S100 DEFINITIONS

S120 STATE EMPLOYE

Supervisors are expressly excluded from the definition of “state employs.” Because of this specific exclusion of supervisory personnel from the definition of “state employes,” supervisors do not have the same rights to organize or “to form, join or assist labor organizations” as are granted state employes by Sec. 111.82. The Wisconsin Employment Relations Commission excludes supervisors from bargaining units formed under SELRA.

UW-Milwaukee 9921-A (5/71) (Moberly)

The teaching assistants at the UW-Madison are in the unclassified service of State employment and therefore are not employes within the meaning of SELRA. Thus, regardless of any collective bargaining agreement in which the parties may have agreed to be subject to the procedural and substantive provision of SELRA, the Commission has no jurisdiction to process any unfair labor practice complaint between the Teaching Assistant’s Association and the University.

UW-Madison 9261-A (10/69) (WERC)

S200 EVIDENCE

Intervenor filed a motion to accept indirect offer of proof consisting of an affidavit filed by Highway Commission Vice Chairman Redmond. While the Commission made no formal order with respect thereto, it is to be noted that it considered the affidavit filed by Redmond as part of the record.

State of Wis. (Professional-Engineers) 10592-F (1/73) (WERC)

S210 BURDEN OF PROOF

The union has the burden of proving by a clear preponderance of evidence that union activity was the motivating factor for a transfer of a union leader. But inferences may be made Supporting the conclusion that union activity was the motivating factor when the alleged reasons for the transfer do not appear to be supported by the evidence and in fact are a pretext.

State of Wis. (DHSS) 8892 (3/69) (WERC) Where the employer pleads the affirmative defense that the employe alleging discharge in violation of contract failed to exhaust the contractual grievance procedure, the employer carries the burden to prove that failure. If the employer meets that burden, the employe cannot prosecute his claim against the employer until he proves that the union breached its duty of fair representation. If the employe proves such breach, he must then make a prima facie case against the employer that the discharge violated the contract. UW-Milwaukee (Housing) 11457-E (12/75) (Schurke) S220 WEIGHT AND SUFFICIENCY A complaint alleging interference and discrimination based upon the union status of an employe must be supported by a clear and satisfactory preponderance of the evidence that the action with respect to the employe was motivated by the employer’s anti-union animus and that the employer had knowledge of the employers union status and attitudes. In the absence of such evidence, the complaint must be dismissed since the complainant would fail to sustain its burden of proof. UW-Milwaukee 9800-A (4/71) (WERC, Moberly) S300 INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES S320 BARS TO PROCEEDING After July 1, 1974, the State or any labor organization may petition for additional or modified statewide units. Section 111.83(5) sets forth specific time periods for filing petitions for elections where the employes are covered by collective bargaining. Therefore, if the Commission establishes additional or modified units and if the employes select a bargaining representative, bargaining cannot begin until the results of the election are certified by the Commission. Since petitions for such election cannot be filed prior to 90 days immediately preceding the termination date of the agreement and since no representative can be certified prior to such 90 day period, there can be no bargaining prior to 90 days preceding the termination late of the agreement. But where there is no collective bargaining agreement covering the employes, there is no time limit on when petitions may be filed. And if the employes select a bargaining representative where no agreement exists, the representative has the right and the employer has the duty to begin bargaining immediately following the certification of the election. State of Wis.(Security and Public Safety) 12841-A (11/74) (WERC) S321 Effect of Existing Ordinances or Agreements When setting policy regarding election petitions, the Commission must balance the interest of employes to select or change their bargaining representative with the interest of preserving stability in existing collective bargaining relationships. One of the main purposes of the SELRA is to provide “orderly and constructive employment relationships.” The statute encourages stable relationships between the State and its employe organizations under collective bargaining agreements covering terms and conditions of employment. With respect to the timely filing of election petitions where a certified or recognized bargaining representative is a party to a collective bargaining agreement between such representative and the State employer, the Commission will only entertain petitions if they are filed within a 60 day period immediately preceding the reopening date set forth in the existing agreement. The above-stated policy is not necessarily being applied in this proceeding since the petition herein was filed on the date on which the parties executed a new collective bargaining agreement and since there was no evidence adduced to establish that the execution of this agreement was in any way improper or executed for the purpose of preventing the processing of the petition, said agreement constitutes a bar and as a result no question of representation exists. UW-Milwaukee 9910 (9/70) (WERC)S322 Effect of Previous Certification Where 15 months elapsed between the certification of a bargaining representative and the commencement of negotiations with the employes, it is in the interest of the employes that they be allowed once again to express their preference, and that no material disruption of a stabilized bargaining relationship will occur by this action by the Commission. State of Wis. (DPI) 10342 (6/71) (WERC) Because the petition filed herein involves the first certification of representatives issued by the Commission under SELRA, as amended, there has been no experience established as to the affectability of the collective bargaining process and procedure under SELRA, as amended. Therefore, it is the considered opinion of the Commission that, while the Commission will not require AFSCME and the employer to reach a total binding agreement during the “certification year,” in order for the certification to constitute a bar, the Department of Administration and AFSCME must reach a tentative agreement on all matters to be included in the collective bargaining agreement prior to the end of the “certification year,” and further, that the membership of AFSCME must ratify such tentative agreement also prior to the end of the “certification year.” If no such tentative agreement is reached and so approved within such year period, the petitioner, or any other organization seeking to represent the employes in the unit involved herein, may, at any time thereafter, file a petition for an election, and such petition will be deemed timely filed by the Commission. State of Wis. (Security and Public Safety) 11519-B (4/73) (WERC) The Commission deems it appropriate to apply its one-year certification bar “rule” as applied in administering the Wisconsin Employment Peace Act, with some modification, necessitated by the procedure for negotiating agreements in state employment, as set forth in Section 111.92. Under WEPA, where an election has been held, wherein a bargaining representative has been selected and the results certified, such certification shall remain in effect for at least one year before a new election is directed. Such a policy, in effect, permits the certified union and the employer one year to negotiate a collective bargaining agreement. State of Wis. (Security and Public Safety) 11519-B (4/73) (WERC) S330 ELIGIBILITY TO PARTICIPATE IN ELECTION S333 Employes Claimed Confidential In four of the institutions operated by the Department of Health and Social Services there are individuals occupying the Graduate Nurse Ill classification as an “Employe Health Nurse.” The State would exclude such positions as confidential. While the professional nurse occupying such a position may be privy to the health records of various employes, and while such records may be “confidential,” the position is not privy to confidential matters relating to the employer-employe relationship and, therefore, such positions are not excluded from the unit State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) S334 Employes Claimed Supervisory While the Division of Nurses obtains and maintains personnel information with regard to nurses practicing their profession in the State of Wisconsin either as employes of various state agencies or in the employ of private and municipal hospitals and institutions, we conclude that such information does not pertain to the employer-employe relationship, which would normally exclude employes from units of employes, generally. In other words, the nurses in the employ of the Division of Nurses are not privy to managerial confidences exercised by supervisors and department heads in the employer-employe relationship and, therefore, the nurses employed in the Division of Nurses are not confidential employes. State of Wis. (UW Hospitals and Other Depts.) 8340, 8345, and -8346 (1/68) (WERC) Although the Building Maintenance Helper III does perform some physical work, particularly in providing his crew its supplies and by substituting for employes in lower classifications when they are absent, we find, because of the wage differential, the authority to recommend personnel action, and the responsibility for supervision of the employes in lower classifications, that the Building Maintenance Helper Ill is supervisory, and, therefore, the employes occupying such classification are not included in the “blue collar” unit. UW-Milwaukee 8296 (11/67) (WERC) The UW-Milwaukee contended that the Motor Vehicle Dispatcher employed in the office of Campus Services performs supervisory duties over two employes in the Fleet Division thereof. At the most, said position is considered a “working foreman,” and, therefore, this classification is included in the “blue collar” unit. UW-Milwaukee 8296 (11/67) (WERC) The Director of the Wisconsin State Board of Nursing, who is a professional nurse, is excluded from the unit. There was no evidence adduced that the remaining professional nurse classifications, consisting of two Graduate Nurses VI, one Graduate Nurse V and one Graduate Nurse IV perform any supervisory duties or are engaged in a confidential employe-employer relationship. Therefore, the last three classifications are eligible to participate in the election involving said Division. State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) The Department of Veteran Affairs employs thirteen nurses engaged in nursing service at the Army Home. The Director who is a Graduate Nurse IV, in addition to 98 non-professional positions, assists in the nursing service. The Director who is a Graduate Nurse IV and the Assistant Director who is a Graduate Nurse III are both considered supervisory. The Graduate Nurse II position is eligible to participate in the election. State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) There is no evidence which indicated that any of the professional nurses employed at the School for the Blind or School for the Deaf performed such supervisory duties to exclude them from the eligibles. Therefore, the Graduate Nurse III, II and I positions, as well as the position of Health Education Specialist, if professionally qualified, are to be included as the eligibles in the unit. State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) The factors to be considered in determining whether an individual is a supervisor were set forth in City of Milwaukee (Engineers): 1. The authority to effectively recommend the hiring, promotions, transfers, discipline and discharge of employes. 2. The authority to direct and assign the won,, force. 3. The number of employes supervised, and the number of other persons exercising greater, similar or lesser authority over the same employes. 4. The level of pay, including an evaluation of whether the supervisor is paid for his skill or for his supervision of employes. 5. Whether the supervisor is primarily supervising an activity or primarily supervising employes. 6. Whether the supervisor is a working supervisor or whether he spends a substantial majority of his time supervising. 7. The amount of independent judgment and discretion exercised in the supervision of employes. State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) In applying the above-noted statutory and case law considerations, it is not necessary that the Commission find all of those factors present, but rather those factors should appear in sufficient combination in a given case to clearly establish that an employe is a supervisor . UW-Madison (Residence Halls) 10320-B (6/72) (WERC); UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) While a majority of the employes supervised by the Graduate Nurse Ill are non-professional who are not included in the unit of professional nurses, there is nothing in the Statute which permits supervisors to be considered as “employes” where a majority of employes supervised are excluded from the unit. The Statute neither contemplates nor permits the establishment of supervisory collective bargaining units. State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) While it appears that the position primarily supervises an activity, the supervision of such activity includes significant supervision of employes in carrying out the activity for which the position is responsible. We are, therefore, satisfied that the Graduate Nurse -General Hospital TV has the authority to recommend hiring, promotion, discipline and discharge of employes, the authority to direct and assign the work force, has considerable supervision over the day-today performance of subordinate employes, does not spend any significant time in performing duties performed by subordinate employes, and utilizes independent judgment and discretion in such supervision. Therefore, we conclude that the GN-GH IV position “supervises” a sufficient number of employes and that the degree of supervision exercised by them does not conflict with supervision exercised by those having higher classifications. The Commission is convinced that the duties of the GN-GH IV sufficiently meet the standards established by the Commission with respect to supervisory status and, therefore, said positions, along with GN-GH VI and V, are to be excluded from the unit of professional nurses employed at the University Hospitals. State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) It