Chapter ERC 32

ERC 32.02   Policy.

ERC 32.03   Notice of commencement of negotiations.

ERC 32.04   Voluntary impasse resolution procedure.

ERC 32.05   Petition to initiate arbitration.

ERC 32.06   Stipulation to initiate arbitration.

ERC 32.07   Withdrawal of petition or stipulation; effect on filing fee.

ERC 32.08   Pre-investigation procedure.

ERC 32.09   Informal investigation or formal hearing.

ERC 32.10   Final offers.

ERC 32.11   Procedure for raising objection that a proposal is a non-mandatory subject of bargaining.

ERC 32.12   Petition or stipulation to initiate a declaratory ruling proceeding to determine whether a proposal is a mandatory subject of bargaining.

ERC 32.13   Certification of results of investigation or hearing, or certification based on stipulation.

ERC 32.14   Order appointing arbitrator.

ERC 32.15   Proceedings before the arbitrator.

ERC 32.16   Enforcement of the award.

ERC 32.17   Modification of award.

ERC 32.18   Procedure following court injunction of a strike posing an imminent threat to public health or safety.

ERC 32.19   Information.

Ch. ERC 32 Note Note: Chapter ERB 32 was created as an emergency rule effective May 14, 1986. Chapter ERB 32 was renumbered chapter ERC 32 under s. 13.93 (2m) (b) 1., Stats., Register, December, 1994, No. 468. Chapter ERC 32 as it existed on June 30, 2006, was repealed and a new chapter ERC 32 was created, Register June 2006 No. 606, effective July 1, 2006.

ERC 32.01 ERC 32.01 Scope. This chapter governs the procedure relating to collective bargaining and interest arbitration under s. 111.70 (4) (cm), Stats., affecting bargaining units of municipal employees other than law enforcement and fire fighting personnel.

ERC 32.01 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06; CR 10-019: am. Register June 2010 No. 654, eff. 7-1-10.

ERC 32.02 ERC 32.02 Policy. The policy of the state is to encourage voluntary settlement of labor disputes in municipal employment through the procedures of collective bargaining. If the procedures fail, the parties should have available to them a fair, speedy, effective and above all, peaceful procedure for settlement including, where a deadlock exists after negotiations and after mediation by the commission, a procedure for the resolution of the dispute by interest arbitration. Parties subject to s. 111.70 (4) (cm), Stats., shall, upon request, provide the commission with information the commission considers necessary to meet its statutory responsibilities to report on the operation of the interest arbitration law under s. 111.70 (4) (cm), Stats., and on its effect on collective bargaining in the state.

ERC 32.02 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.03 ERC 32.03 Notice of commencement of negotiations.

ERC 32.03(1) (1) Who shall file. Whenever a municipal employer or the exclusive collective bargaining representative of a bargaining unit of municipal employees requests to reopen negotiations under a binding collective bargaining agreement, or the parties otherwise commence negotiations if no agreement exists, the party requesting negotiations shall immediately notify the commission in writing of the request and a copy shall be served on the other party as set forth in s. ERC 10.07. If the requesting party fails to file the notice, the other party may do so.

ERC 32.03(2) (2) Form; number of copies; filing; service. The notice shall be in writing on a form provided by the commission, or a facsimile of the commission’s form. The notice is not filed until it has been received by the commission at its Madison office during normal business hours specified in s. ERC 10.06 (1). The notice shall be transmitted to the commission as set forth in s. ERC 10.06 (1). If the notice is filed in paper form, a total of 1 copy of the notice shall be included. The party filing the notice shall, at the same time, serve a copy on the other party as set forth in s. ERC 10.07.

ERC 32.03(3) (3) Contents. The notice shall contain all of the following information:

ERC 32.03(3)(a) (a) The date on which the party filing the notice notified the other party of its intent to either reopen negotiations under an existing collective bargaining agreement or to commence negotiations where no agreement exists.

ERC 32.03(3)(b) (b) The name and address of the municipal employer, as well as the name, title, address and phone number of its principal representative. Fax numbers and e-mail addresses shall be included, if available.

ERC 32.03(3)(c) (c) The name and address of the exclusive collective bargaining representative involved, as well as the name, title, address and phone number of its principal representative. Fax numbers and e-mail addresses shall be included, if available.

ERC 32.03(3)(d) (d) A general description of the collective bargaining unit involved and the approximate number of employees included in the unit.

