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103.01 Probationary employes
The Commission lacks jurisdiction to hear appeals of probationary terminations, notwithstanding the provisions of Article IV, §10 of the AFSCME contract which was approved by the legislature, since there is a conflict between the contract and various provisions of the civil service code, and JOCER never introduced bills pursuant to §111.92(l), Stats., modifying the conflicting provisions of Ch. 230, Stats. Section 230.44(l)(d), Stats., does not provide an alternative basis for jurisdiction because the termination of probationary employment is not related to the "hiring process" in the classified service. Board of Regents v. Wis. Pers. Comm., 103 Wis. 2d 545, 309 N.W.2d 366 (Court of Appeals, 1981)
The Personnel Board lacks jurisdiction to hear an appeal by an employe who is dismissed while serving probation after a promotion, because the employe lacks permanent status in class and the dismissal may be without just cause. The dismissal does not affect the permanent status in class previously acquired within the department and the employe must be reinstated to the former position or a similar position within the department. DHSS v. State Pers. Bd. (Ferguson), 84 Wis.2d 675, 267 N.W. 2d 644 (1978)
Even if the signature on the letter terminating appellant's employment was not the warden's and even if the warden was not aware the termination letter had been given to the appellant until more than 6 months after her date of hire, the termination letter hand-delivered to the appellant during her probationary period constituted the requisite dismissal notice under §ER-MRS 13.08(2), Wis. Adm. Code., because it was undisputed that the warden had directed that the termination of appellant's employment proceed unless information came up at the intent to terminate meeting that would substantially affect the termination decision and no such information was disclosed at the meeting. The appeal was dismissed for lack of subject matter jurisdiction. Morschauser v. DOC, 98-0175-PC, 3/10/99
Actual delivery of a dismissal notice is not required in order for the action to take effect. Morschauser v. DOC, 98-0175-PC, 3/10/99
The Commission lacks jurisdiction over an appeal from a decision to terminate employment while appellant served a permissive probationary period upon transfer. Even though the appellant held permanent status in class while in her previous employing unit, she no longer maintained that status when she was placed on probation upon her transfer to another employing unit in the same department. Wales v. DOC, 98-0020-PC, 4/23/98
Where respondent decided to terminate appellant’s employment on August 23rd for failure to meet probationary standards on a day when appellant was off work due to illness, respondent’s personnel manager left a message on appellant’s answering machine at 4:00 p.m. on August 23rd informing him that such a decision had been made and asked that appellant return the call as soon as possible, and where the personnel manager unsuccessfully tried to telephone appellant at home several times on Sunday, August 24th, a day when appellant was not scheduled to work and the last day of his probationary period, and appellant did not return the call until about 2:30 on August 25th after which respondent provided appellant with written notice of the termination, appellant did not successfully complete his probationary period and, accordingly, did not attain permanent status in class. Respondent provided appellant with oral notice of the termination on August 23rd and could have provided written notice of the termination on the 23rd but for appellant’s own actions of being absent and failing to reply to the telephone messages of respondent’s personnel director. Under these circumstances, even though the respondent did not provide advance written notice under §ER-MRS 13.09, and the fact that appellant did not receive written notice "immediately" as required under §ER-MRS 13.08(2), did not operate to defeat the conclusion that appellant did not successfully complete his probationary period. Because the Commission lacks the authority to hear an appeal arising from the termination of probationary employment, the appeal was dismissed for lack of subject matter jurisdiction. Fischer v. DOC, 96-0131-PC, 11/22/96
The Commission has jurisdiction to consider whether just cause existed for the discharge of a state employe who has achieved permanent status in class, under §230.44(1)(c), Stats., but this statutory provision does not apply to a state employe who is discharged while on probation. Appellant, who had been employed as an Officer 1, failed to establish that she had passed probation which extended six months from the completion of the preservice training program for correctional officers. Wilson v. DOC, 94-0065-PC, 7/7/94
A union contract provision which provided for discretionary review by the Commission of an appeal filed by a probationary employe of a termination decision does not supply the Commission with jurisdiction over such appeals. Wilson v. DOC, 94-0065-PC, 7/7/94
