STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
MARK J. BENZING, Complainant,
WISCONSIN EDUCATION ASSOCIATION COUNCIL
BLACKHAWK TECHNICAL COLLEGE, Respondents.
Decision No. 30023-C
Mr. Mark J. Benzing, 7843 W. Fiebrantz Avenue, Milwaukee,
Wisconsin 53211, appearing on his own behalf.
Ms. Mary E. Pitassi, Legal Counsel, Wisconsin Education
Association Council, P.O. Box 8003,
Madison, Wisconsin 53708-8003 for the respondents Paraprofessional Technical Council and
Wisconsin Education Association Council.
Mr. Peter Albrecht, LaFollette, Godfrey & Kahn,
Attorneys at Law, One East Main Street, P.O. Box 2719, Madison,
Wisconsin 53701-2719, for the respondent Blackhawk Technical College.
FINDINGS OF FACT, CONCLUSIONS OF LAW
ORDER GRANTING MOTION TO DISMISS
ORDER DENYING MOTION TO DISMISS
On August 10, 2000, Mark Benzing submitted a complaint with the Wisconsin
Commission alleging that the Paraprofessional Technical Council at Blackhawk Technical
College (BTC/PTC), the
Wisconsin Education Association Council (WEAC) and Blackhawk Technical College had
committed a variety of
Dec. No. 30023-C
within the meaning of Sections 111.70(3)(a) and 111.70(3)(b), Wis. Stats., in their
treatment of him. Commission
administrative staff promptly notified Mr. Benzing that he had failed to include payment of
the full filing fee, and that
the complaint would not be processed until he had done so. Mr. Benzing thereafter paid the
full filing fee, and the
complaint was filed on August 29, 2000. After efforts at conciliation failed, the commission
on December 20, 2000
authorized Hearing Examiner Stuart D. Levitan, a member of its staff, to make and issue
Findings of Fact, Conclusions
of Law and Order in the matter as provided for in Secs. 111.70(4)(a) and 111.07,
Wis. Stats. The Examiner, having
considered the pleadings in the light most favorable to the Complainant, finds it appropriate
to issue the following
Findings of Fact, Conclusions of Law and Order without convening a hearing in the matter.
To maximize the ability of the parties we serve to utilize the Internet and
computer software to research
decisions and arbitration awards issued by the Commission and its staff, footnote text is
found in the body of this
FINDINGS OF FACT
1. Mark J. Benzing, the complainant, is an individual residing at
7843 W. Fiebrantz Ave., Milwaukee
Wisconsin. From July 1990 to April 2000, Mr. Benzing was a custodial employee of the
Blackhawk Technical College,
a position represented for collective bargaining by the Paraprofessional Technical Council, an
affiliate of the Wisconsin
Education Association Council.
2. The Paraprofessional Technical Council/Blackhawk Technical College
(PTC/BTC) and the
Wisconsin Education Association Council (WEAC) are labor organizations with offices at 33
Nob Hill Drive, Madison,
3. The Blackhawk Technical College (BTC) is a municipal employer with offices at
Prairie Road, County Trunk "G", Janesville, Wisconsin.
4. In the spring of 1999, the college imposed a three-day disciplinary suspension on
respondents BTC/PTC grieved Mr. Benzing's three-day suspension, in a proceeding
designated Grievance #99-05.
On August 12, 1999, BTC/PTC President Cheryl Ford wrote Mr. Benzing as follows:
The Executive Committee of BTC/PTC met on 8/10/99 and
based on a review
minutes of meetings involving yourself, Brian and Jeff, along with evidence of prior verbal
written warnings or disciplines you have received regarding your attendance, we find no
this grievance. The three-day suspension was a reasonable next step in progressive discipline.
Dec. No. 30023-C
5. Sometime after February 28, 2000, Mr. Benzing filed a Discrimination
Complaint with the Wisconsin
Department of Workforce Development, Equal Rights Division, alleging that the BTC had
discriminated against him
for "past complaints and hearings retaliation." The complaint further alleged as
I was retaliated against when during the night of May 21, 1999 I
after are scheduled shift stated.
To inform the respondend that I would be absent. And I was disciplined severelly (3 day
termination) while another member of the department was not disciplined (Charles Stokes)
for the same infraction and
having the same excuse as mine.
On June 21, 2000, a DWD equal rights officer issued an Initial Determination that
there was probable cause to
believe BTC had violated the Wisconsin Fair Employment Law by discriminating against Mr.
Benzing because he had
made a complaint under the Act. The officer found that the college had treated Mr. Benzing
more harshly than it did
Mr. Stokes for the same rule violation, and that there was "reason to believe" it had done so
"in retaliation for filing
previous discrimination complaints." On November 15 2000, Mr. Benzing requested that the
complaint be withdrawn,
following a settlement under which the college rescinded the suspension; an order of
dismissal based on the settlement
was by a DWD administrative law judge on November 17, 2000.
6. On or about April 13, 2000, BTC terminated Mr. Benzing for allegedly
during his third-shift assignment a week prior. The union grieved the matter, and
cause was argued in arbitration by an experienced labor lawyer, Atty. Marilyn Townsend.
16, 2001, Arbitrator James L. Stern issued an Award wherein he found that Mr. Benzing had
been sleeping on the job, and that the college had just cause to terminate him.
7. On August 10, 2000, Mr. Benzing submitted a complaint with the Wisconsin
Employment Relations Commission alleging that the BTC/PTC, WEAC and BTC had
variety of prohibited practices, within the meaning of Sections 111.70(3)(b) 1, 2, 3, 5 and
111.70(3)(a) 1, 2 and (3)(c), Stats., respectively, in their treatment of him. By return
on that date, commission administrative staff notified Mr. Benzing that he had paid only
the $40.00 filing fee, and that the complaint would not be processed until he had made
full. Mr. Benzing thereafter paid remaining amount due on August 29, and the
considered filed on that date. The copy of the complaint served on the respondents displayed
a date-stamp indicating the complaint was received on August 10 and a typed file label listing
as having been filed on August 29. The document also bore handwritten notation indicating
commission had received payment via two checks, the last received August 29. In his
Benzing alleged as follows:
Dec. No. 30023-C
For the past ten years I the complainant was employed at Blackhawk Technical
College. In the
membership of the Paraprofessional Technical College, which belong to the Wisconsin
Association Council (hereinafter BTC, PTC, and WEAC). During my employment I the
and several others had had problems with the union and the employer when it came to issues
regarding better working condition and matters concerning employment etc. At times the
would have meetings of matters that concerns me and would conduct the meetings with me
or under the circumstances, represented.
I and the several members of the department that I previously mentioned. Had
engaged in lawful
concerted activities. The Respondent PTC and WEAC, who only almost every issue would
and make any attempt to initiate any type of settlement with the employer BTC, unless the
BTC, suggested the settlement and/or near settlement it's self.
The other two members of the department who assisted me and initiated their own
grievances and/or complaints
against the oppressive and determine to have are department represent the second or third
class employees below all
others b the Respondent BTC. Had dismissed the two members by 1994 wrongfully. The
most active after a major
decision handed down to them by a State Department and Commission of which a formal
grievance was filed with all
the respondents by myself and supported by several members of the department. And looked
down with scorn and lies
by the administrators involved in the grievance process. Denied and set aside (as most other
complaints) by the Respondents PTC and WEAC regardless of the amount of time we asked
In 1999 I was administered a three day suspension for an action that another
member of the department had
committed more times than myself and received less discipline. On the last step before
arbitration I realized that the
Respondent BTC, was not investigating all the facts that I informed it of as extenuating
circumstances. I took it upon
myself to gather the information myself and presented it at the final step before arbitration. I
Respondent's representatives from WEAC to assist me as she did in other grievances at this
step and she wouldn't.
