck drivers and warehousemen of paper supply company may constitute an appropriate unit. Dizon Paper & Supply Co. (145) 12/40

Stenographers and bookkeepers of paper supply company may constitute an appropriate unit. Dizon Paper & Supply Co. (284) 8/41

Plant maintenance employes of paper box company may constitute an appropriate unit. Hummel-Downing Inc., (618) 6/44

2061.2 Multiple Plant Operation

All hourly paid employes, including salaried track drivers and janitor (excluding office workers) of company’s three plants may constitute an appropriate unit. Kimberly-Clark Corp. (13) 8/39

All regular full time production employes in one of paper box company’s plants may constitute an appropriate unit. Blum Bros. Box Co. (225) 5/41

All construction carpenters and carpenter millwrights of one plant of a papermill may constitute an appropriate unit. Marathon Paper Mills (243) 5/41

All power-house and boiler room employes for paper mill may constitute an appropriate unit. Kimberly-Clark Corp. (1092) 9/46

2062 PRINTING AND PUBLISHING

Journeymen and apprentice electrotypes may constitute an appropriate unit. American Electrotype Co. (156) 1/41

All employes in editorial room (news room) may constitute an appropriate unit. Wis. State Journal Publishing Co. (1022) 7/46 and (1360) 6/47

Folding machine operators held an inappropriate unit since they have been historically considered as bindery department employes.Banta Publishing Co. (1325) 6/47

Petitioner sought a unit composed of pressmen, feeders and helpers, cutting pressmen and feeders, die room employes, roller room employes, stock carriers and stock room employes of printing firm. Board dismissed petition since the last four named categories were not craftsmen associated with the other categories and were not in a separate department or division. Marathon Corp. (1446) 10/47

Employes of printing establishment employed as compositors, bindery employes, art and layout man were given the opportunity to vote to determine whether they desired to constitute themselves a unit separate and apart from secretarial employes. Belle City Press(5509-B) 10/60

Lithographic employes because of their special skills and knowledge of specialized processes were given opportunity for self determination of unit on basis of craft distinction. Coronet Printing (6799) 7/64

2063 FUEL AND OIL DEALERS

Truck drivers, helpers, and yardmen (separate unit for each employer may constitute an appropriate unit. Madison Fuel Dealers (206 to 222) 4/41; Boehinger Oil & Fuel Co. (335) 11/41; Sinaiko Bros. Coal & Oil Co. (990) 6/46

All wholesale truck drivers may constitute an appropriate unit. Ken Mac Petroleum Co. (1327) 6/47

Truck drivers of local plant of oil company may constitute an appropriate unit. Wadhams Division (912) 3146

Truck drivers and helpers may constitute an appropriate unit. Sinaiko Bros. Coat and Oil Co. (3099) 3/52

Station agents and commission drivers of local branch of company may constitute an appropriate unit. Standard Oil Co. (132) 10/40

Truck drivers, repairmen at bulk plant, mechanics, loaders, night watchmen and clerk at marine terminal of local branch of company may constitute an appropriate unit. Wadhams Division (731-B) 5/45

Tank wagon salesmen and transport drivers may constitute an appropriate unit. Badgerland Co-op. (4682) 1/58

2064 TRANSPORTATION

All cab drivers, garage mechanics, oilers, greasers, wash rack employes, telephone operators and cab starters may constitute an appropriate unit. Boynton Cab Co. (842) 11/45

All cab drivers may constitute an appropriate unit. Checker Cab Co. (1023) 7/46

Car loaders and unloaders, may constitute an appropriate unit. West Shore Stevedore (228) 5/41

2065 PUBLIC UTILITIES

Storeroom employes, consisting of storekeepers and engineers, the latter of whom devote at least half of their time to clerical duties, were included in an established unit of employes performing similar duties. Wisconsin Elec. Power Co. (5) 7/39

Gas production employes of a power company, consisting of all first class, second class, and relief stokers, utility men and miscellaneous workers, gas heater repairmen and helpers, including working foremen, may constitute an appropriate unit. Northern States Power Co. (283) 8/41

Board found separate units for following categories of employes: (1) non-supervisory employes of electrical distribution departments; (2) non-supervisory employes of the accounting, sales, gas works, office, gas distributor office, executive departments, and all other clerical, engineering, drafting, technical and other office employes of the securities, purchasing, stores, power plant, electrical distribution, traffic, and transportation departments, all janitors and matrons; and (3) non-supervisory employes of the gas production, maintenance and distribution departments in the two divisions of the utility. Wisconsin Gas & Elec. Co. (333) 11/41

All the employes of a division of a utility may constitute au appropriate unit. Wisconsin Public Service Corp. (581-B) 6/44

Load dispatchers may constitute an appropriate unit. Milwaukee Gas Light Co. (1326) 6/47; Dairyland Power Coop. (1503) 1/48

Office personnel of distribution cooperative may constitute an appropriate unit. Oakdale Electric Coop. (4642) 10/57

2066 MISCELLANEOUS INDUSTRIES AND BUSINESS

2066.1 Aluminum Products

Production and maintenance employes may constitute an appropriate unit. Wilson Hurd Mfg. Co. (915) 3/46