is clear that both Graduate Nurses IV and Ill employed at the various institutions in the Department of Health and Social Services exercise supervisory authority over personnel. They effectively recommend hiring, firing, promotion and retention of employes, and they direct and assign the work force within the limits of certain established procedures and regulations. Furthermore, the ratios of supervisors to supervised would strongly argue that they are supervisors, and there appears to be a clear distinction in pay and duties of these two grades of nurses when compared with the Graduate Nurse II positions. We are satisfied that in the larger institutions the Graduate Nurse III position is the front-line supervisor of the Graduate Nurse II positions and the non-professional employes employed in a specific nursing service unit, ward or floor assigned to the Graduate Nurse Ill. We cannot believe that the number of positions below tile Graduate Nurse III are primarily supervised by the Graduate Nurse IV, V or VI positions. State of Wis. (UW Hospitals and Other Departments) 8345-C (8/68) (WERC) The Commission concludes that Assistant Student Supervisors or Student Supervisors (Food) are “supervisors” and that they should not be included in the bargaining unit. The Commission is most influenced by evidence that up to 90% of their time is spent in making certain that employes are properly performing their work assignments. Such supervisory activities involve independent judgment in dealing with employes’ work problems and some verbal grievances and in reassigning work to cover for an absentee. In addition, the record indicates that these student supervisory personnel do in fact effectively recommend discipline of student employes. UW-Madison (Residence Halls) 10320-B (6/72) (WERC) We are not convinced that Assistant Student Supervisors (Maintenance)–who spend 25 to 50 percent of their time doing unit work and who exercise substantially less discretion in planning and organizing the work of their crews–are clearly supervisors. The record is not sufficient to clearly establish the supervisory nature of those other positions, and so we must find that all other Assistant Student Supervisors (Maintenance) are to be included within the bargaining unit. UW-Madison (Residence Halls) 10320-B (6/72) (WERC) The Commission cannot find that the Assistant Student Supervisors (Desk) positions have been clearly established as supervisory. We are most influenced by the fact that a considerable portion of the Assistant Student Supervisors’ (Desk) time is spent at unit work. In addition, their responsibility seems focused more upon the desk activity per se than upon desk employes. We therefore hold that the Assistant Student Supervisor (Desk) positions should be included within the bargaining unit. UW-Madison (Residence Halls) 10320-B (6/72) (WERC) The Commission cannot conclude that it has been clearly established that the Lakeshore Party Attendant is a supervisory position within the definition of 111.81(12) and relevant Commission precedents. While this employe is surely a leader, he is not so integrally involved in management functions so as to create a high probability that his loyalties to the workers or union would conflict with the interests of management. For example, his evaluation function does not affect party employes’ wages, and the record discloses no instances in which he has exercised any disciplinary authority whatever. UW-Madison (Residence Halls) 10320-B (6/72) (WERC) The underlying purposes served by the exclusion of supervisory employes from the bargaining unit are: 1. To avoid conflicts of interests within the employe between management responsibilities and loyalty to members and bargaining representatives of the bargaining unit; and 2. To protect other employes’ exercise of rights afforded them by 111.81 from interference by employes closely aligned with management. UW-Madison (Residence Halls) 10320-B (6/72) (WERC) The Commission is not satisfied that the duties of the Play Circle Head Usher and her relationship to other employes clearly establish supervisory status. Having especially considered the proportion of time spent in unit work and the relatively routine nature of scheduling and assigning employes, we deem the Play Circle Head Usher not to be a supervisor within the meaning of Section 111.81(19). UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) The Commission concludes that the Book Center Supervisor is not a supervisory and managerial employe. It appears that Book Store employes are hired largely according to their availability to work the hours needed to complete the stores’ schedule. Employe discipline basically is routine. We are most influenced by the fact that the Book Center Supervisor spends a considerable portion of working time performing unit work. Furthermore, the position’s responsibilities for ordering books and stock appears to be largely routine in that the task is predominantly one of reordering. Purchase of new inventory must be approved by the Building Use Manager. We conclude that the function and pay of the Book Center Supervisor are largely related to the individual’s skill in effectively stocking and promoting items in the Book Store. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) We do not find a sufficient combination of factors to be present to establish that the Catering Captain position is supervisory. The hiring of waiters appears to be routine. Employment is largely related to the applicant’s class schedule and hours available to work. Employe discipline is limited to routine direction of the work force. Again, we are most influenced by the Catering Captain’s participation in unit work. The presence of a civil service supervisor and the routine nature of the Catering Captain’s decision making further justify a finding that the position is non-supervisory. We find the Catering Captain, Union South to be a non-supervisory employe. it appears that the position is restricted to the catering function. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) We conclude that Rathskeller Supervisors, including the position of Beverly Kalscheur, are ineligible for inclusion in the bargaining unit. We have given consideration to the following factors. The Rathskeller Supervisor is solely responsible for the Rathskeller operation when on duty. Although the Rathskeller Supervisor may spend more than 50% of working time performing unit work on a busy shift, he generally spends a substantial period of time directly supervising the work activity of unit employes. In that no civil service supervisors are present when the Rathskeller Supervisor is in charge, we are further convinced that the Rathskeller Supervisor exercises independent judgment in the direct-ion of the work force. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) The Commission concludes that Red Oak/Snack Bar Supervisors are “supervisors” and that they should not be included in the bargaining unit. We are most influenced by the fact the Red Oak/Snack Bar Supervisor spends approximately 70% of his working time directly supervising employes. Secondly, the discretion exercised in the scheduling and directing of the work force indicates that the Rathskeller Supervisors possess supervisory responsibility. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) We deem the Building Supervisors Memorial Union and Union South and the Building Supervisor/Information Desk Supervisor and the Building Supervisor/Page Supervisor to be supervisory employes. Building Supervisors spend 0 to 20% of their working time performing unit work. Furthermore, 30 to 40% of work time they spend touring the building and ringing out registers. It is evident that these positions all possess factors relative to managerial or supervisory status. Building Supervisors exhibit managerial authority in their responsibility for the overall operation of their assigned building. The two Building Supervisor positions which include Information Desk or Page functions also possess direct supervisory authority over their respective subordinates. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) The Commission finds that the Catering Supervisor position is supervisory. The Catering Supervisor supervises 70% of all catered events in the Union South. Consideration of the Catering Supervisor’s direct supervision of employes, scheduling, billing and ordering responsibilities substantiate the conclusion that the position is supervisory. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) A review of the record indicates that the Craftsmen Foremen “supervise” a number of employes, ranging from four to forty; that seventeen spend 100 percent of their time in “supervisory” duties, and that the most number of hours spent in performing duties similar to those “supervised” by an individual occupying such a classification was 40 percent of the time; one additional individual spent 25 percent of his time performing duties similar to those “supervised.” None of the remaining Craftsmen Foremen spent over 10 percent of his time in per forming such duties. Almost all of the Craftsmen Foremen participated in the hiring process, in making recommendations to higher level of supervision regarding discipline and the like, in participating in the evaluation of employes and in representing management in the processing of grievances, primarily in the first step of the grievance procedure. We are, therefore, satisfied that the Individuals occupying the classification of Craftsman Foreman are supervisors within the meaning of Section 111.81(19) of the State Employment Labor Relations Act, and therefore excluded from the collective bargaining unit involved. State of Wis. (Building Trades Crafts) 10991-D and 10992-D (3/73) (WERC) The Radiological Technician 4 – Supervisor in the UW Hospitals was found to be supervisory personnel because he: (1) assigns work; (2) approves vacations and leave requests; (3) has warned employes not to abuse sick leave; (4) has implemented certain work rules; (5) assigns and approves overtime; and (6) has verbally reprimanded employes. Additionally, he attends weekly meetings with the Director of Radio-therapy where personnel policies are discussed. The Radiology Technician has in the past effectively hired new applicants, and further, has similarly effectively recommended whether probationary employes should be either retained or terminated at the end of their probationary period. In both areas, his recommendations were accepted (with but one exception) without any separate independent investigation being conducted. Additionally, since he spends about 70% of his time on the same machine that he operated as a unit employe, and inasmuch as he is now being paid about seventy dollars a month more than in his former classification, it is reasonable to assume that he is receiving this higher salary to compensate him for the performance of the aforementioned supervisory functions. State of Wis. (UW Hospitals) 13082-A (5/75) (Greco) S335 Effect of Stipulation to Exclude Employes from Unit Stipulations as to a collective bargaining unit, unless such are in direct contradiction with the provisions and intent of Section 111.81(3)(a), normally will not be voided through Commission action. State of Wis.(Professional-Engineers) 10592-F (1/72) (WERC) S336 Employes Claimed Managerial Managerial employes, like supervisors, have been excluded from the statute’s coverage on the grounds that their relationship to management gives them interests significantly different from those of their fellow employes. The uniqueness of managerial employes stems from their participation in the formulation, determination and implementation of management policy. Managerial employes are agents of the employer with respect to employe-employer relations. Furthermore, managerial status may be related to an employes authority to effectively commit the employer’s resources. Such employes do not necessarily possess confidential information or supervisory authority over subordinate employes. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) The Commission finds credence in the union’s contention that the Theater Night Manager should be included in the bargaining unit. We are not convinced that said position is managerial. In light of the above- described duties, we conclude that said position neither formulates nor implements managerial policy. Furthermore, the Theater Night Manager does not have the authority to commit any of the employer’s resources. The Theater Night Manager does not appear to function as an agent of the employer in the employe-employer relationship in a determinative manner. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) The Commission concludes that the Book Center Supervisor is not a supervisory and managerial employe. It appears that Book Store employes are hired largely according to their availability to work the hours needed to complete the stores’ schedule. Employe discipline basically is routine. We are most influenced by the fact that the Book Center Supervisor spends a considerable portion of working time performing unit work. Furthermore, the position’s responsibilities for ordering books and stock appears to be largely routine in that the task is predominantly one of reordering. Purchase of new inventory must be approved by the Building Use Manager. We conclude that the function and pay of the Book Center Supervisor are largely related to the individual’s skill in effectively stocking and promoting items in the Book Store. UW-Madison (Classified – Part-time) 10648-B (11/72) (WERC) S340 UNIT APPROPRIATE FOR COLLECTIVE BARGAINING S341 Generally Pursuant to the request of the parties that the certification of representative for the State employer named as the Department of Public Welfare should be amended to reflect the new name of the Department of Health and Social Services, the Commission is satisfied that the certification should be so amended. Further, the Commission will grant the parties’ request to add various classifications employed in the Division of Health to the aforementioned unit. The number of employes to be added, 72, is minimal when viewed in light of the results of the representation election previously conducted (2,422 employes voted in favor of the representative compared to 83 employes voting against the representative). State of Wis. (DHSS) 7984-D (8/68) (WERC) The Commission believes that excessive fragmentation of bargaining units in State employment collective bargaining will not effectuate the policies of the State employment collective bargaining law. However, this does not necessarily mean that the Commission will establish the largest possible unit claimed to be appropriate by the party seeking to establish same. There must be such an existing separate community of interest among the employes in the desired unit as will persuade the Commission to permit the employes to determine for themselves whether they desire to constitute a separate unit or which the Commission itself will establish as being appropriate. This community of interest may be reflected in various ways, such as the nature of the function of the department or division of the State employer in which the employes are employed, the nature of the duties performed by the employes in issue, the skills involved, separate supervision in significant levels of supervision , and the similarity or dissimilarity In conditions of employment. UW-Milwaukee 8296 (11/67) (WERC) Under the labor relations statutes in private and municipal employment, where employes in a single department or division desire to constitute themselves a separate unit, the Commission has no other alternative than to permit the employes their choice in that regard, and if a majority of the eligible employes vote in favor of constituting themselves a separate unit, they are so considered. The same opportunity is afforded craft employes under the Wisconsin Employment Peace Act. In the municipal labor relations law, craft employes constitute a separate unit consisting of the members of the same craft. The State Employment Labor Relations Law has changed the statutory concept with respect to the establishment of collective bargaining units. Under the latter law, the Commission is given the discretion to establish collective bargaining units. It may establish units of less than all the employes involved, with or without affording the employes who desire smaller units the opportunity to make this determination for themselves. UW-Milwaukee 8296 (11/67) (WERC) For the first time since the effective date of the State Employment Labor Relations Act, issues have arisen as to whether employes of separate professions may constitute single appropriate bargaining units, either on a department or Statewide basis, either apart from or together with other professional employes, and either apart from or together with non-professional employes on department basis. In the administration of the Wisconsin Employment Peace Act and the Municipal Employment Labor Relations Law, the Wisconsin Employment Relations Commission has no discretion with respect to the establishment of appropriate collective bargaining units involving employes and employers subject to the latter labor relations laws. Wisconsin Employment Peace Act defines the unit as all of the employes of an employer, except where employes engaged in a separate department, division, craft or plant desire to establish themselves as a separate bargaining unit, they are given the opportunity to do so in a self-determinative election. In such cases our function requires a determination as to whether, in fact, such employes constitute a separate department, division, craft or plant. Such a procedure also governs the establishment of units under the municipal labor relations status. However, the State Employment Labor Relations Act contains no such strict limitations with respect to the establishment of appropriate units and does in fact grant this agency administrative discretion with regard thereto. The exercise of such discretion, however, requires full consideration of the policies expressed in the statute, with due regard to the rights and obligations created thereunder. The Act encourages collective bargaining in State employment and protects the right of State employes to associate with others for that purpose. In that regard it recognizes the need for orderly and constructive employment relations and the efficient administration of the State government. Two of the employe organizations in the instant proceeding seek units of professional employes employed in more than one state agency, and, therefore, additional factors affecting the “community of interest” test, as well as others, must be considered. As a result, the community of interest of such professional employes may be affected by geographical locations of places of employment, whether there is an interchange of employes, whether there is any common supervision, whether there is a similarity of conditions of employment, whether there is any coordination of employment relations policies, the history, if any, of employe representation on a multi-department level, and other possible factors. State of Wis. (UW Hospitals and Other Departments) 8340, 8345 and 8346 (1/68) (WERC) The mere elimination of the classification of Attorney-Examiners I and 11 did not render inappropriate the bargaining units previously established because the duties of the employes involved were unchanged and attorneys in other State agencies did not have the specialized skills nor did they possess the same duties as the employes involved here. Accordingly, we have not changed the scope of the bargaining unit but we have amended the direction of election to reflect the change in classification. State of Wis. (DILHR) 8340-A (2/68) (WERC) The newly amended State Employment Labor Relations Act, effective April 30, 1972, extinguished the State’s duty to bargain on matters affecting employes in previously certified units where such units do not constitute an appropriate unit under the provisions of the amended State Employment Labor Relations Act. Consequently, the State employer does not have a duty to bargain with the Wisconsin Education Association on any matter concerning the classroom teacher unit at the Wisconsin School for the Deaf and the Wisconsin School for the Visually Handicapped. State of Wis. (DPI) 11598-A (3/73) (WERC) S342 Collective Bargaining Units The Commission will not create additional bargaining units or modify existing units unless it can be established that the State employer and the Legislature established new State functions or program responsibilities, or made significant changes in SELRA, not considered by the Legislature at the time SELRA was enacted. State of Wis. (Trust Fund Representatives) 13824 (7/75) (WERC) Regarding the petition of the Wisconsin Professional Conservation Warden’s Association to establish a new collective bargaining unit consisting of Conservation Warden 1, 2, 3 and 4, the Commission interpreted 111.81(3)(am) to mean that the Legislature recognized that new State functions or programs or significant changes in SELRA might mean that affected employes could not be properly placed within the 14 statutory units and new units would be required. However, establishing additional units by rearranging categories of employes as petitioners suggest would imply that the judgment of the Commission may be substituted for that of the Legislature. The Commission does not read the provisions as granting such discretion. State of Wis. 13786 (7/75) (WERC) S342.2 Blue Collar and Non-Building Trades We find that all blue collar employes employed by the University of Wisconsin – Milwaukee, excluding craft employes to constitute an appropriate unit. UW-Milwaukee 8296 (11/67) (WERC) S342.3 Building Trades Crafts Because the craft employes and their specialized skill is characteristic of the craft performed by no other employes in the proposed unit and because their wages are on prevailing rates for similar employes in private employment, they have sufficient community of interests separate and apart from the other employes performing maintenance and facility operation duties, and therefore constitute a separate bargaining unit. UW-Milwaukee 8296 (11/67) (WERC) Boiler Operators and Operating Engineers did not constitute an appropriate separate bargaining unit because the conditions of employment and the duties performed by them do not establish a separate and distinct community of interest. The same is true for Building Maintenance Helpers. UW-Milwaukee 8296 (11/67) (WERC) S342.6 Professional A review of the statutory definition of the term “collective bargaining unit” indicates that the Commission may establish units of professional employes. The record establishes that both Nurses and Attorney-Examiners have a sufficient separate community of interest, at least in individual State agencies, separate and apart from the remaining employes employed in those agencies and utilize specialized skills. In addition, with respect to the Nurses, the organization seeking to represent them, the WNA has as its members only those engaged in professional nursing, and the WHEA has been established for the purpose of representing only Attorney-Examiners. The needs of professional employes vary widely depending upon the profession and their varying interests and goals. To combine all professionals in one bargaining unit would discourage participation of professional associations in collective bargaining, and thus affect the right to professional employes to affiliate with organizations of their own choosing. The establishment of multi-agency bargaining units would tend to result in a diminution of the authority of the individual appointing authorities to establish and maintain such working conditions necessary to manage and operate their particular agencies. While individual appointing authorities are concerned generally with the operation of State government, they are primarily concerned with the operation of their respective departments. This is as it should be, and we are of the opinion that multi-agency units would tend to weaken the overall purposes which have led to the statutory establishment and continuation of State government on separate agency levels. Consequently, we determine that employes engaged in identifiable professions may constitute units separate from all other employes and separate from the same professionals in other agencies. State of Wis. (UW Hospitals and Other Departments) 8340, 8345 and 8346 (1/68) (WERC) S342.6.3 Legal The Attorney-Examiners are employed in three separate agencies and are subject to separate and distinct personnel policies and working conditions. There is no integration among departments, although all Attorney-Examiners headquartered in their various agencies are all located in Madison. However, a significant percentage of their duties are performed away from departmental headquarters. Other working conditions also vary among the departments as said conditions are established by the appointing officers of each agency. Additionally there was no extensive bargaining history by any employe organization. Consequently, we determine that separate units should be established by Attorney-Examiners in each department. State of Wis. (UW Hospitals and Other Departments) 8340, 8345 and 8346 (1/68) (WERC) S342.6.5 Patient Care The Nurses employed in the seven agencies are also employed at various locations throughout the State. There is no integration among Nurses in one agency with Nurses in other agencies, and, as a matter of fact, there is little or no integration of Nurses in one agency which employs such professionals at various locations throughout the State. There has been no showing of consistent working conditions, which are matters of collective bargaining under the Act, among the Nurses employed in the various agencies, and there is an indication in the record that there may be a lack of consistency in those bargainable areas of employment among Nurses employed in the single larger agencies, such as Public Welfare, where local working conditions are established by the superintendents of the various institutions maintained and operated by that department. In addition, while the qualifications for the various professional Nurse classifications in similar pay ranges are common in said classifications, the duties performed by them vary as a result of the differing professional activities of the seven agencies involved. While it may be argued that a single multi-State agency unit of Nurses, if a bargaining representative is selected, would expedite the process and mechanics of collective bargaining, it is apparent, because of the variance in programs of some of the agencies involved, that such an argument is theoretical rather than realistic. We determine that there should be a separate unit for Nurses at each individual state agency. State of Wis. (UW Hospitals and Other Departments) 8340, 8345, and 8346 (1/68) (WERC) The Commission previously and on January 3, 1973, issued a Certification of Representatives, wherein it certified the Wisconsin Nurses Association, Inc. as the exclusive bargaining representative for “Professional – Patient Care” employes employed in the classified service of the State of Wisconsin. Included in said unit were Handicapped Children’s Specialist I and 2; Health Education Specialist 1, 2 and 3; Nursing Consultant 1 and 2; Public Health Educator 1, 2 and 3; Public Health Nurse 1, 2 and 3; and Public Health Nutritionist 1, 2 and 3. State Association of Career Employees contends that such positions should be in the education unit. This issue was originally raised in the case involving “Professional – Patient Care” unit, and it was the Commission’s determination that the above-referred-to classifications should be included in the latter unit rather than in the “Professional -Education” unit. State of Wis. (Professional – Education Employes) 11884 and 11885 (5/73) (WERC) S342.6.7 Education Even though both groups are certified teachers, the professional educators who are employed by DPI as consultants to various school districts who travel throughout the state, and who are not engaged in classroom teaching are separate and distinct from the professional educators who are employed by DPI as classroom teachers at either the Wisconsin School for the Deaf and the Wisconsin School for the Visually Handicapped. Therefore representation elections were directed to be held in separate units. State of Wis. (DPI) 9267 (10/69) (WERC) The Commission previously and on January 3, 1973, issued a Certification of Representatives, wherein it certified the Wisconsin Nurses Association, Inc. as the exclusive bargaining representative for “Professional – Patient Care” employes employed in the classified service of the State of Wisconsin. Included in said unit were Handicapped Children’s Specialist I and 2; Health Education Specialist 1, 2 and 3; Nursing Consultant I and 2; Public Health Education 1, 2 and 3; Public Health Nurse 1, 2 and 3; and Public Health Nutritionist 1, 2 and 3. State Association of Career Employees contends that such positions should be in the education unit. This issue was originally raised in involving “Professional – Patient Care” unit, and it was the Commission’s determination that the above-referred to classifications should be included in the latter unit rather than in the “Professional -Education” unit. State of Wis. (Professional – Education Employes) 11884 and 11885 (5/73) (WERC) The classification and working title of Administrative Officer 1, employed by BVTAE, should be included in the Professional – Education unit because the training and experience, as well as the duties performed, are