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).

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 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, peter.davis@werc.state.wi.us, (608) 266-1381. 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, paul.hahn@werc.state.wi.us, 18 South Thornton Avenue, P.O. Box 7870, Madison, Wisconsin 53707-7870, (608) 266-1381, or Marshall L. Gratz, Attorney-Supervisor, marshall.gratz@werc.state.wi.us, Wisconsin Employment Relations Commission, 4449 North Maryland Avenue, Shorewood, Wisconsin 53211, (414) 963-4695, or Peter G. Davis, General Counsel, peter.davis@werc.state.wi.us, Wisconsin Employment Relations Commission at 18 South Thornton Avenue, P.O. Box 7870, Madison, Wisconsin 53707-7870, (608) 266-1381.