Duty to bargain over decision to mechanize operations. Boivin, 55 MLR 179.
Duty to bargain basic business decisions prior to implementation. 1971 WLR 1250.
Prevention of unfair labor practices. 111.07(1)
Any controversy concerning unfair labor practices may be submitted to the commission in the manner and with the effect provided in this subchapter, but nothing herein shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction.
Upon the filing with the commission by any party in interest of a complaint in writing, on a form provided by the commission, charging any person with having engaged in any specific unfair labor practice, it shall mail a copy of such complaint to all other parties in interest. Any other person claiming interest in the dispute or controversy, as an employer, an employee, or their representative, shall be made a party upon application. The commission may bring in additional parties by service of a copy of the complaint. Only one such complaint shall issue against a person with respect to a single controversy, but any such complaint may be amended in the discretion of the commission at any time prior to the issuance of a final order based thereon. The person or persons so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the notice of hearing. The commission shall fix a time for the hearing on such complaint, which will be not less than 10 nor more than 40 days after the filing of such complaint, and notice shall be given to each party interested by service on the party personally or by mailing a copy thereof to the party at the party's last-known post-office address at least 10 days before such hearing. In case a party in interest is located without the state and has no known post-office address within this state, a copy of the complaint and copies of all notices shall be filed with the department of financial institutions and shall also be sent by registered mail to the last-known post-office address of such party. Such filing and mailing shall constitute sufficient service with the same force and effect as if served upon the party located within this state. Such hearing may be adjourned from time to time in the discretion of the commission and hearings may be held at such places as the commission shall designate.
The commission shall have the power to issue subpoenas and administer oaths. Depositions may be taken in the manner prescribed by s. 103.005 (13) (c)
. No person may be excused from attending and testifying or from producing books, records, correspondence, documents or other evidence in obedience to the subpoena of the commission on the ground that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a penalty or forfeiture under the laws of the state of Wisconsin; but no individual may be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it; provided, that an individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
Any person who shall willfully and unlawfully fail or neglect to appear or testify or to produce books, papers and records as required, shall, upon application to a circuit court, be ordered to appear before the commission, there to testify or produce evidence if so ordered, and failure to obey such order of the court may be punished by the court as a contempt thereof.
Each witness who appears before the commission by its order or subpoena at the request of the commission on its own motion shall receive for his or her attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the chairperson of the commission and charged to the appropriation under s. 20.425 (1) (a)
. Each witness who appears before the commission as a result of an order or subpoena issued by the commission at the request of a party shall receive for his or her attendance the fees and mileage as provided for witnesses in civil cases in courts of record, which shall be paid by the party requesting the order or subpoena in advance of the time set in the order or subpoena for attendance.
A full and complete record shall be kept of all proceedings had before the commission, and all testimony and proceedings shall be taken down by the reporter appointed by the commission. Any such proceedings shall be governed by the rules of evidence prevailing in courts of equity and the party on whom the burden of proof rests shall be required to sustain such burden by a clear and satisfactory preponderance of the evidence.
Within 60 days after hearing all testimony and arguments of the parties the commission shall make and file its findings of fact upon all of the issues involved in the controversy, and its order, which shall state its determination as to the rights of the parties. Pending the final determination by it of any controversy before it the commission may, after hearing, make interlocutory findings and orders which may be enforced in the same manner as final orders. Final orders may dismiss the charges or require the person complained of to cease and desist from the unfair labor practices found to have been committed, suspend the person's rights, immunities, privileges or remedies granted or afforded by this subchapter for not more than one year, and require the person to take such affirmative action, including reinstatement of employees with or without pay, as the commission deems proper. Any order may further require the person to make reports from time to time showing the extent to which the person has complied with the order.
The commission may authorize a commissioner or examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last-known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed or modified by such commissioner or examiner within such time. If the findings or order are set aside by the commissioner or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last-known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside or modify such findings or order, in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order it may extend the time another 20 days for filing a petition with the commission.
