Chapter ERC 32

ERC 32.14(2) (2) Order. Upon receipt of the notification of the identity of the arbitrator selected or after completing designation or random selection of the arbitrator, the commission shall serve the parties with copies of its order appointing the arbitrator, as set forth in s. ERC 10.07. The commission shall, at the same time, submit a copy of the appointment order to the selected arbitrator, as well as copies of the final offers of the parties. A notice to the public shall be appended to the order setting forth the nature of the order, the identity of the arbitrator and the procedures for obtaining copies of final offers and for requesting a public hearing.

ERC 32.14(3) (3) Public notice. Immediately upon receipt of the notice, the municipal employer involved shall cause a copy or copies to be posted where notices to the public are usually posted. In addition, the municipal employer shall inform the public of the content of the notice in the same manner that it informs the public of public meetings.

ERC 32.14(4) (4) Copies of final offers. The single final offers submitted to the appointed arbitrator shall be considered public documents and copies may be obtained from the commission, by any person upon written request, following the issuance of the order appointing the arbitrator, at the cost of reproduction and postage.

ERC 32.14 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.15 ERC 32.15 Proceedings before the arbitrator.

ERC 32.15(1) (1) Notice of Arbitration hearing. The arbitrator shall within 10 days of his or her formal appointment, establish the date, time and place for the arbitration hearing and shall issue and serve upon the parties, as set forth in s. ERC 10.07, a notice of hearing specifying the date, time and a place within the jurisdiction of the municipal employer involved where the hearing shall be held. The hearing date shall not fall within the 10-day period. The arbitration hearing shall be open to the public.

ERC 32.15(2) (2) Withdrawal of final offers. The arbitrator shall notify the parties of the date, predating the arbitration hearing date, by which a party shall provide written notice to the arbitrator, the other party, and the commission that the party is withdrawing its final offer. If both parties timely withdraw their final offers and mutually agreed upon offer modifications, and the exclusive representative gives 10 days written notice to the municipal employer and the commission of its intent to strike, the commission shall endeavor to mediate the dispute.

ERC 32.15(3) (3) Petition for public hearing. Any 5 citizens of the jurisdiction served by the municipal employer involved may, within 10 days after the appointment of the arbitrator, file a request in writing with the commission, as set forth in s. ERC 10.07, that a public hearing be convened prior to the arbitration hearing. A request shall be treated as a petition within the meaning of s. 111.70 (4) (cm) 6. b., Stats. The signers shall include their addresses and a statement that they are citizens of the jurisdiction served by the municipal employer involved. Upon receipt of the request, the commission shall serve a copy on both the parties and the arbitrator.

ERC 32.15(4) (4) Notice of public hearing. Upon receipt of a citizen petition and after the arbitration hearing has been scheduled by the arbitrator, the municipal employer involved shall notify the public, in the manner set forth in s. ERC 32.14 (3), that a public hearing shall be convened prior to the arbitration hearing. The notice shall identify the parties involved and shall set forth the date, time and place of the hearing. Copies of the notice shall be served by the municipal employer, as set forth in s. ERC 10.07, on the collective bargaining representative involved, on the arbitrator, and the commission.

ERC 32.15(5) (5) Purpose of public hearing. The public hearing shall be for the purpose of providing the opportunity for both parties to explain or present supporting arguments for their positions and to provide an opportunity to members of the public to offer their comments and suggestions.

ERC 32.15(6) (6) Procedure in public hearing. The arbitrator shall take reasonable steps to ensure that the public hearing is orderly and that it does not result in undue delay or cost to the parties. The arbitrator may require members of the public who desire to offer comments and suggestions to register; may determine the sequence in which the parties and the members of the public shall be heard; and may determine when the hearing shall be terminated.

ERC 32.15(7) (7) Transcripts of public hearing. Either party or any person participating in the public hearing may make their own arrangements to have a transcript of the public hearing prepared at their own expense. Arbitration proceedings shall not be delayed for the purpose of awaiting the preparation of a transcript of the public hearing. If the public hearing is recorded or transcribed, the arbitrator shall be furnished a copy upon request.

