STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
Mr. Mark J. Benzing, 2022 Dewey Avenue, Beloit, Wisconsin
53511, appearing on his
Mr. Peter Albrecht, Godfrey & Kahn, Attorneys at
Law, 131 West Wilson Street,
Suite 202, P.O. Box 1110, Madison, Wisconsin 53701-1110, appearing on behalf
Blackhawk Technical College.
EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND ORDER GRANTING PRE-HEARING
MOTION TO DISMISS
On March 3, 1997, the above-named Complainant filed a complaint with the
Employment Relations Commission (WERC) alleging that the above-named Respondent had
committed prohibited practices within the meaning of Secs. 111.70(3)(a)1 and 5, Stats., of
the Municipal Employment Relations Act (MERA). On May 19, 1997, the WERC issued an
order substituting the undersigned Marshall L. Gratz, a member of its staff, as Examiner in
As a result of the various pre-hearing developments detailed in the memorandum
accompanying this decision, disputes concerning the following issues have ripened for
decision prior to the conduct of a hearing in this matter: (1) whether the Examiner will
exercise the Commission's jurisdiction to resolve the Sec. 111.70(3)(a)5, Stats., violation of
agreement allegation; (2) whether Complainant shall be permitted to amend the complaint
to add a separate claim that Respondent violated Secs. 111.70(3)(a)1 and 3, Stats., as regards
criticisms of Complainant in an evaluation issued to Complainant on June 11, 1996 and
non-criticisms of a fellow employe in her evaluation; (3) if that amendment is allowed,
the added allegations are time-barred by the one-year statute of limitations; and (4) whether
the remaining alleged independent violation of Sec. 111.70(3)(a)1, Stats., regarding disparate
disciplinary treatment on account of MERA-protected activities is time-barred by the one
year statute of limitations.
The Examiner received the last of the parties' written statements of the position
concerning various of those disputed matters on October 3, 1997.
Based on the pleadings and arguments submitted and the record developed to date, the
Examiner issues the following Findings of Fact, Conclusions of Law and Order Granting
Motion to Dismiss.
FINDINGS OF FACT
1. The Complainant, Mark J. Benzing, is a person who resides at 2022 Dewey
2. The Respondent, Blackhawk Technical College (also referred to herein as the
District), is a municipal employer with offices at 6004 Prairie Road, County Trunk G,
3. On March 3, 1997, Complainant filed with the WERC a complaint alleging that the
Respondent committed prohibited practices within the meaning of Secs. 111.70(3)(a)1 and
5, Stats., concerning allegedly disparate discipline of custodial employes as compared to
maintenance employes allegedly primarily because custodial employes (including
Complainant) had filed grievances and complaints against their supervisor and Respondent.
4. As subsequently clarified and amended by Complainant, the complaint alleges facts
which, on their face, establish that Complainant had reason to know of the allegedly
disparate discipline and of the custodial employes' grievance and complaint activities "on or
about January of 1996," and hence more than one year prior to Complainant's initial filing
of the instant complaint.
5. As subsequently clarified and amended by Complainant, the complaint also alleges
facts which, on their face, establish:
a. that Complainant filed a grievance on or about March 4, 1996 alleging that
Respondent's disparate discipline of custodial as compared to maintenance employes violated
various provisions of the collective bargaining agreement between Respondent and
Complainant's exclusive collective bargaining representative, the Blackhawk Technical
College/Paraprofessional Technical Council (BTC/PTC);
b. that the BTC/PTC Executive Council informed Respondent, Complainant
others in writing on July 19, 1996, among other things, that BTC/PTC would not be
pursuing Grievance 96-02 to arbitration; and
c. that Complainant does not claim either that BTC/PTC failed to fairly
him regarding that grievance or that the District prevented the grievance from being
6. On July 8, 1997, the Examiner received from Complainant a motion to amend the
above complaint to include claims that Respondent committed prohibited practices within
the meaning of Secs. "111.70(3)1 and 3", Stats., [which the Examiner interprets to have
been intended to be Secs. 111.70(3)(a)1 and 3, Stats.] based on the following alleged facts:
a. that on July 11, 1996, Respondent issued Complainant an evaluation
untrue statements that Complainant "spoke obscene when I referred to [Respondent's
Facilities Manager/Supervisor Jeff Amundson] and other administrative staff members. And
also that I become argumentative and upset often";
b. that Respondent issued that evaluation "Primarily to retaliate and harass
prior complaints, and grievances that I filed against the respondent, in which . . .
Amundson, was one of the ones whose actions were complained of"; and,
c. "that another member of the same department . . . has been known to use
obscene and vulgar language when speaking to . . . Amundson, and never received any
statement mentioning this fact on her evaluation/assessment."
7. The evaluation referred to in the motion to amend was, in fact, issued to and
by Complainant on June 11, 1996, not July 11, 1996.
8. As of June 11, 1996, Complainant had reason to know both the contents of the
evaluation which he received on that date, and the nature of the grievances and complaints
that he had filed prior to that date.
9. The motion to amend was filed more than one year from the date of the prohibited
practices alleged in the instant complaint that were based on the facts noted in Finding of
Fact 6.a. and 6.b., above.