Where the respondent was found to have failed to restore the appellant to appellant's "former position or a similar position" pursuant to §ER-Pers 14.03(1), Wis. Adm. Code, after having removed or discharged him while serving a probationary period in his promotional position, respondent's action was subject to review under §230.44(1)(c), Stats. Stevens v. DNR, 92-0691-PC, 5/27/94
An employe who once held permanent status in class as a Correctional Officer 2 cannot be said to have permanent status in class during a subsequent probationary period imposed upon his reinstatement to another Correctional Officer 2 position. The Commission lacks jurisdiction over an appeal from the decision to terminate the appellant's employment while he was serving a probationary period upon reinstatement, as he did not have permanent status in class. Schmidt v. DOC, 91-0253-PC, 2/21/92
The Commission had jurisdiction where respondent had terminated appellant's employment as a MIS 4-Sup. while the appellant was serving a promotional probationary period, suspended him for 30 days without pay, reduced his rate of pay and demoted him to a position in a classification with a lower pay range. The Commission found the predisciplinary process to have been inadequate and rejected the respondent's contention that the appellant was not entitled to be restored to his MIS 4-Sup. position. While the respondent could have simply terminated the appellant's probationary employment as a MIS 4-Sup. and restored him to a position in his previous MIS 3 classification without a right to an appeal under §230.44(1)(c), once the respondent went further, the Commission had jurisdiction based on the language of §ER-Pers 14.03. Arneson v. UW, 90-0184-PC, 2/6/92
The Commission lacks jurisdiction over an appeal filed by a represented employe who transferred under the terms of a collective bargaining agreement and was then terminated from his new position during permissive probation. Harshman v. UW, 91-0019-PC, 4/18/91
A probationary employe who is serving a probationary period as a result of a promotion within the same agency as the employe's previous position may appeal a suspension, but not a demotion, pursuant to the specific language of §ER-Pers 14.03, Wis. Adm. Code. Ketterhagen v. UW, 90-0323-PC, 11/21/90
The language of §ER-Pers 14.03(1), Wis. Adm. Code, which refers to an employe who is removed from his/her position during a promotional probationary period and who is not restored to their "former position or a similar position . . . shall be subject to §230.44(1)(c), Stats.," does not extend an appeal right to an employe whose former position has been abolished and where no appropriate vacant position exists for transfer. The reference in the rule to §230.44(1)(c), Stats., appears to apply to those circumstances where a promotional probationary employe engages in conduct of such a nature that the appointing authority decides to separate the employe from state service. Jensen v. UW, 88-0077-PC, 12/14/88
Because the appellant had attained permanent status in her previous position as an Offset Press Operator 2, any review opportunities she might have pursuant to §ER-Pers 15.055, Wis. Adm. Code, upon removal during probation from her subsequent position of Program Assistant 1, would be established by the collective bargaining agreement rather than in §230.44(1)(c), Stats. Jensen v. UW, 88-0077-PC, 12/14/88
Even though the appellant was technically employed by respondent for one day before a decision was reached that he did not meet the physical exam requirements, the decision in question was in the nature of a nonselection decision rather than a decision to terminate for poor performance. Therefore, the jurisdictional basis falls within §230.44(1)(d), Stats., and the case may be distinguished from Board of Regents v. Wis. Pers. Comm., 103 Wis. 2d 545, 309 N.W. 2d 366 (Ct. of App., 1981). Respondent made no argument that the appellant was terminated while on probation nor was there any documentary evidence that the appellant received notice as would have been required under §ER-Pers 13.08(2), Wis. Adm. Code. Lauri v. DHSS, 87-0175-PC, 11/3/88
Since on the basis of undisputed material facts the appellant was required to have served a 12 month probationary period, he did not have permanent status in class at the time of his termination which was less than 12 months after he was reinstated into the position in question. The Commission lacked subject matter jurisdiction. Janeck v. UW, 88-0035-PC, 8/2/88
Where less than two weeks into her probationary period as a Word Processing Operator 2, the respondent DOR terminated appellant's employment, presumably due to DMRS's admittedly illegal certification of the appellant for the position in question, the operable decision was still the probationary termination decision and the Commission lacks jurisdiction over that decision. The Commission did go on to review the certification decision by DMRS. Carey v. DMRS & DOR, 85-0179-PC, 3/13/86
Regardless of whether an employe is in trainee status, on original probation, or on promotional probation, be or she does not have permanent status in class in the classification from which he or she is terminated, and therefore, there can be no jurisdiction for an appeal pursuant to §230.44(l)(c), Stats. Phelps v. DHSS, 85-0193-PC, 12/19/85