The commission shall have the power to remove or transfer the proceedings pending before a commissioner or examiner. It may also, on its own motion, set aside, modify or change any order, findings or award, whether made by an individual commissioner, an examiner, or by the commission as a body, at any time within 20 days from the date thereof if it shall discover any mistake therein, or upon the grounds of newly discovered evidence.
If any person fails or neglects to obey an order of the commission while the same is in effect the commission may petition the circuit court of the county wherein such person resides or usually transacts business for the enforcement of such order and for appropriate temporary relief or restraining order, and shall certify and file in the court its record in the proceedings, including all documents and papers on file in the matter, the pleadings and testimony upon which such order was entered, and the findings and order of the commission. Upon such filing the commission shall cause notice thereof to be served upon such person by mailing a copy to the last-known post-office address, and thereupon the court shall have jurisdiction of the proceedings and of the question determined therein. Said action may thereupon be brought on for hearing before said court upon such record by the commission serving 10 days' written notice upon the respondent; subject, however, to provisions of law for a change of the place of trial or the calling in of another judge. Upon such hearing the court may confirm, modify, or set aside the order of the commission and enter an appropriate decree. No objection that has not been urged before the commission shall be considered by the court unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact made by the commission, if supported by credible and competent evidence in the record, shall be conclusive. The court may, in its discretion, grant leave to adduce additional evidence where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing before the commission. The commission may modify its findings as to facts, or make new findings by reason of such additional evidence, and it shall file such modified or new findings with the same effect as its original findings and shall file its recommendations, if any, for the modification or setting aside of its original order. The court's judgment and decree shall be final except that the same shall be subject to review by the court of appeals in the same manner as provided in s. 102.25
The order of the commission shall also be subject to review under ch. 227
Commencement of proceedings under sub. (7)
shall, unless otherwise specifically ordered by the court, operate as a stay of the commission's order.
Petitions filed under this section shall have preference over any civil cause of a different nature pending in the circuit court, shall be heard expeditiously, and the circuit courts shall always be deemed open for the trial thereof.
A substantial compliance with the procedure of this subchapter shall be sufficient to give effect to the orders of the commission, and they shall not be declared inoperative, illegal, or void for any omission of a technical nature in respect thereto.
A transcribed copy of the evidence and proceedings or any part thereof on any hearing taken by the stenographer appointed by the commission, being certified by such stenographer to be a true and correct transcript, carefully compared by the stenographer with the stenographer's original notes, and to be a correct statement of such evidence and proceedings, shall be received in evidence with the same effect as if such reporter were present and testified to the fact so certified.
The right of any person to proceed under this section shall not extend beyond one year from the date of the specific act or unfair labor practice alleged.
See also ch. ERC 2
, Wis. adm. code.
WERC's limiting of “parties in interest" to those engaged in a controversy as to employment relations and defining such controversies as involving an employer and employees, or a union representing the employees or seeking to represent them, was reasonable. Chauffeurs, Teamsters & Helpers v. WERC, 51 Wis. 2d 391
, 187 N.W.2d 364
Since the NLRB has no jurisdiction to require collective bargaining with a one-employee unit, WERC may do so. WERC v. Atlantic Richfield Co. 52 Wis. 2d 126
, 187 N.W.2d 805
The grant of authority to WERC by s. 111.70 (4) (a), to prevent the commission of prohibited labor practices incorporates the provisions of s. 111.07 (4) for procedural and substantive remedial purposes. WERC v. City of Evansville, 69 Wis. 2d 140
, 230 N.W.2d 688
Sub. (8) provides that WERC orders may be reviewed under sub. (7) or under ch. 227 procedure. WERC v. Teamsters Local No. 563, 75 Wis. 2d 602
, 250 N.W.2d 696
(1977). Overturned on other grounds. City of Madison v. Madison Professional Police Officers Association, 144 Wis. 2d 576
, 425 N.W.2d 8
Financial reports to employees.