CONCLUSIONS OF LAW
1. The Examiner declines to exercise the Commission's jurisdiction under Secs.
and 111.70(4)(a), Stats., to adjudicate Complainant's allegation that Respondent violated the
terms of a collective bargaining agreement in violation of Sec. 111.70(3)(a)5, Stats., because
grievance 96-02 regarding the same subject matter was processed under the agreement
grievance procedure and ultimately not pursued to grievance arbitration by BTC/PTC, and
because Complainant does not claim either that BTC/PTC failed to fairly represent him
regarding that grievance or that the District prevented that grievance from being arbitrated.
2. In light of Conclusions of Law 4 and 5, below, Respondent has not shown that the
Examiner's granting Complainant's July 8, 1997, motion to amend would prejudice the
Respondent's rights in any way.
3. Complainant is entitled under ch. ERC 12.05(a), WIS. ADM. CODE
to amend the
complaint to include the separate claim concerning criticisms and non-criticisms in
4. Viewing the allegations contained in Complainant's July 8, 1997, motion to amend
the light most favorable to Complainant, the prohibited practices alleged therein that are
based on the facts noted in Finding of Fact 6.a. and 6.b., above, are time-barred by the
one-year statute of limitations contained in Sec. 111.07(14), Stats.
5. Viewing the allegations contained in Complainant's July 8, 1997, motion to amend
the light most favorable to Complainant, the allegations referred to in Finding of Fact 6.c.,
above, do not, in and of themselves, constitute a prohibited practice within the meaning of
Sec. 111.70(3), Stats.
6. The remaining complaint allegation, that Respondent committed independent
of Sec. 111.70(3)(a)1, Stats., regarding disparate disciplinary treatment on account of
MERA-protected activities, is time-barred by the Sec. 111.07(14), Stats., statute of
7. Under no interpretation of the facts alleged in the instant complaint as clarified and
amended would the Complainant be entitled to relief from WERC.
1. Complainant's July 8, 1997, motion to amend the complaint is granted.
2. Respondent's motion to dismiss the amended complaint in its entirety is granted.
3. The Case 63 Complaint filed on March 3, 1997, as subsequently clarified and
amended, is dismissed.
Dated at Shorewood, Wisconsin, this 16th day of December, 1997.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Marshall L. Gratz, Examiner
BLACKHAWK TECHNICAL COLLEGE
EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
PRE-HEARING MOTION TO
PROCEDURAL BACKGROUND AND POSITIONS
OF THE PARTIES
The Case 63 complaint was filed on 3-3-96. In it, Complainant Benzing alleged that
Respondent committed prohibited practices within the meaning of Secs. 111.70(3)(a)1 and
5, Stats., based on the following alleged facts:
In November of 1996, several members of the custodial support
staff at central campus,
during a meeting with the Facilities Manager/Supervisor, Mr. J. Amundson, and Mr. B.
Borremans; Vice President Administrative Services/Student Services, at the College,
complained, that on numerous occasions, members of the maintenance support staff at the
central campus had been seen playing computer games during their working hours (not
during scheduled break times), and some occasions with their supervisor . . . Amundson.
custodians were assured by the Vice President [Borremans], that it would stop. At a
following meeting the custodians questioned the action taken against the maintenance staff
for the above . . . infraction, and were informed that the maintenance staff were give a
warning, as discipline action. The custodians again complained about the level of discipline
the maintenance staff received; without any adjustment to the level of discipline the
maintenance staff received, a formal grievance was filed on March 4, 1996; requesting a
more adequate and appropriate discipline action, taken against the maintenance staff, as a
relief sought, and complaining that articles two, sections four, nine and eleven; article nine
and article 123, sections 1 and 2 were violated. Also, the purpose of the collective
bargaining agreement, page one of the CBA. After appealing to all the steps of the
procedure, without any of our demands for relief met. We appealed to the Local Union, to
take our grievance to arbitration, since we believed it had plenty of merit, because personnel
in the same department, who were not maintenance but were custodial staff, received alot
harsher discipline action, for an event that happened only once; while the maintenance staff
members were allowed numerous infractions (knowing violating work rules) of the same
wrongdoing, and received a lesser disciplinary action, by the department
supervisor and without any redress from the personnel
administrator and other
administrators at the College; in retaliation to past practice and consistency factors. The date
of the aforementioned appeal to the Local Union, was around July 8, 1996. And the date
the aforementioned grievance was decided on by the (Board of Directors of the College
decided to waive a hearing on the grievance) Board of Directors of the College was June 5,
1996. The Local Union, on July 8, 1996 sent a letter to the college's personnel
administrator, Mr. David Esler, which addressed the appropriateness, favoritism and
inequitable discipline, also rules being implemented unfairly and improperly. Another
allegation of this complaint is that shortly after this letter was sent to the personnel
administrator and a copy sent to the District Director of the College; the maintenance
personnel and the Facilities Manager/Supervisor of the department totally re-built their
adjoining offices and designed them so you can't see what they're doing on the computer
they see you; and also the doors stay closed and locked, whether they are there or not. And
also, there is no clear account of the discipline (a verbal warning) imposed on the
maintenance staff; some believe they were told that if they were to play computer games
outside their break times, not to be seen, and another factor is that the personnel
administrator informed the Complainant and the Local Union Chief Steward, during a
meeting (step four grievance meeting) with the District Director, that he had confirmed and
positive eye witnesses that informed him that they had witnessed the Facilities
Manager/Supervisor and maintenance staff playing computer games during work hours for
at least a year. The date of the aforementioned meeting was May 1, 1996.