2066.2 Artificial Bait

Production and maintenance employes may constitute an appropriate unit. The Worth Co. (1481) 11/47

2066.3 Automobiles and Trucks

Salary and hourly paid clerical employes may constitute an appropriate unit. Four Wheel Drive Auto Co. (552) 2/44

2066.4 Batteries

All tool room employes in the experimental tool room in maintenance department, may constitute an appropriate unit. Ray-O-Vac Co.(781) 8/45

2066.5 Bowling Alley

Maintenance employes and porters found to be a separate department and employes therein were given opportunity for separate unit vote. Bowlers, Inc. (5789-B) 10/61

2066.6 Building Contractor Supplies

All technical engineers, draftsmen, catalog draftsmen and specification writers may constitute an appropriate unit. Koehring Co. (836) 11/45

Employes of wholesale building supply business who are employed as drivers and warehouseman were given opportunity to establish themselves as a bargaining unit separate and apart from salesmen and secretarial employes. Lumberman’s Service (5510) 6/60

2066.7 Dental Laboratories

All messengers of a dental laboratory may constitute an appropriate unit. Neiland Dental Laboratories (2713) 1/51

2066.8 Electrical Equipment

Main drafting room employes, maintenance drafting and tool department drafting employes may constitute an appropriate unit.Cutler-Hammer Inc. (706-B) 1/45

All employes engaged in repairing and rewinding motors and transformers and in industrial and commercial wiring departments may constitute an appropriate unit. Snapp Electric Works (838) 11/45

2066.9 Gas Controls

All non-supervisory office (except secretary) clerical, and engineering employes may constitute an appropriate unit. Milwaukee Gas Specialty Co. (1514) 1/48

2066.10 Hardware

City desk salesmen may constitute an appropriate unit. Frankfurter Hardware Co. (168) 2/41

2066.11 Housing

Non-supervisory employes of housing division shop of manufacturing corporation may constitute an appropriate unit. Harnischfeger Corp. (344) 1/42

2066.12 Lumber Dealer

Drivers, yardmen and helpers, contained in a single department, may constitute an appropriate unit. Dane Lumber Co. (3454) 5/53

2066.13 Machinery

Machinists, helpers and apprentices of machine company may constitute an appropriate unit. Appleton Machine Co. (445) 9/42

All moulders and foundry employes of machine shop may constitute an appropriate unit. Hamacher Machine Co. (848) 11/45

2066.14 Meat Packing

Garage employes of local plant garage may constitute an appropriate unit. Plankinton Packing Co. (295) 9/41

2066.15 Motors

All maintenance and production employes of tool room may constitute an appropriate unit. Evinrude Motors Division (780) 8/45 (Aff. Wis. Supreme Court, 6/46)

All office employes of engine manufacturing may constitute an appropriate unit. LeRoi Co. (1029) 7/46

2066.16 Miscellaneous Equipment

Tool and die makers, journeymen machinists, specialists, and apprentices, trainees and helpers may constitute an appropriate unit.Kaufman Mfg. Co. (458) 11/42; Hamilton Mfg. Co. (626) 6/44

2066.17 Plumbing Fixtures

All production and maintenance employes may constitute an appropriate unit. Kohler Co. (909) 3/46

2066.18 Office Furniture

All production and maintenance employes of metal working division may constitute an appropriate unit. The Buckstaff Co. (772) 7/45

2066.19 Refrigeration and Heating

All office employes of two local plants may constitute an appropriate unit. The Trane Co. (449) 9/42

All office employes of one of two local plants may constitute an appropriate unit. The Trane Co. (961) 5/46

Metallurgists and laboratory employes included in unit of all factory employes may constitute an appropriate unit. Nash-Kelvinator Corp. 247 Wis. 202, 6/45

2066.20 Roofing Materials

All truck drivers and garage mechanics may constitute an appropriate unit. Minnesota Mining and Mfg. Co. (1114) 10/46

2066.21 Shipbuilding

All production engineering employes may constitute an appropriate unit. Manitowoc Shipbuilding Corp. (574) 4/44

2066.22 Shoe Manufacturing

All in stock department employes may constitute an appropriate unit. Albert I. Weinbrenner Co. (1261) 3/47

2066.23 Soap

Regular outside and inside employes, excluding engineer and fireman and office employes may constitute an appropriate unit. Green Bay Soap Co. (141) 12/40

2066.24 Textiles

Employes of one division of a woolen mill may constitute an appropriate unit. Appleton Woolen Mills (604) 6/44

2066.25 Wholesale Sundries

Employes employed in one of three separate warehouses located in three cities constitute employes in a single plant and therefore they are entitled to determine for themselves whether they desire to constitute themselves a separate bargaining unit. Chambers & Owen (5527) 7/60

2066.26 Wholesale Produce

Apprentice salesmen, driver salesmen, truck drivers and warehousemen may constitute an appropriate unit. A. Sturm & Sons (1) 7/39

Egg candlers and pickets may constitute an appropriate unit. A. Sturm & Sons (1) 7/39

2066.27 Community Center

Maintenance employes, professional employes and office and clerical employes found to be employed in separate departments of Community Center, and employes in each of said separate departments may determine for themselves whether they desire to constitute separate bargaining units. Jewish Community Center of Milwaukee (8499) 4/68