ERC 32.15(8) (8) Scope of arbitration hearing. The arbitration hearing shall be public and for the purpose of gathering information which shall assist the arbitrator in issuing a compulsory and final and binding arbitration award selecting the final offer and mutually agreed upon offer modifications, of either party. In making that offer selection in cases involving school district employees, the arbitrator shall give weight to the factors set forth in s. 111.70 (4) (cm) 7r., Stats., and the parties shall be prepared to present evidence and argument relative to the factors involved. In making that offer selection in cases subject to this chapter not involving school district employees, the arbitrator shall give weight to the factors set forth in s. 111.70 (4) (cm) 7., 7g. and 7r., Stats., and the parties shall be prepared to present evidence and argument relative to the factors involved. Except as otherwise required by commission rules, proceedings before the arbitrator shall also be conducted in accordance with the ethical standards and procedures set forth in the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes as approved and amended from time to time by the National Academy of Arbitrators, American Arbitration Association and Federal Mediation and Conciliation Service. The Code, as amended, is available in electronic form on the commission website and in paper form on request from the commission.

ERC 32.15(9) (9) Arbitration hearing procedure. Hearings shall be within the control of the arbitrator and shall be as expeditious as the nature of the dispute shall allow. In conducting the hearing, the arbitrator has the power to do any of the following:

ERC 32.15(9)(a) (a) Administer oaths and affirmations.

ERC 32.15(9)(b) (b) Issue subpoenas in the name of the commission.

ERC 32.15 Note Note: Arbitrators may obtain appropriate subpoena forms from the commission’s Madison office.

ERC 32.15(9)(c) (c) Rule on offers of proof and receive relevant evidence.

ERC 32.15(9)(d) (d) Regulate the course of the arbitration hearing.

ERC 32.15(9)(e) (e) Dispose of procedural requests and similar matters.

ERC 32.15(10) (10) Waiver of hearing and brief. With the consent of the arbitrator, the parties may agree to waive the convening of a formal hearing or the filing of briefs, or both.

ERC 32.15(11) (11) Mediation. Nothing in this chapter or s. 111.70 (4) (cm), Stats., precludes the parties from mutually agreeing during arbitration to have the arbitrator or the commission or both attempt to mediate the dispute at any time prior to the issuance of an award, but no party shall be obligated to participate in mediation or to continue to participate in mediation. Any mediation by the arbitrator shall not be open to the public unless mutually agreed by the parties or their representatives. At the joint request of the parties, the arbitrator may issue a consent award ordering implementation of the terms of a written voluntary agreement between the parties resolving part or all of the dispute involved.

ERC 32.15(12) (12) Issuance of award.

ERC 32.15(12)(a) (a) How issued. The arbitrator shall issue the arbitration award in writing as expeditiously as possible following the receipt of final arguments or briefs, if any. If the award is issued by a tripartite panel, each panel member shall sign the award, either affirming or dissenting. After the award is signed, a copy of the award and a statement of the arbitrator’s fees and expenses shall be submitted immediately to the commission as set forth in s. ERC 10.06 (1) and to the parties as set forth in s. ERC 10.07.

ERC 32.15(12)(b) (b) Public document when issued. When received by the commission, interest awards shall be made available to the public. Copies may be purchased by the public from the commission’s Madison office and may also be available on the commission website or in other commission publications.

ERC 32.15(12)(c) (c) Timeliness standards and procedures. Arbitrators who repeatedly or egregiously fail to issue their decision within 60 days following receipt of final arguments or briefs, if any, shall be subject to removal from the commission’s roster of arbitrators and fact finders following notice and an opportunity to be heard as provided in s. ERC 40.04. Reinstatement to the list may be granted where the commission is satisfied that the individual shall be able to consistently issue timely awards under s. 111.70 (4) (cm) 6. d., Stats. Unless informal communications satisfy the commission that there is good cause not to do so, an arbitrator’s issuance of one or more s. 111.70 (4) (cm) 6. d., Stats., awards in a calendar year that are untimely by a total of more than thirty (30) days shall be a sufficient basis for convening a hearing to determine whether the arbitrator has ”repeatedly” or ”egregiously” failed to issue timely s. 111.70 (4) (cm) 6. d., Stats., awards.

