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[WP]

STATE OF WISCONSIN

BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION

FRANCIS C. TOPEL, Complainant,

vs.

MILWAUKEE COUNTY DEPARTMENT OF PUBLIC WORKS,

HIGHWAY DIVISION and AFSCME, COUNCIL 48

AFL-CIO, LOCAL 882, Respondents.

Case 514

No. 60566

MP-3777

Decision No. 30351-B

Appearances:

Alan C. Olson & Associates, S.C., Attorneys at Law, by Ms. Faye D. Boom, 2880 South Moorland Road, New Berlin, Wisconsin 53151-3744, on behalf of Complainant Francis C. Topel.

Mr. Timothy R. Schoewe, Deputy Corporation Counsel, Milwaukee County, 901 North Ninth Street, Room 303, Courthouse, Milwaukee, Wisconsin 53233, on behalf of Respondent Milwaukee County.

Page 2

Dec. No. 30351-B

Pursuant to Sec. 111.07(5), Stats., and ERC 12.08 Wis. Adm. Code, based on the mistake in the Original Order referenced above, the Examiner hereby modifies his November 7, 2002 Order in this matter as follows:

Conclusion of Law 2 is modified to read:

2. The third amended complaint filed by Topel on October 1, 2002, clarifies the original complaint filed by Topel on November 19, 2001, and alleges facts which, if proved, are not barred by Sec. 111.07(14), Stats., and which provide a basis for finding violations and granting relief under Sec. 111.70(3)(b)1, Stats., and Sec. 111.70(3)(a)5, Stats., except as to paragraph 6, subparagraphs J and K of the third amended complaint.

The Order is modified to read:

ORDER

The motion to dismiss is denied except as to the allegations in paragraph 6, subparagraphs J and K of the third amended complaint.

Footnote 3 of the Discussion is modified to read:

________________

3/ That is with the exception of paragraph 6, subparagraphs J and K of the third amended complaint. While those subparagraphs might possibly be read to allege violations of the contract by the County, Complainant does not allege that he exhausted the contractual grievance procedure in those regards or that the Union failed to fairly represent him in those regards. Thus, those allegations do not meet the requirements set forth in Mahnke, supra, and they have been dismissed.

_________________

Dated at Madison, Wisconsin, this 7th day of November, 2002.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

David E. Shaw, Examiner

DES/gjc

30351-B.doc