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STATE OF WISCONSIN

BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION

JAMES GUZNICZAK

Complainant,

vs.

STATE OF WISCONSIN (DEPARTMENT OF

HEALTH AND SOCIAL SERVICES and

DEPARTMENT OF EMPLOYMENT RELATIONS)

Respondent.

Case 278

No. 43787 PP(S)-163

Decision No. 26676-A

Appearances:

Patricia A. Messner, Representative, 419 South 88th Street, Milwaukee, WI 53214, and James Guzniczak, 4854 West Anthony Drive, Milwaukee, WI 53219, appearing on behalf of Complainant.

David J. Ghilardi, Legal Counsel, succeeded by Teel D. Haas, Chief Legal Counsel, Department of Employment Relations, 137 East Wilson Street, Madison, WI 53707-7855 appearing on behalf of Respondent.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

On March 12, 1990, James Guzniczak filed a complaint with the Wisconsin Employment Relations Commission (herein WERC) alleging that the State of Wisconsin's Department of Health and Social Services and Department of Employment Relations had committed unfair labor practices within the meaning of Sec. 111.06(f) and (g), Stats., by failing to fully comply with an order of the Personnel Commission issued on May 13, 1987 affirmed by the Personnel Commission on rehearing by order dated June 11, 1987.

In pre-hearing telephone discussions with the Examiner confirmed by letter to parties dated March 27, 1990, the Examiner pointed out that the complaint alleged violations of the Wisconsin Employment Peace Act (applicable to the private sector) rather than of State Employment Labor Relations Act, and noted that the parties agreed to waive the statutory requirement that a hearing be conducted within 40 days of the date of filing of the complaint in order to permit: the Complainant to amend the complaint; the Respondents to answer same and file any motion for summary dismissal it may deem appropriate; and the Examiner to determine whether to schedule a hearing or to call upon complainant to respond in writing as to why the complaint as amended should not be dismissed.

In accord with that procedural agreement, the Complainant submitted amendments of its complaint on April 24, 1990, so that, as amended, the complaint alleges that Respondents' conduct constituted unfair labor practices within the meaning of Secs. 111.84(1)(a), (c), (d) and (e) of the State Employment Labor Relations Act. On April 30, 1990, the Respondent filed an answer and motion to dismiss. By May 23, 1990 letter, the Examiner offered Complainant an opportunity to state reasons why its amended complaint ought not be dismissed without hearing inasmuch as it appears on its face to relate exclusively to matters that are: outside the jurisdiction of WERC; outside the 60-day time limit set forth in Sec. 230.44(4)(c), Stats.; and outside the one-year time limit for filing set forth in Sec. 111.07(14), Stats., as made applicable to the State Employer by Sec. 111.84(4), Stats. Complainant's written response in opposition to dismissal of the complaint was received on July 18, 1990, at which point the matter stood ready for a determination by the Examiner whether to dismiss the Complaint without a hearing or to proceed with a hearing in the matter.

The Examiner, having been duly appointed by the WERC to make and issue findings of fact, conclusions of law and order in the matter as provided in Sec. 111.07(5), Stats., and having considered the pleadings and the arguments submitted by the parties in the light most favorable to Complainant, finds it appropriate to issue the following Findings of Fact, Conclusions of Law and Order without convening a hearing in the matter.

FINDINGS OF FACT

1. The Complainant, James Guzniczak, is an individual residing at 4854 West Anthony Drive, Milwaukee, WI 53219. At various times material herein, Complainant was a state employe employed in the Bureau of Community Corrections of the Division of Corrections of the State Employer's Department of Health and Social Services.

2. The State of Wisconsin is the State Employer. Among its departments are the Respondents herein, the Department of Health and Social Services and the Department of Employment Relations (referred to herein as DHSS and DER and jointly as Respondent Departments). For purposes of this proceeding, the Respondent's mailing address is Department of Employment Relations, 137 East Wilson Street, Madison, WI 53707-7855.

3. On March 12, 1990, Complainant filed the instant complaint with the WERC alleging that the Respondent Departments committed unfair labor practices within the meaning of Secs. 111.06(f) and (g), Stats., and a violation of Sec. 111.815, Stats.