I also expected their to be union representative at the grievance meeting which commenced in
mid August or
September 1999 (since I had been informed that the union always has representative from the
Chief Steward years)
and none was present.
Dec. No. 30023-C
And to my surprise the Respondent's PTC executive committee in a letter dated
August 12, 2000 1/ decided
(without me being present at the grievance committee meeting and submitting any input of
my own which I normally
would be allowed to do) not to proceed to arbitration, with the three day suspension
grievance #99-05. Prior to the final
grievance meeting held by the Respondent BTC, with myself mentioned above. An event
which never happened in
the past. And was initiated not in accordance with the CBA.
1/ The actual date was August 12, 1999.
Also the Respondent on one occasion retaliated, harassed and targeted me during
departmental meeting (which caused the majority of the participants at the meeting to
I was being verbally attacked/harassed) and in another matter I was purposely skipped in a
overtime scheduling on several different occasions.
After receiving the letter from the union's president I attempted to submit the
several different occasions) I had gathered which would verify my allegation BTC was
retaliating and discriminating against me for my lawful activities in the hopes that PTC,
would reconsider their decision. Not to proceed to arbitration. Since the grievance was still
within the contractual time frame. And for more than a month I received no reply. See
By the inactions and actions the Respondents committed unfair and prohibited labor
In violations of Wisconsin Statutes 111.70(3)(a) 1, 2, 3, 5 and 111.70(3)(b) 1, 2 and (3)(c).
As a remedy I fully believe that appropriate discipline action should be initiated
to all persons involved in the prohibited practice complaint. Dismissal of the three-day
with compensation of the moneys and benefits forfeit because of the Respondents unlawful
against me. Along with any legal fees. And any other remedies the Wisconsin Employment
Commission believes appropriate. (Spelling and grammar as in original).
7. On December 18, 2000, respondents WEAC and BTC/PTC (collectively, "the
association") petitioned the examiner for an order directing the complainant to provide
identifying details to allow it to prepare an adequate defense at hearing. On
Dec. No. 30023-C
December 20, 2000 the undersigned issued an Order directing the complainant to
submit an amended
complaint which provided a "clear and concise statement of the facts
constituting the alleged
prohibited practice, including the time and place of occurrence of particular acts
and the sections
of the statute alleged to have been violated thereby." (emphasis in original).
8. On January 22, 2001, Mr. Benzing filed a Charge of Discrimination with the
States Equal Employment Opportunity Commission, alleging that BTC/PTC had violated
of the Civil Rights Act of 1964 by denying him union representation on the basis of race and
retaliation for his opposing their discriminatory actions. The crux of Mr. Benzing's charge
white union representatives had negotiated an agreement with BTC whereby custodians of
laid off and denied bumping rights in order to secure early retirement and disability benefits
employees, the vast majority of whom were white.
9. On February 5, 2001, Mr. Benzing submitted what he described as "a copy of
original complaint and a detailed nortorized (sic) complaint dated August 8, 2000." The
"copy of the original complaint" appears to be an incomplete first draft of a complaint,
respondent and leaving blank the area for detailing the facts constituting the alleged unfair
10. On March 14, 2001, the complainant submitted a Motion to Amend Complaint
Amended Complaint. In its caption, the Motion identified Mr. Benzing and Mr. Charles
"Complainants," although the text identified only Mr. Benzing as the complainant and only
the Motion. Mr. Stokes was listed as receiving a copy of the correspondence, as were
counsel. The Motion alleged as follows:
On March 13, 2000 in the evening a committee of the
informed myself and other custodians that since they the (Committee) didn't want to axcept a
that they subsequently tentatively agreed with the employer Black Hawk Technical College
custodial dept. members would be laid without any opportunity in the future for re-hire or to
back from lay off. And they couldn't utilize their bumping rights. The
majority of the membership
(to my knowledge) agreed to this action for varries reasons. The majority as friendship to
members, who would benefit from the agreement. In the process the College was allowed to
against myself, for past grievances. And discriminated against. Subsequent other custodial
with less seniority than myself were discharge. One being the complainant mention with me
Charles Stokes, Losted benefits and pay. By the employer who acted in discriminatory and
manner in its decision as did the union/both respondents. (Emphasis, spelling and
punctuation as in
Dec. No. 30023-C
11. On March 30, 2001, WEAC and BTC/PTC legal counsel Mary E. Pitassi
a letter in which she raised questions about whether Mr. Stokes was truly a complainant in
matter; noted that sec. 111.07(14), Stats., provides that the right of any person to bring an
extends for only one year from the date of the specific act or practice alleged, and informed
examiner that Mr. Benzing had charges based on the same facts currently pending before the
Equal Employment Opportunities Commission and the state Equal Rights Division. By her
Atty. Pitassi sought to have Mr. Stokes held to not be a complainant; dismissal of the portion
amended complaint concerning the association, and the rest of the proceeding held in
least until an initial determination has been issued by the EEOC. By letter of that same date,
college's attorney joined in Atty. Pitassi's motions. On April 16, 2001, Mr. Benzing
further correspondence purporting to address the issues which Atty. Pitassi raised. Atty.
replied by correspondence received by the undersigned on May 2, 2001.
12. On May 22, 2001, the undersigned wrote to Mr. Benzing, in part, as follows:
Accordingly, I request that you submit to me, and serve on the
1. A clear and concise statement of the facts constituting the alleged
prohibited practice, including the
time and place of occurrence of particular acts and the sections of the statute alleged to have
been violated thereby;
2. A explanation of why you feel your Amended Complaint was filed
within the one-year time limit;
3. A notarized statement from Mr. Charles Stokes if he wishes to be
formally added as a Complainant
in this proceeding.
4. A statement as to why this proceeding should not be held in abeyance
pending the issuance of an
initial determination by the federal EEOC.
Thank you for your attention to this matter. If you have any questions, please feel
13. On October 2, 2001, Atty. Pitassi wrote to the undersigned, in part, as
Dec. No. 30023-C
It is now October 1, 2001, and Respondents have received no response from Mr.
complying with your request. In addition, on May 23, 2001, the EEOC made a
determination of no
cause in Charge No. 260A10094, filed by Mr. Benzing and referred to in your fourth
A copy of the charge, EEOC determination and the Respondent's position statement is
While Mr. Benzing has requested ERD review of the EEOC determination, he declined to
in federal court within the required 90 days. Finally, on April 16, 2001, Arbitrator James
upheld the College's discharge of Mr. Benzing in April, 2000. A copy of that decision is
for your reference.
In light of these developments, Respondents WEAC and BTC/PTC request that
Complaint and Amended Complaint be dismissed in their entirety. First, and most
importantly, as a
result of Arbitrator Stern's decision upholding the discharge for just cause,
Mr. Benzing has no
conceivable remedy for any of his claims before the Commission. Second, as a result of the
determination, which Mr. Benzing failed to challenge by filing a federal suit, Mr. Benzing's
amendment dated March 14, 2001 should not be heard by the Commission, based on
claim preclusion and/or issue preclusion. Both his EEOC and WERC claims dealt with the
underlying facts, the same parties, and essentially, the same complaints. This is true even if,
purposes of argument, the Amended Complaint is considered timely filed. Finally, as of
Mr. Benzing has never responded to either the Examiner's Order to Make Complaint More
and Certain of December 22, 2000, or to the questions he was directed to answer in
May 22, 2001 letter. Respondents WEAC and BTC/PTC move that, by his consistent
comply with the Examiner's clear requests stretching over a period of nearly a year, Mr.
found to have abandoned the Complaint and its Amendent.
14. On October 3, 2001, counsel for respondent Blackhawk Technical College
the association's Motion to Dismiss. On October 9, 2001, the undersigned sent, by certified
the following letter to Mr. Benzing:
Enclosed please find a copy of a letter from Attorney Mary E. Pitassi, legal
respondents WEAC and BTC/PTC in the above-cited matter. In her letter, Attorney Pitassi
for a dismissal of your complaint based on your failure to comply with my Order of
2000 and my request of May 22, 2001.