ERC 32.03(3)(e) (e) The effective date and termination date of the existing collective bargaining agreement, if any, and the date specified in the agreement on which notice to open negotiations shall be served on the other party.

ERC 32.03(3)(f) (f) A statement indicating whether the parties have agreed to a voluntary impasse resolution procedure.

ERC 32.03(3)(g) (g) The identity, title and signature, or signature facsimile, of the person filing the notice, and the date on which the notice was transmitted to the commission.

ERC 32.03 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.04 ERC 32.04 Voluntary impasse resolution procedure.

ERC 32.04(1) (1) Who shall file; number of copies; filing; service. Whenever a municipal employer and the recognized or certified exclusive representative of a bargaining unit of the municipal employer’s employees agree in writing to a dispute settlement procedure for the resolution of an impasse in their negotiations leading to a collective bargaining agreement, as provided in s. 111.70 (4) (cm) 5., Stats., a copy shall be filed by the parties with the commission. The procedure shall be in writing in a form of the parties’ choosing. The procedure is not filed until it has been received by the commission at its Madison office during normal business hours specified in s. ERC 10.06 (1). The procedure shall be transmitted to the commission as set forth in s. ERC 10.06 (1). If the procedure is filed in paper form, a total of 1 copy shall be included. The party filing the procedure shall, at the same time, serve a copy of the procedure on the other party as set forth in s. ERC 10.07.

ERC 32.04(2) (2) Time for filing. If the procedure was entered into prior to the filing of the notice of commencement of negotiations required to be filed in s. ERC 32.03, the procedure shall be filed at the time the notice of commencement of negotiations is filed with the commission. If the agreement was entered into after the filing of the notice of commencement of negotiations, it shall be filed promptly after signing.

ERC 32.04(3) (3) Scope. The provisions of s. 111.70 (4) (cm) 8m., Stats., shall not be superseded by a voluntary impasse resolution procedure. In addition, if the parties agree to any form of binding interest arbitration, the arbitrator shall give weight to the factors enumerated under s. 111.70 (4) (cm) 7., 7g. and 7r., Stats.

ERC 32.04 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.05 ERC 32.05 Petition to initiate arbitration.

ERC 32.05(1) (1) Who may file. A petition to initiate arbitration may be filed by a municipal employer, a recognized or certified collective bargaining representative of municipal employees in a bargaining unit described in s. ERC 32.01, or by anyone authorized to act on their behalf.

ERC 32.05(2) (2) Form; number of copies; filing; service. The petition shall be in writing on a form provided by the commission, or a facsimile of the commission’s form. The petition is not filed until it and the filing fee established by s. ERC 10.08 (5) have been received by the commission at its Madison office during normal business hours specified in s. ERC 10.06 (1). If the parties have previously paid a mediation filing fee for the same dispute under s. ERC 10.08 (3), no fee shall be paid for the arbitration. The petition shall be transmitted to the commission as set forth in s. ERC 10.06 (1). If the petition is filed in paper form, a total of 2 copies of the petition and of all required enclosures shall be included. The fee may be transmitted to the commission by physical delivery or mail. The party filing the petition shall, at the same time, serve a copy of the request on the other party as set forth in s. ERC 10.07.

ERC 32.05(3) (3) Contents. The petition shall include all of the following:

ERC 32.05(3)(a) (a) The name and address of the municipal employer involved and the name, address and phone number of its principal representative. Fax numbers and e-mail addresses shall be included, if available.

ERC 32.05(3)(b) (b) The name and address of the exclusive collective bargaining representative involved, as well as the name, title, address and phone number of its principal representative. Fax numbers and e-mail addresses shall be included, if available.

ERC 32.05(3)(c) (c) A general description of the collective bargaining unit involved and the approximate number of employees included in the unit.

ERC 32.05(3)(d) (d) A statement that the parties are deadlocked after a reasonable period of negotiation and after mediation by the commission, if any, and other settlement procedures, if any, established by the parties have been exhausted, with respect to a dispute between them over wages, hours and conditions of employment to be included in a new collective bargaining agreement.

ERC 32.05(3)(e) (e) The date when notice was served to open negotiations and the identity of the party serving same.

ERC 32.05(3)(f) (f) The date or dates when proposals were exchanged in open meeting.