Even though language in the contract permitted the appeal of probationary terminations has remained in the contracts since Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 54 (1981), the absence of any specific companion legislation to these agreements modifying the conflicting provisions in §230.44(l)(c), Stats., makes that language ineffective. Phelps v. DHSS, 85-0193-PC, 12/19/85
The Commission lacks jurisdiction over an appeal from a decision to reduce the appellant's rate of pay upon interdepartmental transfer under §230.44(l)(c), Stats., where the reduction occurred during the probationary period. Starczynski & Mayfield v. DOA, 81-275, 276-PC, 12/3/81
103.02 Resignations
The Commission's jurisdiction pursuant to §230.44(l)(c), Stats., over an appeal of an action taken under §230.34(i)(am), Stats. (job abandonment), is superseded by the operation of §111.93(3), Stats., as to a represented employe within a certified bargaining unit. Matulle v. State Pers. Comm., Winnebago County Circuit Court, 82-CV-207, 11/19/82
The Commission has jurisdiction over involuntary resignations under §230.34(1)(am), Stats., reaffirming its decision in Petrus v. DHSS, 81-86-PC, 12/3/81. Smith v. DHSS, 88-0063-PC, 2/9/89
In the absence of any allegation of coercion, the Commission lacks jurisdiction over an appeal from a resignation. Stauffacher v. DILHR, 81-403-PC, 12/16/81
The Commission has jurisdiction over an appeal from a decision by the appointing authority to treat an employe as having resigned his/her position due to job abandonment, i.e., an involuntary resignation under §230.34(l)(am). Petrus v. DHSS, 81-86-PC, 12/3/81
The Commission lacks jurisdiction to review a resignation and to grant the appellant, retroactively, a nine-month leave of absence where there has been no allegation of a constructive discharge. Kemp v. DHSS, 81-370-PC, 11/19/81
The Commission lacks jurisdiction over an appeal from a resignation that was not the result of coercion or duress and was a voluntary decision. Although the Commission has jurisdiction over appeals of coerced resignations, where the resignation was submitted by the appellant but was found unacceptable by the respondent due to the proposed effective date, and more than two weeks later the respondent demanded a new letter of resignation with an agreed upon effective date and appellant went home, typed the letter and returned to the office to turn it in and then waited nearly two weeks before attempting to withdraw the resignation, no coercion was shown. Lindas v. DHSS, 80-231-PC, 10/2/81
A coerced resignation is cognizable as a constructive discharge pursuant to §230.44(l)(c), Stats. Evrard v. DNR, 79-251-PC, 2/19/80
In order to have a coerced resignation, there must be an actual overriding of the employe's judgment and will, and this normally would not be found where the employe merely is given the option of resigning or being discharged. Evrard v. DNR, 79-251-PC, 2/19/80
Where the respondent agency informed the appellant employe with no prior warning that he might be charged criminally, that if he did not sign a letter of resignation that had been prepared, he would be terminated, that when he asked for some time to think over his decision, he was informed that he must make an immediate decision, and where he was in an overwrought mental and physical condition, a coerced resignation was found.
Evrard v. DNR, 79-251-PC, 2/19/80
103.03 Reclassifications/reallocations (see also 103.11 and 103.18)
The Commission lacked jurisdiction to enforce a settlement agreement entered into between the respondent and the former position incumbent (the agreement setting 1979 as the effective date for reallocation of the position) where the case at bar was brought by the current position incumbent and the Commission had found that irrespective of any settlement agreement, the correct effective date for reallocating the former incumbent's position was in 1983. The court held that the settlement agreement did not have a res judicata effect on the current incumbent's appeal. DER v. Personnel Commission (Klepinger), Dane County Circuit Court, 85-CV-3022, 12/27/85
Where the parties to a classification appeal filed in 1995 agreed to settlement in 1996 which called for a re-review of the underlying decision by respondent, dismissal of 1995 case upon completion of the re-review regardless of the outcome and waiver of appellant's right to appeal the results of the re-review, appellant was barred from appealing the re-review decision issued in 1998. It would have been unjust to permit appellant to avoid his obligations under the agreement after respondents had met theirs. Although two years might seem like a long time to complete the re-review, the agreement by the parties did not specify a deadline and two years was not so unreasonable as to justify voiding the agreement. Schaefer v. DNR & DER, 95-0179-PC, 6/3/98
The exempt or non-exempt status of appellant's position under the Fair Labor Standards Act is not a subject that the Commission has statutory authority to review. The class specifications did not indicate which class levels were considered exempt under the FLSA. Moss v. DER, 97-0062-PC, 2/11/98