Dec. No. 30023-C
I will keep the record open until Wednesday, October 31, 2001 for any response
you wish to
make on Attorney Pitassi's motion. Please understand that any response you wish me to
prior to ruling on Attorney Pitassi's motion must be received in my office by
that date. (emphasis in
15. As of January 17, 2002, Mr. Benzing had not replied to this letter. On that
issued an order dismissing the amended complaint filed on March 14, 2001 as applied to
PTC/BTC and dismissing the elements in the initial complaint other than those relating to
#99-05, and denying the motions to dismiss all other aspects of this proceeding. I also
complainant to show cause, in writing postmarked no later than February 4, 2002, as to why
complaint should not be dismissed in its entirety for abandonment. Blackhawk Technical
College, Dec. No. 30023-B (Levitan, 1/02).
16. On February 4, 2002 complainant Benzing submitted the following written
On or around November of 2000 I mailed you and the Respondents a detailed
complaint at your request in regards to my initial complaint that was approximately three
length. In March of 2001 I mailed an amended complaint to all parties. With Charles Stokes
complainant. On April 12th I mailed all parties all letter pointing out
Charles Stokes address at your
request. And other information concerning a response from Attorney Mary Pitassi.
Sometime after that you replied with a detailed letter to all parties, which
mentioned all the
communications that had been mailed from all parties except me. After reading this letter I
the conclusion that I would not be able to secure justice for the past injustices dealt to me by
parties. To date I have yet to mail you an affidavit from Charles Stokes (Which to my
should not be my responsibility to secure it should be Mr. Stokes responsibility). And an
complaint that Charles Stokes became a party too filed with you office sometime in March of
Of which was concise and in accordance with the State Statutes originally, to my knowledge.
Thank you for your attention.
17. On March 13, 2002, Atty. Pitassi wrote, in part, as follows:
It is the Association's view that Mr. Benzing's response, while apparently timely,
short of the mark of establishing cause. The response mentions various actions taken in first
the Complaint was filed, but fails to deal
Dec. No. 30023-C
substantively with reasons why the Complaint should not be dismissed, or to
mention any actions
Mr. Benzing took to advance his Complaint after April, 2001. Moreover, Mr. Benzing, in
line 3 of
paragraph 2, alludes to reaching a "conclusion" that implies that he decided not to proceed
with the matter. That conclusion may have been reached in error, and in fact, the
that to have been the case. However, Complainants may decide to abandon their Complaint
reasons, for bad reasons, or for no reason. While they are free to do so, they must then live
consequences of their decisions.
Mr. Benzing's initial complaint was filed with the Commission August 10, 2000.
Complainant has now been given four chances to explain his Complaint, and/or why it
should not be
dismissed. You extended those opportunities in your Order of January 17, 2002, discussed
your letter to Mr. Benzing of October 9, 2001, which held the record open until October 31,
to allow him to respond to the Association's Motion to Dismiss; your letter to Mr. Benzing
22, 2001, directing that he clarify certain facts and positions as well as submit requested
documentation to you, and your December 20, 2000 Order, directing Mr. Benzing to
amended complaint providing a "clear and concise statement of the facts
constituting the alleged
prohibited practice, including the time and place of occurrence of particular
facts and the sections
of the statutes alleged to have been violated therby." (emphasis in original). Each time, Mr.
has either failed to answer at all, or answered in a manner inadequate to fulfill your
directives to him.
He has also proven to be nearly impossible to locate, either by phone or by mail.
A Complainant does not have the luxury of bringing a Respondent before the
power of the State
but then delaying the hearing until memories have faded, employees have moved on, and the
proceedings are crippled by defects caused by the delay. Respondents have the right to
interests in a timely and expeditious fashion. That has not been possible here due to
Mr. Benzing has abandoned his Complaint, which should be dismissed. Please
consider this letter
an Association Motion to do so.
On March 20, 2002, Atty. Albrecht wrote to join in the union's motion.
Dec. No. 30023-C
18. On July 19, 2002, Mr. Charles Stokes submitted an affidavit to the Wisconsin
Employment Relations Commission which read, in part, as follows:
Mr. Allen Stiegman and Mr. Michael Bennet along with department Supervisor
Amundson later (around 1997 through 2000) targeted me and the only other Afro-American
custodial and maintenance departments at the time with harassment and discrimination
issues surrounding are work duties. After filing several complaints with the union and the
we were told that union members couldn't file complaints/grievances against other union
Even though in the past several complaints/grievances were allowed to be pursued against
members of the union. The complaint/grievance was dismissed by both defendants,
regardless of the
fact that other complaints/grievances of the same substance were not dismissed by either
under those circumstances.
The union whose vice president was Mr. A. Stiegman (Mr. M. Bennet was vice
along with the union executive negotiating committees conspired with the employer to lay off
not allow me any other custodian the opportunity to "bump." Even though the contract
this right and that the department I would have bumped into all ready had three employees
white males and previous custodians. When it came time to vote on whether to retain the
department To my knowledge Mr. Benzing, Mr. Barbary had filed more than eighty percent
complaints and grievances which were filed by members of the union to both defendants.
At the time of the above incident all members of the union were of the white race
of Mr. Mark Benzing, Ms. Erma Davis and myself. Also, the amendment to Mr. Benzing's
complaint filed in February or March of 2001 which included me as an Complainant, was
filed by Mr.
Benzing, on both of are behalf. Which I previously agreed to before Mr.Benzing filed the
with the Wisconsin Employment Relations Commission.
19. On August 15, 2002, Mr. Benzing wrote to the undersigned as follows:
The following is my written response to the Respondent's Motion to Dismiss letter
13th, 2002. On January 17, 2002 you sent me a letter which had enclosed
a copy of an Order
Granting In Part and Denying In Part a Motion To Dismiss the Complaint and Amended
and Order to Show Cause with an accompanying Memorandum. I responded to your order
the deadline of February 4th 2002. With a letter requesting that you send
Dec. No. 30023-C
documents I would need to file an appeal of your Decision No. 30023-B mention
I also stated in my letter if the time lines for the appeal of you decision wouldn't
allow me to
receive materials and file a timely appeal to consider my letter as an appeal to your decision.
date I have not received any correspondence concerning my request for an appeal of your
Some time latter around March 6th 2002 you contacted me in
order to set a date and time for a
hearing which we did and you informed me that you would contact me as soon as you had
with the Respondents and secured a mutually agreed upon date. I immediately sent both
Respondents' attorneys a request for answers to Interrogatories of which the Respondents did
recognize me as having the right to request.
After reading the Respondent Wisconsin Education Association Council's and the
Paraprofessional Technical Council's attorneys letter dated March 13th 2002
alleged Motion to
Dismiss its obvious to me that the attorney has attempted to degrade and discriminate against
regards to any input I submit. On several occasions she alleges that I alluded details which
draw conclusions from and the letter doesn't conform to her mold of a proper response by a
Also the letter disregards the fact that I replied to your order dated January
17th 2002 with
explanations which also obviously showed that I wasn't in any respect attempting to
and/or prosecute. There is also no discussion of the affidavit submitted by Mr. Charles
supported my original and amended complaint and again displayed are intentions of following
with this action. In regards to the attorneys depiction of my responses not being adequate is
me to believe since on every occasion to my knowledge I submitted the requested
it was clear and concise.
The Respondent's earlier in this action wanted the luxury of having the
Commission hold this
matter in abeyance why? For their conveyance? This matter is still being investigated by
government entities. Even though it has been brought out of abeyance by whose request, the
Respondents request? It wasn't brought out of abeyance by my request or Mr. Stokes. The
will also show neither Mr. Stokes nor I made any objections to the Respondents request for
matter to be held in abeyance.