4. Following various communications among the parties and the Examiner, Complainant amended its complaint on April 24, 1990, so that it alleged that the Respondent Departments committed unfair labor practices within the meaning of Secs. 111.84(1)(a), (c), (d) and (e), Stats.

5. The amended complaint alleges that the Respondent Departments committed those alleged unfair labor practices by failing and refusing to pay Complainant James Guzniczak certain monies due and owing to him by reason of a State of Wisconsin Personnel Commission decision issued on May 13, 1987 affirmed by the Personnel Commission on rehearing by order dated June 11, 1987, in Case No. 83-0210-PC. The dates of service of those orders were their respective dates of issuance. The amended complaint also alleges, in part, that Respondent Departments' stalling tactics and refusal to fully compensate Complainant was in retaliation for Complainant's other pending unrelated union grievances.

6. Apart from Respondents' alleged continuing failure and refusal to pay Complainant what he believes he is due under the abovenoted Personnel Commission decision, the most recent manifestations of the Respondent Departments' refusal to properly compensate Complainant alleged in the amended Complaint and written arguments of Complainant are two letters from the Respondent Departments' Attorney, Kathryn Anderson. The first letter to Complainant's representative Patricia Messner dated April 12, 1988 identified what additional payments the Respondent Departments would be making to Complainant; explained the Respondent Departments' reasons for limiting its payment in that regard; and stated that DHSS would be taking no further action on the matter. The second letter to Complainant was dated May 19, 1988. It purported to enclose the check referred to in the April 12, 1988 letter and it further requested that Complainant sign an enclosed receipt for the two checks issued by the State Employer in the case. The Examiner infers that Complainant had notice of the contents of those documents on or before May 24, 1988. Complainant has never signed or returned the receipt form.

7. The instant complaint in this matter was filed with the WERC on March 12, 1990.

8. The instant complaint seeks an order that the Respondent Departments fully comply with the Personnel Commission's order in the abovenoted proceeding before that body, plus interest and an additional penalty.

9. The instant complaint was filed with the WERC more than 60 days after the dates of service of the Personnel Commission's abovenoted orders dated May 13, 1987, June 11, 1987, and more than 60 days after the date of service of a subsequent Personnel Commission decision dated April 6, 1988 in which it held that it lacked subject matter jurisdiction rule on Complainant's letter to it dated September 29, 1987 asserting that the Respondent Departments had not fully complied with the Personnel Commission's earlier decision and order in the matter.

10. The instant complaint was filed with the WERC more than one year after the specific acts or unfair labor practices alleged in the amended complaint.

CONCLUSION OF LAW

Section 111.07(14), Stats., as made applicable to alleged State Employer unfair labor practices by Sec. 111.84(4), Stats., establishes a one year time limit for filing unfair labor practice complaints against the State Employer and its constituent departments. Because the instant complaint was initiated in excess of one year after the date of the specific acts or unfair labor practices alleged in the amended complaint, the instant complaint, as amended, is time barred by Sec. 111.07(14), Stats.

ORDER(1)

1. The abovenoted complaint, as amended, is hereby dismissed.

2. The Respondent Departments' request for an order requiring Complainant to pay the Respondent Departments' attorneys fees, costs and disbursements is hereby denied.

Dated at Shorewood, Wisconsin, this 9th day of November, 1990.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By