The Commission has no authority to impose upon respondents a specific process to follow in reviewing reclassification requests. Harder v. DNR & DER, 95-0181-PC, 8/5/96
The Commission’s appeal authority covers specific classification decisions based on existing class specifications. The Commission has no authority to review DER’s decisions to create or change the classifications themselves or to assign or reassign classifications to pay ranges, or to fail to act in this regard. Day et al. & Jerdee v. DILHR [DWD] & DER, 95-0195, 0201-PC, 9/17/96
The Commission lacks authority to determine whether a classification includes all positions which are comparable in duties and responsibilities or whether respondent acted within its statutory authority in establishing a one person classification. Morrissey v. DER, 95-0097-PC, 9/14/95
A timely appeal from a 1994 decision granting reclassification of appellant's position does not provide a basis for reviewing a 1990 reallocation decision that was the subject of a re-review in 1992. Milchesky v. DOT & DER, 94-0546-PC, 5/15/95
The Commission lacks jurisdiction over a dispute as to whether the pay calculations made as a result of a reclassification and regrade were correct. Heath & Mork v. DOC & DER, 94-0550-PC, 12/22/94
Where respondents disputed the Commission's jurisdiction because, as of the commencement of the hearing, respondents had not issued a written denial of appellant's reclassification request, the deficiency was cured where respondents' counsel stated that had the final written decision been issued, appellant's reclassification request would have been denied based upon the applicable classification specifications. Alme v. DNR & DER, 93-0129-PC, 9/21/94
A decision to assign a classification to a pay range in one pay schedule rather than to a pay range in a second pay schedule does not fall within the scope of §230.09(2)(a), so it is not reviewable by the Commission. Johnson v. DER, 94-0064-PC, 7/25/94
In an appeal of the effective date of a reclassification, the Commission has jurisdiction to determine whether the respondent's policy specifying the minimum qualifications necessary for reclass comported with the class specifications and, if so, whether respondents applied the policy to the appellant's position in a correct manner. Heath & Mork v. DOC & DER, 93-0143-PC, 6/23/94
In a reallocation appeal, the appellant must identify an alternative classification which s/he feels better describes the position than the class level assigned by respondent. The Commission dismissed an appeal for lack of subject matter jurisdiction where the appellant agreed that he was reallocated to the most appropriate classification, but felt the class specifications were flawed. Kiefer v. DER, 92-0634-PC, 5/2/94
Respondents' 1993 letters to appellants, which 1) were written decisions issued in response to requests by the appellants, 2) reviewed the classification levels of the appellants' positions, and 3) affirmed the correctness of the original reallocation decisions that had been made effective in 1990 were appealable pursuant to §230.44(1)(b), Stats. Vesperman et al. v. DOT & DER, 93-0101-PC, etc., 2/15/94
The Commission has subject matter jurisdiction over an appeal of a decision by respondent DER to reallocate a position from Accountant-Advanced to Accountant-Advanced-Management, notwithstanding respondent's contention that the WERC has the ultimate responsibility to determine whether a position falls within the scope of "management" as defined by §111.81(13), Stats., for collective bargaining purposes. Paynter v. DER, 93-0120-PC, 12/13/93
The Commission has subject matter jurisdiction to review the initial classification given a new position, as an allocation decision under s. 230.09, Stats., even though the nature of the decision means the position has no incumbent at the time the decision is made. Holton v. DER & DILHR, 92-0717-PC, 11/29/93
An appointment letter which lists the class level of the position, does not affect the employe's rights, under Ch. 230, Stats., to appeal the initial allocation of the position Holton v. DER & DILHR, 92-0717-PC, 11/29/93
The Commission's authority to hear appeals pursuant to §230.44(1)(b), Stats., of DER's decisions pursuant to §230.09(2)(a) to reallocate positions does not include the authority to hear appeals of DER's decisions to conduct surveys and to establish, modify, and abolish classifications or to assign and reassign classifications to pay ranges. The Commission is limited to a determination of whether DER's decision that a position is better described by a particular classification in the position standards, as opposed to another classification (or classifications), was correct. Pope v. DER, 92-0131-PC, 8/23/93
Even though there was no formal written request for reclassification from the appellant, there was a fair inference to be drawn that the appellant was alleging the respondents' conduct caused him to reasonably believe the respondents were carrying out a reclassification review of his position so that he did not file a formal reclass request on his own. The limited topic for hearing would be whether a reclassification of the appellant's position was constructively denied. Bauer v. DATCP & DER, 91-0128-PC, 4/1/92