ERC 32.15(13) (13) Costs. The fees and expenses of the arbitrator including the conduct of the public hearing, arbitration hearings, the rental of hearing rooms, and the preparation of the award, shall be shared equally by the parties. The fees and expenses charged by the arbitrator shall not exceed those described in the arbitrator’s biographical information and fee statement on file with the commission at the time the arbitrator’s name was supplied to the parties by the commission. Costs of subpoenas and witness fees shall be paid by the party requesting the subpoena or witness. Fees and expenses charged by the reporter, if any, shall be shared equally by the parties if both parties have agreed that the hearing be transcribed. If only one party desires a transcript, that party is solely responsible for the fees and expenses charged by the reporter and shall provide a copy of the transcript to the arbitrator. The fees and expenses of arbitrators selected by one of the parties to serve on a tripartite panel shall be paid by the party making the selection.

ERC 32.15 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06; CR 10-019: am. (8) Register June 2010 No. 654, eff. 7-1-10.

ERC 32.16 ERC 32.16 Enforcement of the award.

ERC 32.16(1) (1) Procedure. If either party refuses or otherwise fails to implement an interest arbitration award lawfully made by failing to incorporate it into a written collective bargaining agreement, the other party may file a complaint of prohibited practices as provided in ch. ERC 12. The resulting complaint proceeding shall be a class 2 proceeding within the meaning of s. 227.01 (3) (b), Stats., governed by the provisions of ss. 111.07 and 111.70 (4) (a), Stats. In determining whether an interest arbitration award was lawfully made, the commission shall find that the award was not lawfully made under the following circumstances:

ERC 32.16(1)(a) (a) Where the interest arbitration award was procured by corruption, fraud or undue means;

ERC 32.16(1)(b) (b) Where there was evident partiality on the part of the neutral arbitrator or corruption on the part of an arbitrator;

ERC 32.16(1)(c) (c) Where the arbitrator was guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear supporting arguments or evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced;

ERC 32.16(1)(d) (d) Where the arbitrator exceeded his or her powers, or so imperfectly executed them that a mutual, final and definite interest arbitration award was not made.

ERC 32.16(2) (2) Attorney fees; interest; other costs. Any party refusing to include an arbitration award or decision under s. 111.70 (4) (cm), Stats., in a written collective bargaining agreement or failing to implement the award or decision, unless good cause is shown, shall be liable for attorney fees, interest on delayed monetary benefits, and other costs incurred in any action by the non-offending party to enforce the award or decision.

ERC 32.16 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.17 ERC 32.17 Modification of award. If, in a proceeding for enforcement, it is determined that an interest arbitration award is lawfully made, but that the award requires modification or correction, the commission shall issue an order modifying or correcting the award. An interest arbitration award may be modified or corrected where:

ERC 32.17(1) (1) A court enters an order, which is not subject to further appeal, reversing a commission ruling that a particular proposal contained in the award is a mandatory subject of bargaining;

ERC 32.17(2) (2) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award;

ERC 32.17(3) (3) Where the arbitrator has awarded upon a matter not submitted, unless it is a matter not affecting the merits of the award upon the matters submitted;

ERC 32.17(4) (4) Where the award is imperfect in matter of form not affecting the merits of the controversy.

ERC 32.17 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

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

ERC 32.18(1) (1) New final offers. Following the issuance of a court order enjoining a strike which poses an imminent threat to the public health and safety, and under the order of the court, the parties shall submit to the commission, in writing, as set forth in s. ERC 10.06 (1), new final offers on all disputed issues, within the time limit established for those submissions by the court.

ERC 32.18(2) (2) Mediation. Within the time limit set by the court for the submission of new final offers, the parties may mutually request, in writing, as set forth in s. ERC 10.07, that the commission provide mediation services to the parties in an attempt to resolve the deadlock. Upon receipt of a request the commission or commission assigned mediator shall arrange a mutually satisfactory date and place for mediation.

ERC 32.18(3) (3) Arbitration. If, after mediation within the time limits set by the court, the parties remain in deadlock, the commission shall transmit the new final offers to the arbitrator, or to a successor arbitrator designated by the commission. The arbitrator or successor arbitrator shall immediately commence arbitration of the dispute in accordance with s. ERC 32.15.

ERC 32.18 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.

ERC 32.19 ERC 32.19 Information. Parties subject to s. 111.70 (4) (cm), Stats., shall, upon request, provide the commission with information the commission deems necessary to meet its statutory responsibilities to report on the operation of the arbitration law under s. 111.70 (4) (cm), Stats., and on its effect on collective bargaining in the state.

ERC 32.19 History History: CR 02-037: cr. Register June 2006 No. 606, eff. 7-1-06.