The following information is provided to assist you in presenting your appeal before the Wisconsin Employment Relations Commission. Not all of the information is applicable to appeals where the employee has elected to proceed by arbitration (informal hearing). If the arbitration option is available for your appeal, a separate enclosure was mailed to you entitled: "Information on Expedited Arbitration of Classified Appeals" which explains what differences exist.

Discovery: Commission rules provide at §PC 4.03, Wis. Adm. Code, that parties have the right to conduct prehearing discovery in the same manner as is done in judicial proceedings under Ch. 804, Wis. Stats. This means, for example, that the respondent agency could take your deposition (a proceeding where you may be questioned about the case under oath while your testimony is being recorded by a court reporter), or could send you questions (interrogatories) to be answered in writing. Discovery must be conducted well in advance of hearing to allow the opposing party a period of 30 days to reply.

You also have the right to conduct discovery to, for example, obtain copies of the position descriptions of positions which respondent relied upon in deciding how to classify your position. Parties, of course, are free to voluntarily exchange such information without filing formal discovery (depositions/ interrogatories) requests.

Exchange of witness lists and exhibits. Both parties are required to exchange witness lists and exhibits at least 3 working days prior to hearing. This is an important deadline you do not want to miss because failure to comply could result in exclusion of testimony from your witnesses and/or exclusion of your exhibits. Please refer to the prehearing conference memorandum/letter for further details.

Witness Attendance. Each party is responsible for seeing that their own witnesses are present for the hearing. Please see the prehearing conference memorandum/letter for details.

The hearing is not an informal discussion of your appeal. It is an orderly proceeding in which you have an opportunity to present evidence that is relevant to the issues in your case and which will provide the basis on which the Commission will make findings and issue a decision.

In most appeals before the Commission, the burden of proof is on the appellant (with the notable exceptions of discharges and other disciplinary actions against permanent unrepresented employees). Having the burden of proof means you will put on your witnesses before the agency puts on its witnesses. It is up to you to establish to a reasonable certainty, by a preponderance of the evidence, the facts necessary for your case. In preparing your case for hearing, keep in mind that under the Commission rules (§PC 5.03(5), Wis. Adm. Code), the receipt of hearsay evidence and the weight to be given such evidence, is discretionary with the examiner.

You should be prepared to elicit the information from witnesses that you wish the hearing examiner to consider. This may be done by having the witness either respond to specific questions or present information in form of a narrative statement. Be aware that exhibits become part of the record only if offered into the record, subject to objection by the opposing party and ruling by the examiner. When you testify on your own behalf you may do this by question and answer or by narrative form. All witnesses will be sworn to tell the truth by the examiner.

Following your direct examination of a witness, counsel for the respondent will be given an opportunity to cross-examine each witness. When this is concluded, you may ask further questions on redirect examination. When you have finished your case, respondent's counsel will present the agency's case. You will have the opportunity to cross-examine respondent's witnesses.

Following the presentation of respondent's case, you will be allowed to offer rebuttal evidence if you wish. Rebuttal evidence is evidence designed to rebut the other party's evidence. Generally speaking, however, it is admissible only when a new matter has been developed by the other party which you could not reasonably have anticipated before the hearing. In other words, rebuttal is not a catch-all for material which should have been part of your main case.

At the conclusion of the hearing, both sides will be permitted to make final arguments to the examiner, either orally at the close of hearing or in writing pursuant to an established timetable.

Following the conclusion of the hearing and receipt of any briefs, the hearing examiner will issue a Proposed Decision and Order (PDO). Copies of the PDO will be sent to the parties who then will be given a period of time to submit written objections to the PDO. The PDO, along with any objections, then goes to the full Commission for review. After considering arguments raised by the parties, the Commission may modify the PDO or adopt it unchanged. In any case, the Commission will issue the Final Decision and Order within 90 days of the date for submission of the last argument or objection. The final decision is reviewable in circuit court. Instructions on filing a petition for judicial review, or for rehearing before the Commission, are included with the copy of the final decision.