The Commission does not have jurisdiction to review reallocation survey methodology per se. Mincy et al. v. DER, 90-0229, 0257-PC, 2/21/91; rehearing denied, 3/12/91
The Commission's authority under §230.44(1)(b), Stats., over decisions to reallocate positions as part of the classification survey process does not extend to decisions setting the scope of the survey. An appeal of the decision not to review a particular position as part of a classification survey was dismissed where there was no indication that there was an individualized review of the appellant's position relative to the particular duties represented in the survey classifications prior to the reallocation of the positions which were included in the survey. Herrick v. DER, 90-0395-PC, 2/8/91
The Commission lacks jurisdiction over decisions regarding salary adjustments made in connection with reallocations. Garr et al. v. DER, 90-0163-PC, etc., 1/11/91
The Commission lacks the authority to consider which of two areas of specialization within one classification level best described the appellant's position. Kuschel v. DER, 90-0190-PC, 11/16/90
Where the respondent UW lacked delegated authority from DER to have changed the classification of appellant's position to the PA Supervisor series, the UW's failure to have recommended a supervisory classification was not an appealable action. Where DER had not issued a decision with respect to the PA Supervisor series, the Commission limited its post-hearing order to classifications for which the UW had delegated authority. Cernohous v. UW & DER, 89-0131-PC, 9/13/90
Where the appellant alleged that she had frequently requested and discussed reclassification with her superiors prior to filing a formal request for reclassification, those allegations of inappropriate conduct by her superiors fell within the scope of review of the decision establishing the effective date for reclassification of her position. Vollmer v. UW & DER, 89-0056-PC, 4/12/90
The decision as to effective date is more than merely a procedural adjunct of the underlying classification decision and is in effect a decision as to the appropriate classification for a certain period in time. The issue of effective date is part of the reclassification decision under §230.09(2)(a), Stats., and is appealable under §230.44(1)(b), Stats., reaffirming Baggott v. DNR & DER, 87-0012-PC, 4/29/87. Popp v. DER, 88-0002-PC, 3/8/89
The Commission has authority over an appeal involving an unsatisfactory performance evaluation which was used to deny reclassification in a progression series. To the extent the evaluation figured in the denial of reclassification, it is reviewable as part of that denial. Cohn v. DHSS & DER, 88-0028-PC, 6/29/88
Where appellant participated in a successful group appeal of a reallocation and then retired after the entry of the Commission decision but before the Commission's decision ultimately was upheld in judicial review proceedings and effectuated, and respondent failed to include him in the group of employes who received reallocations as a result of the ultimate implementation of the Commission's decision, the failure to have granted reclassification of the appellant's position with an effective date of September 20, 1985 (as had been granted in a settlement agreement with other members of the original group) was an appealable action under §230.44(l)(b), Stats., and DER is a necessary party. Thompson v. DOT & DER, 88-0037-PC, 6/29/88
Where it was not possible, on the record before it, to determine how the appellant had raised an additional classification for consideration during the position audit and whether the personnel analyst had indicated he would consider the additional classification, the Commission directed the parties to proceed to hearing on an issue broad enough to allow a determination of this preliminary question in order not to unnecessarily delay a hearing on the merits. Kleinert v. DER, 87-0206-PC, 2/24/88
Even though employes may use the term "reclassification" loosely in a way that includes the legal definition of both "reclassification" and 11regrade", the record indicated that the appellant had requested reclassification for her position and regrade for herself. Therefore, the Commission established an issue for hearing that included a subissue relating to regrade (versus opening the position for competition). Stratil v. DILHR & DER, 87-0210-PC, 2/24/88
The Commission lacked jurisdiction over an appeal relating to a requested reclassification where there was no final decision by DER as to the reclassification request. The appeal arose out of what might be construed as a constructive denial by DOR of appellant's reclass request. Before the Commission could determine whether a constructive denial had occurred, DOR formally denied the appellant's request and advised the appellant that the next level of review was before DER. Appellant then sought review by DER. That review was pending at the time DOR moved to dismiss the appeal with the Commission. Seefeldt v. DOR & DER, 87-0143-PC, 12/17/87