ERC 32.05(3)(g) (g) The number of negotiation meetings prior to mediation, if any, by the commission.

ERC 32.05(3)(h) (h) The dates on which mediation, if any, was conducted and the identity of the commission mediator.

ERC 32.05(3)(i) (i) The termination date of the existing collective bargaining agreement, if any.

ERC 32.05(3)(j) (j) The identity of the party filing the petition; the name, title and signature, or signature facsimile, of the individual signing the petition; and date when the petition was transmitted to the commission.

ERC 32.05(3)(k) (k) The petitioning party’s preliminary final offer containing its latest proposals on all issues in dispute.

ERC 32.05(4) (4) Responsive preliminary final offer. Within 14 days of the date the commission receives the petitioning party’s preliminary final offer, the other party shall submit in writing its preliminary final offer on all disputed issues to the petitioning party as set forth in s. ERC 10.07, and to the commission as set forth in s. ERC 10.06 (1).

ERC 32.05 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.06 ERC 32.06 Stipulation to initiate arbitration.

ERC 32.06(1) (1) Who may file. A stipulation to initiate arbitration may be filed by a municipal employer and a collective bargaining representative of municipal employees in a bargaining unit described in s. ERC 32.01, or by anyone authorized to act on their behalf.

ERC 32.06(2) (2) Form; number of copies; filing; service. The stipulation shall be in writing on a form provided by the commission, or a facsimile of the commission’s form. The stipulation is not filed until it and the filing fee established by s. ERC 10.08 (5) have been received by the commission at its Madison office during normal business hours specified in s. ERC 10.06 (1). If the parties have previously paid a mediation filing fee for the same dispute under s. ERC 10.08 (3), no fee shall be paid for the arbitration. The stipulation shall be transmitted to the commission as set forth in s. ERC 10.06 (1). If the stipulation is filed in paper form, a total of two copies of the petition and of all required enclosures shall be included. The fee may be transmitted to the commission by physical delivery or mail.

ERC 32.06(3) (3) Contents. The stipulation shall contain the same information as set forth in s. ERC 32.05 (3) for a petition to initiate arbitration, except that the stipulation shall include the signature, or signature facsimile, of a representative of each party and shall contain each party’s preliminary final offers on all issues in dispute which the parties shall exchange in writing before or at the time they submit the stipulation.

ERC 32.06 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.07 ERC 32.07 Withdrawal of petition or stipulation; effect on filing fee. A petition or stipulation may be withdrawn at any time prior to the issuance of a final order based on it, by motion granted by the commission. A motion to withdraw shall be granted unless withdrawal would result in an injustice to any party. Neither the withdrawal of the petition or stipulation nor the parties’ settlement of the underlying dispute is a basis on which the filing fee shall be refunded.

ERC 32.07 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.08 ERC 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 32.08 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.09 ERC 32.09 Informal investigation or formal hearing.

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 32.09 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06; CR 10-019: am. (2) and (3) Register June 2010 No. 654, eff. 7-1-10.

ERC 32.10 ERC 32.10 Final offers.

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 32.10 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.11 ERC 32.11 Procedure for raising objection that a proposal is a non-mandatory subject of bargaining. In proceedings under this chapter, practice and procedure for raising an objection that a proposal is a non-mandatory subject of bargaining shall be as set forth in s. ERC 30.10.

ERC 32.11 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06; CR 10-019: am. Register June 2010 No. 654, eff. 7-1-10.

ERC 32.12 ERC 32.12 Petition or stipulation to initiate a declaratory ruling proceeding to determine whether a proposal is a mandatory subject of bargaining. In proceedings under this chapter, practice and procedure regarding a petition or stipulation to initiate a declaratory ruling proceeding to determine whether a proposal is a mandatory subject of bargaining shall be as set forth in s. ERC 30.11.

ERC 32.12 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06; CR 10-019: am. Register June 2010 No. 654, eff. 7-1-10.

ERC 32.13 ERC 32.13 Certification of results of investigation or hearing, or certification based on stipulation.

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.

ERC 32.13(6) (6) Service of certification and panel. Copies of the certification and the names of the panel members shall be served on the parties as set forth in s. ERC 10.07.

ERC 32.13(7) (7) Arbitrator impartiality. The commission shall designate only competent, impartial and disinterested persons to act as arbitrators or to be included in a panel of arbitrators.