Dec. No. 30023-C
It is obvious to me that the Respondents current motion is one sided since the
faded to Mr. Stokes or me the ones who the discriminatory/illegal actions were taken against.
actions weren't taken against the Respondents. And because of the aforementioned I believe
Respondents have no grounds for this motion and the Motion to Dismiss should be denied.
20. On August 21, 2002, Mr. Benzing wrote as follows:
I am sending this letter and the enclosed documents to give you and the State of
better understanding of the basis for the Complaint and the amended Complaint that I filed
Commission concerning the above referenced matter.
The documents concern the incidents surrounding the issues raised in the complaint
filed with the
Commission on August 10th, 2000. Are marked exhibit #1.
The documents that pertain to the amended complaint dated March
12th 2001 are marked exhibit
#2. I have sent each Respondents' attorney only the documents that's relative to them.
Also after reading a copy of the complaint dated August 10, 2000 mailed to me
ago by you. I realized that some how I accidentally mailed to the Examiner if not all parties
draft of my complaint instead of the final draft. As soon as I am able to locate the final draft
send a copy to all parties in this matter.
21. On September 9, 2002, Mr. Benzing wrote as follows:
Enclosed please find a final draft of the complaint I filed with the Employment
Commission in August 2000. I have sent copies to the Respondents' attorneys.
I apologize for any inconvenience sending the rough draft instead of my final draft
The prohibited practice complaint which Mr. Benzing filed on September 9, 2002
Dec. No. 30023-C
August 9, 2000
Paraprofessional Technical Council,
Wisconsin Education Association Council
And Blackhawk Technical College,
PROHIBITED PRACTICE COMPLAINT
Paraprofessional Technical Council, President Ms. Sandra Hough and the majority
membership. and Blackhawk Technical College are located at 6004 Prairie Road County
Janesville, Wisconsin. Director of Human Resources/Board of Directors and President Mr.
and any other representatives involved in the incidents described in this complaint.
area code 608-757-7603. Wisconsin Education Associate Council, 33 Nob Hill Drive
Wisconsin 53708. Telephone number 1-800-362-8034.
For the ten years I was employed at Blackhawk Technical College (hereinafter the
the membership of the Paraprofessional Technical Council (hereinafter PTC). Which is
the Wisconsin Association Council (hereinafter WEAC). During my employment I and
Afro-Americans Mr. Charles Stokes and Mr. Jesus Barbary. Had problems with the
concerning issues regarding better working conditions, proper union representation,
actions, discrimination and retaliation having to do with are sex, color and race. Since in the
of the aforementioned issues the Respondents would respond to us differently than other
by imposing harsher hurdles, sanctions and actions upon us because we were male and
Afro-Americans even though we were engaged in lawful and concerted activities. For
myself these illegal
actions started around April of 1993 and continued throughout my employment until April of
Dec. No. 30023-C
On several occasions throughout my employment I and the other employees
previously would be involved in a grievance and/or dispute in which the executive committee
members of PTC and the affiliate WEAC would purposely and intentionally distant their
giving any conceivable support for the grievant/grievance and any conceivable remedy (with
of the Colleges preferred remedy which most cases was the PTC's) from us. Even though
members of PTC and employees at the College enjoyed such remedies.
One example at times would be concerning investigating merits of a grievances that
I had filed.
I would get constant reprimands from the PTC concerning my handling of the grievance.
deadlines for filing, not contacting them before filing, presenting of the grievance and
committee meetings State investigations and/or hearings. Throughout my employment.
The PTC executive committee officers would treat all my grievances/concerns
Division hearings as troublesome and an inconvenience. The aforementioned became a
problem from 1995 to April of 2000. When I was not being represented at any of the
Only PTC position was being asserted and conclusive in all meeting that I was not present
concerned issues that I had raised or complained about.
I personal was informed by a PTC, president in around 1995 that she (others
employee's I mentioned earlier in this complaint) were enjoying their better working
we were. And asked me to drop a grievance which complained of inequality. Without
commitment to secure the same for use. And when considering that confession we always
looked down upon, and opposed, etc. By the Respondents, PTC, the College, and its
when we were attempting to better are working conditions etc. Throughout my employment.
employment ended with the Respondent in April of 2000.
In late August or early September I was administered a three day suspension for an
other employees had committed more than times than myself and were not given a
because of their infractions. On the last step of the grievance procedure (prior to the
I requested assistance from both Respondents in reviewing the new information and
the grievance to the Board of Directors of the College. Both Respondents WEAC's Leigh
and the PTC declined in any way to assist me.
Dec. No. 30023-C
When I attended the grievance meeting no representative of PTC was present
which wasn't in
line with PTC's past practice of attending all College Board Meetings. And to further
my attempt of presenting grievance #99-05. The Respondent PTC's executive committee
me and the College's Human Resource Director, a Mr. Brian Gohlke the President of the
Mr. Erickson, Ms. Leigh Barker of WEAC and the department I was employed in
Supervisor a Mr.
Jeffrey Amundson (the Director and the President attended the board meeting and gave
the Board members to dismiss and/or deny my grievance #99-05). On a letter dated August
that the PTC's executive committee members had decided not to proceed to arbitration with
This action was not in accordance with past procedures of the PTC. At no time in
the past was
a letter sent disclosing the PTC's intentions concerning a grievance before it was necessary,
to conform with the contractual deadlines.
After an investigation was conducted by the State of Wisconsin's Equal Rights
Division in July
of 2000. There was documentation to support that the College and possibly PTC were
for illegal discrimination, retaliation and a hostile work environment (Exhibit marked #1 and
Wisconsin Equal Rights Determination).
The other two incidents that I mentioned in the last two paragraphs of the (rough
draft (sent by
mistake)) complaint. Are outside the States of Wisconsin statute of limitations and until I am
to prove otherwise are not an issue.
By the actions and inactions of the Respondents mentioned in this complaint, have
unfair and prohibited labor practices. In violations of Wisconsin Statutes 111.70(3)(a)
1, 2, 3, 5 and
111.70(3)(B) 1, 2, and (3)(c).
As a remedy I fully believe that appropriate disciplinary action should be initiated
administered to all person found in violation of the Wisconsin statutes. Dismissal of the
suspension with compensation of the moneys forfeited. Along with any legal fees. And any
remedies the State of Wisconsin sees appropriate.
Complainant Mark R. Benzing /s/ Date Sept.
Dec. No. 30023-C
22. On October 14, 2002, Atty. Albrecht, on behalf of the
Technical College, submitted a Motion to Dismiss the Amended Complaint. On October 17,
Atty. Pitassi, on behalf of the respondent WEAC/PTC, moved to dismiss the
proceeding in its
23. On December 12, 2002 the undersigned wrote to Mr. Benzing as follows:
On September 9, 2002, you submitted what you termed the "final draft" of a
the Blackhawk Technical College and the Paraprofessional Technical Council/WEAC. On
14 and 17, respectively, counsel for the respondents moved to dismiss your complaint, in all
in its entirety.
To date, you have not submitted any reply to the respondents' motions to dismiss.
any reply you wish to make by Monday, January 6, 2003, with copies to the opposing
24. On or about January 6, 2003, Mr. Benzing left a message on the undersigned's
telephone voice mail indicating he would not be filing a reply to the Respondents' motions to
25. The critical and material facts underlying the complaint filed with the WERC
August 29, 2000 had all occurred and become known to the complaint prior to August 29,
26. Relative to the union, the critical and material facts underlying the
filed with the WERC on March 14, 2001 had all occurred and become known to the
prior to March 14, 2000. Relative to the employer, the critical and material facts underlying
amended complaint filed with the WERC on March 14, 2001 occurred and become known to
complainant subsequent to March 14, 2000.
