Rule-Making Notices (Hearing Notices)

This new ERC chapter consists in large part of provisions of a longstanding agency policy on the subject.

The provisions regarding selection and composition of panels more fully describe the existing agency practice (new ERC 50.06).

Mediation (new Chs. ERC 6, 13 and 24)

These chapters incorporate various of the common changes noted above and are (re)organized somewhat along lines of the revised grievance arbitration in, e.g., new ERC 23.

The new provisions concerning requests for mediation services call for parties requesting mediation to more clearly identify and describe the nature of the dispute involved (new ERC 6.03 (3) (d), 13.03 (3) (d) and 24.03 (3) (d)).

In conformity with existing agency practice, new language offers requesting parties the option of jointly requesting assignment of a particular mediator or assignment of one of several mediators (new ERC 6.03 (3) (e), 13.03 (3) (e), and 24.03 (3 (e)).

Provisions have been added describing the circumstances in which multiple filing fees will be assessed (compare old ERC 1.06 (3), 10.21 (3) and 20.21 (3) with new 6.04 (2), 13.04 (2) and 24.04 (2)).

Consistent with agency practice, the revised rules address only mediation services by commission-employed mediators (compare e.g., old ERC 13.03 and 24.03 with new ERC 6.04 (2), 13.04 (2) and 24.04 (2)).

The rules concerning the confidentiality of the mediation process have been revised to follow Sec. 904.085, Stats. However, the old rule text has been retained and conditionally made applicable if that statute is repealed or for any other reason not applicable (compare old ERC 13.04 (2) and 24.04 (2) with ERC 6.04 (4), 13.04 (4) and 24.04 (4)).

A provision has been added to make it clear that if mediation is initiated by the commission, rather than by a request of one or both parties, then no filing fee is payable (ERC 6.05, 13.05, 24.05).

Fact Finding (Chs. ERC 14 and 25)

These chapters have been reorganized and revised substantially, generally conforming to the revised ERC 32 where applicable.

The old separate rules concerning transcripts (old ERC 14.10 (5) and 25.10 (5)) have been eliminated. The fact finder compensation rule has been expanded to refer to transcript and other costs and revised to give only the parties and not the fact finder control over whether a transcript is ordered (new ERC 14.09 and 25.09).

Consistent with agency practice, new language provides that, except as otherwise provided in the commission's rules, the fact finding hearing shall be conducted in accordance with the Code of Responsibility of the National Academy of Arbitrators, the Federal Mediation Service and the American Arbitration Association (new ERC 14.07 (2) and 25.07 (2)).

New language has been added to ERC 14 and the existing language of ERC 25 has been revised concerning the obligation of each party to notify the other and the commission regarding whether it accepts or rejects the recommendations of the fact finder (compare old ERC 25.13 with new ERC 14.11 and 25.11).

Interest Arbitration under Sec. 111.77, Stats. (Ch. ERC 30)

This chapter has been generally revised to conform to ERC 32 except where statutory differences prevent doing so.

The scope definition has been conformed to changes in Sec. 111.77 making it applicable to Milwaukee County law enforcement supervisory personnel and to a lower population threshold of “2500 or more" (compare old and new ERC 30.01).

Consistent with agency practice, language has been newly added to the effect that withdrawal of the petition does not relieve either party of its obligation to pay the filing fee once the petition has been filed (new ERC 30.06).

Paralleling ERC 32 and consistent with agency practice, rules have been added specifying the requirements regarding final offer contents and precluding a close of investigation unless offers conform to those requirements (new ERC 30.09).

Paralleling ERC 32 and consistent with agency practice, procedures have been provided for raising objections to non-mandatory subjects and for resolving those objections via declaratory ruling (new ERC 30.10 and 30.11).

Consistent with agency practice, a provision has been newly added providing that, except as otherwise provided in the commission's rules, the arbitration hearing shall be conducted in accordance with the Code of Responsibility of the National Academy of Arbitrators, the Federal Mediation Service and the American Arbitration Association (new ERC 30.14 (3)).

A revised rule concerning costs includes a provision limiting arbitrator charges to rates in the arbitrator's biographical and fee information on file with commission (new ERC 30.17).

A provision has been added describing the method of enforcing/vacating a Sec. 111.77, Stats., interest award (new ERC 30.19).

Interest Arbitration under Sec. 111.70 (4) (cm), Stats. (Ch. ERC 32)

Where applicable, the common changes noted above have been incorporated.

The scope definition in old ERC 32.01 has been revised to eliminate the outdated effective date (new ERC 32.01).

Fee administration language has been added to the withdrawal section (new ERC 32.07).

Conforming to Sec. 111.70 (4) (cm) 6. am., Stats., provisions have been added allowing the investigation to be closed based on the last written position of a party failing to submit a final offer within the time period established by the investigator (new ERC 32.09 (2) and (3)).

