The commission shall declare any fair-share or maintenance of membership agreement suspended upon such conditions and for such time as the commission decides whenever it finds that the labor organization involved has refused on the basis of race, color, sexual orientation or creed to receive as a member any employe in the collective bargaining unit involved, and the agreement shall be made subject to the findings and orders of the commission. Any of the parties to the agreement, or any employe covered thereby, may come before the commission, as provided in s. 111.07
, and petition the commission to make such a finding.
A stipulation for a referendum executed by an employer and a labor organization may not be filed until after the representation election has been held and the results certified.
The commission may, under rules adopted for that purpose, appoint as its agent an official of the University of Wisconsin Hospitals and Clinics Authority to conduct the referenda provided for in this section.
Notwithstanding sub. (1)
, if on July 1, 1997, there is a fair-share or maintenance of membership agreement in effect in any of the collective bargaining units specified in s. 111.825 (1) (f) 1.
, that fair-share or maintenance of membership agreement shall apply to the corresponding collective bargaining unit under s. 111.05 (5) (a) 1.
without the necessity of filing a petition or conducting a referendum, subject to the right of the employes in each collective bargaining unit to file a petition requesting a referendum under sub. (2) (a)
This section applies only in collective bargaining units comprised of employes of the University of Wisconsin Hospitals and Clinics Authority.
History: 1995 a. 27
Financial reports to employes.
Every person acting as the representative of employes for collective bargaining shall keep an adequate record of its financial transactions and shall present annually to each member within 60 days after the end of its fiscal year a detailed written financial report thereof in the form of a balance sheet and an operating statement. In the event of failure of compliance with this section, any member may petition the commission for an order compelling such compliance. An order of the commission on such petition shall be enforceable in the same manner as other orders of the commission under this subchapter.
Rules, orders, transcripts, training programs and fees. 111.09(1)(1)
The commission may adopt reasonable and proper rules and regulations relative to the exercise of its powers and authority and proper rules to govern its proceedings and to regulate the conduct of all elections and hearings. The commission shall, upon request, provide a transcript of a proceeding to any party to the proceeding for a fee, established by rule, by the commission at a uniform rate per page. All transcript fees shall be credited to the appropriation account under s. 20.425 (1) (i)
, except that fees collected in excess of the uniform rate per page for any transcript produced by a reporter who is not employed by the commission shall be credited to the appropriation account under s. 20.425 (1) (g)
The commission shall assess and collect a filing fee for filing a complaint alleging that an unfair labor practice has been committed under s. 111.06
. The commission shall assess and collect a filing fee for filing a request that the commission act as an arbitrator to resolve a dispute involving the interpretation or application of a collective bargaining agreement under s. 111.10
. The commission shall assess and collect a filing fee for filing a request that the commission act as a mediator under s. 111.11
. The commission shall assess and collect a filing fee for filing a request that the commission initiate arbitration under s. 111.10
. For the performance of commission actions under ss. 111.10
, the commission shall require that the parties to the dispute equally share in the payment of the fee and, for the performance of commission actions involving a complaint alleging that an unfair labor practice has been committed under s. 111.06
, the commission shall require that the party filing the complaint pay the entire fee. If any party has paid a filing fee requesting the commission to act as a mediator for a labor dispute and the parties do not enter into a voluntary settlement of the labor dispute, the commission may not subsequently assess or collect a filing fee to initiate arbitration to resolve the same labor dispute. If any request for the performance of commission actions concerns issues arising as a result of more than one unrelated event or occurrence, each such separate event or occurrence shall be treated as a separate request. The commission shall promulgate rules establishing a schedule of filing fees to be paid under this subsection. Fees required to be paid under this subsection shall be paid at the time of filing the complaint or the request for mediation or arbitration. A complaint or request for mediation or arbitration is not filed until the date such fee or fees are paid. Fees collected under this subsection shall be credited to the appropriation account under s. 20.425 (1) (i)
The commission may provide training programs to individuals and organizations on private sector collective bargaining, and on areas of management and labor cooperation directly or indirectly affecting private sector collective bargaining, and may charge a reasonable fee for participation in the programs.