On the basis of the above and foregoing Findings of Fact, the undersigned issues the
CONCLUSIONS OF LAW
1. Sec.111.07(14), Stats., which is made applicable to this proceeding by
Sec. 111.07(4)(a), Stats., is a statute of limitations which can be waived when not
properly raised by
a party as an affirmative defense.
Dec. No. 30023-C
2. Respondents Blackhawk Technical Council/Wisconsin Education Association
and Blackhawk Technical College have properly raised the statute of limitations as an
3. Because the complaint filed August 29, 2000 relies on events which occurred
than one year before the complaint was filed, it is untimely pursuant to sec. 111.07(14),
the Wisconsin Employment Relations Commission without jurisdiction to hear the complaint
amended complaint filed herein.
4. Because complainant's allegations that Respondent Blackhawk Techincal
committed prohibited practices within the meaning of Secs. 111.70(3)(a) rely on events
occurred less than one year before the amended complaint was filed, the amended complaint
untimely pursuant to Sec. 111.07(14), Stats., such that the Wisconsin Employment Relations
Commission has jurisdiction to hear the amended complaint filed herein.
Based on the above and foregoing Findings of Fact and Conclusions of Law, the
now makes and issues the following
ORDER GRANTING MOTION TO DISMISS
ORDER DENYING MOTION TO DISMISS
1. Respondents' motions to dismiss the complaint filed August 29, 2000 are
granted, and that complaint is hereby dismissed.
2. Respondent Blackhawk Technical College's motion to dismiss the amended
filed March 14, 2001 is hereby denied.
Dated at Madison, Wisconsin, this 19th day of May, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dec. No. 30023-C
BLACKHAWK VOCATIONAL AND TECHNICAL
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSIONS OF LAW AND ORDER
TO DISMISS COMPLAINT AND ORDER
TO DISMISS AMENDED
This case has had a long and tortuous path, and I regret the extent to which I have
to the protracted nature of this proceeding. I now resolve significant aspects of the matter.
Respondents seek dismissal without hearing, an action not favored under Wisconsin
or case-law. As I noted in my earlier order:
The Complaint and Amended Complaint allege that the association and college
111.70(3)(a) 1, 2, 3 and 5 and 111.70(3)(b) 1, 2 and (3)(c) of the Municipal Employment
Act. Pursuant to Sec. 111.70(4)(a), Stats., Sec. 111.07, Stats., governs the
procedures by which
prohibited practice complaints are to be heard. Chapter 227 of Wisconsin Statutes states the
framework for administrative agency proceedings.
Sec. 227.01(3), Stats., defines a "Contested case" to mean "an agency proceeding
in which the
assertion by one party of any substantial interest is denied or controverted by another party
which, after a hearing required by law, a substantial interest of a party is determined or
affected by a decision or order."
The Wisconsin Employment Relations Commission is an "agency" under
Sec. 227.01(1), Stats.,
thus making this proceeding an "agency proceeding." To be a contested case under Sec.
Stats., the proceeding must involve a controverted, substantial interest which will be
a hearing required by law. In this case, the complainant seeks a variety of remedies for what
considers are a series of prohibited practices committed by the association and college, which
allegations the respondents deny and which remedies they have refused to provide. The
interest is, therefore, "substantial" and is "controverted by another party." As
Stats., mandates a hearing when there is a complaint of an alleged prohibited practice, this
constitutes a "contested case" as defined by Sec. 227.01(3), Stats.
Dec. No. 30023-C
Dismissing a contested case prior to hearing is appropriate only in limited
Dismissal prior to evidentiary hearing would be proper if based on lack of
jurisdiction, lack of
timeliness and in certain other cases. . . (I)t would be a rare case where circumstances would
dismissal of the proceedings prior to the conclusion of a meaningful evidentiary hearing on
jurisdictional grounds or failure of the complaint to state a cause of action. 68 OAG 31, 34
Similarly, the Commission has held that:
Because of the drastic consequences of denying an evidentiary hearing, on a motion
the complaint must be liberally construed in favor of the complainant and the motion should
granted only if under no interpretation of the facts alleged would the complainant be entitled
Unified School District No. 1 of Racine County, Wisconsin, Dec. No. 15915-B
(Hoornstra with final authority for WERC, 12/77), at 3; Racine Unified School District,
No. 27982-B (WERC, 6/94); Weston Teachers' Association et al, Dec. No. 29341-C (Jones,
6/98); Milwaukee County War Memorial Center, Inc., Dec. No. 29421-A (McGilligan,
Waukesha County, Dec. No. 29477-A (Shaw, 11/98). Cited in Blackhawk VTAE, Dec.No.
30023-B (Levitan, 1/01)
As noted above and discussed below, Mr. Benzing has two proceedings before the
commission, each raising different and distinct elements. The crux of his complaint against
centers on its decision not to pursue his grievance over a three-day disciplinary suspension
imposed in 1999. His complaint against the employer seems to allege that it was retaliating
him for engaging in certain protected activities. Mr. Benzing's amended complaint alleged
the union and employer entered into a new collective bargaining agreement which retaliated
him (and another purported complainant, Mr. Charles Stokes) for their exercise of
Regarding the initial complaint, the record indicates that the event on which the
the three-day suspension occurred in May, 1999, and that Mr. Benzing learned that the
union PTC would not pursue the resulting grievance (#99-05) via correspondence dated
1999. Regarding the amended complaint, the record indicates that the union
Dec. No. 30023-C
ratified the collective bargaining agreement on March 13, 2000, with the respondent
likewise on March 15.
As noted in the Findings of Fact, Mr. Benzing submitted his initial complaint to the
Employment Relations Commission on August 10, 2000. However, he did not include the
as set by ERC 10.21(1), W.A.C. until August 29, 2000. Inasmuch as the administrative
mandates that "the complaint is not filed until the fee is paid," Mr. Benzing's
complaint is considered
to be filed on that later date. See, AFSCME Council 24 WSEU, Dec.
No. 21980-D (WERC, 2/90),
in which the commission amended the examiner's findings of fact to provide that the
filed the date the filing fee was paid, not the date complaint was originally received by the
Commission. In response to my request that he make his complaint more definite and
Benzing submitted his amended complaint on March 14, 2001.
As part of its routine handling of incoming mail, commission staff had date-stamped
submission on August 10, and the copies of the complaint later served on the parties carried
stamp along with a typed label listing the case as being filed on August 29. I personally
contributed to the confusion, writing in my earlier order that the complaint had been "filed"
August 10. Blackhawk Technical College, Dec. No. 30023-B (Levitan, 1/02). That
To compound the confusion, I explicitly held that "the relevant events transpired
year of the filing of the complaint on August 10, 2000." Since the complaint was not filed
August 29, 2000, I must now reexamine the jurisdictional underpinnings of this part of the
Section 111.07(14), Stats., 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.
It formerly appeared well-settled that this commission considered this provision as
to a jurisdictional matter, and that a complainant's failure to comply with its terms deprived
commission of jurisdiction to consider the complaint. In each of the last four decades,
case law stated and reiterated this approach.