Marshall L. Gratz, Examiner

STATE OF WISCONSIN (DEPARTMENT OF HEALTH AND SOCIAL SERVICES and DEPARTMENT OF EMPLOYMENT RELATIONS

MEMORANDUM ACCOMPANYING

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND ORDER

THE AMENDED COMPLAINT

In its complaint as amended by letter received by the Examiner on April 24, 1990, Complainant alleges the following facts: that in 1983 Complainant filed an appeal with the State Personnel Commission asserting his reallocation from Client Services Assistant 4 to Correctional Officer 3 should have been earlier in time than it had in fact been made effective; that in its decision and order in Case No. 83-0210-PC issued on May 13, 1987 and reaffirmed on rehearing on June 11, 1987, the Personnel Commission ordered the matter remanded to the Secretaries of Respondent Departments [herein Department Secretaries] for actions in accordance with the Personnel Commission's decisions that the effective date of the reallocation should have been December 15, 1980, and the Personnel Commission's further stated requirement, that the appellants will be paid, on a retroactive basis the difference in pay between what they were paid and what they would have been paid had the reallocation of their positions been effective at the beginning of the first pay period after December 15, 1980, instead of on June 12, 1983; that on August 14, 1987 Complainant wrote the Department Secretaries asking that the Personnel Commission's order be carried out and that 12 percent interest be paid "pursuant to WERC rulings"; that on September 29, 1987, the Personnel Commission received from Complainant a letter alleging that the Department Secretaries had failed to comply with the abovenoted Personnel Commission decision and order and stating in part that its purpose was to "appeal DH&SS's/DER's payroll calculations in response to the Commission's Order, which resulted in underpayment on back pay and incorrect final hourly rates"; that on October 13, 1987, Complainant received a letter from the attorney then representing him before the Personnel Commission noting that Complainant had received a Reallocation Notice retroactively revising the effective date of his reallocation, copies of checks jointly issued to Complainant and his attorney, and certain information concerning the back pay calculations, and noting further that the back pay calculations appeared erroneous in various ways adverse to Complainant, and noting further that Complainant's back pay check did not cover his attorney's fees such that additional payments from Complainant to his attorney were necessary; that on October 29, 1987, the Personnel Commission convened a pre-hearing conference regarding Complainant's appeal letter filed on September 29, 1987, during which Attorney Kathryn Anderson representing the Department Secretaries moved for dismissal for lack of Personnel Commission jurisdiction of the subject matter of the appeal and also requested written specifications from Complainant regarding his claim of failure to comply; that Complainant supplied such specifications by letter to Attorney Anderson in early November, 1987; that briefing on the jurisdictional issue was completed on or about December 19, 1987; that on March 9, 1988 Complainant wrote Attorney Anderson requesting a response to Complainant's November specification of concerns and questions regarding alleged noncompliance; that on April 6, 1988, the Personnel Commission issued its decision and order granting the Department Secretaries' motion to dismiss Complainant's September 29, 1987 appeal letter on the grounds that the Personnel Commission lacks subject matter jurisdiction to adjudicate same either by way of enforcement of its earlier order or as a new appeal from the DHSS' appointing authority's exercise of its authority to fix an employe's compensation; that by letter dated April 12, 1988, Attorney Anderson responded to Complainant's early November, 1987 by providing various explanations and responses to Complainant's concerns and questions and by stating that the DHSS had reviewed its backpay calculations in light of Complainant's November letter and would be forwarding Complainant a check for an additional amount of back pay and that otherwise DHSS "will take no further action with regard to" Complainant's appeal in Personnel Commission Case No. 83-0210-PC; that on May 17, 1988, Complainant sent a letter to Attorney Anderson noting that Complainant had not yet received the check referred to in Anderson's April 12, 1988 letter and that Anderson's letter had not responded to Complainant's request for interest on back pay, and requested that Anderson respond on those two matters as soon as possible; but that as of March 12, 1990, Complainant had received no other response from Attorney Anderson or from any other representative of the State Employer concerning the matter.

The amended complaint further asserts that the Respondent Departments have failed to fully pay Complainant the compensation due from the revised reallocation notice pursuant to Secs. 230.05 and 230.96, Stats., and from the Personnel Commission's decisions and orders dated May 13, 1987 and June 11, 1987, pursuant to Sec. 230.44(4)(c), Stats.; and that those failures constitute:

- a Sec. 111.84(1)(a), Stats., unfair labor practice, in that Respondent Departments ". . . have restrained the Complainant from receiving wages & benefits earned as a result of a collective bargaining agreement . . ." which were ordered to be paid by the Personnel Commission within that body's statutory jurisdiction and because the WERC has previously held that interest on back pay is a proper element of relief.

- a Sec. 111.84(1)(e), Stats., unfair labor practice, in that the Respondent Departments have failed to comply with the order of the Personnel Commission and have failed to grant interest as has previously been held appropriate in prior WERC rulings, thereby failing to accept the decision of the Personnel Commission which had statutory jurisdiction to make that order and was, therefore, the "arbitrator" within the meaning of Sec. 111.84(1)(e), Stats.

- a Sec. 111.84(1)(d), Stats., unfair labor practice, in that the Respondent Departments have refused to bargain with Complainant's Representative regarding the order of the Personnel Commission by its making an arbitrary & capricious interpretation of its Order.

- a Sec. 111.84(1)(c), Stats., unfair labor practice, in that "throughout this whole matter [Respondent Departments'] stalling tactics and refusal to negotiate were in retaliation to Complainant's other pending unrelated union grievances which they continually attempted to integrate prior to the Personnel Commission hearing."

- "on-going" unfair labor practices so as to overcome any Sec. 111.07(14), Stats., time bar, in that the Respondent Departments' complained of action

prohibits the complainant from being accurately compensated and prohibits him from receiving future retirement benefits due him. This resulted not only from incorrect compensation by the Respondents but also from the lack of compensation being paid by the Respondents to Complainant's pension fund, as Respondents previously reported. [Specifically, a] payment that Respondents claimed due Complainant was purported to have been paid. However, it came to Complainant's attention on or about 11/89-time limit application-(when he sought information about retirement benefits) that such purported payment was NEVER made. This is not a matter that any employee would reasonably be expected to monitor, as it should be a reasonable expectation that when one's Employer reports that funds have been paid to the pension fund that they have been.

By way of remedy, Complainant requests that the Examiner and WERC order the Respondent Departments to comply with the implied compensation due from the July 1987 Reallocation Notice and from the May and June, 1987 Personnel Commission decision and order. More specifically, Complainant requests compensation for 1164.75 hours of overtime and differential pay; appropriate contributions to Wisconsin Retirement Fund and documentation of same to Complainant; 12 percent interest on the full backpay including amounts already paid and amounts still owed (including regular hours worked or in pay status; overtime and shift differential hours worked; retirement contributions; "plus [an] additional 12% interest penalty for Respondent's failure to make retirement contributions as initially claimed."

THE STATE EMPLOYER'S ANSWER AND MOTION TO DISMISS

In their answer, the Respondent Departments deny that they have failed in any respect to properly pay Complainant that to which he is entitled under the revised Reallocation Notices and under the Personnel Commission's decision and order. They further allege that the Complainant's failure to bring an action within 60 days of the Personnel Commission's decision extinguished Complainant's right to have the Personnel Commission's decision acted upon in any forum, and entitles the Respondent Departments to an order dismissing the instant complaint under Secs. 230.44(4)(c) and 893.05, Stats. The Respondent Departments further alleges that if Complainant's right of action has not been so extinguished, the amended complaint is not properly before the WERC because of Complainant's failure to exhaust the existing contractual grievance procedure to resolve the claims he is advancing before the WERC. They further allege that the WERC's rulings related to payment of interest on back pay awards have no bearing on decisions of the Personnel Commission. The Respondent Departments also move and urge that the amended complaint be dismissed without a hearing and with prejudice either for lack of subject matter jurisdiction or on its merits, and further request an order that the Complainant pay the Respondent Departments' attorney fees, costs and disbursements incurred in the WERC proceedings.

EXAMINER'S LETTER OFFERING COMPLAINANT OPPORTUNITY TO SHOW CAUSE WHY THE COMPLAINT OUGHT NOT BE DISMISSED WITHOUT A HEARING

On May 23, 1990, the Examiner wrote the parties offering Complainant an opportunity to state reasons why its amended complaint ought not be dismissed without hearing on grounds of lack of subject matter jurisdiction and/or untimeliness. In pertinent part, that letter read as follows:

I have reviewed the complaint as originally filed, Ms. Messner's April 23 letter amending the complaint, and Mr. Ghilardi's April 27 answer and motion to dismiss. From the face of those documents and taking the disputed facts in the light most favorable to Complainant Guzniczak, it appears that the subject matter of the amended complaint relates exclusively to matters:

1. outside the jurisdiction of the WERC: alleged failures of the State to comply with an order of the Personnel Commission are exclusively the province of the circuit court under Sec. 230.44(4)(c), Wis. Stats., Wisconsin Department of employment Relations v. Wisconsin Personnel Commission, Case No. 85 CV 3022 (CirCt, Dane, 12- 27-87); and

2. outside the 60 day time limit set forth in Sec. 230.44(4)(c), Wis. Stats., which reads, "Any action brought against the person who is subject to the order for failure to comply with the order [of the Personnel Commission] shall be brought and served within 60 days after the date of service of the [Personnel] commission's decision"; and

3. outside the one year time limit for filing set forth in Sec. 111.07(14), Wis. Stats., which reads, "the right of any person to proceed under this section shall not extend beyond one year from the date of the specific act or unfair labor practice alleged" and which is made applicable to State of Wisconsin employe cases by Sec. 111.84(4), Wis. Stats.

Before issuing a formal order dismissing the amended complaint on one or more of those grounds, I am, by this letter, offering Ms. Messner (on behalf of her client) an opportunity to state any reasons why it would be error on my part to do so at this point in the proceedings without a hearing. In other words, I am calling on Ms. Messner (on behalf of her client) to show cause why I should not dismiss the amended complaint on those bases without conducting a hearing.

COMPLAINANT'S SHOW CAUSE RESPONSE IN OPPOSITION TO SUMMARY DISMISSAL

In his July 18, 1990 written response, Complainant asserted that it would be error for the Examiner to dismiss the amended complaint on any of grounds set forth in the Examiner's letter quoted above.

Complainant referred back to the contents of its amended complaint summarized above as the bases for its contention that the amended complaint is within the subject matter jurisdiction of the WERC.

With regard to Sec. 230.44(4)(c), Stats., timeliness, Complainant notes that neither the Respondent Departments nor the Personnel Commission raised or relied on such an untimeliness contention in their various responses and correspondence concerning Complainant's September 29, 1987 appeal. Thus, as recently as Attorney Anderson's May of 1988, Complainant received a letter from Attorney Anderson requesting Complainant to sign a receipt for a back pay recalculation check in the amount of $109.12 less customary deductions and for the previously issued back pay check. Complainant has not signed or returned that receipt, however, because the first check was sent to Complainant's attorney contrary to Complainant's specific directions, such that Complainant did not receive any of those funds. Complainant contends, "The lack of existence of any such receipt from the Complainant results in the matter remaining open, & therefore subject to further appeal and/or review."

Complainant further contends that the Respondent Departments ought not be allowed to raise timeliness defenses since they were found liable for approximately 30 months of retroactive compensation erroneously withheld from Complainant during a period beginning in December of 1980.

Complainant refers back to its amended complaint summarized above as the bases for its contention that the instant complaint was filed within the time limitation set forth in Sec. 111.07(14), Stats.

Finally, Complainant notes that while it is not one of the grounds mentioned in the Examiner's show cause letter, the Respondent Departments' defense of failure to exhaust the grievance procedure is also without merit.

DISCUSSION

Standard for Summary Dismissal

On a motion for summary dismissal of an unfair labor practice complaint, the complaint must be liberally construed in favor of the complainant because of the dramatic consequences of denying a hearing on the complaint. The motion will be granted only if under no interpretation of the facts alleged would the complainant be entitled to relief in the matter. E.g., Racine Unified School District, Dec. No. 15915-B (Hoornstra, 12/77).

Applying that standard to the amended complaint, the Examiner is satisfied under no interpretation of the facts can the amended complaint be deemed timely filed under Sec. 111.07(14), Stats.

Therefore, assuming for the sake of argument that Sec. 230.44(1)(c), Stats., neither ousts the WERC of subject matter jurisdiction of the amended complaint nor protects Respondent Departments from the filing of the amended complaint in excess of 60 days after the date of service of the Personnel Commission decisions rendered in Case No. 83-0210-PC, the instant complaint is nonetheless untimely filed under Sec. 111.07(14), Stats.

