For parties who choose to file in paper form, the number of copies required to be submitted has been reduced to the number the agency typically needs in its processing of the case (compare e.g., old s.
ERC 10.02 (3) with, e.g., new s.
ERC 12.02(1)).
Requirements of service both on parties and on their representatives have been changed to make service only on parties' representatives the norm. An additional copy is required to be sent to parties themselves only where specifically required by law (compare, e.g., old s.
ERC 10.10 (3) with new s.
ERC 10.06 and
10.07).
To emphasize the importance of impartiality of decision-makers and mediators, provisions on that subject have been added to all chapters relating to case handling (e.g., new ss.
ERC 12.05 (3) (c),
23.04 (4) and
23.07 (4)).
For completeness and parallelism, rules describing rehearing procedures have been added to each of the substantive chapters that involves hearings (e.g., new s.
ERC 12.10).
Changes Specific to Particular Chapters
As described below, the general provisions chapters have been greatly shortened, eliminating some unnecessarily complex provisions and revising and moving most of the retained provisions into each of the substantive chapters to which they apply.
The “purpose" and “policy" rules have been combined. The general interpretation standard has been revised to provide that rules are to be interpreted “to serve the purposes of the statutes and to permit the commission or examiner to encourage voluntary settlement of disputes" rather than the existing “liberally construed to effectuate the purposes of [the statute]." (E.g., compare old ss.
ERC 10.01 and
10.02 with new s.
ERC 10.01).
The scope of the general provisions has been limited to proceedings before commission and commission examiners. References to the applicability of the general provisions to fact finders are eliminated and no new references to their applicability to interest arbitrators has been added (compare, e.g., old ERC 10.01 with new ERC 10.01). These changes have been made because rules applicable to the functions performed by the commission and its staff are sometimes not suitable to ad hoc fact finders and interest arbitrators. It is therefore considered preferable to place procedures concerning fact finders and interest arbitrators exclusively in the respective separate substantive chapters (new ERC 14, 25, and 30-33).
The standard for waiver of a rule has been limited to situations “where necessary to avoid a significant injustice" rather than the existing “the commission may waive any requirement of these rules unless a party shows prejudice thereby." (Compare, e.g., old ERC 10.01 with new ERC 10.01). This change is intended to promote compliance with comprehensively updated rules instead of reliance on waivers of outdated rules.
Most existing general provisions rules regarding initiation of proceedings, method, forms, where to file, filing, form, number of copies and service have been deleted from the general provisions chapter. Most of those provisions have been replicated in each of the various substantive chapters to which they relate (compare e.g., old ERC 10.06, 10.08, 10.09 and 10.10 with new ERC 10.06, 10.07, 12.02 (1) and 12.02 (2)). General provisions have been retained regarding filing and service (e.g., new ERC 10.06 and 10.07).
Provisions regarding the computation of time have been simplified by elimination of unnecessarily complex provisions regarding “Additional time after service by mail" and “extension of time." (Compare old ERC 10.08 and 20.08 with new ERC 1.09, 10.09 and 20.09).
Signature requirements have been moved to those substantive chapters involving pleadings, petitions or stipulations, and revised to treat a signature facsimile as equivalent to an actual signature. Those changes enable all documents to be electronically transmitted except showing of interest documents (compare old ERC 10.09 (4) and 20.09 (4) with e.g., new 12.02 (1)). Requests for services generally do not require a signature or signature facsimile (e.g., new 23.03 (1)).
Statement of service requirements have been simplified. The new provisions require only that the commission be provided with the names of those receiving copies of the document involved rather than a formal and more elaborate affidavit of service (compare, old ERC 10.10 (4) and 20.10 (4) with new ERC 1.06 (3), 10.06 (3) and 20.06 (3)).
Rules regarding motions have been replicated in the various substantive chapters' provisions to which they apply and expanded to include provisions concerning the limited nature and extent of pre-hearing discovery (e.g., new ERC 12.04 and 18.06). The previously specified time limit for filing a motion to reschedule hearing has been eliminated (compare e.g., old ERC 10.12 (1) with, e.g., new ERC 12.04 (2) (e)).