On July 8, 1997, the Examiner received from Complainant a
motion to amend the
above complaint to include the following additional allegations:
During the afternoon of July 11, 996 I was given
evaluation/assessment from Facilities
Manager/Supervisor, in which allegations were made by the Supervisor, that I spoke obscene
when I referred to him and other administrative staff members. And also that I become
argumentative and upset often. Both allegations are
untrue and were incorporated into my
yearly evaluation/assessment; primarily to retaliate and harass me for prior
grievances that I filed against the respondent, in which the Facilities Manager/Dept.
Supervisor Jeff Amundson, was one of the ones whose actions were complained of.
The Sections of the Statutes I believe have
been violated are, 111.70(3)1 and 3, [sic] of
the Wisconsin Statutes.
Also, I want to add the fact/allegation, that another member of
the same department that
the complainant is in has been know to use obscene and vulgar language when speaking to
the Facilities Manager/Supervisor, Jeff Amundson, and never received any statement
mentioning this fact on her evaluation/assessment.
The Examiner then wrote the parties on 7-8-97, in pertinent
part, as follows:
This is to confirm the nature and
results of my telephone conversations with both
of you on July 7 and with Mr. Benzing on July 8. . . .
First, we have reserved Thursday,
July 10, 1997, at 11:30 AM for a telephone pre-hearing conference in this matter. . . .
Third, today I have received Mr.
Benzing's motion to amend the complaint in the
above matter. I am faxing a copy of that motion with this letter to Mr. Albrecht so that he
has it in advance of our telephone conference on Thursday.
Fourth and finally, after reading
Mr. Benzing's motion to amend, I telephoned him
this morning. In that conversation, I noted that the subject matter of his proposed
amendment involves a matter allegedly occurring on July 11, 1996. I informed Mr.
that I would not be ruling on the motion until our Thursday conference call at the earliest.
For that reason, I told Mr. Benzing that if he intends to pursue the subject matter of the
amendment as a separate complaint if the motion to amend is denied, he would need to file
it promptly to meet the applicable one year statute of limitations. Mr. Benzing replied that
he would consider the matter and would likely be filing the amendment as a separate
I look forward to talking with you
both on Thursday.
Complainant ultimately filed the amendment allegations as a
separate complaint on 7-11-97. That complaint was received in the WERC Madison office
on 8-11-97, docketed as
Case 67, and assigned to the instant Examiner.
The Examiner next wrote the parties on 7-10-97, summarizing the results of the
telephone conference he conducted with the parties, in pertinent part, as follows:
This letter is intended to summarize the results of the
conference we had concerning the above matter on July 10, 1997, from 11:30 AM to
approximately 12:35 PM. This letter will be treated as a part of the official record of the
case. The results of the conference are set forth in items 1-7, below. . . . If either party
thinks the summary needs to be added to or corrected, please promptly so communicate to
the Examiner with a copy to the other party.
1. Mr. Benzing's July 8
motion to amend the complaint. Mr. Benzing filed a motion
to amend the complaint to add allegations regarding an evaluation allegedly issued to him
on July 11, 1996. That motion was dated June 30 but received by the Examiner on July 8,
1997 because of delays associated with its being sent by certified mail requiring the
Examiner to be present to complete delivery. The Examiner forwarded a copy of that
to Mr. Albrecht by fax with an accompanying letter on July 8.
During the conference, Mr.
Albrecht stated that the District opposes the motion to
amend on the grounds that the additional allegations are unrelated to the allegations
contained in the March 3 complaint. The Examiner, while noting that the Commission's
rules permit liberal complaint amendment absent a showing of prejudice, suggested that,
assuming the separate complaint is received in time to satisfy the statute of limitations, the
motion to amend be considered withdrawn in favor of processing its allegations as a separate
complaint. Mr. Benzing agreed with the approach suggested by the Examiner and Mr.
Albrecht expressed no objection to it.
Accordingly, if the separate
complaint is filed on or before July 12, 1997, the
Examiner will treat Mr. Benzing's July 8 motion to amend as being withdrawn by Mr.
Benzing in favor of processing those allegations as a separate complaint. If for some reason
the separate complaint is not filed by that date, the Examiner will promptly rule on the
motion to amend.
2. Clarification of the date
of the alleged meeting described in complaint paragraph
1 sentence 2. Following a detailed discussion, Mr. Benzing agreed with the Examiner
the second sentence of paragraph 1 should begin "In November of 1995 . . ." rather than
"In November of 1996 . . ." so that it would refer to matters prior in time to the other
subsequent events alleged to have occurred in 1996 but prior to November of that year.
