ERC 32.08ERC 32.08 Pre-investigation procedure. After a petition or stipulation has been filed, the commission or a commission-employed investigator shall conduct an investigation with respect to the petition or stipulation, by means of either an informal investigation or a formal hearing. If, during any prior mediation by a commission mediator, the parties have exchanged and submitted to the mediator their total final offers, as well as a stipulation on matters agreed upon, the parties may waive the informal investigation or formal hearing described in s. ERC 32.09. A waiver shall be written and may accompany the petition or stipulation for initiation of interest arbitration or be filed separately later.

ERC 32.09(1)(1) Purpose. The purpose of the investigation shall be to determine whether the parties are deadlocked in their negotiations after a reasonable period of negotiation. If it is determined that the parties are deadlocked, the commission or investigator shall obtain the single final offers of the parties containing their final proposals on issues in dispute, and shall obtain a stipulation signed by the parties on all matters agreed upon to be included in the new or amended collective bargaining agreement. During the informal investigation or formal hearing, the commission or investigator may engage in an effort to mediate the dispute.

ERC 32.09(2)(2) Informal investigation procedure. If an informal investigation is conducted, the commission or investigator shall, after conferring with the parties, set a date, time and place for the conduct of the informal investigation and shall notify the parties of those arrangements in writing. The informal investigation may be adjourned or continued as the commission or investigator deems necessary. During the investigation the commission or investigator may meet jointly or separately with the parties or otherwise communicate with one or both of the parties, for the purposes described in sub. (1). Prior to the close of the investigation the investigator shall obtain in writing the final offers of the parties on the issues in dispute and a stipulation in writing on all matters agreed upon to be included in the new or amended collective bargaining agreement. The investigator shall also obtain each party’s position regarding authorization of inclusion of nonresidents of Wisconsin on the arbitration panel to be submitted by the commission. If, at the time of the exchange of final offers or during any additional time permitted by the investigator, no objection is raised that either final offer contains a proposal relating to a non-mandatory subject of bargaining, the commission or investigator shall serve the parties as set forth in s. ERC 10.07, a written notice that the investigation is closed. The commission or investigator shall not close the investigation until the commission or investigator is satisfied that neither party, having knowledge of the content of the final offer of the other party, would amend any proposal contained in its final offer and that both final offers conform to the requirements of s. ERC 32.10 (2). If a party fails to submit a single ultimate final offer within the time prescribed by the commission or investigator, the commission or investigator shall close the investigation based on the last written position of the party. Following the close of the investigation the investigator shall report the findings to the commission, either orally or in writing, as the commission may direct, and at the same time transmit to the commission the final offers and the stipulation received from the parties. The commission investigator shall also notify the commission whether both parties have agreed to authorize the commission to include one or more nonresidents of Wisconsin on the arbitration panel to be submitted in the matter.

ERC 32.09(3)(3) Formal hearing practice and procedure. If a formal investigation is conducted, the commission or investigator, following communication with the parties, shall set a date, time and place for the conduct of the formal hearing and notify the parties by formal notice. The formal hearing may be adjourned or continued in the discretion of the commission or investigator. Hearing practice and procedure shall be as set forth in ss. ERC 18.06 to 18.08, except that the purpose and scope of the hearing shall be limited to establishing the facts needed to determine whether, after a reasonable period of negotiation, the parties are deadlocked. Prior to the close of the hearing the commission or investigator shall obtain and exchange the single ultimate final offers, stipulation of agreed upon items and positions concerning non-resident arbitrators in the manner set forth in sub. (2). If a party fails to submit a single ultimate final offer within the time prescribed by the commission or investigator, the commission or investigator shall close the investigation based on the last written position of the party.

ERC 32.10(1)(1) Contents generally. Final offers shall contain proposals relating only to mandatory subjects of bargaining, except either final offer may contain proposals relating to permissive subjects of bargaining if there is no timely objection under s. ERC 32.11 or 32.12 by the other party to the inclusion of the proposals in a final offer. Absent a timely objection, the proposals shall be treated as mandatory subjects of bargaining for the duration of the s. 111.70 (4) (cm), Stats., impasse resolution process, including any exchanges of final offers which may follow declaratory ruling proceedings under s. ERC 32.12 or injunction proceedings referred to in s. ERC 32.18 (1).

ERC 32.10(2)(2) Contents regarding term of agreement and reopener provisions. Except for the initial collective bargaining agreement between the parties affecting the employees involved, where the parties have not agreed upon the term of the agreement as a part of the stipulation of agreed upon items, final offers shall provide for no other term of agreement than 2 years. Final offers shall not contain a provision for reopening of negotiations during the term of an existing agreement for any purpose other than negotiation of a successor agreement or with respect to any portion of an agreement that is declared invalid by a court or administrative agency or rendered invalid by the enactment of a law or promulgation of a federal regulation. Any other provisions for reopening of negotiations during the term of an existing agreement shall be agreed upon by the parties as a part of the stipulation of agreed upon items.

ERC 32.10(3)(3) Modification of final offers following close of investigation. Following the close of the investigation, a party may modify its final offer only with the consent of the other party. Any modification shall be in writing, supported by a written statement signed by the representative of the other party.

ERC 32.13(1)(1) When issued. After consideration of the report of the investigation or of the parties’ stipulation to waive the investigation, the commission shall issue a certification determining whether there has been substantial compliance with s. 111.70 (4) (cm), Stats., and whether the parties are deadlocked. If the commission determines that there has not been substantial compliance with the requirements of s. 111.70 (4) (cm), Stats., the commission may order compliance if it would tend to result in a settlement.

ERC 32.13(2)(2) Contents. The certification shall contain findings of fact and conclusions of law material in the matter, as well as an order either initiating arbitration or dismissing the petition or stipulation, consistent with the purposes and policies of s. 111.70 (4) (cm), Stats.

ERC 32.13(3)(3) Submission of panel. If the certification requires arbitration and the parties have not previously agreed to their own procedures for resolving the deadlock, the parties shall be directed to select an arbitrator within 10 days after the issuance of the certification, or within a different time period agreed upon between the parties, from a panel of 7 arbitrators designated by the commission. Unless the parties have mutually agreed otherwise, the panel shall not include individuals who are nonresidents of Wisconsin at the time the panel is submitted. Selection of arbitrators for inclusion on the panel shall be as provided in s. ERC 40.06 (3), with arbitrators randomly selected from among the roster members available for service at the time the request is processed. The commission shall supply the parties with copies of the biographical and fee information on file with the commission regarding each arbitrator whose name is supplied to the parties by the commission. In the absence of an agreement to another method of selection, the parties shall select the arbitrator by alternately striking names from the panel until a single name remains, who shall be the arbitrator. The order of proceeding in the selection process shall be determined by lot.

ERC 32.13(4)(4) Tripartite panel. In lieu of the procedures set forth in sub. (3), both parties may request the commission to appoint a tripartite arbitration panel consisting of one member selected by each of the parties and a neutral person designated by the commission who shall serve as chairperson. Unless the parties have mutually agreed otherwise in writing, the commission’s designee shall be a resident of Wisconsin at the time of designation.

ERC 32.13(5)(5) Random appointment. In lieu of the procedures set forth in sub. (3), at the request of both parties the commission shall submit a list of 7 arbitrators from which each party shall strike one name by the method specified in sub. (3). Unless the parties have mutually agreed otherwise in writing, the panel shall not include individuals who are nonresidents of Wisconsin at the time the names of the panel members are submitted. Upon notification of the names stricken by each party, the commission shall select the arbitrator by lot from the 5 remaining names.