Topics related to the conduct of hearings have been moved to the various substantive chapters and combined, reorganized and in some respects expanded as appropriate to the chapter involved. The resultant hearings provisions fall into the following five categories:
- adversary hearings by agency personnel (e.g., new ERC 12.05 regarding complaint cases);
- investigatory hearings by agency personnel (e.g., new ERC 11.07 regarding representation election cases; e.g., new ERC 18.07-18.08 regarding declaratory ruling cases; e.g., new ERC 14.04 (3) regarding formal investigations by agency personnel prior to orders initiating fact finding or interest arbitration);
- grievance arbitration hearings by agency personnel (e.g., new ERC 23.05);
- grievance arbitration hearings by ad hoc arbitrators (e.g., new ERC 23.08); and
- impasse resolution hearings by ad hoc fact finders and interest arbitrators (e.g., new ERC 14.07).
The general provision in old ERC 10.13 (1) and 20.13 (1) to the effect that hearings are open to the public has been moved to each chapter regarding hearings in statutory proceedings (e.g., new ERC 12.05 (1) and 18.08 (1)). However, no similar provision has been included in the rules regarding grievance arbitration hearings (e.g., new ERC 23.05).
The general provisions in old ERC 10.14 and 20.14 regarding hearing subpoenas has been moved to the various substantive chapters involving hearings and revised to include subpoenas issued by parties' representatives and to cover subpoena enforcement (e.g., ERC 12.05 (6) (e) and 18.08 (6) (d)).
The general provisions in old ERC 10.15 and 20.15 regarding depositions has been moved to the motions sections of the various substantive chapters involving hearings and revised to narrowly limit use of depositions (e.g., new ERC 12.04 (2) (c) and 18.08 (6) (d)).
The general provisions in old ERC 10.16 (2) and 20.16 (2) regarding the rules of evidence applicable in hearings has been moved to the various substantive chapters involving hearings; retaining reference to Sec. 227.45 (1), Stats., evidence rules in all such chapters (e.g., ERC 12.05 (6) and 18.08(6)).
The general provisions in old ERC 10.17 and 20.17 making the person conducting the hearing responsible “to inquire fully into all matters in issue" and “to obtain a full and complete record" have been moved to the various substantive chapters involving hearings other than complaints (e.g., new ERC 18.08 (1)). That language has not been included in the adversary hearing provisions regarding complaint hearings (e.g., new ERC 12.05 (2)).
The general provision rules in old ERC 10.19 and 20.19 entitled “close of hearing" have been renamed “close of evidence" and moved to the various specific chapters involving hearings (e.g., ERC 12.05 (8) and 18.08 (8)). Separate references have been included in the various chapters regarding hearing type cases regulating the exhaustion of time for submission of final arguments (e.g., new ERC 12.05 (9) and 12.06 (1), and 18.08 (9)).
The general provisions in old ERC 1.08, 10.21 and 20.21 concerning fee administration have been replicated in each of the various substantive chapters to which filing fees are applicable (e.g., new ERC 2.02 (1)). However, a schedule of filing fees and transcript fees has been retained in each of the revised general provisions chapters (new ERC 1.08, 10.08 and 20.08).
The complaint filing fee has been increased $10 to $50 (new ERC 1.08 (1), 10.08 (1) and 20.08 (1)).
In addition to common changes noted above, the complaint chapters have been substantially reorganized, revised, updated and expanded.
The requirement in old ERC 12.02 (1) and 22.02 (1) that the complaints be sworn to has been eliminated.
The old provisions regarding amendment and withdrawal of complaint have been revised to specify standards for amendment and withdrawal of complaints (compare old ERC 12.03 (5) and 22.03 (5) with new ERC 2.02 (4), 12.02 (4) and 22.02 (4)). The amendment standards preclude amendments that “would unduly delay or disrupt the proceeding, or would result in an injustice to any party." (new ERC 2.02 (4) (a), 12.02 (4) (a) and 22.02 (4) (a)). The withdrawal standard provides that a motion to withdraw “shall be granted unless withdrawal would result in an injustice to any party." (new ERC 2.02 (4) (b), 12.02 (4) (b) and 22.02 (4) (b)).