In Retail Store Employees Union, Local 444, Dec. No. 8409-C (WERC, 6/68), the
commission dismissed an untimely complaint, explaining that "the Commission's jurisdiction
determine whether an unfair labor practice has been committed is specifically limited by
111.07(14) and can only be applied to those actions which occur within one
Dec. No. 30023-C
year from the date of filing of (the) unfair labor practice complaint." The commission
held as a
conclusion of law:
That the Wisconsin Employment Relations Commission will not exercise its
determine the merits of the complaint filed in the instant matter since said complaint
was not timely
filed within the meaning of Section 111.07(14) of the Wisconsin Employment
Peace Act. (emphasis
In City of Madison, Dec. No. 15725-B (WERC, 6/79), the commission amended a
conclusion of law as issued by a hearing examiner to read as follows:
That, since the alleged prohibited practices occurred on a date more than one year
date on which the complaint was filed, Sections 111.70(4)(a) and 111.07(14), Wis. Stats.,
the Wisconsin Employment Relations Commission from exercising its jurisdiction over the
of said complaint. (emphasis added). 2/
2/ In the proceeding, the underlying event occurred on July 27,
1976, and the complaint was filed July 28, 1977. In rejecting the
Complainant's contention that the complaint was timely because the statute was meant to
denote the full period from one vernal equinox to the
next, a duration of 365 days, 5 hours, 48 minutes, 46 seconds, the Commission explained:
"We do not believe that the legislature, in adopting the
statutory provisions involved, ever intended to apply such an extra-terrestrial definition of the
term 'one year.'"
In State of Wisconsin (DER), Dec. No. 20909-B (WERC, 7/85), the Commission
affirmed an examiner's order of dismissal and held as a conclusion of law that "(b)ecause the
unfair labor practice complaint was filed more than one year after the occurrence of the
labor practices alleged," the complainant "lacks a right to receive a decision on the merits of
that complaint." Without indicating at what point, if any, the respondents had raised the
timeliness, the commission explained that "the Examiner properly dismissed (the) complaint
having been filed more than one year after the unfair labor practices alleged therein."
In WSEU Council 24, Dec. No. 27103-A (Schiavoni, 5/92), aff'd by
operation of law, the
examiner made the following conclusion of law:
As to the first allegation in the complaint which occurred more than one year prior
to the filing
of the complaint on September 13, 1991, it is not appropriate to toll the application of the
statute of limitation established in
Dec. No. 30023-C
111.07(14), Stats.; and the Commission is without jurisdiction to proceed on said
The text of the examiner's decision indicates that the respondents sought dismissal of
first allegation "as time-barred by the statute of limitations," but does not indicate at what
the proceeding answer, at hearing, or in post-hearing briefs the respondents
first raised that
In Carpenter's Local 264, Dec. No. 27975-A (Burns, 6/94), aff'd by operation of
examiner held as a conclusion of law that since certain acts had:
(o)ccurred outside of the one year statute of limitations provided for in
Sec. 111.07(14), Stats.,
the Wisconsin Employment Relations Commission does not have any jurisdiction over any
prohibited practice arising out of such conduct."
The text of the award does not indicate whether the respondents ever raised the issue
timeliness, or whether the examiner did so on her own; the decision's jurisdictional
does indicate that the parties did not submit written arguments. The examiner addressed the
timeliness issue as follows:
The Complaint in this matter was filed on October 22, 1992. The conduct of
of Milwaukee in terminating the employment of Robert M. Benish and Business
Bigler's decision not to file a grievance over this termination of employment occurred more
year prior to October 22, 1992. Accordingly, the Examiner does not have
jurisdiction to determine
whether or not this conduct involved a prohibited practice in violation of MERA.
In State of Wisconsin, Dec. No. 26676-A (Gratz, 11/90), the examiner dismissed a
complaint without hearing on the basis of the following conclusion of law:
Section 111.07(14), Stats., establishes a one year time limit for filing unfair labor
complaints. Because the instant complaint was initiated in excess of one year after the date of
specific acts or unfair labor practices alleged in the amended complaint, the instant
amended, is time barred by Sec. 111.07(14), Stats.
In the Memorandum Accompanying Findings of Fact, Conclusions of Law and
Examiner Gratz discussed the procedural background of the case. That discussion states that
Dec. No. 30023-C
the respondents moved for dismissal without a hearing "either for lack of subject
or on its merits," but does not indicate whether their jurisdictional claim included
untimeliness as a
basis. The examiner concluded his discussion of this issue as follows:
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
that is a sufficient basis on which to dismiss the amended complaint without a hearing. The
has accordingly issued an order to that effect. Dec. No. 26676-A, at 10.
The commission subsequently affirmed Examiner Gratz on all points material
herein, holding as
a conclusion of law that Sec. 111.07(14), Stats., "establishes a one year time limit for filing
labor practice complaints," and that "(b)ecause the instant complaint was initiated in excess
year after the date of the specific acts or unfair labor practices alleged the instant complaint
time barred by Sec. 111.07(14), Stats. State of Wisconsin, Dec. No. 26676-B (WERC,
Given a series of decisions almost thirty years old, the examiner in State of
No. 28222-B (Shaw, 10/97), seemed on solid ground holding timeliness to be a jurisdictional
rather than a waivable statute of limitations. The Commission, however, determined he
reversing the conclusion of law that this statute is not a waivable statute of
limitations. That is,
despite several cases in which it used terminology indicating that the time limits were
in nature, the commission held as a conclusion of law that Sec. 111.07(14), Stats., "is
a statute of
limitations which can be waived when not properly raised by a party as an affirmative
State of Wisconsin, Dec. No. 28222-C (WERC, 7/98).
Frankly, I am not sure how the commission reached that conclusion, given the
law discussing this statute in jurisdictional terms. Indeed, several of the cases the
as standing for the proposition that the commission has "historically referred to this provision
statute of limitations," appear to stand for quite the opposite, including City of Madison,
15725-B and State of Wisconsin, Dec. No. 26676-B (misidentified in Dec. No. 28222-C as
No. 6676-B), both quoted above.
However much I question the commission's conclusion that Sec. 111.07(14) is
jurisdictional, it is -- for now, at least -- commission precedent which I must follow, as I did
earlier consideration of this complaint. See, Dec. No. 30023-B.
Accordingly, I must evaluate
whether the respondents have waived their challenge to the complaint.
Dec. No. 30023-C
In answering this question, I must also be mindful off the great presumption,
that contested cases should not be dismissed prior to hearing except in extraordinary
So in order to determine whether such circumstances are here present, I believe it
review the complainant's extensive and revealing history before the commission.
Accordingly, I take
administrative notice of the following complaints he has brought before us over the last 11
1. Barbary and Benzing v. WEAC and Blackhawk Technical
College, Case 50, Dec.
No. 27140-A (Crowley, 2/92), -B (Crowley, 6/92), -C, (Crowley7/92) and -D (WERC,
2. Benzing v. Blackhawk Vocational, Technical and Adult
Education District, Case
54, Dec. No. 28083/28084-A (Gallagher, 7/94), -B, (Gallagher, 9/94), -C (Gallagher, 10/96)
and -D (WERC, 1/98);
3. Benzing v. WEAC, Local Union Executive Comm.
Council, Case 55, Dec. No. 28543-A (McGilligan, 9/97) and -B (WERC, 12/97);
4. Benzing v. Blackhawk Technical College, Case 61,
Dec. No. 28846-A (Crowley,
5/97), -B WERC, 6/97), -C (WERC, 7/97) and -D (WERC, 12/97);
5. Benzing v. Blackhawk Technical College, Case 63, Dec.
No. 29066-C. (Gratz, 12/97);
Dec. No. 29066-D, 28598-D (WERC, 2/98)
6. Benzing and Stokes v. WEAC/PTC, Case No. 64, Dec. No.
29852-A (Jones, 11/00) and
B (WERC, 1/01).
The relevance of these prior cases extends beyond their sheer number, but gets to the
heart of Mr. Benzing's practice before the commission.
In Dec. No. 27140-A, Examiner Crowley was compelled, as I was, to issue an order
granting respondent WEAC's motion that the complaint be made more definite and certain.
since at least February 1992, Mr. Benzing has been aware that he must comply with the
commission's rules regarding a "clear and concise statement of the facts," so that the
can understand and prepare a response to the charge. Yet a decade later, he was still
relevant administrative rule. This first experience bringing the commission
Dec. No. 30023-C
and this complainant together ended when Mr. Benzing violated an even more
fundamental rule, the
statutory requirement that he serve on respondent WEAC a copy of his complaint seeking
court review of the commission's decision affirming Examiner Crowley's dismissal of the
Mr. Benzing therefore knows that both action and inaction have legal consequences.