Every person acting as the representative of employees 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)
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.
See also chs. ERC 2
, Wis. adm. code.
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 also ch. ERC 5
, Wis. adm. code.
A grievance was arbitrable under the “discharge and nonrenewal" clause of a bargaining agreement when the contract offered by the board was signed by the teacher after deleting the title “probationary contract" and the board did not accept this counteroffer or offer the teacher a 2nd contract. Joint School District No. 10, City of Jefferson v. Jefferson Education Association, 78 Wis. 2d 94
, 253 N.W.2d 536
WERC's power to participate in dispute settlement arbitration is liberally construed. Thus, when parties to a collective bargaining agreement select an arbitrator from a list provided by WERC, this section applies. Layton School of Art & Design v. WERC, 82 Wis. 2d 324
, 262 N.W.2d 218
Municipal labor arbitration is within the scope of ch. 788. Milwaukee District Council 48 v. Milwaukee Sewerage Commission, 107 Wis. 2d 590
, 321 N.W.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
See also ch. ERC 6
, Wis. adm. code.
Notice of certain proposed strikes. 111.115(1)
In this section, “strike" includes any concerted stoppage of work by employees, and any concerted slowdown or other concerted interruption of operations or services by employees, or any concerted refusal of employees to work or perform their usual duties as employees, for the purpose of enforcing demands upon an employer.
Where the exercise of the right to strike by employees of any employer engaged in the state of Wisconsin in the production, harvesting or initial off-farm processing of any farm or dairy product produced in this state would tend to cause the destruction or serious deterioration of such product, the employees 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.
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 willfully 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 employee of any unemployment benefit which the employee 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.
History: 1995 a. 27
; 2011 a. 10
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 employee 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 employees 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 employees 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 employee of a health care institution's personnel department.
Title of subchapter I.
This subchapter may be cited as the “Employment Peace Act".
Subch. II of ch. 111 Cross-reference
See also ch. DWD 218
, Wis. adm. code.
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, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, 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, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, 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, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters, 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 employee or applicant for employment based upon the individual qualifications of the employee or applicant 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, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters. 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 employees or prospective employees 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 employees and prospective employees 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 employees and prospective employees.
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.
The department is not limited to finding sex discrimination only when a 14th amendment equal protection violation can also be found. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345
, 228 N.W.2d 649
The Wisconsin fair employment act (WFEA), subch. II, ch.111, is more direct and positive in prohibiting sex discrimination in employment than is the basic constitutional guarantee of equal protection of the laws; enforcement of the law is not limited by the “rational basis" or “reasonableness" tests employed in 14th amendment cases. Ray-O-Vac v. DILHR, 70 Wis. 2d 919
, 236 N.W.2d 209
Section 118.20 is not the exclusive remedy of a wronged teacher; it is supplementary to the remedy under WFEA. The general provisions of s. 893.80 are superseded by the specific authority of the act. Kurtz v. City of Waukesha, 91 Wis. 2d 103
, 280 N.W.2d 757
An employee who was not handicapped, but perceived by the employer to be so, was entitled to protection under WFEA. Dairy Equipment Co. v. DILHR, 95 Wis. 2d 319
, 290 N.W.2d 330
WFEA provides the exclusive remedy for retaliatory discrimination. Bourque v. Wausau Hospital Center, 145 Wis. 2d 589
, 427 N.W.2d 433
(Ct. App. 1988).
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 Wis. 2d 776
, 505 N.W.2d 793
(Ct. App. 1993).
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 WFEA. Byers v. LIRC, 208 Wis. 2d 388
, 561 N.W.2d 678
This act protects all employees, including prospective and de facto employees. 67 Atty. Gen. 169.
State courts have concurrent jurisdiction over federal Title VII civil rights actions. Yellow Freight System v. Donnelly, 494 U.S. 820
, 108 L. Ed. 2d 834