Provisions have been added to describe the nature and effects of the complaint conciliation process. Those provisions establish a procedural presumption that parties agree to hold hearing scheduling in abeyance pending conclusion of conciliation unless a party requests otherwise (compare 12.04 (2) and 22.04 (2) with new ERC 2.02 (5) and 2.02 (6) (a), 12.02 (5) and 12.02 (6) (a), and 22.02 (5) and 22.02 (6) (a)).
Provisions specifying the contents of the complaint case notice of hearing have been added (new ERC 2.02 (6), 12.02 (6) and 22.02 (6)) including references to the newly revised deadline for a motion to make complaint more definite and certain and the newly revised consequences of failure to answer described below.
The old provisions requiring a motion to make complaint more definite and certain to be filed within 5 days after service of the complaint have been revised. The new provisions require such a motion to be filed within 10 days after the date of issuance of the notice of hearing (compare old ERC 12.03 (3) and 22.03 (3) with 2.02 (7), 12.02 (7) and 22.02 (7)).
The old provisions requiring respondent to file an answer and precluding a respondent who fails to timely answer from offering evidence and argument contrary to complaint allegations (old ERC 2.04, 12.03 (6) and (7), 22.03 (6) and (7)) have been revised in new ERC 2.03 (1), 12.03 (1) and 22.03 (1). The revisions permit but do not require respondent to file an answer. They also provide that failure to file a timely answer waives all affirmative defenses (including statute of limitations) without precluding respondent from offering evidence and argument contrary to complaint allegations. They also specify that the answer shall be due on the date specified in the notice of hearing. These changes modify the existing agency practice of routinely waiving all effects of a failure to answer.
The new rules concerning motions specify what pre-hearing discovery is and is not available, narrowly limiting the scope of such discovery consistent with existing agency practice and the requirements of Sec. 227.45 (7), Stats. (compare old ERC 10.15 and 20.15 with new ERC 2.04 (2) (c) and 2.05 (6) (b), 12.04 (2) (c) and 12.05 (6) (b) and 22.04 (2) (c) and 22.05 (6) (b)).
The rules relating to the nature and conduct of adversary hearings in complaint cases have been revised and expanded (compare old 12.04 and 22.04 with new ERC 2.05, 12.05 and 22.05)).
The old provisions concerning the consequences of a party's failure to appear at a properly noticed hearing (old ERC 10.13 (4) and 20.13 (4)) have been revised to those contained in new ERC 2.05 (3) (b), 12.05 (3) (b) and 22.05 (3) (b). Those revisions make a "for good cause shown" exception applicable to all consequences of a failure to appear. They also expressly protect the right of a non-appearing party to submit timely post-hearing arguments that evidence submitted at an ex parte hearing was insufficient to prove complaint allegations.
Language has been added in new ERC 2.05 (3) (c), 12.05 (3) (c) and 22.05 (3) (c) concerning parties' rights to an impartial tribunal and related procedures.
Language has been moved from two of the three old general provision chapters regarding the powers of the commission or examiner conducting a hearing. (compare old ERC 10.18 and 20.18 with new ERC 2.05 (4), 12.05 (4) and 22.05(4)).
The rules regarding evidence have been reorganized and expanded, incorporating evidentiary standards contained in Sec. 227.45, Stats. (compare old ERC 10.14 and 10.16 and 10.14 and 20.16 with new ERC 2.05 (6), 12.05 (6) and 11.05(6)).
Language common to all chapters involving hearings has been added concerning objections, close of evidence, written closing arguments and waiver of procedures (new ERC 2.05 (7)-(10), 12.05 (7)-(10) and 22.05 (7)-(10)).
The old provision concerning contempt (old ERC 2.15) has been expanded and modified to include a procedure providing an opportunity to be heard before sanctions are imposed (new ERC 2.05 (1), 12.05 (1) and 22.05 (1)).
Language common to all chapters involving hearings has been added regarding rehearing procedures, Sec. 227.49, Stats. (new ERC 2.10, 12.10 and 22.10).