The jurisdictional paragraphs in the consolidated Decs. No. 28083-C and 28084-C
sense of the nature of that litigation, similar in many ways to what is now before me:
On January 7, 1994 Complainant Mark J. Benzing filed a complaint against
Vocational, Technical & Adult Education District in Case 54, No. 50320, MP-2844,
on March 2, 1994. On March 13, 1994, Complainant filed a complaint against Respondent
56, No. 50766, MP-2866. On April 12 and 18, 1994, respectively, Respondent filed
Make These Complaints More Definite and Certain and on April 18th Respondent also filed
to Consolidate the captioned cases which Complainant opposed by his letter received on May
1994. On April 14, 1994 the Commission appointed Sharon A. Gallagher, a member of its
act as Examiner in Case 54, No. 50320, MP-2844. On June 7, 1994, Complainant filed a
Amended Complaint in Case 54, No. 50320, MP-2844. On June 20, 1994, the Commission
its Order Consolidating these cases. On June 28, 1994, the Commission issued its Order
Sharon A. Gallagher to act as Examiner in Case 56, No. 50677, MP-2866. On
April 25, 1994,
Complainant filed a written opposition to Respondent's Motion to Make the Complaints More
Definite and Certain. On July 15, 1994 the Examiner ordered Complainant to make his
more definite and certain, following Respondent's April 25, 1994 Motion thereon. On July
and August 8, 1994 Complainant complied with the Examiner's July 15th Order. On August
Respondent renewed its Motion to Dismiss and filed a Motion to Defer to Arbitration the
allegations of Sec. 111.70(3)(a)5 violations. By August 31, 1994 Complainant filed a
Respondent's Motions. By September 7, 1994 Respondent filed its answer to these
complaints. On September 23, 1994, the Examiner issued her Order to compel Benzing to
complaints more definite and certain and her Order granting in part BTC's Motion to
allegations in the complaints that BTC violated State Statutes not administered by the WERC.
Several hearing dates were scheduled in 1994 in this case, however due to illness
Counsel's family, the hearing Examiner's family and the illness of the Complainant, these
were cancelled. The first day of
Dec. No. 30023-C
hearing was held on January 24, 1995 at Janesville, Wisconsin. A stenographic
those proceedings was made and received by the Examiner on March 7, 1995. At the first
hearing, the Examiner granted BTC's Motion to Dismiss any allegations that BTC had
111.70(3)(a)5, Stats., as the April 7 and June 7, 1993 disciplinary actions had been fully
through the grievance procedure. The hearing continued on October 17, 1995 (by
of the parties) at Janesville, Wisconsin. Both the Examiner and Respondent Counsel were
at that time. However, Complainant did not appear for hearing on that day indicating by
call to Respondent Counsel that he was not well enough to proceed. On October 17, 1995
Respondent moved to dismiss the complaints but that Motion was denied by the Examiner,
hearing was then adjourned due to the absence of Benzing.
The hearing resumed on October 23, 1995, and Benzing completed putting in his
case in chief.
Respondent renewed its Motion to Dismiss the Consolidated Complaints at the close of
case in chief. The Examiner granted that Motion after hearing oral arguments from both
the Motion. The Examiner summarized her reasons therefore on the record, but stated that
issue formal Findings of Fact, Conclusions of Law and Order of Dismissal after both parties
a full opportunity to submit briefs thereon. A stenographic transcript of continued
made and received by November 27, 1995. Benzing submitted a September 29, 1995 Motion
Amend Complaint in Case 56, an October 19, 1995 Amendment to Consolidated Complaints
54 and 56, and three Motions to Amend the Record/Transcript were received by the
November 29, November 30, and December 22, 1995 respectively. A "Motion to
Judgement" and a Motion to "Reconsider Order Dismissing Complaint" dated November 10,
and May 10, 1996, respectively, were also received by the Examiner. Regarding the
after the close of the October 23, 1995 hearing, the Examiner wrote to the parties indicating
would deal with these Motions in her formal decision herein. The Respondent resisted each
post-hearing Complainant Motions in writing. The parties submitted their post-hearing briefs
February 16, 1996 and the record was closed on June 4, 1996 upon receipt of Complainant's
Motion to Amend Complaint (filed May 23, 1996) and Respondent's written response
September 16, 1996, Benzing filed another Motion to Reconsider Decision. On September
the Examiner advised the parties that Respondent need not respond to Benzing's Motion as
not consider this Motion and that her decision would be issuing soon. The Examiner, having
considered the evidence and
Dec. No. 30023-C
arguments of the parties, and being fully advised in the premises, makes and issues
Findings of Fact, Conclusions of Law and Order.
Those conclusions of law were that Mr. Benzing's motion to amend/correct the
lacked sufficient basis on which to be granted; that his motions to reconsider the examiner's
were premature; that his motion to amend the complaint was untimely; that the commission
lacked jurisdiction to address allegations of violations of federal labor law; that the
college did not discipline him in any part because he had previously engaged in protected
concerted activities; that the respondent college's actions had no reasonable tendency to
or restrain the complainant in the exercise of his protected rights; and that the respondent
did not in any other way violate any provision of MERA. With a discussion consisting of
paragraphs, the commission subsequently upheld the examiner in all regards. Dec. No.
and 28084-D (WERC, 1/98).
On January 28, 1994, Mr. Benzing filed a complaint with the commission alleging
Wisconsin Education Association Council and the BTC/Paraprofessional Technical Council
committed prohibited practices by failing to respond to his request to review a 1991 work
committee's findings because of an earlier complaint he had filed with the commission
June 20, 1995, Mr. Benzing amended the complaint to include an allegation that the
committed a prohibited practice by settling a grievance without his consent. Hearing
Dennis McGilligan found that the complaint as to the 1991 study was moot. As to the
settlement, the examiner found conclusive evidence in the record that Mr. Benzing had
"acted in bad
faith" by attempting to repudiate a settlement that he had expressly agreed to, and that the
respondents had "faithfully represented Benzing's interests to the very best of their ability."
I am also of the opinion that Benzing's complaint regarding the settlement is
merit and that it is frivolous. I point this out so that Benzing is hereby put on express notice
proceeding that he can be subjected to attorneys' fees and costs in another proceeding if he
engages in such baseless litigation. Dec. No. 28543-A (McGilligan, 9/97).
Mr. Benzing thereafter filed a timely petition for review, in which he generally
the examiner had made errors of fact and law and committed procedural errors, which errors
not specifically identify. On December 5, the commission affirmed the examiner's decision.
28543-B (WERC, 12/97).
Decisions 28846-A through D relate to a complaint Mr. Benzing filed with the
commission on July 5, 1996 alleging that the respondent college had committed prohibited
practices by giving him a discriminatory and retaliatory work performance evaluation on
Dec. No. 30023-C
July 6, 1995. On May 2, 1997 Examiner Crowley concluded as a matter of law
that no such
prohibited practices had occurred, and ordered the complaint dismissed. When Mr. Benzing
to file a petition for review within the 20-day statutory time period, the examiner's findings,
conclusion and order became the commission's by operation of law on May 23, 1997. On
1997, Mr. Benzing filed a Petition for Rehearing, which the commission granted on July 15.
this extraordinary gesture on the part of the commission, Mr. Benzing thereafter did not
file any additional written argument and the record was closed on September 9. The
thereafter reaffirmed the examiner's findings, conclusions and order on December 2. Dec.
28846-D (WERC, 12/97).
While the matter referenced in Dec. No. 28846 was proceeding, Mr. Benzing filed
complaint against the college on March 3, 1997, which he later sought to amend and expand.
