Madison, Wisconsin.
The public record on this proposed rule making will be held open until 4:30 p.m. on Wednesday, June 19, 2002, to permit the submission of written comments from persons unable to attend the public hearing in person, or who wish to supplement testimony offered at the hearing. Any such written comments should be addressed to Mary Pierick, Department of Employee Trust Funds, 801 West Badger Road, P.O. Box 7931, Madison, Wisconsin 53707-7931.
Analysis Prepared by the Wisconsin Department of Employee Trust Funds
Currently under the LTDI program, an employee is eligible for a LTDI disability benefit from the Wisconsin Retirement System (WRS) if he or she meets certain requirements under ch.
ETF 50, including the requirement to be certified by the employer as having left employment due to an apparent disability. Under ss.
ETF 50.48 (3) and
50.50 (5), the employer is required to provide a medical determination whether the employee is disabled within the meaning of the LTDI subchapter and to certify whether the disability was employment related in cases where the employee did not meet the service requirement.
If the Department receives a certification from the employer indicating that the employee is not disabled within the meaning of the LTDI subchapter or if the employer indicates they have no information on which to base an opinion, the Department is required to deny the application (claim) for LTDI benefits. The application is denied even if the Department receives the required medical documentation from the two required physicians certifying the claimant's disability. The proposed rule will be amended to remove the responsibility of the employer to make a medical determination related to employment and to instead rely on the physicians' medical determinations.
Fiscal Estimate
The proposed rule has no fiscal impact on county, city, village, town, school district, technical college district or sewerage district fiscal liabilities and revenues. The rule itself has no anticipated state fiscal effect during the current biennium and no future side effect on state funds.
Initial Regulatory Flexibility Analysis
The Department anticipates that the provisions of this proposed rule will have no direct adverse effect on small businesses.
Copies of Rule and Contact Persons
Copies of this rule are available without cost by making a request to the Department of Employee Trust Funds, Office of the Secretary, P.O. Box 7931, Madison, Wisconsin 53707, telephone (608) 266-1071. For questions about this rule making, please call Mary Pierick, Division of Insurance Services, at (608) 267-2847.
Notice of Hearings
NOTICE IS HEREBY GIVEN that pursuant to ss.111.09 (1) and (2), 111.11, 111.61, 111.70 (4) (c) 3. b., (4) (cm) 8s. and (8) (c), 111.71 (1) and (2), 111.88 (3) and 111.94 (1) and (2), Stats., and interpreting ch.
111, Stats., Subchapters I (Employment Peace Act); III (Public Utilities); IV (Municipal Employment Relations Act); and V (State Employment Labor Relations Act), the Wisconsin Employment Relations Commission will hold public hearings at the dates, times and places identified below to receive public input regarding the creation, amendment and repeal of rules relating to the administration of Chapter
111, Stats., Subchapters I (Employment Peace Act); III (Public Utilities); IV (Municipal Employment Relations Act); and V (State Employment Labor Relations Act).
The Commission invites the public to attend the hearings and to present verbal and/or written comments regarding the proposed rules. In addition to or instead of verbal testimony, written comments can also be sent directly to the Commission at Wisconsin Employment Relations Commission, P. O. Box 7870. Madison, Wisconsin 53707-7870 postmarked anytime prior to July 26, 2002.
Date, Time and Place of Hearing
Tuesday June 18, 2002 - 10:00 a.m., Room C-106, North Central Technical College, 1000 West Campus Drive, Wausau, WI.
Thursday June 27, 2002 - 10:00 a.m., Room 301-A, City Hall, 200 East Wells Street, Milwaukee, WI.
Friday, June 28, 2002 - 10:00 a.m., Courtroom 2-B, City-County Building, 210 Martin Luther King, Jr. Boulevard, Madison, WI.
Analysis Prepared by the Wisconsin Employment Relations Commission
Introduction
The Wisconsin Employment Relations Commission has undertaken a comprehensive review and revision of its rules concerning procedures in the administration of the following portions of ch.
111, Stats.,
Subchapter I — the (Wisconsin) Employment Peace Act (WEPA)
Subchapter III — concerning Public Utilities
Subchapter IV — the Municipal Employment Relations Act (MERA)
Subchapter V — the State Employment Labor Relations Act (SELRA)
Because the Public Utilities statute was declared to be pre-empted by federal law many years ago in AMALGAMATED ASSOCIATION V. WERB, 340 US 383 (1951), the ERC chapters relating to Subchapter III have been renumbered but otherwise left entirely unchanged. Accordingly, none of the references to rules changes below relate to the rules concerning the Public Utilities statute.
Overall Objectives
The overall objectives of the rules review project have been as follows:
-- correcting/updating outdated statutory references
-- conforming to the related statutes
-- conforming to the agency's established practices
-- removing internal inconsistencies
-- removing requirements that are unnecessarily burdensome
-- improving ease of understanding
-- adapting to changes in communications technology
Changes Common to All or Many Chapters
An effort has been made, wherever possible, to maintain or establish parallelism among the chapters concerning parallel subject areas under WEPA, MERA and SELRA.
The general chapters concerning WEPA, MERA and SELRA have been greatly shortened, with unnecessarily complex general rules eliminated and with other provisions replicated in each of the substantive chapters to which they apply. In that way, as many as possible of the rules concerning a particular type of case will now be found in the chapter specific to that type of case, rather than in multiple interrelated chapters. Those changes are intended to improve the ease of use and understandability of each substantive chapter at the recognized cost of a longer set of rules overall.
Throughout the rules, legalistic expressions such as “pursuant," “thereof," “deemed" etc. have been replaced with plainer English. In addition, the term “employe" has been replaced with “employee."
Throughout the rules, changes have been made to enable filing with commission by delivery, mail, fax, e-mail or other modes authorized in future, (compare, e.g., old s.
ERC 10.10 (2) with new s.
ERC 12.02 (1)). Exceptions to that approach have been made where a particular mode of transmittal is specifically required by law (e.g., new s.
ERC 10.07 (1) (f) requiring compliance with s.
111.07 (2) (a), Stats., as regards service of hearing notices and complaints on persons or parties located outside the state). Exceptions have also been made where a particular mode of transmittal is warranted by strong policy considerations (e.g., new s.
ERC 11.02 (2), requiring that a showing of interest supporting a representation election petition be filed in paper form by personal delivery or mail).
Changes have also been made to enable service of other parties by delivery, mail or fax, with initiating parties called upon to include the fax and e-mail addresses of parties and representatives if available (compare e.g., ss.
ERC 10.08 (4) and
12.03 (2) with new ss.
ERC 10.07 and
12.03 (2)).
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)