Scope of Bargaining Declaratory Rulings (Ch. ERC 18)
Rules concerning motions likely to arise in this type of case have been added (compare old ERC 10.11 and 10.12 with new ERC 18.06).
The rules concerning “notice of hearing" have been retained with minor revisions (compare old ERC 18.06 with new ERC 18.07).
The old rule concerning “inclusion of additional parties" (old ERC 18.06 (2)) has been replaced by the intervention reference in the particular motions subsection, new ERC 18.06 (2) (a)).
Language common to all chapters involving investigative (i.e., non-adversary) hearings has been added, including a rules of evidence standard based on Sec. 227.45, Stats. (compare old ERC 10.13-10.19 with new ERC 18.06-18.08). The ERC 18 hearing rules are used as the hearing procedures referred to in various other chapters, as well (new ERC 14.04 (3), 25.04 (3), 30.08 (3), 31.06 (3), 32.09 (3) and 33.11 (3)).
Language common to all chapters involving hearings has been added regarding rehearing procedures, Sec. 227.49, Stats (new ERC 18.11).
Discretionary Ch. 227, Stats., Declaratory Rulings
(new Chs. ERC 9, 19, and)
These new chapters have been added concerning discretionary declaratory ruling proceedings under Sec. 227.41 (2), Stats. The basic provisions parallel those in the revised ERC 18, above, but they are modified as necessary to reflect differences between Sec. 111.70 (4) (b), Stats., scope of bargaining declaratory ruling proceedings and discretionary declaratory ruling proceedings under Sec. 227.41 (2), Stats.
Grievance Arbitration (new Chs. ERC 5, 16 and 23)
Chapters
ERC 16 and
23 have been substantially revised and a parallel new chapter ERC 5 has been added regarding private sector grievance arbitration cases. These chapters include the common changes described above.
These chapters' newly separate procedures regarding requests for arbitrators employed by the commission from procedures for ad hoc roster arbitrators not employed by the commission (see new ERC 5.03-5.05, 16.03-16.05 and 23.03-23.05).
In conformity with existing agency practice, these chapters newly include options for parties requesting grievance arbitration services. The newly added options permit parties to request a randomly selected panel of available commission-employed arbitrators or to jointly request designation of a particular commission-employed arbitrator or one of a specified group of commission-employed arbitrators (new ERC 5.03 (3) (c), 16.03 (3) (c) and 23.03 (3) (c)).
In further conformity with existing agency practice, these chapters newly include fee administration provisions limiting refunds to instances of the other party's non-acquiescence in arbitration. They also newly describe the circumstances in which multiple filing fees will be assessed (compare 1.08 (2), 10.21 (2) and 20.21 (2) with new ERC 5.04 (1) and (2), 16.04 (1) and (2) and 23.04 (1) and (2)).
Specific language regarding commission-employed arbitrator impartiality and related procedures has been added in new ERC 5.04 (4), 16.04 (4) and 23.04 (4), and general impartiality language has been added regarding ad hoc grievance arbitrators (new ERC 5.07 (4), 16.07 (4) and 23.07 (4)).
In conformity with existing agency practice, these chapters newly include language regarding the ordinarily public nature of awards and related procedures (new ERC 5.04 (5) and 5.09; 16.04 (5) and 16.09; and 23.05 and 23.04 (5) and 23.09).
In conformity with existing agency policy, these chapters newly include language making the National Academy of Arbitrators, Federal Mediation and Conciliation Service and American Arbitration Association Code of Professional Responsibility applicable to all grievance arbitration proceedings (new ERC 5.05, 16.05 and 23.05 regarding commission-employed grievance arbitrators and new ERC 5.08, 16.08 and 23.08 regarding ad hoc grievance arbitrators).
In conformity with existing agency practice, these chapters newly include language regarding random arbitrator selection and regarding panel composition (new ERC 5.07 (1), 16.07 (1) and 23.07 (1)).
Roster of Interest Arbitrators and Fact Finders (new Ch. ERC 50)
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).
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).
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)