3. Clarification of the time and substance of the
"following meeting" referred to
beginning in the 11th line of complaint paragraph 1. The Examiner asked when Mr.
alleged that that meeting took place. Mr. Benzing responded that it took place in or about
January of 1996. Mr. Benzing stated that he intends to further amend the complaint
regarding the nature of District management's response at that meeting so that the complaint
will allege that management responded that it knew of no eyewitnesses to the maintenance
employes playing computer games outside of their breaks but that management was
nonetheless verbally cautioning them not to do so.
5. Mr. Benzing's allegation
that the District violated Sec. 111.70(3)(a)1, Stats.
Following the discussion summarized above, Mr. Benzing stated that he had intended his
Sec. 111.70(3)(a)1, Stats., allegation to allege a violation independent of the collective
bargaining agreement. In that regard, Mr. Benzing stated that he intended to amend the
complaint to more specifically allege that custodial employes had variously engaged in
grievance processing and other activities protected by Sec. 111.70(2), Stats.; that
management personnel were aware of that conduct; that the District had issued written
warnings and written reprimands to the custodial employes for various alleged disciplinary
offenses; that the maintenance employes have not engaged in activities protected by Sec.
111.70(2), Stats., of the sort engaged in by the custodial employes; that the District
responded less harshly to the maintenance employes' pattern of computer games misconduct
than it had to the isolated instances of alleged misconduct by custodial employes, at least in
part, because of the custodial employes' Sec. 111.70(2), Stats., activities.
Mr. Albrecht responded that, in
light of the Examiner's reference earlier in the
conference to the liberal nature of the Commission's rules regarding complaint amendment,
the District did not object to the contemplated amendments that Mr. Benzing had described
but that the District requested that Mr. Benzing be required to make those allegations more
definite and certain regarding such matters as dates, persons involved and other pertinent
details. Mr. Benzing agreed to provide those additional details in writing by August 4.
6. Schedule of further
proceedings. . . .
7. Mr. Benzing's request for
subpoenas. . . .
That concludes the Examiner's summary of the results of
the telephone conference.
. . .
On 7-16-97, the Examiner wrote the parties summarizing
developments, in pertinent part, as follows:
This is to confirm that Mr. Albrecht informed me by
telephone today that the District
considers the separate complaint filed by Mr. Benzing on July 11, 1997, concerning an
evaluation allegedly issued to Mr. Benzing on July 11, 1996 to be untimely filed. Mr.
Albrecht further stated that the District issued the evaluation involved on June
11, 1996, not
July 11 as Mr. Benzing alleged.
Mr. Albrecht further stated that the
District continues to oppose Mr. Benzing's
motion to amend the complaint in Case 63 which is now before me, on the grounds that he
mentioned during our conference call: that allowing the amendment would prejudice the
District because it would allow Mr. Benzing to pursue a complaint of which the District was
not given notice until more than one year after the acts or occurrences constituting the
I have directed Mr. Albrecht to put
the District's position opposing the motion to
amend in writing as soon as possible, so that Mr. Benzing will have an opportunity to
respond in writing to the statement and so that I will have an opportunity to then rule on the
motion to amend sufficiently in advance of the August 22 date we have established for the
District to answer the complaint in this matter.
. . .
On 8-5-97, Complainant filed the following "Amendment of the
requested by the Examiner . . .":
In November of 1995 several members of the custodial support
staff at the College's
central campus, during a meeting with Vice President of Administrative Services, Bob
Borremans and the College's Custodial and Maintenance Departments Supervisor, Jeff
Amundson, complained that on numerous occasions during the course of several years or
of the custodial support staff had witnessed members of the
maintenance support staff,
playing computer games during regular scheduled work hours and not during their scheduled
break times. And on some occasions with . . Amundson, sitting in the next room, and also
playing alongside them.
The custodians who had complained of the
above were assured by [Borremans] that the
practice would not continue. At a following meeting, on or around January 1996, several
custodians asked what type of discipline was administered to the maintenance personnel
involved in the violation contract/playing computer games during scheduled work hours. The
custodians were informed that the maintenance personnel were given a verbal warning as
The custodians complained that the level of
discipline administered was much less than
the infraction called for, and requested that the College administer [the] correct amount of
discipline. When the Complainant became aware that the correct amount of discipline would
not be administered to the maintenance personnel, he and several other custodians initiated
All of the custodians who initiated the
grievance dropped the grievance in its first steps,
except the Complainant. The reasons they gave the Complainant was that they were afraid
of retaliatory action taken against them.
A formal grievance was filed complaining
of the College's decision, not to administer
a harsher discipline to the maintenance personnel, on or around March Fourth. During a
four grievance meeting the District Director complained to the Complainant/Grievant that
he could not justify/administer any harsher discipline against the maintenance personnel
unless the grievant/complainant could produce eye-witnesses to the allegations. Immediately
after the District Director of the College made the above statement, the College's personnel
director, who was in attendance at the meeting, spoke up and said to the District Director
he knew of several neutral eye-witnesses that he spoke with and verified witnesses the
infraction that the custodians/grievant wanted a harsher discipline action administered
Regardless of the statement made by the
Personnel Administrator, David Esler, the
College never administered a harsher discipline against the members of the maintenance
support staff for playing computer games
during work hours on a yearly basis. Even though the
Complainant [and] two other
custodians were given harsher discipline for a one time only infractions. Jesus Barbary and
Charles Stokes are the other two custodians.