Examiner Marshall Gratz granted the respondent college's motion to dismiss multiple
without hearing. The examiner found that two of Mr. Benzing's allegations were
that a third was beyond the Commission's jurisdiction because the complainant had not
use of an available grievance procedure. Dec. No. 29066-C (Gratz, 12/97). The
affirmed by operation of law, Dec. No. 29066-D and 28598-B (WERC, 2/98).
While the matters referenced in Dec. No. 28846 and Dec. No. 29066 were
Mr. Benzing filed another complaint, this one against WEAC and the Paraprofessional
College on March 28, 1997. Dec. No. 29852-A (Jones, 11/00). That complaint was held in
abeyance for about three years while the parties attempted to settle the litigation. While such
settlement efforts were ongoing, Mr. Benzing filed several amendments to his original
the first being filed with the commission on May 29, 1998. Mr. Benzing contended that he
second amended complaint around October 29 of that year, but that complaint is not found in
commission's case file and the respondent avers it never received a copy. Mr. Benzing filed
another amended complaint on November 15, 1999, adding Charles Stokes as a
but not including an address or phone number for Mr. Stokes. Hearing in the matter was
April 14, April 26 and May 23, all of 2000. On May 25, 2000, Examiner Jones sent a
letter to the parties with the formal notice that he hearing would continue on September 12
13 at 9:00 a.m. Neither Mr. Stokes nor Mr. Benzing appeared at the hearing of September
While Mr. Stokes' absence was anticipated, Mr. Benzing's was not. Examiner Jones
two phone numbers Mr. Benzing had provided, but both had been disconnected; he also
own office, to see if Mr. Benzing had called to explain his absence. There was no such
On September 14, Examiner Jones wrote to notify Mr. Benzing that he was to file a written
explanation of his absence, and that failure to show good cause for his absence would result
complaints being dismissed for lack of prosecution. On September 29, Mr. Benzing
explain that he thought the examiner would be sending a reminder
Dec. No. 30023-C
notice, that he had a lot of adverse circumstances to attend to, and he essentially forgot
hearing. Finding that Mr. Benzing's failure to attend the September 12 hearing constituted
abandonment, Examiner Jones on November 15, 2000 dismissed the complaint and amended
complaint with prejudice. On December 6, 2000 the full commission affirmed Examiner
decision by operation of law.
To summarize: through six separate proceedings extending back for more than a
Mr. Benzing has accumulated extensive experience in commission practice and pleading. He
been made aware that he must comply with the administrative rule regarding a "clear and
statement of the facts," Dec. No. 27140-A. He has been made aware of the need for timely
action, Decs. No. 28083-C and 28084-C; Dec. No. 29066-C. He has been made aware of
serious consequences of inattention and abandonment, Dec. No. 29852-A. He has
found to have acted in bad faith and been put on express notice that he was subject to an
assessment of costs and fees if he "ever again engages in such baseless litigation," Dec. No.
In the instant matter, Mr. Benzing waited almost three months before submitting a
response to my Order directing that he submit a complaint that complied with the
rule requiring a clear and concise statement of the facts, which eventual response was
inadequate. When I again twice directed Mr. Benzing to submit a proper complaint, he
responded at all. Finally, after eight months of inaction on the part of Mr. Benzing, I issued
order directing him to show cause why the matter should not be dismissed in its entirety for
abandonment. While Mr. Benzing did finally respond to this order in a timely manner, the
substance of his response was barely an explanation, and far short of a showing of good
Mr. Benzing's casual approach to process and procedure did not stop there. On
September 9 2002, he submitted yet another complaint, which he described as "a final draft
complaint" he had earlier filed in August 2000. Dated August 9, 2000, but executed on
September 5, 2002, the complaint includes two odd elements. The first is the assertion,
in the second paragraph, that the respondents' illegal actions started around April 1993 "and
continued throughout my employment until April of 2001." The second is this startling
The other two incidents that I mentioned in my last two paragraphs of the (rough
by mistake)) complaint. Are outside the States of Wisconsin statute of limitations and until I
able to prove otherwise are not an issue.
Mr. Benzing attests this "final draft" was prepared on August 9, 2000, yet it refers --
the past tense -- to events of April, 2001. Since Mr. Benzing's employment at the college
Dec. No. 30023-C
actually ended in April, 2000, that may merely be a typographical error. However,
the August 9,
2000 "final" version explicitly references deficiencies in the "draft" version which
could not have
been known to him until well after that date. How a "final" version drafted by
August 9, 2000 could
have shown awareness that a "draft" version was somehow submitted on August 10,
2000, that it was
submitted by mistake, and that it contained elements outside the statute of limitations is far
To put it bluntly, I do not believe Mr. Benzing when he states that the "final" version
drafted on August 9, 2000, and somehow overlooked until September, 2002. The simple
for the paragraph quoted above is, I believe, that Mr. Benzing is trying to pass off a
document as having been drafted two years earlier than it was, in an attempt to address
which had been exposed in the document he now calls a "rough draft."
This is an abuse of the process I cannot countenance. Accordingly, on the basis of
of this proceeding as seen against the backdrop of the entire administrative record of the
complainant's practice before this commission, I have concluded that Mr. Benzing is not
herein to the traditional presumptions that normally protect a complainant from having a
dismissed without hearing.
I now turn, therefore, to considering whether respondents have waived their
defense of untimeliness, and find that they have not.
As I found in Blackhawk Technical College, Dec. No. 30023-B (Levitan,
respondent association raised timeliness as an affirmative defense in correspondence received
30, 2001. During subsequent consideration, it also has raised the issue of timeliness under
111.07(14) in its correspondence of October 16, 2002. Respondent college has associated
the union's motions and arguments.
The underlying events occasioning Mr. Benzing's initial complaint were the three-day
disciplinary suspension the college imposed and the union's subsequent decision not to pursue
grievance #99-05 to arbitration. The union communicated that decision to Mr. Benzing by
of August 12, 1999. Mr. Benzing filed his complaint on August 29, 2000 more than
after the event constituting the union's alleged prohibited practice, and several months more
that after the event constituting the college's alleged prohibited practice.
Accordingly, I have dismissed the initial complaint in its entirety.
As to the amended complaint, I have already dismissed the charges against the union
being time-barred. Dec. No. 30023-B. I consider now the final element in the proceeding,
amended complaint against the college.
Dec. No. 30023-C
On March 14, 2001, Mr. Benzing filed an amended complaint alleging that when the
insisted on laying off the custodians and eliminating their bumping rights as part of the
a new early retirement benefit, it did so to retaliate against him for past grievances. Since
ratified the collective bargaining agreement on March 15, 2000, this element of the amended
complaint is therefore timely, and one which raises questions of fact and law which can only
answered after a contested case hearing.
Accordingly, I shall now schedule a hearing in the matter of Mr. Benzing's complaint
the college, in which the only issue shall be whether the college's demand for lay-off of the
staff and their attendant loss of bumping rights was in retaliation against Mr. Benzing
for his exercise
of certain protected rights, including the filing of grievances.
Finally, I have denied Mr. Benzing's awkward attempt to add Mr. Stokes as a
something the record shows he's had trouble with in the past, and something of some slight
given that Mr. Benzing based his DWD Fair Employment complaint on the preferential
claimed Mr. Stokes enjoyed in earlier disciplinary matters. While Mr. Stokes' affidavit
racial aspect of the custodial layoffs, and comments on Mr. Benzing's history of filing
neither in his own narrative nor in endorsing the amended complaint does Mr. Stokes allege
either PTC/BTC or BTC acted towards him in a manner violative of MERA. Failing to state
Mr. Stokes fails to join this proceeding as a party.
Again, I apologize to the parties for the extent to which I contributed to the
nature of this proceeding, and assure them that future consideration shall be more
Dated at Madison, Wisconsin, this 19th day of May, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION