Wis. Admin. Code Employment Relations Commission ERC 12.02 - Complaint
(1) WHO MAY FILE; FORM; NUMBER OF COPIES;
FILING FEE. A complaint that any municipal employer, municipal employee, or
person has engaged in a prohibited practice defined, respectively, in s.
111.70(3) (a), (b) or (c), Stats., may be filed by any party or by
a representative authorized to file on behalf of a party. The complaint shall
be in writing on a form provided by the commission, or a facsimile of the
commission's form, and shall include the signature or a facsimile of the
signature of the party or representative filing the complaint. At the time of
filing, the filing fee established by s.
ERC 10.08(1) shall be submitted to the
commission. A complaint is not filed unless it contains the required signature
or signature facsimile and unless and until the complaint and fee have been
actually received by the commission at its Madison office during normal
business hours specified in s.
ERC 10.06(1). The complaint shall be
transmitted to the commission as set forth in s.
ERC 10.06(1). If the complaint is filed
in paper form, a total of 3 copies of the complaint shall be included, together
with 1 additional copy for each named respondent. The fee may be transmitted to
the commission by physical delivery or mail. As used in this chapter, "party"
has the same meaning as "party in interest."
(2) CONTENTS. The complaint shall contain all
of the following:
(a) The name, address,
phone number, and affiliation, if any, of each complainant, and of any
representative of a complainant. Fax numbers and e-mail addresses shall be
included, if available.
(b) The
name, address and phone number of each respondent, and any other party named in
the complaint. Fax numbers and e-mail addresses shall be included, if
available.
(c) A clear and concise
statement of the facts constituting the alleged prohibited practice or
practices, including the time and place of occurrence of particular acts and
the provisions of s. 111.70(3),
Stats., alleged to have been violated.
(d) A statement of the remedy or remedies the
complainant is requesting the commission to order.
(3) SERVICE. After the filing of a complaint,
the commission shall serve a copy of the complaint on each respondent named in
the complaint. At the same time, the commission shall serve all parties named
in the complaint with a notice that the scheduling of a hearing shall be held
in abeyance pending the results of conciliation unless a party specifically
requests otherwise. Service shall be by mail to the parties at their last known
post-office address, except that service of a party located outside the state
and who has no known post-office address within Wisconsin shall be in the
manner provided in s.
111.07(2) (a),
Stats.
(4) AMENDMENT AND
WITHDRAWAL.
(a)
Amendment.
Any complainant may request permission to amend its complaint at any time prior
to the issuance of a final order by the commission or examiner. A motion to
amend a complaint shall be granted by the commission or examiner unless the
amendment would unduly delay or disrupt the proceeding, or would otherwise
result in an injustice to any party.
(b)
Withdrawal. Any
complaint may be withdrawn at any time prior to the issuance of a final order
based on it, by motion granted by the commission or examiner. A motion to
withdraw shall be granted unless withdrawal would result in an injustice to any
party. The commission shall not refund fees based on a withdrawal of a
complaint.
(5)
CONCILIATION. The commission may cause an effort to reach informal settlement
of all or part of a complaint to be undertaken by a commission designee. A
conciliator so designated shall attempt through mediation to assist the parties
in reaching an informal agreement resolving some or all of the issues that
might otherwise require a hearing. The pendency of conciliation shall not
preclude the scheduling or conduct of a hearing if scheduling is specifically
requested by any party prior to the conclusion of conciliation. If the
conciliator concludes that further conciliation efforts are unlikely to produce
a settlement, the processing of the case shall proceed, including the
scheduling of a hearing, if appropriate.
(6) NOTICE OF HEARING.
(a)
When and by whom issued.
At the specific request of a party or at the unsuccessful conclusion of
conciliation, the commission or examiner shall schedule a date and time for the
hearing and serve all parties named in the complaint and their representatives
with a notice of hearing.
(b)
Contents. The notice of hearing shall include all of the
following:
1. A statement of the time, place,
and nature of the hearing, including whether the case is a class 2 or 3
proceeding as defined in s.
227.01(3) (a) to (c), Stats. All complaint cases shall be
designated as class 3 proceedings, except that cases in which a requested
remedy involves a penalty, such as deprivation of a respondent's rights,
immunities, privileges or remedies granted or afforded by the Municipal
Employment Relations Act, shall be designated as a class 2 proceeding. Unless
the parties have agreed otherwise, the hearing shall be held not less than 10
nor more than 40 days after the complaint was filed or a hearing was requested.
The hearing may be rescheduled in the manner prescribed in s.
ERC 12.04(2)
(e).
2. A statement of the legal authority and
jurisdiction under which the hearing is to be held, and, in the case of a class
2 proceeding, a reference to the particular statutes and rules
involved.
3. A short and plain
statement of the matters asserted, by reference to the pleadings on file, or
otherwise.
4. A statement that each
named respondent shall file an answer to the complaint, specifying the names
and addresses of the persons to be served with a copy of the answer and the
date by which the answer is to be served on those persons.
5. A statement that, to be timely, a motion
to make the complaint more definite and certain under sub. (7) shall be
received by the commission within 10 days after the earlier of the date the
notice of hearing was issued or the date the commission notified the parties
that the commission has received a request under sub. (5) that the hearing be
scheduled prior to the conclusion of conciliation.
6. A statement that affirmative defenses not
raised by a timely answer are waived.
(7) MOTION TO MAKE MORE DEFINITE AND CERTAIN.
If a complaint is alleged to be so indefinite as to hinder a party in the
preparation of its answer to the complaint, the party may, by motion, request
the commission or examiner to order the complainant to file a statement
supplying specified information to make the complaint more definite and
certain. If the commission has notified the parties that it has received a
request under sub. (5) for the hearing to be scheduled prior to the conclusion
of conciliation, then a motion to make the complaint more definite and certain
shall be filed no later than 10 days after the date of the commission's notice.
Otherwise, the motion shall be filed no later than 10 days after the date the
notice of hearing was issued. The commission or examiner may require a
complainant to clarify its complaint at any time the commission or examiner
finds it necessary and appropriate to do so.
Notes
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