Also, the Complainant and Jesus Barbary,
and on some occasions Charles Stokes, had
filed a number of grievances complaining and attempting to better the custodians' working
conditions at the College, while the members of the maintenance staff has filed only one
grievance, and the basis behind the grievance was complaining of the College's custodians.
The dates of the grievances filed by the above-named custodians are in the attached exhibit.
Attached to Complainant's amendment document was a detailed
two-page listing of
"Grievance Information For BTC/FTC Employes," showing the grievance number, grievant's
name, date, description and status of grievances filed from January 1, 1993 through June 5,
On 8-11-97, the Examiner served the parties with separate notices of hearing in
63 and 67, setting the hearings in those matters for the same dates, September 23 and (if
necessary) 24, 1997, and calling upon the Respondent to file answers in each case.
On 8-15-97, the District filed a motion to dismiss the separate Case 67 complaint on
grounds that the evaluation involved had been issued to Complainant on June 11, 1996,
rather than on July 11, 1996.
Because the District had moved to dismiss the separate Case 67 complaint on
grounds, it became necessary for the Examiner to address Complainant's 7-8-97 motion to
amend Case 63, above. Accordingly, on 8-17-97, the Examiner wrote the parties, in
pertinent part, as follows:
Before ruling on . . . Mr. Benzing's motion to amend the
Case 63 complaint to
include contentions relating to Mr. Benzing's 1996 performance evaluation, I want to give
Mr. Benzing an opportunity to state his position on those matters.
Specifically, I would like to know
Mr. Benzing's answers to the following questions:
1. Does Mr. Benzing dispute Mr.
Albrecht's contention that the performance
evaluation was issued to Mr. Benzing on June 11, 1996?
2. If Mr. Benzing does not dispute that the performance
evaluation was issued to
him on June 11, 1996, then
. . .
b. is there any reason why Mr.
Benzing's motion to amend the Case 63 complaint
to include allegations about that evaluation should not be denied on the grounds that it
was filed more than one year after the performance assessment was issued to him. (Mr.
Benzing's motion to amend the Case 63 complaint to include references to the performance
assessment, was filed on July 8, 1997, the date when I received that motion in the mail
from Mr. Benzing.)
. . .
On 8-21-97, the District filed a
motion to dismiss the Case 63 complaint on the
1. An action under Chapter 111 of
the Wisconsin Statutes must be filed within one
year from the date of the act or acts giving rise to the alleged action. Sec. 111.07(14) Wis.
2. The instant Complaint initially
was filed on March 3, 1997. The Complaint later
was amended on or about July 31, 1997. For purposes of the one year Statute of
however, events occurring more than one year before the date the Complaint initially was
filed are time barred; i.e., events occurring before March 3, 1996 would be time barred.
3. The Complaint alleges, in
essence, that the Respondent allowed members of the
maintenance staff to play computer games while not allowing members of the custodial staff
to do the same. Further, the Complaint alleges that members of the custodial staff were
disciplined more harshly than members of the maintenance staff for playing said computer
games. As the amended Complaint clarifies, the facts giving rise to the Complaint arose in
November of 1995. (Amended Complaint at paragraph 1; see also amended
attached as Exhibit "A" indicating that the facts underlying the Complaint became known on
November 9, 1995.)
4. Because the Complainant had
actual knowledge of the facts underlying the instant
action as of November 9, 1995, the instant Complaint, to be timely, should have been filed
on or before November 9, 1996. It was not. Instead, it was filed on March 3,
five months past the Statute of Limitations.
WHEREFORE, based on the foregoing, the Respondent,
Black Hawk Technical
College, respectfully requests that the above captioned Complaint be dismissed because it
was not filed within the Statute of Limitations.
Attached to the District's motion to dismiss was what purports to
be an "Amended" grievance
form signed by the grievant, dated March 23 and 25, 1996, filed on behalf of "Mark
Benzing, and members who wish to remain anonymous," filed with the Human Resource
Administrator at grievance step number three, specifying the "Date facts became known:"
as "November 9, 1995," specifying the contract sections allegedly violated as "Article 2, sec.
9 and sec. 11, article 9 and the purpose of the CBA, and containing the following "Issue
For a year or more the members of the maintenance department
would play computer
card games, during work hours. A violation of article 12, sec. 1 and 2. Several members of
the cust. dept. complained to the Vice President of Adm. Services, and the Facilities
Manager/Supervisor was told while we the Complainants were present, to stop this practice
because he was allowing it to happen and was even playing the aforementioned games with
the maintenance staff members. The maintenance staff members were given a verbal
warning. Some members of the cust. dept. believe this was not a fair amount of discipline
administered to maint.
As Relief sought, that grievance specifies "A written warning
imposed on the members of
the maint. staff or an investigation by the College into the matter with the results submitted
to the proper Union authorities."
On 8-21-97, the Examiner then wrote the parties, in pertinent part, as follows:
In yesterday's mail I received Mr. Albrecht's motion to
dismiss the Case 63
complaint in its entirety on grounds that it was untimely filed. Accordingly, I am requesting
that Mr. Benzing state his position in response to this additional motion to dismiss. . . .
Specifically, I would like to know,
in addition to answer to the questions listed in
my August 17 letter, Mr. Benzing's answers to the following additional questions:
. . .
3. Does Mr. Benzing dispute Mr. Albrecht's contention
that the acts or prohibited
practices alleged in the amended Case 63 complaint (relating to harsher discipline of
custodians than of maintenance employes because of custodians' grievance processing
activities) occurred prior to March 3 of 1996?
4. If Mr. Benzing does not dispute
that, then is there any reason why the complaint
in Case 63 (as it relates to harsher discipline of custodians than of maintenance employes
because of custodians' grievance processing activities) should not be dismissed on the
grounds that it was filed after the one year statute of limitations had run?
. . .
On 8-22-97, Respondent filed its answer in Case 63.
On 9-5-97, in order to accommodate Complainant's request for an extension of time
respond to the Examiner's 8-17-97 and 8-21-97 inquiries, and to provide the District with
a reasonable period of time to state its position in response, the Examiner postponed the
hearing indefinitely pending the Examiner's ruling on the motion to dismiss in both Cases
63 and 67.
On 9-18-97, the Examiner received Complainant's response to the Examiner's
abovenoted inquiries. In parts pertinent to Case 63, Complainant responded as follows:
I will first reply to the questions you ask in your letter dated
August 17, 1997.
First question: I don't dispute the fact that
the performance evaluation was issued to me,
the Complainant, on June 11, 1996.
Second question: (a) yes, because of the
fact that the Complainant, was not aware of the
allegations stated in his amended complaint, and in his amended complaint until November
or December of 1996. Since the Complainant was informed personally by the custodial
department's lead person (who has been known for past three or more years by most
members of the custodial department to use vulgar language, mostly on a daily basis and in
the presence of the department Supervisor/Facilities Manager, J. Amundson) that she didn't
have any statements or complaints on her performance evaluation, regarding, her use of
The above is also an answer to question two
Third question: Yes the complainant disputes the allegation made
in question three,
since the Complainant made known the actual date of the alleged violation by the
Respondent, during a phone conversation with the hearing examiner, and the Respondent's
attorney (also see attached exhibits A and B.) Because of the attached exhibits, and the
specific allegations, made in the original and amended complaint, the Complainant is led
to believe that he has filed his complaint in a timely manner.
. . .
Attached to Respondent's 9-18-97 response were two documents.
The first purports to be
a memorandum dated 7-19-96 from the BTC/PTC Executive Committee to Respondent's
David Esler and with copies to Complainant and others, advising "that the BTC/PTC will
not be pursuing Grievance 96-02 to Step 6, Arbitration [because] the BTC/PTC recognizes
that disciplining employes is a management, not a union, responsibility," and further stating
BTC/PTC's and Grievant Benzing's concerns related to "inequitable discipline." The second
document purports to be Complainant's April 12, 1996 step four appeal of the abovenoted
step three grievance form dated 3-23 and 3-25-97. That document bears Complainant's
signature, asserts that the "Date [the] facts became known" was "November, 1995," and
contains the following:
Issue statement: In October of 1995, members of the Custodial
staff made a formal
complaint with the Vice President of Adm. Services with the College's Facilities
Manager/Supervisor present. the complaint was directed at maintenance staff because of their
computer game playing, during College work hours, of which several custodians witnessed
on numerous different occasions. In Nov. of 1995 another formal complaint was made and
the custodial staff was informed that the maint. staff was given a verbal warning about this
Relief sought: We believe that the
discipline administered was not adequate since the
maintenance staff had been witnessed playing the aforementioned games for more than a
year (with the Facilities Manager/Supervisor present). Administer a discipline action that
is in relation to the offense and hold a formal investigation into the matter.
. . .
On 10-3-97, the District replied to the Complainant's response
to the District's motions
to dismiss, in parts pertinent to Case 63, as follows:
Case 63 - The Computer Games Case
The Complainant's response provides no
evidence that would refute the defenses set
forth in the College's Motion to Dismiss. The Complainant merely contends that he made
known the actual date of the alleged violation during a telephone conference. This response
is, well, non-responsive. Whether or not we knew of the actual date of the alleged violation
does not answer the question of whether the alleged violation occurred outside of the one
year statute of limitations.
The exhibits that the Complainant
attached to his response do, however, answer this
question. Specifically, Exhibit No. 2 (the amended grievance form) confirms that the facts
giving rise to the alleged violation became known in November of 1995.
In a separate decision issued today, the Examiner has dismissed
the Case 67 complaint
on the grounds that, as clarified regarding the date of the evaluation issued to Respondent,
that complaint was untimely filed. Dec. No. 28598-A (Gratz, 12/97).
Respondent District seeks dismissal of the amended Case 63 complaint without a
hearing. "Because of the drastic consequences of denying an evidentiary hearing, on a
motion to dismiss the complaint must be liberally construed in favor of the complainant
and the motion should be granted only if under no interpretation of the facts alleged
would the complainant be entitled to relief." E.g., Unified School District No. 1
of Racine County, Wisconsin, Dec. No. 15915-B (Hoornstra with final authority
for WERC, 12/77), at 3.
The pleadings, arguments and record developed to date present the following issues
determination under the above standard in this matter: Complainant's violation of collective
bargaining agreement claim; Complainant's 7-8-97 motion to amend the Case 63 complaint
to add claims relating to 1996 evaluation/assessments (including the timeliness of any such
claims allowed to be added); and the timeliness of the Complainant's independent Sec.
111.70(3)(a)1, Stats., interference allegation, as amended.
Alleged Violation of Sec. 111.70(3)(a)5, Stats.
The Case 63 complaint as initially filed includes an allegation that the
conduct alleged in that complaint violated Sec. 111.70(3)(a)5, Stats. That Section makes
it "a prohibited practice for a municipal employer individually or in concert with
others . . .to violate any collective bargaining agreement . . . . " It is undisputed that
BTC/PTC notified him on or about 7-19-96 that it would not submit the Complainant's
3-4-96 grievance to arbitration; that the grievance procedure in the applicable collective
bargaining agreement is, by its terms, the exclusive agreed-upon method for resolving
disputes about the meaning and application of the agreement; and that Complainant does not
claim either that BTC/PTC had failed to fairly represent him regarding the grievance or that
the District had prevented the grievance from being arbitrated.
On those undisputed facts, the Examiner has declined to exercise the Commission's
jurisdiction concerning (and has therefore dismissed) the Sec. 111.70(3)(a)5, Stats.,
allegation in the complaint, based on the Commission's well-established case law to the
effect that the Commission does not exercise its contract enforcement jurisdiction where the
grievance has been resolved pursuant to an exclusive grievance procedure, absent an
allegation either of union failure to fairly represent or of employer repudiation of the
grievance procedure. See, e.g., Green Bay School District, Dec. No. 16753-A, B (WERC
12/79); Milwaukee Board of School Directors, Dec. No. 15825-B,C (WERC, 6/79);
and Oostburg Joint School District, Dec. No. 11196-A, B (WERC, 12/79). "The
rationale for this policy is to give full effect to the parties' agreed-upon procedures for
resolving contractual disputes." Milwaukee Area Technical College, Dec. No. 28562-B
(Crowley, 12/95) at 8.
7-8-97 Motion to Amend Complaint and Related Timeliness
By his 7-8-97 motion to amend the Complaint, Complainant seeks to add the
noted above concerning certain criticisms included in the evaluation/assessment issued to
him on what he now agrees was "June 11, 1996" (rather than "July 11, 1996" as he
alleged in the 7-8-97 motion to amend), and concerning the absence of such criticisms from
the evaluation/assessment of a fellow employe.
The Commission Rules in ch. ERC 12.02(5)(a), WIS. ADM. CODE,
Complainant with a broad right to amend his complaint at any time prior to the issuance of
a final order by the Examiner. It reads,
Any complainant may amend the complaint upon motion, prior to
the hearing by the
commission; during the hearing by the commission if it is conducting the hearing, or by the
commission member or examiner authorized by the board to conduct the hearing; and at any
time prior to the issuance of an order based thereon by the commission, or commission
member or examiner authorized to issue and make findings and orders.
It has been noted, for example that the above-quoted rule does not require a
show good cause for its amendment as a respondent would be required to do if it desired to
amend its answer under what is now ch. ERC 12.03(5) WIS. ADM. CODE.
Jt. School District, Dec. No. 15220-A, (7/77, Malamud). While it may be that a motion
to amend might properly be denied if it were shown to be prejudicial to the Respondent's
rights, Id., granting Complainant's 7-8-97 motion will not be prejudicial to
The District argues that its rights would be prejudiced by the proposed amendment if
Complainant Benzing were thereby allowed to pursue a complaint of which the District was
not given notice until more than one year after the acts or occurrences constituting the
alleged violation. However, while granting the motion to amend, the Examiner finds it
appropriate to measure the timeliness of the allegations thereby added to the complaint from
the date the Complainant first filed those allegations in this matter, i.e., 7-8-97, when the
motion to amend was received by the Examiner. See, City of Stevens Point, Dec. No.
26525-A (Jones, 2/92) ("Prior Commission decisions have held that when an amendment to
a complaint raises a new cause of action, the statute of limitations runs from the date of the
amendment; not the date of the original complaint. Id at 28.") citing CESA #4, Dec. No.
13100-E (Yaffe, 12/77, aff'd, -G (WERC, 5/79) and Fredrickson v. Kabat, 264 Wis.
545, 548 (1953)(in the case of an amended pleading, a "new cause of action" refers, among
other things, to "new facts out of which liability arises.").
The only acts constituting a prohibited practice that are alleged in the 7-8-97
amendments are those relating to Complainant's receipt of his evaluation on 6-11-96. He
reason to know the contents of that evaluation when he signed it on 6-11-97, and he also had
reason to know as of that date of the nature and extent of the grievances and any complaints
that he had filed prior to that date. Because the 7-8-97 allegations regarding the District's
comparative treatment of a fellow employe do not, in and of themselves, constitute a
prohibited practice, the more recent but unspecified date when Complainant asserts that he
first learned of those facts would not begin the running of a statute of limitations relevant to
any of the 7-8-97 amendment allegations. For those reasons, all of the 7-8-97 amendment
allegations are time-barred by the one-year statute of limitations contained in Sec.
111.07(14). (The Examiner's rationale in this regard is materially the same as that set forth
in detail in the DISCUSSION section of the Case 67 memorandum issued today as Dec. No.
Accordingly, the Complainant's 7-8-97 motion to amend has been granted, but all of
prohibited practice allegations contained therein have been dismissed because they were
filed after the one-year statute of limitations had run with respect to them.
Respondent's Motion to Dismiss the Remainder of the Case 63
The remaining prohibited practice alleged in the amended Case 63 complaint is the
Complainant's independent Sec. 111.70(3)(a)1, Stats., Respondent District seeks pre-hearing
dismissal of that remaining prohibited practice allegation on the grounds that that claim is
also time-barred by the applicable one-year statute of limitations set forth in Sec. 111.07(14),
That Section 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."
It has been strictly construed by the Commission and by reviewing Courts in the sense that
a complaint filed 366 days after the act complained of was dismissed as untimely. City of
Madison, Dec. No. 15725-B (WERC, 6/79), aff'd, Dec. No. 79-CV-3327 (CirCt Dane,
In determining when the statute begins to run, the Commission has applied what it has
characterized as "our general holdings that the statute of limitations begins to run once a
complainant has knowledge of the act alleged to violate the Statute. [citations omitted]."
State of Wisconsin, Dec. No. 26676-B at 6 (WERC, 11/91). However, in that same
decision, the Commission distinguished/reaffirmed its decision in [Johnson v. AFSCME
Council 24, Dec. No. 21980-C (WERC, 2/90)] in which it had rejected the complainant's
contentions that she was not obligated to file her complaint within one year of the act alleged
(February and March 1982 Union notifications that it decided not to arbitrate her grievance)
because she did not discover the allegedly arbitrary nature of that act until 1984. State of
Wisconsin, Dec. No. 26676-B, supra, at 7.
In the instant case -- viewing the facts in the light most favorable to the Complainant
it is undisputed that Complainant was aware more than one year prior to his 3-3-97 filing of
the instant complaint that the District had imposed the harsher discipline on custodians than
on maintenance employes alleged in the amended complaint. For example, the complaint
as amended by Complainant on 8-5-96, alleges both that Complainant and other custodians
complained to Borremans in Amundson's presence "In November of 1995" that the
Maintenance staff with Amundson's knowledge and sometime participation had been playing
computer games during their non-break working hours; and that the Complainant and other
custodians were informed "At a following meeting, on or around January 1996," that the
maintenance personnel were given a verbal warning as discipline for playing computer games
during scheduled non-break work hours. The grievance list submitted by Complainant also
establishes that Complainant had filed eight grievances during the period from the beginning
of 1993 through 6-5-95, of which Complainant can reasonably be presumed to have been
aware on or around January of 1996, as well. Thus, Grievant knew or had
reason to know "on or
around January of 1996" of the facts on which he has based his independent Sec.
111.70(3)(a)1, Stats., claim relating to harsher discipline of custodians than of maintenance
employes because of custodians' grievance processing activities. That remaining claim is
therefore also time-barred by the Sec. 111.07(14), Stats., statute of limitations.
Complainant's arguments to the contrary are not persuasive. Neither the
correction and clarification of dates during the 7-10-97 pre-hearing telephone conference,
nor the contents of the documents Complainant attached to his 9-18-97 response, nor the
contents of the complaint as initially filed and as subsequently amended, alters the
undisputed fact that Complainant had reason to know all of the facts regarding the disparate
discipline allegation in the amended Case 63 complaint "on or around January of 1996,"
which would be approximately 14 months prior to Complainant's initial filing of the Case 63
complaint on 3-3-97.
Neither the pendency of Complainant's efforts to obtain relief from the disparate
discipline through informal communications prior to his March 4, 1996 filing of grievance
96-02 nor the pendency of that from 3-4-96 through 7-19-96 has the effect of tolling or
delaying the running of the statute of limitations as regards Complainant's allegation that the
same alleged conduct constituted an independent violation of Sec. 111.70(3)(a)1, Stats. See
generally, Rib Lake School District, Dec. No. 6797-A (Engmann, 11/91), aff'd by
operation of law -B (WERC, 1992); and Wilmot Jt. School District No. 9, Dec. No.
21092-A (WERC, 10/84).
The Examiner has therefore concluded that under no interpretation of the facts alleged
in the Case 63 amended complaint would the Complainant be entitled to relief as regards his
independent Sec. 111.70(3)(a)1, Stats., disparate discipline claim.
For the foregoing reasons, the Examiner has granted the District's pre-hearing motion
dismiss the Case 63 amended complaint in its entirety.
Dated at Shorewood, Wisconsin this 16th day of December, 1997.
Marshall L. Gratz /s/