Parties to a dispute pertaining to the meaning or application of the terms of a written collective bargaining agreement may agree in writing to have the commission serve as arbitrator. Parties to a labor dispute may agree in writing to have the commission act or name arbitrators in all or any part of such dispute, and thereupon the commission shall have the power so to act. The commission shall appoint as arbitrators only competent, impartial and disinterested persons. Proceedings in any such arbitration shall be as provided in ch. 788
History: 1979 c. 32
s. 92 (15)
; 1995 a. 27
See note to 788.10, citing Jt. School Dist. No. 10 v. Jefferson Ed. Asso. 78 W (2d) 94, 253 NW (2d) 536.
WERC's power to participate in dispute settlement arbitration is liberally construed. Thus, where parties to collective bargaining agreement select arbitrator from list provided by WERC, this section applies. Layton School of Art & Design v. WERC, 82 W (2d) 324, 262 NW (2d) 218.
See note to 788.01, citing District Council 48 v. Sewerage Comm. 107 W (2d) 590, 321 NW (2d) 309 (Ct. App. 1982).
The res judicata standard of confirmed arbitration awards in Wisconsin. 1987 WLR 895.
The commission may appoint any competent, impartial, disinterested person to act as mediator in any labor dispute either upon its own initiative or upon the request of one of the parties to the dispute. It shall be the function of such mediator to bring the parties together voluntarily under such favorable auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the commission shall have any power of compulsion in mediation proceedings. The commission shall provide necessary expenses for such mediators as it may appoint, order reasonable compensation not exceeding $10 per day for each such mediator, and prescribe reasonable rules of procedure for such mediators.
History: 1995 a. 27
Notice of certain proposed lockouts or strikes. 111.115(1)(a)
"Lockout" means the barring of one or more employes from their employment in an establishment by an employer as a part of a labor dispute, which is not directly subsequent to a strike or other job action of a labor organization or group of employes of the employer, or which continues or occurs after the termination of a strike or other job action of a labor organization or group of employes of the employer.
"Strike" includes any concerted stoppage of work by employes, and any concerted slowdown or other concerted interruption of operations or services by employes, or any concerted refusal of employes to work or perform their usual duties as employes, for the purpose of enforcing demands upon an employer.
If no collective bargaining agreement is in effect between the University of Wisconsin Hospitals and Clinics Authority and the recognized or certified representative of employes of that authority in a collective bargaining unit, the employer shall not engage in a lockout affecting employes in that collective bargaining unit without first giving 10 days' written notice to the representative of its intention to engage in a lockout, and the representative shall not engage in a strike without first giving 10 days' written notice to the employer of its intention to engage in a strike.
Where the exercise of the right to strike by employes of any employer engaged in the state of Wisconsin in the production, harvesting or initial processing (the latter after leaving the farm) of any farm or dairy product produced in this state would tend to cause the destruction or serious deterioration of such product, the employes shall give to the commission at least 10 days' notice of their intention to strike and the commission shall immediately notify the employer of the receipt of such notice. Upon receipt of such notice, the commission shall take immediate steps to effect mediation, if possible. In the event of the failure of the efforts to mediate, the commission shall endeavor to induce the parties to arbitrate the controversy.
History: 1995 a. 27
, ss. 3789b
Duties of the attorney general and district attorneys.
Upon the request of the commission, the attorney general or the district attorney of the county in which a proceeding is brought before the circuit court for the purpose of enforcing or reviewing an order of the commission shall appear and act as counsel for the commission in such proceeding and in any proceeding to review the action of the circuit court affirming, modifying or reversing such order.
Any person who shall wilfully assault, resist, prevent, impede or interfere with any member of the commission or any of its agents or agencies in the performance of duties pursuant to this subchapter shall be punished by a fine of not more than $500 or by imprisonment in the county jail for not more than one year, or both.
Construction of subchapter I.
Except as specifically provided in this subchapter, nothing therein shall be construed so as to interfere with or impede or diminish in any way the right to strike or the right of individuals to work; nor shall anything in this subchapter be so construed as to invade unlawfully the right to freedom of speech. Nothing in this subchapter shall be so construed or applied as to deprive any employe of any unemployment benefit which the employe might otherwise be entitled to receive under ch. 108
History: 1993 a. 492
Conflict of provisions; effect.
Wherever the application of the provisions of other statutes or laws conflict with the application of the provisions of this subchapter, this subchapter shall prevail, except that:
In any situation where the provisions of this subchapter cannot be validly enforced the provisions of such other statutes or laws shall apply.
All fringe benefits authorized or required to be provided by the University of Wisconsin Hospitals and Clinics Authority to its employes under ch. 40
shall be governed exclusively by ch. 40
, except that where any provision of ch. 40
specifically permits a collective bargaining agreement under this subchapter to govern the eligibility for or the application, cost or terms of a fringe benefit under ch. 40
, or provides that the eligibility for or the application, cost or terms of a fringe benefit under ch. 40
shall be governed by a collective bargaining agreement under this subchapter, a collective bargaining agreement may contain a provision so governing and such a provision supersedes any provision of ch. 40
with respect to the employes to whom the agreement applies. The employer is prohibited from engaging in collective bargaining concerning any matter governed exclusively by ch. 40
under this subsection.
History: 1995 a. 27
Limit on payment to health care institutions. 111.18(1)(a)
"Health care institution" includes hospitals, psychiatric hospitals, tuberculosis hospitals, nursing homes, kidney disease treatment centers, free-standing hemodialysis units, ambulatory surgical facilities, health maintenance organizations, limited service health organizations, preferred provider plans, community-based residential facilities that are certified as medical assistance providers under s. 49.45 (16)
or that otherwise meet the requirements for certification, home health agencies and other comparable facilities. "Health care institution" does not include facilities operated solely as part of the practice of an independent practitioner, partnership, unincorporated medical group or service corporation as defined in s. 180.1901 (2)
"Proportional share" means the annual revenue of a health care institution received in the form of medical assistance reimbursement or public employe insurance from the state, divided by the total annual revenue of the health care institution.
Any health care institution found by the national labor relations board to have committed an unfair labor practice under 29 USC 158
or found by the employment relations commission to have committed a prohibited practice under s. 111.70 (3)
that includes payment to any person for services rendered with respect to concerted activity engaged in by its employes for purposes of collective bargaining shall return to the state a proportional share of the amount paid to the person for the activity that constituted the unfair labor practice.
Any group of employes of a health care institution subject to subd. 1.
may commence an action in circuit court to enforce the provisions of this subsection.
Reasonable costs and attorney fees incurred in enforcing a return of funds to the state under this section may be awarded to successful plaintiffs.
Attorney fees for services rendered after the union is certified as a collective bargaining agent under this chapter or under the national labor relations act, 29 USC 151
Attorney fees for services at an administrative agency or court proceeding or in preparation for the proceeding.
Salary paid to a full-time employe of a health care institution's personnel department.
Title of subchapter I.
This subchapter may be cited as the "Employment Peace Act".
Declaration of policy. 111.31(1)
The legislature finds that the practice of unfair discrimination in employment against properly qualified individuals by reason of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours substantially and adversely affects the general welfare of the state. Employers, labor organizations, employment agencies and licensing agencies that deny employment opportunities and discriminate in employment against properly qualified individuals solely because of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours deprive those individuals of the earnings that are necessary to maintain a just and decent standard of living.
It is the intent of the legislature to protect by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours, and to encourage the full, nondiscriminatory utilization of the productive resources of the state to the benefit of the state, the family and all the people of the state. It is the intent of the legislature in promulgating this subchapter to encourage employers to evaluate an employe or applicant for employment based upon the employe's or applicant's individual qualifications rather than upon a particular class to which the individual may belong.
In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals regardless of age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, membership in the national guard, state defense force or any other reserve component of the military forces of the United States or this state or use or nonuse of lawful products off the employer's premises during nonworking hours. Nothing in this subsection requires an affirmative action program to correct an imbalance in the work force. This subchapter shall be liberally construed for the accomplishment of this purpose.
The practice of requiring employes or prospective employes to submit to a test administered by means of a lie detector, as defined in s. 111.37 (1) (b)
, is unfair, the practice of requesting employes and prospective employes to submit to such a test without providing safeguards for the test subjects is unfair, and the use of improper tests and testing procedures causes injury to the employes and prospective employes.
The legislature finds that the prohibition of discrimination on the basis of creed under s. 111.337
is a matter of statewide concern, requiring uniform enforcement at state, county and municipal levels.
Summary discharge after 2 weeks of satisfactory employment of persons with history of asthma violated the fair employment act in that it constituted a discriminatory practice against the claimant based on handicap. Chicago, M., St. P. & P. RR. Co. v. ILHR Dept. 62 W (2d) 392, 215 NW (2d) 443.
The department is not limited to finding sex discrimination only where a 14th amendment equal protection violation could also be found. Wisconsin Telephone Co. v. ILHR Dept. 68 W (2d) 345, 228 NW (2d) 649.
The Wisconsin Fair Employment Act is more direct and positive in prohibiting sex discrimination in employment than is the basic constitutional guarantee of equal protection of the laws, and enforcement of the law is not limited by the "rational basis" or "reasonableness" test employed in 14th amendment cases. Ray-O-Vac v. ILHR Dept. 70 W (2d) 919, 236 NW (2d) 209.
Section 118.20 is not exclusive remedy of wronged teacher; it is supplementary to remedy under fair employment act. General provisions of 893.80 are superseded by specific authority of act. Kurtz v. City of Waukesha, 91 W (2d) 103, 280 NW (2d) 757 (1979).
Where employe was not handicapped but employer perceived employe to be handicapped, employe was entitled to protection under this subchapter. Dairy Equipment Co. v. DILHR, 95 W (2d) 319, 290 NW (2d) 330 (1980).
WFEA provides exclusive remedy for retaliatory discrimination. Bourque v. Wausau Hospital Center, 145 W (2d) 589, 427 NW (2d) 433 (Ct. App. 1988).
The exclusive remedy provision in s. 102.03 (2) does not bar a complainant whose claim is covered by the workers compensation act from pursuing an employment discrimination claim under the fair employment act, subchapter II of ch.111. Byers v. LIRC, 208 W (2d) 388, 561 NW (2d) 678 (1997).
WFEA does not apply to national guard personnel decisions; federal law prevents the state from regulating personnel criteria of the national guard. Hazelton v. Personnel Commission, 178 W (2d) 776, 505 NW (2d) 793 (Ct. App. 1993).
This act protects all employes, including prospective and de facto employes. 67 Atty. Gen. 169.
State courts have concurrent jurisdiction over federal Title VII civil rights actions. Yellow Freight System v. Donnelly, 494 US 820, 108 LEd 2d 834 (1990).
Employee Retirement Income Security Act does not preempt state fair employment laws prohibiting discriminatory exclusion of pregnancy benefits in disability plans. Bucyrus-Erie Company v. DILHR, 599 F (2d) 205 (1979).
No private right of action exists under this subchapter. Busse v. Gelco Exp. Corp., 678 F Supp. 1398 (E. D. Wis. 1988).
The Wisconsin fair employment act and the 1982 amendments. Rice. WBB Aug. 1982.
Wisconsin's fair employment act: coverage, procedures, substance, remedies. 1975 WLR 696.
Perceived handicap under WFEA. 1988 WLR 639 (1988).
When used in this subchapter:
"Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.
"Commission" means the labor and industry review commission.
"Conviction record" includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.
"Creed" means a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.
"Department" means the department of workforce development.
"Employe" does not include any individual employed by his or her parents, spouse or child.
"Employer" means the state and each agency of the state and, except as provided in par. (b)
, any other person engaging in any activity, enterprise or business employing at least one individual. In this subsection, "agency" means an office, department, independent agency, authority, institution, association, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts.
"Employer" does not include a social club or fraternal society under ch. 188
with respect to a particular job for which the club or society seeks to employ or employs a member, if the particular job is advertised only within the membership.
"Employment agency" means any person, including this state, who regularly undertakes to procure employes or opportunities for employment for any other person.
"Genetic testing" means a test of a person's genes, gene products or chromosomes, for abnormalities or deficiencies, including carrier status, that are linked to physical or mental disorders or impairments, or that indicate a susceptibility to illness, disease, impairment or other disorders, whether physical or mental, or that demonstrate genetic or chromosomal damage due to environmental factors.
"Individual with a disability" means an individual who:
Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;