supportive of the educational process and services performed by BVTAE. State of Wis. (DOA) 13250-B (10/75) (WERC) Since Architect 5 employed by the Board of Vocational, Technical and Adult Education is not engaged in the profession of education but is instead a professional architect, even though it provides services to educational institutions, the classifications of Architect 5 is not properly included in the Professional – Education unit. State of Wis. (DOA) 13250-B (10/75) (WERC) S342.6.8 Engineering The professional engineers employed by the DNR have specialized skills utilized in the performance of their duties and therefore may constitute units separate and apart from all other employes, including other professional employes. The fact that the Commission had previously included the engineers in an “overall professional and related position” unit does not prevent the Commission from amending the description of the unit. State of Wis. (Department of Natural Resources) 9209 (9/69) (WERC) Real Estate Agents employed in the Department of Transportation are not required to be trained or experienced in engineering, are not engaged in the profession of engineering, and therefore should not accrete to an existing unit consisting of Professional Engineers. State of Wis. 13432 (3/75) (WERC) S350 ELECTION Complainant was not a party to the referendum proceeding and therefore had no standing to fill a motion requesting a recount and recertification of the referendum results. State of Wis. (DOA) 11611-B (6/75) (WERC) S351 The Ballot The Commission had earlier determined that the union petition for the UW-Milwaukee Maintenance Local No. 1 independent unit was inappropriate. At the hearing regarding said petition, the union did not request that it appear on the ballot in any other unit found to be appropriate. After the issuance of the direction in the unit found appropriate, counsel for the union filed a motion with the Commission requesting to be placed on the ballot in the election involving “blue collar” employes. The Commission is satisfied that said union has sufficient interest among the employes to be placed on the ballot and has therefore issued an amended direction of election. UW-Milwaukee 8296-A (12/67) (WERC) Pursuant to the request of the parties, employes in positions allegedly supervisory will vote by challenged ballot and their eligibility will be subsequently determined. UW-Milwaukee 8296 (11/67) (WERC) Thirty-six ballots were challenged by the Wisconsin State Foresters Association on the basis that they were not on the original eligibility list furnished to the Commission. However, the names of the employes challenged were included in a supplemental list furnished -to the Commission prior to the election, and said employes properly received their mail ballot, as well as the notice pertaining to the election. The Commission does not deem it necessary to open the challenged ballots f or the reason that the challenges would not affect the results. State of Wis. (Professional – Science) 11329-B and 11328-B (3/73) (WERC While the Commission will not sustain objections on the ground that employes by their own choice have failed to vote, we deem that the omission of the 16 eligible employes from the eligibility list, in effect, prevented such employes from voting since they were not sent mail ballots; and since the ballots of said 16 employes may have affected the result of the referendum, we are setting aside the results of the initial referendum and directing that a new referendum be conducted. State of Wis. (Professional – Engineers) 12463-A (4/74) (WERC) In the conduct of an election or referendum the Commission will not conduct mail balloting by registered or certified mail primarily because of the costs involved. The responsibility for providing current addresses to the employer lies with the employes. Since a considerable time may lapse between the date on which the direction is issued and the date on which ballots are to be received in the Commission’s offices, department heads should advise eligible employes that to insure their receipt of a ballot, said employes should immediately notify the personnel officers of their department of their address change, and in turn such information should be relayed to the Department of Administration. State of Wis. (Professional – Engineers) 12463-A (4/74) (WERC) S352 Interference with Election Furthermore, with respect to the objection regarding the letter to certain employes in the Department of Natural Resources to the effect that they were not eligible for a lateral transfer vacancy within the Department because the position was available in a different bargaining unit whose members should be given preference in accordance with the collective bargaining agreement covering that unit, the employer did not interfere with employe rights. State of Wis. (Professional – Science) 11329-B and 11328-B (3/73) (WERC) While the Commission has not formally adopted rules for the conduct of referenda under SELRA, it has conducted same in accordance with the rules governing the conduct of elections in state employment, particularly with respect to objections to the conduct of such elections (Rules ERB 21.10 and 21.11). ERB 21.10 provides, in material part, as follows: (1) FILING; FORM; COPIES. Within 5 days after the tally of ballots has been furnished, any party may file with the commission objections to the conduct of the election or conduct affecting the results of the election. We do not consider individual employes, singularly or in concert, or for that matter a labor organization or any type of employe organization not involved in the referendum, to be a “party” in the referendum proceeding within the meaning of the cited rule, and therefore, the Commission will not entertain the motion of the employes who filed the “petition” to become a “party,” nor will the Commission entertain their petition. State of Wis. (Professional – Engineers) 12463-A (4/74) (WERC) The fact that a “rival” labor organization seeks to elicit employes to execute a showing of interest to support a separate election petition during an election proceeding in which it is not on the ballot does not constitute conduct which interferes with the free choice of the employes who vote in the election. State of Wis. (Professional – Fiscal and Staff Services Employes) 13293-B (7/75) (WERC) S400 JURISDICTION S420 REPRESENTATION PROCEEDINGS S421 In General The teaching assistants at the UW-Madison are in the unclassified service of State employment and therefore are not employes within the meaning of SELRA. Thus, regardless of any collective bargaining agreement in which the parties may have agreed to be subject to the procedural and substantive provision of SELRA, the Commission has no jurisdiction to process any unfair labor practice complaint between the Teaching Assistant’s Association and the University. UW-Madison 9261-A (10/69) (WERC) S430 UNFAIR LABOR PRACTICE PROCEEDINGS S431 Rights Subject to WERC Jurisdiction The Commission has jurisdiction to construe and enforce the provisions of ERB 20.921(1) as it relates to deductions for dues to employe organizations, as Section 20.921(1) expressly refers to 111.84(l)(f), Wis. Stats. State of Wis. (DILHR) 11979-B (11/75) (WERC) S434 Effect of Collective Bargaining Agreements S434.2 Effect of Grievance Procedures Inasmuch as the union has breached its duty of fair representation owing to the complainant, and the complainant’s failure to exhaust the contractual grievance procedure is attributable to this breach, the employer’s procedural defense in this matter is overcome. Therefore the Wisconsin Employment Relations Commission will assert its jurisdiction to determine the merits of the discharge grievance. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) Inasmuch as the union breached its duty of fair representation by its failure to make a considered decision whether to proceed to arbitration on the merits of the grievance, the complainant’s failure to exhaust the contractual remedies is no defense to the Commission’s exercise of jurisdiction over the merits of the discharge grievance. UW-Milwaukee 11457-F (12/77) (WERC) S500 PRACTICE AND PROCEDURE BEFORE THE COMMISSION S510 IN GENERAL There is no doubt that the objections did not conform to rule ERB 21.10 of the Wisconsin Administrative Code in that the objections were contained in a single letter which was signed but which was., not “sworn to.” In addition, SACE neglected to serve copies thereof upon the interested parties involved, namely the State employer and WSEU. The Commission submitted copies of the letter to said parties. But Rule ERB 20.01 provides that procedural rules shall be liberally construed to effectuate the purposes and provisions of the State Employment Labor Relations Act, and further that the Commission may waive any requirements of said rules unless a party shows prejudice thereby. Since both the State employer and WSEU received copies of the objection-letter, and since they were afforded an opportunity to reply, the Commission will not dismiss the objections on the basis that they were not in the form nor filed in strict compliance with the Commission’s rules regarding same. State of Wis. (Professional – Social Service Employes) 11322-F and 11323-F (11/73) (WERC) S520 DECLARATORY RULINGS S524 Order for Hearing The union requested a ruling from the Commission as to whether, following the results of a referendum where the required number of employes would vote in favor of directing the union involved and the State employer to enter into a fair-share agreement, whether the parties were obligated to enter into a fair-share agreement or whether implementation of the fair-share agreement was a matter subject to collective bargaining. In response to such a request, the Commission advised the parties that, since the ruling requested would also apply to other labor organizations, it would not issue its ruling in said referenda proceedings but would, rather, deem the matter subject to a declaratory ruling proceeding under Chap. 227, Wis. Stats. and orders any party having an interest in the matter to file with the Commission a statement of position in regard to the matter. State of Wis. (Blue Collar and Non-Building Trades; Technical; Security and Public Safety) 11596 (2/73) (WERC) S530 REPRESENTATIVE PROCEEDINGS S532 Parties Complainant was not a party to the referendum proceeding and therefore had no standing to file a motion requesting a recount and recertification of the referendum results. State of Wis. (DOA) 11611-B (6/75) (WERC) S533 Petition After July 1, 1974, the State or any labor organization may petition for additional or modified statewide units. Section 111.83(5) sets forth specific time periods for filing petitions for elections where the employes are covered by. collective bargaining. Therefore, if the Commission establishes additional or modified units and if the employes select a bargaining representative, bargaining cannot begin until the results of the election are certified by the Commission. Since petitions for such election cannot be filed prior to 90 days immediately preceding the termination date of the agreement and since no representative can be certified prior to such 90 day period, there can be no bargaining prior to 90 days preceding the termination date of the agreement. But where there is no collective bargaining agreement covering the employes, there is no time limit on when petitions may be filed. And if the employes select a bargaining representative where no agreement exists, the representative has the right and the employer has the duty to begin bargaining immediately following the certification of the election. State of Wis. (Security and Public Safety) 12841-A (11/74) (WERC) There are several policy reasons for the showing of interest requirements in election proceedings. It will avoid the processing of election petitions where there is little likelihood of success by the petitioner, and thus the Commission would avoid an unwarranted expenditure of governmental funds, as well as dissipating and wasting of unnecessary time and effort by the Commission, employers, employes and their representatives. Requiring a preliminary showing of interest in a representation proceeding will screen out frivolous petitions and enable the Commission to conduct elections only where it serves a useful purpose under the statute. UW-Milwaukee 9910 (9/70) (WERC) Where there is an existing collective bargaining relationship resulting from a good-faith voluntary recognition of the labor organization, or where the labor organization has been certified in an election conducted by this agency, an organization filing a petition for an election among the employes in a unit claimed to be appropriate, must at the time of filing administratively demonstrate to the Commission that at least 30 percent of the employes in the claimed appropriate collective bargaining unit desire the petitioning organization to represent them for the purposes of collective bargaining. Where the petition is filed by an employe or employes seeking to terminate the representative status of the incumbent labor organization, the petitioning employe or employes must administratively demonstrate to this agency at the time of filing that at least 30 percent of the employes in the requested bargaining unit desire to terminate the representative status of the union. An employer petitioning for an election in an existing unit must demonstrate to this agency at the hearing, by objective consideration that it has reasonable cause to believe that the incumbent organization has lost its majority status since its certification or the date. of voluntary recognition. This objective evidence must not have been obtained by the employer through prohibited means. UW-Milwaukee 9910 (9/70) (WERC) When a collective bargaining agreement exists between the State employer and a labor organization, SELRA permits an election only if the petition is supported by 30 percent of the employes. Inasmuch as the instant petition is supported by only eight of approximately 4,700 employes, it must be dismissed. State of Wis. (Technical) 13824 (7175) (WERC) S534 Stipulation for Election Based on the stipulation of the parties, the Commission directed an election for eight graduate nurses employed by DPI as “Handicapped Children Specialists,” then represented by the WNA, to determine whether they wanted to be represented by the APRE, the WNA, or by neither organization. State of Wis. (DPI) 9799 (7/70) (WERC) S536 Direction The Commission had earlier determined that the union petition for the UW-Milwaukee Maintenance Local No. 1 independent unit was inappropriate . At the hearing regarding said petition, the union did not request that it appear on the ballot in any other unit found to be appropriate. After the issuance of the direction in the unit found appropriate, counsel for the union filed a motion with the Commission requesting to be placed on the ballot in the election involving “blue collar” employes. The Commission is satisfied that said union has sufficient interest among the employes to be placed on the ballot and has therefore issued an amended direction of election. UW-Milwaukee 8296-A (12/67) (WERC) During the course of the hearing, no issue arose concerning the confidential or supervisory status of any employe therein. The Commission suggests that, upon receipt of a copy hereof, that representatives of the respective employe organizations and of the agencies involved confer with respect to the matter of eligibility and advise the Commission within thirty (30) days from the issuance hereof of those positions which they agree should be included in the various units and those positions which they cannot agree as to their confidential or supervisory status. State of Wis. (UW Hospitals and Other Departments) 8340, 8345 and 8346 (1/68) (WERC) The Commission directed an election pursuant to Sections 111.80(3) and 111.05(2) of the Statutes among the engineers employed by DNR to determine whether they wanted to establish themselves as a separate bargaining unit because the petition by the Association of Natural Resources Engineers seeking an election was filed after the Commission had already issued a direction of election among the same employes and because WSEA claims to represent the engineers in a larger professional and related unit. If a majority of the professional engineers desire to establish a separate unit, the Commission will direct that an election be held to determine what representation, if any, the employes desire. State of Wis. (DNR) 9209 (6/69) (WERC) S537 Election Prior to the opening of the mail ballots, the ballots cast by the individuals occupying Civil Engineer 5 positions performing staff functions were marked as challenged ballots as a result of the motion to clarify the bargaining unit. The remainder of the ballots were counted and said challenged ballots were insufficient to affect the results of the election and thereupon the State Highway Engineers Association was certified as the collective bargaining representative for the employes in the unit involved. State of Wis. (Professional-Engineers) 10592-F (1/73) (WERC) The Commission had previously determined, in the presence of representatives of all the parties involved, without objection, to permit representatives of the parties to visit the Commission’s offices and view the envelopes containing the names of the employes in the unit who were casting ballots in the election. There is no contention that the representatives of the Wisconsin State Employee Union, by so viewing the envelopes, interfered with, restrained or coerced any employe in the unit to cast or not to cast a mail ballot. Accordingly, we are satisfied that the objections are without merit and are certifying the results of the run-off election. State of Wis. (Professional-Social Services) 11322-F, 11323-F (11/73) (WERC) S539 Miscellaneous S539.1 Clarification of Bargaining Unit The Commission will not process a petition filed by individual employes contesting their placement in a particular statutorily created bargaining unit. Such a petition must be filed by either a labor organization or the State employe. State of Wisc. (Technical) 13824 (7/75) (WERC) Pursuant to the request of the parties that the certification of representative for the State employer named as the Department of Public Welfare should be amended to reflect the new name of the Department of Health and Social Services, the Commission is satisfied that the certification should be so amended. Further, the Commission will grant the parties’ request to add various classifications employed in the Division of Health to the aforementioned unit. The number of employes to be added, 72, is minimal when viewed in light of the results of the representation election previously conducted (2,422 employes voted in favor of the representative compared to 83 employes voting against the representative) . State of Wis. (DHSS) 7984-D (8/68) (WERC) S540 COMPLAINT PROCEEDINGS S542 Parties The examiner has also denied the respondent union’s motion to dismiss, in that the union would appear to be a necessary party to the determination of whether there had been a denial of fair representation. Since the right of the complainant to further proceedings against the State employer may depend on the determination of the fair representation question, the same considerations for fair hearing and procedural rights apply to the respondent union as are indicated above with respect to the respondent State employer. UW-Milwaukee (Housing Dept.) 11457-A (1/73) (Schurke) S543 Pleadings and Motions Section 227.01, Wis. Stats, defines “contested case” and Section 227.07, Wis. Stats., assures full hearing prior to a disposition of rights in a contested case. Neither respondent has filed an answer in the instant case and the date for filing of an answer has not passed. At the present time it must be presumed that the instant case falls within the cited definition and requirement. Further, the Commission has held that if the employe involved, or any party to a collective bargaining agreement, is improperly denied the opportunity to process grievances as contemplated in the agreement, the Commission will disregard the procedure in the agreement and will exercise its jurisdiction to determine the grievance on the merits. The complainant must be heard on his allegations concerning denial of fair representation before a ruling can be made as to the applicability in the instant case of the cases cited. UW-Milwaukee (Housing Dept.) 11457-A (1/73) (Schurke) Since the examiner’s order setting a hearing for the taking of evidence on all issues joined in the pleadings is not a final determination of any of the issues involved in the instant matter, the Commission will not at this time entertain a petition for review of the examiner’s order setting the matter for further hearing. Under the respondent State’s theory any party who is dissatisfied with a ruling made by an examiner during the course of a hearing could petition the Commission for a review of the examiner’s ruling. Such a procedure is not contemplated either under Chapter 227 of the Wisconsin Statutes nor under the rules of the Commission. UW-Milwaukee (Housing Dept.) 11457-C (3/73) (WERC) A motion for summary judgment was unknown to the common law and is purely statutory. Our statute limits its use to civil actions and special proceedings which are remedies in courts. Sec. 260.02. The denial of the motion for summary judgment was certainly proper when no such procedure is known to the administrative law of Wisconsin. The employer takes the position that denial of this motion to dismiss as premature denies to the petitioner the defense of failure of the employe to exhaust administrative remedies and destroys the arbitration machinery established in the collective bargaining agreement with the union. Neither the hearing officer nor the Commission did anything but say that the motion was premature and that the hearing officer had the discretion to take all of the evidence on all of the issues before reaching a decision disposing of the case. The only decision there has been in this case is that of the hearing officer to make a complete record. No one has decided the issues before the administrative tribunal or foreclosed any defenses or estopped petitioner. We are of the opinion that there has been no administrative decision, findings of fact or conclusions of law and petitioner’s legal rights, duties or privileges have not been affected in any way by any act or omission of the administrative agency. Secs. 227.13, 227.15. In the absence of a “decision” there is nothing for this court to review as the disposition of motions and procedural orders which do not determine or prevent determination of the issues in an administrative proceeding are not decisions which permit judicial review before the final decision or termination of the case before the administrative agency. Wis. Telephone Co. v. Wis. ERB 253 Wis. 584. Challenge to the rulings of the agency on motions is properly made only after final decision by the agency. UW-Milwaukee (Housing Dept.) 11457 (8/73) sub nom. UW-Milwaukee v. WERC (Dane Co. Circuit Ct.) ERB 22.02(2)(c) provides that a complaint shall contain a “clear and concise statement of the facts constituting the alleged prohibited practice or practices, including the time and place of the occurrence of particular acts and the section of the statute alleged to have been violated thereby.” Disposition of the Respondent’s motion must turn on the construction and application of this provision of the Commission’s rules, with due regard for the admonition contained in ERB 20.01 that the rules shall be “liberally construed to effectuate the purposes and provisions of subchapter V of Chapter 111, Wisconsin Statutes.” In applying the provisions of 22.02(2)(c) in this case, the examiner has taken into account both to the number and complexity of the allegations contained in the complaint as well as the fact that both parties are represented by counsel, and has concluded that the complainants must include the date, where known, of the alleged transaction and the names of ‘all participants where known. If the exact date is not known, approximate dates should be given with the number of participants. The requirement that the complainants provide the information requested does not irrevocably commit the complainant to a particular version of the facts since the complainants are free to further amend their complaint in accordance with ERB 22.02(5). State of Wis. (DHSS) 11951-A (9/73) (Fleischli) Respondent’s motion to dismiss a complaint on the grounds that the Commission lacked jurisdiction because the complaint allegedly required the interpretation of the collective bargaining agreement was dismissed because the complaint clearly stated a cause of action for refusal to bargain by means of making a unilateral change without notice to the representatives of the affected employes. State of Wis. (Professional – Education) 13017-A (10/74) (Michelstetter) Because the Respondent showed no prejudice by the failure of the complainant to comply with the Wisconsin Administration Code Sec. ERB 22.02(1) which requires each copy of the complaint to contain a verification page, the examiner waived that requirement pursuant to the Wisconsin Administration Code Sec. 20.01 and respondent’s motion to dismiss was denied. State of Wis. 13017-A (10/74) (Michelstetter) The Circuit Court did not abuse its discretion in refusing to issue a declaratory judgment determining whether the WERC must first determine the unfair representation question prior to a hearing on the merits of the complaint against the employer. Allowing the action for a declaratory judgment would not terminate the controversy before the WERC and would seriously interfere with the administrative process. Considering that the employer can seek review of an adverse determination on the issues following the WERC proceedings, it is more proper to allow the agency to proceed to a final determination without interruption. UW-Milwaukee (Housing Department) 11457-D (11/74) sub nom. State of Wisconsin v. WERC (Wis. Sup. Ct.) The hearing examiner’s order for further hearing on the merits of the complaint is not reviewable in the Circuit Court under Section 227.15, Stats. The examiner’s order did not determine the rights of any of the parties. It only held the employer’s motion to dismiss to be premature and found the two issues involved to be so commingled that the interests of efficiency of the Commission’s processes and the interests of justice required the taking of evidence on all the issues prior to the making of any determinations in the case. Therefore the Circuit Court had no jurisdiction but to dismiss the petition. UW-Milwaukee (Housing Dept.) 11457-D (11/74) sub nom. State of Wisconsin v. WERC (Wis. Sup. Ct.) The Commission deems it improper to dismiss the complaint without a hearing on the motion to dismiss based on the allegations that Complainant failed to exhaust contractual remedies and that the complaint is frivolous. However, the respondent has the right to renew its motion during the course of the hearing and the Commission will hear arguments in support of and against the motion. Wisconsin Board of Vocational, Technical and Adult Education 13168 (11/74) WERC) Respondent’s Motion to Dismiss is denied because the matters at issue may involve factual determinations which can best be resolved at a hearing, and because the complainants are entitled in a dispute involving a contested case. State of Wis. (DOA) 13198-A (1/75) (Greco) The Commission has held that the failure to file a written answer to a complaint prior to a hearing, absent a showing of prejudice, does not entitle a party to judgment based upon the complaint. State of Wis. (DILHR) 11979-B (11/75) (WERC) Because the complainant had abandoned his discriminatory discharge theory at the outset of the proceedings, and proceeded instead to assert a complaint alleging a discharge in violation of a collective bargaining agreement and a violation of the duty of fair representation, significant changes in the theory of the case after two years of proceedings would be totally inappropriate because it would deny the employer, and likely both respondents, due process of law. Therefore, thus evidence of anti-union animus will be considered only as it relates to the question of just cause for discharge. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) Since Respondent’s motion to dismiss is partly predicated on facts which may be in dispute, and inasmuch as some of the matters raised by Respondent can best he resolved at a hearing, Respondent’s motion to dismiss is hereby denied. As Respondent is entitled to know some of the information it has requested in its alternative motion to make more definite and certain, said motion is granted in part. State of Wis. (DOA) 12862-A (7/74) (Greco) Inasmuch as the examiner is convinced that the matter is a “contested case” within the meaning of Sec. 227.01, Wis. Stats., requiring a public hearing pursuant to Sec.227.07, the motion to dismiss complaint is denied. State of Wis. (DOA) 12119-A (9/73) (Bellman) The Commission concludes that the allegations put the union on notice that the propriety of its decision not to arbitrate was in issue. The union prior to hearing did not move to make more definite and certain. The union raised no objection at the hearing relative to the testimony as to the basis for the executive board’s considerations in deciding whether to proceed to arbitration. UW-Milwaukee 11457-F (12/77) (WERC) S545 Hearing Under the State Employment Relations Act the State of Wisconsin, as an employer, reserved to itself a dominant posture in collective bargaining with labor organizations representing State employes, particularly as to the subjects of bargaining. There is no indication however that the Legislature placed the State employer in a similar dominant position with respect to prohibited practices proceedings before the Commission. The question of severance of the proceedings is within the discretion of the Commission and of its examiner, and the State employer has no right or authority to dictate the procedure to be followed. The examiner concludes that the issues of the union’s alleged breach of the duty of fair representation and the issue of the employer’s alleged violation of the collective bargaining agreement are so commingled that the efficiency of the Commission’s processes and the interests of justice would best be served by taking evidence on all issues in the case before making a determination on any of the issues. UW-Milwaukee (Housing Dept.) 11457-B (3/73) (Schurke) S547 Decision of Examiner Since the examiner’s order setting a hearing for the taking of evidence on all issues joined in the pleadings is not a final determination of any of the issues involved in the instant matter, the Commission will not at this time entertain a petition for review of the examiner’s order setting the matter for further hearing. Under the respondent State’s theory any party who is dissatisfied with a ruling made by an examiner during the course of a hearing could petition the Commission for a review of the examiner’s ruling. Such a procedure is not Contemplated either under Chapter 227 of the Wisconsin Statutes nor under the rules of the Commission. UW-Milwaukee (Housing Dept.) 11457-C (3/73) (WERC) Rule ERB 12.09 of the Wisconsin Administrative Code contemplates that an order subject to a petition for review by the Commission must be a final determination. Therefore, the order of an examiner denying a motion to dismiss is not a final determination and the Commission has denied the petition for review. State of Wis. (Professional – Education) 13017-B (10/74) (WERC) S600 PRACTICE AND PROCEDURE BEFORE THE COURTS Chapter 227 concerning administrative procedure recognized declaratory judgments as relief only for determination of the validity of administrative rules, which the case at bar does not involve. The declarations which petitioner seeks involve the procedural question of whether the agency must have split hearings and decisions on the issues in this and similar cases and a decision as to what the moving party before the agency must prove. A petition for review of administrative decisions confers limited jurisdiction upon the court. Sec. 227.20. It does not permit giving advice or declaring rights not involved in the review. In addition we do not have before us as parties to this action the employe or the union whose rights, duties and privileges are involved in the matters in which petitioner seeks declarations. UW-Milwaukee (Housing Dept.) 11457 (8/73) sub nom. State of Wisconsin v. WERC (Dane Co. Cir. Ct.) The Circuit Court did not abuse its discretion in refusing to issue a declaratory judgment determining whether the WERC must first determine the unfair representation question prior to a hearing on the merits of the complaint against the employer. Allowing the action for a declaratory judgment would not terminate the controversy before the WERC and would seriously interfere with the administrative process. Considering that the employer can seek review of an adverse determination on the issues following the WERC proceedings, it is more proper to allow the agency to proceed to a final determination without interruption. UW-Milwaukee (Housing Department) 11457-D (11/74) sub nom. State of Wisconsin v. WERC (Wis. Sup. Ct.) S620 JUDICIAL REVIEW OF UNFAIR LABOR PRACTICE PROCEEDINGS The hearing examiner’s order for further hearing on the merits of the complaint is not reviewable in the Circuit Court under Section 227.15, Stats. The examiner’s order did not determine the rights of any of the parties. It only held the employer’s motion to dismiss to be premature and found the two issues involved to be so commingled that the interests of efficiency of the Commission’s processes and the interests of justice required the taking of evidence on all the issues prior to the making of any determinations in the case. Therefore the Circuit Court had no jurisdiction but to dismiss the petition. UW-Milwaukee (Housing Dept.) 11457-D (11/74) sub nom. State of Wisconsin v. WERC (Wis. Sup. Ct.) S700 COMMISSION ORDERS REMEDYING UNFAIR LABOR PRACTICES S710 COMMISSIONS AUTHORITY TO ISSUE REMEDIAL ORDERS S711 In General It is necessary to decide whether the breach of the duty of fair representation is an unfair labor practice in order to determine whether a remedial order can issue against the union, since the Commission can issue remedial orders only against persons found to have committed unfair labor practices. UW-Milwaukee 11457-F (12/77) (WERC) Since a Commission order is enforceable by the courts and a subsequent violation is punishable as a contempt of court, fairness requires that the need for a broad order specifically should have been litigated. Accordingly, to get a broad order, a complainant should specifically pray for one and allege the necessary supporting facts. Generally speaking, a broad order, as by requiring a party not to violate its duty in any respect, will be granted only where it is demonstrated that a respondent has a proclivity to violate its duty. UW-Milwaukee 11457-F (12/77) (WERC) S730 CEASE AND DESIST ORDERS INVOLVING STATE EMPLOYER UNFAIR LABOR PRACTICES S731 Relating to Interference, Restraint and Coercion in Violation of Sec. 111.84(l)(a) The State employer is ordered to cease and desist from interfering with the rights of its employes under the State Employment Labor Relations Act by misinforming said employes regarding their right to authorize or revoke dues deduction. State of Wis. (DILHR) 11979-B (11/75) (WERC) The State employer is ordered to cease and desist from refusing to honor dues check-off authorizations executed by its employes requesting that it deduct monthly dues established by the complainant, Wisconsin .State Foresters Association, and pay same directly to the complainant, Wisconsin State Foresters Association. State of Wis. (DNR) 10127-A (4/71) (WERC) S733 Relating to Discrimination in Violation of Sec. 111.84(l)(c) The State employer is ordered to cease and desist from discriminatorily transferring employes, or in any like or related manner interfering with, restraining or coercing employes in the exercise of their right to self-organization, to form, join or assist Wisconsin State Employees Association, AFSCME, AFL-CIO, Local No. 18, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activity. State of Wis. (DHSS) 8892 (3/69) (WERC) S734 Relating to Refusal to Bargain in Violation of Sec. 111.84(l)(d) The State employer is ordered to cease and desist from refusing to bargain collectively with Wisconsin State Employees Association, AFSCME, AFL-CIO, Local No. 18, as the collective bargaining representative of its officers, with respect to changes in policy affecting the use of holiday and other time off by its officers, and other matters subject to collective bargaining pursuant to Sec. 111.91 of the State Employment Labor Relations Act. State of Wis. (DHSS) 8892 (3/69) (WERC) S735 Relating to Violations of Collective Bargaining Agreements in Violation of Sec. 111.84(l)(e) The Employer was ordered to cease and desist from violating the collective bargaining agreement. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) S740 AFFIRMATIVE ACTION ORDERS INVOLVING STATE EMPLOYER UNFAIR LABOR PRACTICES S741 Relating to Acts of Interference, Restraint and Coercion in Violation of Sec. 111.84(l)(a) The State employer is ordered to reimburse complainant union in the amount of all dues which employes who untimely revoked their dues deduction because of the State employer’s misinformation would have paid between the date of their untimely revocation and the date on which revocation of their dues deduction would have been timely pursuant to their individual dues deduction authorization card executed and submitted to the State employer. State of Wis. (DILHR) 11979-B (11/75) (WERC) The State employer is ordered to commence honoring authorization for payroll deductions for employe organization dues In favor of the complainant, Wisconsin State Foresters Association, which authorizations have been executed by its employes, at such time as properly executed authorizations are submitted to it by the Complainant, Wisconsin State Foresters Association or by the employers Involved. State of Wis. (DNR) 10127-A (4/71) (WERC) S743 Relating to Acts of Discrimination in Violation of Sec. 111.84(l)(c) The State employer is ordered to Immediately re-transfer the discriminate from Tower duty to his former position in the Segregation Block at Wisconsin State Prison, without prejudice to any rights or privileges previously enjoyed by him. State of Wis. (DHSS) 8892 (3/69) (WERC) S744 Relating to Refusal to Bargain in Violation of Sec. 111.84(l)(d) The State employer is ordered to, upon request, bargain with Wisconsin State Employees Association, AFSCME, AFL-CIO, Local No. 18, as the exclusive representative of its officers, with respect to contemplated changes in policies affecting the use of holiday and other time off by its officers, and other matters subject to collective bargaining pursuant to Sec. 111.91 of the State Employment Labor Relations Act. State of Wis. (DHSS) 8892 (3/69) (WERC) S745 Relating to Violation of Collective Bargaining Agreements in Violation of Sec. 111.84(l)(e) Inasmuch as the employer unjustly discharged complainant before the union ever engaged in wrongdoing by its breach of the duty of fair representation, the employer, not the union, is liable for the make whole remedy for the wages and benefits lost by the complainant from the date of his unjust discharge to the date of his unconditional offer of reinstatement. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) The employer was ordered to offer the grievant reinstatement to former position or a substantially equivalent position without prejudice to seniority rights or any other benefits previously enjoyed by him, and make him whole for any loss of pay and benefits that he may have suffered by reason of unlawful discharge, by paying him a sum of money equal to what he would have normally have earned from the date of his termination to the date of the unconditional offer of reinstatement less any earnings he may have earned in substitution for such terminated employment, and less the amount of unemployment compensation benefits, if any, received by him during that period. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) S750 CEASE AND DESIST ORDERS INVOLVING STATE EMPLOYE UNFAIR LABOR PRACTICES S751 Relating to Acts of Coercion or Intimidation of Employes in Violation of Sec. 111.84(2)(a) The union was ordered to cease and desist from processing grievances filed by employes in an arbitrary, discriminatory or perfunctory manner or in any other manner acting in breach of its duty of fair representation. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) Since the union breached its duty of fair representation by failing to make a considered decision on the complainant’s request for arbitration, the Commission has entered a cease and desist order against such a failure, in substitution for the examiner’s cease and desist order which was broader and did not focus on the particular violation. UW-Milwaukee 11457-F (12/77) (WERC) In assessing the amount of attorney’s fees reasonably attributable to the merits of the discharge grievance in arbitration, we have considered the following facts: the hearing before the examiner on the merits of the discharge took almost one full day; there are about 120 transcript pages; the exhibits, although few in number, were facially conflicting and required skill in analysis for purposes of examination and cross-examination of witnesses; the facts underlying the grievance were complex, involving the previous altercations between complainant and supervisors, the issue of employer anti-union animus, and many other material conflicts in testimony relative to vacation selection and complainant’s decision to take a vacation in July; and the inferences to be drawn from the evidence are conflicting and subject to differing interpretations I)y the decision maker, as our reversal of the examiner on the ultimate question of just cause for discharge shows. In addition to the time involved and the nature of the hearing, we have considered an attorney’s time in preparation for the hearing and the efforts in preparing a written brief, and in our opinion the reasonable value of such services is $1,000.00. We have considered two other policy factors in arriving at our decision. First a union has the right, on proper consideration, to refuse to arbitrate even a meritorious grievance. Nothing in our decision should be construed as impairing a union’s right to refuse to arbitrate a grievance upon giving it proper consideration. Here, however, the union had never . previously refused a request to arbitrate and made no considered decision in this case warranting departure from that practice. Second, we are mindful that an award of attorney’s fees might induce grievants, whose request for arbitration properly has been denied, to proceed before the Commission on frivolous claims. In this regard, we note that in our opinion grievant’s claim was not frivolous, and we would deny any attorney’s fees in the case of a frivolous claim. UW-Milwaukee (Housing Dept.) 11457-F (12/77) (WERC) Where, as in this case, the union has breached its duty of fair representation, it is liable for attorney’s fees. Although ordinarily the Commission does not award attorney’s fees, we believe the effect of the union’s violation of its duty toward complainant cannot be dissipated without such an award. In arriving at this conclusion, we further note that the nature of the union’s violation is not a mere technical error under the law. Rather, it consists in conduct which is wholly arbitrary inasmuch as the union failed to make a considered decision on complainant’s request that his grievance be arbitrated. UW-Milwaukee (Housing Dept.) 11457-F (12/77) (WERC) S760 AFFIRMATIVE ACTION ORDERS INVOLVING STATE EMPLOYE UNFAIR LABOR PRACTICES S761 Relating to Acts of Coercion or Intimidation of Employes in Violation of Sec. 111.94(2)(a) The Union is ordered to pay reasonable attorney’s fees in the amount of $1,000.00. UW-Milwaukee (Housing Dept.) 11457-F (12/77) (WERC) The union was ordered to make the grievant whole for expenses incurred by him because of the failure of the union to provide him with proper and fair representation in the processing of this case, by paying him, upon presentation of a verifiable claim, the cost of reasonable attorneys’ fees and costs incurred in the prosecution of this complaint. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) As recently as November 4, 1975, the Commission has reaffirmed its policy of not requiring any party to a complaint proceeding to pay fees and costs incurred by another party to that proceeding, except where the parties have agreed in advance that such a remedy is appropriate. However, it is evident that complainant has incurred legal fees and costs in the prosecution of this case which he would not have incurred (and which the union would not have incurred out of its treasury) if the union had not breached its duty of fair representation. Complainant can be made whole as to the effects of the union’s violation by an order requiring the union to pay Guthrie’s reasonable fees and costs. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) S800 UNFAIR LABOR PRACTICES BY STATE EMPLOYER S820 INTERFERENCE, RESTRAINT AND COERCION: SECTION 111.84(l)(a) Statements by minor supervisory employes which were anti-complainant and in favor of another labor organization when viewed within the entire set of circumstances were regarded as casual and isolated episodes by minor supervisory employes which would not justify a finding of prohibited practices against the employer. The applicable rule has been quoted as follows: But mere isolated expressions of minor supervisory employees, which appear to be nothing more than the utterance of individual views, not authorized by the employer and not of such a character or made under such circumstances as to justify the conclusion that they are an expression of his policy, will not ordinarily justify a finding against him. Affirmative acts of management can also be used to rebut the charge of unlawful interference, restraint or coercion which arose from causal statements made by minor supervisory employes. Upon learning of supervisory activity in PPPA’s the employer issued guidelines prohibiting supervisors from active roles in any labor organization; furthermore the employer joined the complainant union in opposing PPPA’s election’ petition . UW-Milwaukee 9800-A (4/71) (Moberly) S824 Nature of Employer Activity S824.2 Violations Generally The distribution of a letter from the employer advising employes of their right to revoke their dues check-off and incorrectly informing them of the timeliness of such revocation committed an unfair labor practice under Sec. 111.84(i)(a). The employer’s lack of intent to misinform is irrelevant. State of Wis. (DIHLR) 11979-B (11/75) (WERC) S824.3 Violations Not Found Furthermore, with respect to the objection regarding the letter to certain employes in the Department of Natural Resources to the effect that they were not eligible for a lateral transfer vacancy within the Department because the position was available In a different bargaining unit whose members should be given preference in accordance with the collective bargaining agreement covering that unit, the employer did not interfere with employe rights. State of Wis. (Professional – Science) 11329-B and 11328-B (3/73) (WERC) The employer and the association have a duty to furnish the Commission with an accurate eligibility list for a fair-share referendum. However, the employes who are aware of the impending referendum and who did not receive a ballot, have a concomitant duty to make all reasonable efforts to assure that they will be able to exercise their voting rights. When, as here, the affected employes received notice of the impending referendum and did not make reasonable efforts to obtain ballots, the inadvertent omission of an employes name does not constitute interference with statutory rights under Sec. 111.82 of SELRA. State of Wis. (Highway Engineers) 13809 (7/75) (WERC) Where an employe failed to request to have union representation at a meeting in which lie was notified of a five-day suspension, the respondents did not act unlawfully when their agents met with the employe without a union representative. Further, since the sole purpose of the meeting was to inform the employe of his imminent suspension and not ask him for any information regarding the alleged rule infractions, the meeting was not an investigatory meeting. State of Wis. (DOA) 13198-B (8/75) (Greco) S830 INITIATION, CREATION, DOMINATION OR INTERFERENCE WITH THE FORMATION OR ADMINISTRATION OF LABOR OR EMPLOYE ORGANIZATION: SEC. 111.84(l)(b) Although a private employer is usually found to have illegally interfered with the administration of the union when its supervisors participate in union affairs by participating in the formation of the union or by holding office, SELRA deliberately provides a different schematic framework for the participation of supervisors in labor organizations. The Legislature recognized that it was common practice in the State prior to SELRA to permit supervisors to join and participate in labor organizations. The Legislature recognized this practice when considering the SELRA and, in an attempt to avoid undue disruption of existing relationships, made provision for supervisory membership in labor organizations, and also provided a four year “grace” period in which there would be no statutory prohibition of supervisory participation as active members or officers of such employe organizations. The law providing a framework for the participation of supervisors in labor organizations is not limited to those who are members of the majority bargaining representative, but instead applies broadly to supervisors who are members of the same labor organization of which its employes are members. UW-Milwaukee 9800-A (4/71) (Moberly) S831 In General No violation of 111.84(l)(b) would occur where nurses employed by the State were granted time off with pay to attend the WNA if attendance is not conditioned on membership or non-membership in the WNA. The State, as an employer of nurses, reaps some benefit from the attendance at professional conventions by the nurse employes because the primary purpose of WNA conventions have been for the betterment of the professional as opposed to strengthening WNA as a labor organization. State of Wis. (DOA) 8509-A (8/68) (WERC) S840 ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION: SEC. 111.84(l)(c) The mere fact of union membership is insufficient to infer that the discharge of a union member was because of such membership. UW-Milwaukee 9800-A (4/71) (Moberly) S841 In General The union has the burden of proving by a clear preponderance of evidence that union activity was the motivating factor for a transfer of a union leader. But inferences may be made supporting the conclusion that union activity was the motivating factor when the alleged reasons for the transfer do not appear to be supported by the evidence and in fact are a pretext. State of Wis. (DHSS) 8892 (3/69) (WERC) S842 Employer’s Action Found Non-Discriminatory In the instant case, there is complete lack of proof that the discharge was motivated by union activity or by anti-union animus on the part of the State employer. The only evidence concerning the dischargee’s activity was that he was a member of the union. The mere fact of union membership is insufficient to infer that the discharge of a union member was because of such membership. The union challenges the validity of the reasons for the discharge and the reinstatement only to the position of the security officer, and says there is no valid cause for the State employer’s action. However, the only question in cases of this nature is whether the discharge was in any way motivated by a desire to encourage or discourage union membership, not whether the discharge was for cause. On the question of whether the discharge was the result of union membership, complainant failed to carry its burden of proof and the complaint must be dismissed. UW-Milwaukee 9800-A (4/71) (Moberly) Inasmuch as the employe in question is a supervisor, respondent employer did not violate 111.84(l)(a) or (c) by advising the employe to quit his union membership. State of Wis. (UW Hospital) 13082-A (5/75) (Greco) No violations of 111.84(l)(c) would occur where nurses employed by the State were granted time off with pay to attend the WNA if attendance is not conditioned on membership or non-membership in the WNA. State of Wis. (DOA) 8509-A (3/68) (WERC) The employer did not violate Sec. 111.84(l)(c) and (a) of SELRA by requiring officers who did not attend a corrections conference and who had at least one day of earned or comp time to take days off in lieu of conference attendance. State of Wis. (DHSS) 8892 (3/69) (WERC) S843 Employer’s Action Found Discriminatory The employer violated 111.84(l)(c) and (l)(a) by transferring the president of the union because the transfer was motivated by the employes protected activity. State of Wis. (DHSS) 8892 (3/69) (WERC) It appears to the Commission, if the discontinuance of dues deduction in favor of an organization upon the passage of SELRA would have constituted a prohibited practice, as admitted by the Respondent, that the failure to honor similar authorizations executed by employes in favor of the majority representative, while continuing to honor similar check-offs executed by employes to an organization which was on the same ballot and sought an interest in representing the employes in the unit involved herein, constitutes an attempt to discourage and does discourage, concerted activity in the majority organization. In Board of School Directors of Milwaukee v. WERC, 42 Wis. 2d 637, interpreting dues check-off provisions under the Municipal Employment Labor Relations Statute the Wisconsin Supreme Court has stated “the sole and complete purpose of exclusive checkoff is self-perpetuation and entrenchment. While a majority representative may negotiate for check-off, he is negotiating for all the employees, and, if checkoff is granted for any, it must be granted for all.” State of Wis. (DNR) 10127-A (4/71) The provision in Sec. 111.84(l)(b) allowing for the membership of supervisors in labor organizations and providing a four year grace period for active participation and holding office was not intended to grant supervisory personnel statutory rights “to form, join or assist labor organizations” or other rights of self-organization. If that were the intention, supervisors would not have been excluded from the definition of the term “state employe.” Section 111.84(l)(b) merely reiterates the fundamental concept that management representatives may not initiate, create, dominate or interfere with the formation or administration of any labor organization. Its reference to supervisors merely protects the state from prohibited practice charges if a supervisor is allowed to become an “active member or officer” of the labor organization. The language does not require the State employer to allow supervisors to be active in a union up to January 1, 1971. The language means only that if the State allows supervisors to be active members or officers, the State shall not be subject to a prohibited practice finding. The State employer correctly states that “this language does not mean the State must allow the supervisor to be active in a union.” UW-Milwaukee 9921-A (5/71) (Moberly) After the expiration of the four year grace period for the active participation of supervisors in labor organization and their office holding in such organizations on January 1, 1971, the State employer might well be subject to prohibited practice charges if a supervisor engaged in an active role as a member or officer of the anion that represents or claims to represent employes they supervise. It was entitled to protect itself against such prohibited practice charges by restricting such supervisory activity, and did not thereby violate Sec. 111.84 (l). UW-Milwaukee 9921-A (5/71) (Moberly) S850 REFUSAL TO BARGAIN IN GOOD FAITH: SECTION 111.84(l)(d) The State employer’s refusal to conform to the grievance procedure it had unilaterally established and which was not included in any collective bargaining agreement did not violate 111.84(l)(d). UW-Milwaukee 8383 (2/68) (WERC) S851 Effect of Sec. 111.84(l)(d) The newly amended State Employment Labor Relations Act, effective April 30, 1972, extinguished the State’s duty to bargain on matters affecting employes in previously certified units where such units do not constitute an appropriate unit under the provisions of the amended State Employment Labor Relations Act. Consequently, the State employer does not have a duty to bargain with the Wisconsin Education Association on any matter concerning the classroom teacher unit at the Wisconsin School for the Deaf and the Wisconsin School for the Visually Handicapped. State of Wis. (DPI) 11598-A (3/73) (WERC) S851.1 Waiver of Duty of Bargain The complainant union waived its right to notice of the exact changes in the rotation section of the summer leave policy in the labor agreement and also waived its opportunity to bargain over the policy prior to the implementation of any changes when it withdrew its proposal for maintenance of unspecified benefits and accepted the Employer’s proposal for Article XII, Section 1, a general waiver. State of Wis. (Professional – Education) 13017-C (7/75) (Michelstetter) S853 Acts Found Violative of Duty to Bargain The unilateral change by the employer in the policy affecting the use of holiday and other time off by its employes constitutes a refusal to bargain in good faith in violation of 111.84(l)(d). State of Wis. (DHSS) 8892 (3/69) (WERC)S854 Acts Found Not Violative of Duty to Bargain When the State is willing to meet with bargaining team employes during normal working hours and is willing to release bargaining unit employes from work, but will not pay for released time, it is showing a willingness to meet and confer at reasonable times and is not violating 111.84(1)(d). WFT made no showing that meeting during such hours would hinder its ability to collectively bargain. State of Wis. 13267-A (5/75) (WERC) S860 VIOLATION OF COLLECTIVE BARGAINING AGREEMENT SEC. 111.84(l)(e) S865 Nature of Provisions Involved S865.3.2 Rights of Individual Employes The rights of employes under 111.83(l) to present grievances is not absolute but rather comes into being when a collective bargaining representative has been either voluntarily recognized or certified as the exclusive representative. While the representative has the duty to represent all employes in the unit, individual employes or minority groups may present grievances in person or through representatives of their own choosing, although the majority representative must be given an opportunity to be present. The right of an individual employe or minority groups only arises where there is an exclusive bargaining representative and where a grievance procedure has been established in collective bargaining by the exclusive bargaining representative and the employer. Therefore, the employer’s refusal to allow the employes’ desired spokesperson represent them during the unilaterally established grievance procedure did not violate 111.83(1). UW-Milwaukee 8383 (2/68) (WERC) S865.11 Relating to Termination of Employment Inasmuch as the grievant was insubordinate and absent without leave, the employer had just cause to discharge him. UW-Milwaukee (Housing Dept.) 11457-F (12/77) (WERC) The suspension and warning issued to the complainant were tainted by anti-union animus and occurred well within the period of limitations provided by statute and that incident will not be given weight as a basis for the complainant’s subsequent discharge action litigated in this case. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) Inasmuch as the employe to whom complainant was alleged to have been insubordinate was not clearly complainant’s supervisor, and said employes’ actions as regarded complainant were ambivalent, the discharge cannot be sustained by the employer’s allegation of insubordination. As to the allegation that the complainant was absent without leave, the complainant was determined to have been on vacation during the disputed absence from work and therefore had leave to be absent, and could not be discharged for such allegation. Therefore, the employer did not have just cause to discharge said employe. UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) S870 FAILURE TO ACCEPT BINDING ARBITRATION AWARD INVOLVING GRIEVANCES: SEC. 111.84(l)(e) S872 Application of Chapter 788, Wisconsin Statutes The Commission has the power to review and enforce arbitration awards under Sec. 111.84(l)(e) and 111.84(2)(d) even though Sec. 298.09, Wis. Stats., provides for court review. The statutory standards for review are: (a) Where the award was procured by corruption, fraud or undue means; (b) Where there was evident partiality or corruption on the part of the arbitrators, or either of them; (c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; (d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. State of Wis. (Engineers) 13864-A (12/75) (Yaffe) S873 Jurisdiction of Arbitrator It would be totally inappropriate and contrary to both national and state labor policy to refuse to enforce the arbitrator’s award simply because the examiner disagreed with the arbitrator’s interpretation of the parties’ intent in negotiating their collective bargaining agreement. So long as the essence of the arbitrator’s award is drawn from the agreement, as is the case in this instance, a reviewing tribunal has no authority to refuse to enforce the award because it construes the agreement differently. Accordingly, because the essence of the arbitration award contested herein is drawn from the parties’ collective bargaining agreement, because the award violates no wage and hour statutes, and because the respondent has failed to prove by a clear preponderance of the evidence that the arbitrator who issued the award was arbitrarily partial in any manner, the examiner concludes that the award is enforceable and the complaint filed herein is therefore meritorious. State of Wis. (Engineers) 13864-A (Yaffe) (12/75) S876 Unauthorized Deduction of Dues: Sec. 111.84(l)(f) The complainant did not establish with sufficient evidence that the employer failed to honor revocation of dues check-off which had been executed by some employes in favor of another labor organization. UW-Milwaukee 8383 (2/68) (WERC) Section 111.84(l)(f) is construed to mean that dues deduction authorizations may be revoked with at least a 30 day notice and that In no event could the period of irrevocability be extended beyond one year periods. The state agencies may continue to honor dues deductions authorizations previously executed by members of WSEA on and after the effective date of the SELRA without committing a prohibited practice. State of Wis. (DOA) 7826 (11/66) (WERC) WSEA’s payroll deduction forms issued since SELRA, which provide that the period of authorization shall be for one year, is permitted by the statute. State of Wis. (DOA) 7826 (11/66) (WERC) The Respondent’s action, by ceasing to deduct dues, as requested by its employes, did not violate Section 111.84(l)(f), inasmuch as said section prohibits deductions unless certain time periods for revocation are provided, but it does not prohibit the employer from not deducting dues. State of Wis. (DILHR) 11979-B (11/75) (WERC) S900 UNFAIR LABOR PRACTICES BY STATE EMPLOYES, INDIVIDUALLY AND IN CONCERT WITH OTHERS S910 INTERFERENCE, RESTRAINT AND COERCION OF EMPLOYES: SEC. 111.84(2)(a) There is no evidence that the presence of WSEU representation at the Commission offices to view the envelopes containing the names of the employes who were casting votes that WSEU interfered, restrained or coerced any employe in the unit to cast, or not to cast, a mail ballot. State of Wis. (Professional – Social Service Employes) 11322-F and 11323-F (1/73) (WERC) S912 Duty of Fair Representation S912.2 Relating to Grievances and Arbitration By failing to process the complainant’s grievance beyond the third step and by not basing its decision to drop the grievance on a good faith determination of the merits of the case, and by failing to either preserve complainant’s right to arbitrate or notify complainant that said grievance was being dropped, the union breached its duty of fair representation . UW-Milwaukee (Housing Dept.) 11457-E (12/75) (Schurke) Mahnke (citations omitted) requires that, upon a proper challenge, the union’s exercise of discretion must be put on the record in sufficient detail to enable the Commission, and the courts on review, to determine whether the union has made a considered decision by reviewing the relevant factors of the monetary value of the employes claim, the effect of the breach of contract on the employe, and the likelihood of success in arbitration. Although the Commission may not sit in judgment on the wisdom of union policies, the record must establish that the union went through the required weighing process and the factors in considering its conclusion. Since there is no evidence showing such compliance or defensive manner, the union breached its duty of fair representation to complainant by failing to make a considered decision under the Mahnke criteria. UW-Milwaukee 11457-F (12/77) (WERC) The National Labor Relations Board in construing the parallel legislation, has held that breach of the duty of fair representation constitutes an unfair labor practice. It has rested on three theoretical bases: (1) that the breach violates the duty to bargain; (2) that the breach induces employer discrimination on the basis of union member-ship; and (3) that the breach constitutes interference and restraint of the right to fair representation. (1) The union did not breach Its duty to bargain since its failure to make a considered decision whether to arbitrate complainant’s grievance was not part of collective bargaining with the employer. (2) In certain cases a union’s breach of its duty of fair representation might consist in inducing an employer to encourage or discourage union membership by discrimination, but it is strained to conclude that any breach of that induces an employer to engage in such misconduct. We reject the theory that any union breach of its duty of fair representation constitutes the unfair labor practice of inducing employer discrimination. (3) We conclude that the union’s conduct was coercive within the meaning of 111.84(2)(a), Wis. Stats. The right involved was the right to have the union make a considered decision on complainant’s request for arbitration. Only the union could discharge that duty. Complainant was not himself at fault for the union’s failure to make the requisite considered decision. Accordingly the union’s breach in that regard was such a total denial of the right as to be coercive. UW-Milwaukee 11457-F (12/77) (WERC) The Commission’s amended conclusion of law deletes the examiner’s reference to the union’s conduct being arbitrary, discriminatory and perfunctory, and substitutes the conclusion that it breached its duty of fair representation by failing to make a considered decision on the request to arbitrate. The examiner found that such a breach was in violation of “Secs. (sic) 111.82(2)(a) and (c),” Wis. Stats. We construe the examiner to have meant to refer to 111.84(2)(a) and (c), Wis. Stats. UW-Milwaukee 11457-F (12/77) (WERC) The Employer’s discipline of complainant in May, 1972, was not tainted by anti-union animus. Therefore the examiner erred in discounting the alleged May misconduct on the ground that the discipline was tainted with animus. The May 26, 1972 letter from the employer to the complainant warned complainant to use the grievance procedure rather than self-help. The Employer based its discharge in part on complainant’s failure to heed this notice. Since complainant had specific notice, the employer properly considered his failure to heed the principle to work now and grieve later. UW-Milwaukee 11457-F (12/77) (WERC) Although the person with whom complainant had an altercation was a lead worker and not a supervisor, nevertheless that lead worker was management’s only representative at the work site at that time and that lead worker was correctly relaying the directives of his supervision, therefore, we reject the examiner’s finding that there could be no insubordination of complainant toward the lead worker. We agree that no record evidence supports the employer’s allegation in his discharge letter that complainant was loud or abusive on the evening in question. There is evidence that complainant was angry and scattered some keys about the room, however this conduct does not constitute just cause for discharge. We find that complainant knowingly absented himself from work without permission, therefore the employer had just cause to discharge him. UW-Milwaukee 11457-F (12/77) (WERC) S980 EMPLOYE ACTIVITY UNREGULATED AS PROHIBITED PRACTICES S981 Strikes The concerted refusal of employes of the Respondent to attend a Corrections Conference did not constitute a strike within the meaning of 111.81(14) because the attendance was voluntary. In order for employes to engage in a strike, there must be a concerted refusal to perform assigned duties and responsibilities required to be performed, rather than duties and responsibilities’ which are voluntary. State of Wis. (DHSS) 8892 (3/69) (WERC) S1100 FAIR SHARE AGREEMENTS S1114 The Referendum Even assuming that all the 16 employes who had inadvertently been omitted from the eligibility list would have voted against the referendum, the association would have won more than the required two-thirds of the employes voting. And inasmuch as the Commission recognizes the accuracy of these calculations and the corresponding error in the Commission’s mathematics, the Commission hereby sets aside the direction of a second referendum. State of Wis. (Professional-Engineering) 12463-B (6/74) (WERC) The union requested a ruling from the Commission as to whether, following the results of a referendum where the required number of employes would vote in favor of directing the union involved and the State employer to enter into a fair-share agreement, the parties were obligated to enter into a fair-share agreement, or whether implementation of the fair-share agreement was a matter subject to collective bargaining. In response to such a request, the Commission advised the parties that, since the ruling requested would also apply to other labor organizations, it would not issue its ruling in said referenda proceedings but would, rather, deem the matter subject to a declaratory ruling proceeding under Chap. 227, Wis. Stats. and orders any party having an interest in the matter to file with the Commission a statement of position in regard to the matter. State of Wis. (Blue Collar and Non-Building Trades; Technical Security and Public Safety) 11596 (2/73) (WERC) The employer and the association have a duty to furnish the Commission with an accurate eligibility list for a fair-share referendum. However, the employes who are aware of the impending referendum and who did not receive a ballot, have a concomitant duty to make all reasonable efforts to assure that they will be able to exercise their voting rights. When as here the affected employes received notice of the impending referendum and did not make reasonable efforts to obtain ballots, the inadvertent omission of an employes name does not constitute interference with statutory rights under Sec. 111.82 of SELRA. State of Wis. (Highway Engineers) 13809 (7/75) (WERC) While the Commission will not sustain objections on the ground that employes by their own choice have failed to vote, we deem that the omission of the 16 eligible employes from the eligibility list, in effect, prevented such employes from voting since they were not sent mail ballots; and since the ballots of said 16 employes may have affected the result of the referendum, we are setting aside the results of the initial referendum and directing that a new referendum be conducted. State of Wis. (Professional – Engineers) 12463-A (4/74 (WERC) While the Commission has not formally adopted rules for the conduct of referenda under SELRA, it has conducted same in accordance with the rules governing the conduct of elections in State employment, particularly with respect to objections to the conduct of such elections (Rules ERB 21.10 and 21.11). ERB 21.10 provides, In material part, as follows: (1) FILING; FORM; COPIES. Within 5 days after the tally of ballots has been furnished, any party may file with the commission objections to the conduct of the election or conduct affecting the results of the election. We do not consider individual employes, singularly or in concert, or for that matter a labor organization or any type of employe organization not involved in the referendum, to be a “party” in the referendum proceeding within the meaning of the cited rule, and therefore, the Commission will not entertain the motion of the employes who filed the “petition” to become a “party,” nor will the Commission entertain their petition. State of Wis. (Professional – Engineers) 12463-A (4/74) (WERC) In the conduct of an election or referendum the Commission will not conduct mail balloting by registered or certified mail primarily because of the costs involved. The responsibility for providing current addresses to the employer lies with the employes. Since a considerable time may lapse between the date on which the direction is issued and the date on which ballots are to be received in the Commission’s offices, department heads should advise eligible employes that to insure their receipt of a ballot, said employes should immediately notify the personnel officers of their department of their address change, and in turn such information should be relayed to the Department of Administration.