Section 111.07(14), Stats., Untimeliness

Section 111.07(14), Stats., as made applicable to alleged State Employer unfair labor practices by Sec. 111.84(4), Stats., establishes a one year time limit for filing unfair labor practice complaints. It provides, "the right of any person to proceed under this section shall not extend beyond one year from the date of the specific act or unfair labor practice alleged."

The acts or unfair labor practices alleged in the amended complaint are essentially the Respondent Departments' failure and refusal to pay Complainant what Complainant believes is owed him under the original Personnel Commission decision and order, with interest and a penalty, and the Respondent Departments' stalling and withholding of proper payment allegedly in retaliation for Complainant's other unrelated pending union grievances. Whether motivated as retaliation for pending grievances or otherwise, the Respondent Departments' failure and refusal to pay Complainant any remaining amounts that may have been due and owing under the Personnel Commission's decision and order was unequivocally manifested as of Complainant's receipt of Attorney Anderson's letters of April 12 and May 19, 1988, which the Examiner infers Complainant had knowledge of no later than May 24, 1988. Those letters, taken together, made it clear that the Respondent Departments intended to pay Complainant nothing further as regards his claim of noncompliance with the Personnel Commission decision. Since Complainant received those letters or at least notice of their contents more than one year before the instant complaint was filed with the WERC, the complaint, as amended, is untimely filed under Sec. 111.07(14), Stats.

Neither the fact that the Respondents have not done anything more as regards Complainant's claim since sending those letters, nor the fact that Complainant has never signed the checks receipt tendered to him for signature in May of 1988, nor Complainant's November 1989 discovery of the extent of the Respondent Departments' noncompliance as regards retroactive contributions on Complainant's behalf to the Wisconsin Retirement Fund are sufficient to waive or toll the Sec. 111.07(14), Stats., time limitation. The Commission has previously concluded that even repeated demands followed by repeated refusals do not create a continuing or on-going violation. See, City of Milwaukee, Dec. No. 13726 (WERC, 6/75). Hence, the Respondent Departments' prolonged failure to do/pay anything more after May of 1988 did not constitute an on-going unfair labor practice. Furthermore, in AFSCME Council 24, Dec. No. 21980-C (WERC, 2/90) (case remanded to examiner on other grounds), the Commission held that the one year limitations period begins to run from date of the conduct constituting the alleged unfair labor practice, and not from date of the complainant's discovery thereof. In that case the Commission followed the approach taken by a federal district court interpreting federal law in a private sector case in Harris v. Victor Division, Dana Corporation, 121 LRRM 3524 (ND Ill, 1986). Applying that principle here, the one year limitations period began running as regards alleged nonpayment of retirement fund contributions when the Respondent Departments allegedly failed to make the payments to the retirement fund in or before April of 1988 (despite its April 12, 1988 letter reporting to Complainant that it had made such payments). The one year period did not begin running from the much later time (November of 1989) when Complainant discovered that Respondents had allegedly failed to make the appropriate payments.

Because under any and all interpretations of the facts the instant complaint was initiated in excess of one year after the date of the specific acts or unfair labor practices alleged in the amended complaint, the instant complaint is time barred by Sec. 111.07(14), Stats. In the Examiner's opinion, that is a sufficient basis on which to dismiss the amended complaint without a hearing. The Examiner has accordingly issued an order to that effect.

The Examiner finds no basis in this case for an award of attorneys fees, costs or disbursements and hence has denied the Respondent Departments' request in that regard.

Dated at Shorewood, Wisconsin, this 9th day of November, 1990.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By

Marshall L. Gratz, Examiner


1. Any party may file a petition for review with the Commission by following the procedures set forth in Sec. 111.07(5), Stats.

Sec. 111.07(5), Stats.

(5) The commission may authorize a commissioner or examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed or modified by such commissioner or examiner within such time. If the findings or order are set aside by the commissioner or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside or modify such findings or order, in whole or in party, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order it may extend the time another 20 days for filing a petition with the commission.