Consistent with agency practice, a provision has been newly added providing that, except as otherwise provided in the commission's rules, the arbitration hearing shall be conducted in accordance with the Code of Responsibility of the National Academy of Arbitrators, the Federal Mediation Service and the American Arbitration Association (new ERC 32.15 (8)).

The costs provision has been revised to empower only the parties and not the arbitrator to decide that the hearing will be transcribed (new ERC 32.15 (13)).

The old "Civil liability" subheading has been changed to "Attorney fees, interest and other costs" (compare old and new ERC 32.16 (2)).

Interest Arbitration for School District Professionals (Ch. ERC 33)

This chapter has been revised, where applicable, to incorporate the common changes noted above and the other changes made in ERC 32.

Fee administration language has been added to the rule concerning withdrawal of a petition (new ERC 33.10 (4)).

In order to conform with the Court of Appeals decision in RACINE EDUCATION ASSOCIATION V. WERC, 238 Wis.2d 33 (CtApp, 2000), the definition of a Qualified Economic Offer has been revised to remove the words "at least" and "minimum" (compare old and new ERC 33.10 (2), (3) (a) and (3) (a) 2.).

To conform to statutory changes in Sec. 111.70 (4) (cm) 5s, Stats., language has been added regarding agreement by operation of law (new ERC 33.10 (4), (7) and (8) and 33.16 (1)).

The costs provision (old ERC 33.19 (13)) has been revised to eliminate the right of the arbitrator to insist on a transcript that neither party desires (new ERC 33.19 (13)).

The "Civil liability" sub-heading of old ERC 33.20 (2) has been changed to "Attorney fees; interest; other costs" (new ERC 33.20 (2)).

Interest Arbitrator for Milwaukee Police under Sec. 111.70 (4) (jm) (Ch. ERC 31)

This newly created chapter conforms to agency practice regarding Milwaukee Police interest arbitration cases. It parallels revised ERC 32 except to the extent required by statutory differences.

Consistent with Sec. 111.70 (4) (jm) 2. and 4., the parties are precluded from submitting to arbitration subjects that were not certified by the commission as being at impasse. However, the parties are permitted to change their positions regarding the certified subjects at any time prior to a deadline established by the arbitrator (new ERC 31.07 (2)).

Representation Elections (Chs. ERC 3, 11 and 21)

These chapters have been revised to incorporate the common changes and to make them parallel with each other except to the extent required by statutory differences.

Language has been added reflecting the agency's existing practice of requiring a showing of interest in support of a petition for a representation election in certain cases (new ERC 3.02 (3), 11.02 (3) and 21.02 (3)). Where a showing of interest is required, the new language requires that it be submitted in paper form by personal delivery or mail (new ERC 3.02 (2), 11.02 (2) and 21.02 (2)). Related procedures for agency determination of the sufficiency of the showing of interest are also added (new ERC 3.05 (2), 11.05 (2) and 21.05 (2)).

Language has been added reflecting the agency's existing practice regarding efforts to reach an informal settlement of all or part of the issues presented by a representation election petition (new ERC 3.05 (3), 11.05 (3) and 21.05 (3)).

These chapters provide for investigative/non-adversary type hearing procedures (e.g., new ERC 3.01 (1), 11.01 (1) and 21.01 (1)).

Language has been added regarding rehearing procedures (new ERC 11.13).

Unit Clarifications (Chs. ERC 7, 17 and 27)

These chapters are all newly created. They incorporate the common changes described above and otherwise generally conform to agency practice regarding the resolution of bargaining unit clarification issues.

Consistent with agency practice, the procedures prescribed for unit clarification proceedings closely parallel those provided for representation election proceedings.

Union Security Referenda (Chs. ERC 4, 8, 15 and 26)

Chapters ERC 4 and 15 have been revised to incorporate the common changes noted above, where applicable, and to parallel the revised representation election chapters except where statutory differences require otherwise.

Chapters ERC 8 and 26 are newly created. They parallel the revised ERC 15 except where statutory differences require otherwise.

Statutory differences result in variations among the chapters regarding who may file a petition regarding deauthorization. New ERC 15.04 (1) permits a petition for deauthorization to be filed by “the municipal employer or a labor organization" as provided in Sec. 111.70 (2), Stats. In contrast, new ERC 4.04 (1), 8.02 (1), and 26.02 (1) limit deauthorization petition filings to the employer or the exclusive representative of the bargaining unit involved under Secs. 111.06 (c) 1., 111.075 (2) (a) and 111.85 (2) (a), Stats.).

Statutory differences regarding whether approval of an authorization referendum must be achieved before implementation of a union security arrangement result in variations among the chapters regarding whether provisions are included for a pre-implementation petition for an authorization referendum (compare new ERC 4.03 (1), 8.02 (1) and 26.02 (1) with the absence of such a provision from new ERC 15.04 (1)).

Showing of interest procedures are set forth in new ERC 8.03, 15.05 and 26.03, in conformity with the showing of interest provisions in Secs. 111.075, 111.70 (2) and 111.85, Stats., respectively.

Copies of Rule and Contact Person

Copies of the these proposed rules are available without cost upon request to the Wisconsin Employment Relations Commission at 18 South Thornton Avenue, P.O. Box 7870, Madison, WI 53707-7870, [e-mail], [phone]. Due to the great length of the proposed rules, the Commission suggests that the public use electronic access to the text of the proposed rules (listed as CR02-037) which can be obtained at:
http://www.legis.state.wi.us/lc/adm_rules.htm

Questions about the proposed rules can be directed to Paul A. Hahn, Commissioner, [e-mail], 18 South Thornton Avenue, P.O. Box 7870, Madison, Wisconsin 53707-7870, [phone], or Marshall L. Gratz, Attorney-Supervisor, [e-mail], Wisconsin Employment Relations Commission, 4449 North Maryland Avenue, Shorewood, Wisconsin 53211, [phone], or Peter G. Davis, General Counsel, [e-mail], Wisconsin Employment Relations Commission at 18 South Thornton Avenue, P.O. Box 7870, Madison, Wisconsin 53707-7870, [phone].

Fiscal Estimate

The Wisconsin Employment Relations Commission estimates that the overall fiscal impact of its proposed revision of existing administrative rules and creation of new administrative rules will be to decrease the cost to all parties using the services of the Wisconsin Employment Relations Commission. This overall estimate is based on the assumption that the proposed rules will increase the ability of all parties to use inexpensive technology when using the Wisconsin Employment Relations Commission's services and to more easily understand how the Wisconsin Employment Relations Commission administers its statutory responsibilities.

The proposed rules increase the filing fee for complaints filed with the Wisconsin Employment Relations Commission from $40 to $50. Based on the average annual number of complaints filed during the prior eight years (152), the Wisconsin Employment Relations Commission estimates that the increased fee will generate an additional $1520 of program revenue each year.

Because counties, cities, villages, towns, school districts, technical college districts and sewerage districts rarely file complaints, the fiscal impact on these entities will be negligible.

Initial Regulatory Flexibility Analysis

Having considered s. 227.114 (2), Stats., the Commission concludes these proposed rules will have little, if any, impact on small businesses.

Notice of Hearing

Financial Institutions - Division of Corporate and Consumer Services

Pursuant to s. 227.17, Stats., notice is hereby given that the Department of Financial Institutions, Division of Corporate and Consumer Services will hold a public hearing at the time and place indicated below to consider creating a rule relating to certain fees regarding partnerships, corporations, limited liability companies and cooperatives.

Date, Time and Place of Hearing

June 13, 2002   Tommy G. Thompson Conference Room

Thursday   5th Floor

10:00 a.m.   Department of Financial Institutions

  345 West Washington Avenue

  Madison, WI 53703

This facility is accessible to individuals with disabilities through levels A, B or the first floor lobby. If you require reasonable accommodation to access any meeting, please call Mark Schlei at [phone] or TTY [phone] for the hearing impaired at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided by the Americans with Disabilities Act. Written comments in lieu of public hearing testimony must be received not later than the hearing date and should be addressed to Mr. Ray Allen, Administrator, Department of Financial Institutions, Division of Corporate and Consumer Services, P.O. Box 7846, Madison, WI 53707-7846.

Analysis Prepared by the Department of Financial Institutions, Division of Corporate and Consumer Services

Analysis: Statutory authority: ss. 182.01 (4) and 227.1 (2), Stats. Statutes interpreted: 182.01 (4). Summary: 2001 Act 16 amended ss. 178.48 (2) and (3), 179.16 (5), 179.88, 180.0122 (1) (z), (2) and (4), 181.0122 (1) (zm), (2) and (4), 183.0114 (1) (t) and (u), and 185.83 (1) (d) and (h); repealed s. 179.16 (4), 180.0122 (1m), and 185.83 (1) (f) and (1) (fm); and repealed and recreated s. 182.01 (4), Stats. The act authorizes the Department of Financial Institutions to adopt rules relating to certain fees regarding partnerships, corporations, limited liability companies and cooperatives. The proposed rule sets these fees.

Fiscal Estimate

Statutory Authority: Sections 182.01 (4) and 227.11 (2), Stats.

The rule has no state fiscal effect. There are no local government costs. Program fund sources and s. 20.144 (1) (g) appropriations are affected.

Initial Regulatory Flexibility Analysis

The rule may have an impact on small business. Types of small business that will be affected by the rule: business entities. Description of the proposed reporting, bookkeeping and other procedures required for compliance: payment of fee to the department. Types of professional skills necessary for compliance: no new skills.

Copies of Rule and Contact Person

A copy of the full text of the proposed rule and fiscal estimate may be obtained through the following:

Ray Allen, Administrator

Department of Financial Institutions

Division of Corporate and Consumer Services

P.O. Box 7846