An appeal of a reclassification date was properly before the Commission where it was timely as to respondent UW-M's April 10, 1987 decision and the requested date of July 1, 1985 did not precede the date that UW-M became responsible, as the appointing authority, for appellant's position. The fact that the appellant sought an effective date in 1985 did not make the appeal of the 1987 decision untimely. Warda v. UW-Milwaukee & DER, 87-0071-PC, 11/4/87
The Commission has authority under §230.44(l)(b), Stats., to review a determination of the effective date of a reclassification decision. Baggott v. DNR & DER, 87-0012-PC, 4/29/87
Even though the appellant never filed a formal reclassification request, his position was within a progression series where the mere passage of time (absent disciplinary action) would generate a reclassification. Therefore, where someone cloaked with authority intervened in the automatic reclassification process and actually or effectively denied the reclassification that had been due to occur, the Commission has authority to review that denial. Pero v. DHSS & DER, 83-0235-PC, 3/29/84
The Commission lacks the authority to consider alternative classifications other than those expressly or implicitly encompassed by the respondent's reclassification decision where the Commission is reviewing that decision. Kennedy et al. v. DP, 81-180,etc-PC, 1/6/84
The responsibilities referred to in §230.09(2)(c), Stats., (when an agency anticipates changes in program or organization affecting assignment of duties or responsibilities) are the responsibility of the appointing authority rather than DER and, therefore, are not a proper issue in a reallocation appeal. Reding v. DER, 83-0149-PC, 11/9/83
The Commission has jurisdiction to review respondents' decision to classify, at the Job Service Specialist I level, permanent positions created within DILHR. Smith & Berry v. DILHR & DP, 81-412,415-PC, 8/5/82
Where an appeal was filed as a result of the respondents' decision not to process certain reclassification requests and where the net effect of a prehearing conference agreement was for the respondent to alter its prior position and to conduct classification reviews of the positions involved, the jurisdictional basis for the original appeal was removed and that appeal was, therefore, dismissed. Barnett et al. v. DOT & DP, 81-366-PC, 7/27/82
When the agency acted to deny a reclassification on a delegated basis and it later was determined that there in fact had been no delegation, the Commission lacked jurisdiction pursuant to §230.44(l)(b), Stats., to hear an appeal from that denial. Schiffer v. DOT & DP, 81-4, 342-PC, 2/18/82
103.04 Salary range of a classification
The Commission lacks jurisdiction over an appeal relating to the level of pay for those persons who transferred from one position to another prior to January 3, 1988 and were in probationary status on that date (due to their transfer) when phase 2 of the Comparable Worth pay adjustments was implemented. Gundlach v. DER, 88-0016-PC, 6/29/88
Where there had been no legislation modifying the specific language in §230.44(i)(b), Stats., to include pay range assignments, the language in Article 10 of the WSEU contract permitting such appeals was ineffectual. Gundlach v. DER, 88-0016-PC, 6/29/88
The Commission lacks jurisdiction to consider the appellant's contentions that the existing class specifications should be rewritten to better identify their positions and the particular classifications should be assigned to higher pay ranges. Alleged errors in position standards and pay range assignments are not appealable to the Commission. Kaminski et al. v. DER, 84-0124-PC, 12/6/84
The Commission lacks authority to create a new classification, assign the classification to a particular pay range and then allocate the appellants' positions to the new classification. These are all decisions of the secretary of DER and are not among those decisions specifically made appealable to the Commission. Smetana et al. v. DER, 84-0099, etc.-PC, 8/31/84
The Commission lacks jurisdiction over an appeal from a decision to assign a classification to a particular pay range. Preder v. DER, 84-0112-PC, 8/21/84
The Commission lacked jurisdiction under §230.44(l)(a), Stats., to review an appeal of the assignment of a classification series to a salary scale, given the role of the Personnel Board in approving the pay scale at issue. WFT v. DP, 79-306-PC, 4/2/82
The Commission lacks jurisdiction over an appeal of the assignment of the Library Associate series to a particular salary scale, as given the role of the Personnel Board in this transaction there is no decision of the administrator that is appealable under §230.44(l)(a), Stats.
WFT v. DP, 79-306-PC, 4/2/82
103.05 Union contracts and bargaining agreements -- effect of §111.93(3), Stats.
The Commission lacks the authority to review a decision denying hazardous employment injury benefits under §230.36(4), Stats., where appellant was a classified employe in a bargaining unit with a collective bargaining agreement in effect. Appellant alleged her union representatives refused to process her grievance relating to the denial. The Commission's authority was superseded by the collective bargaining agreement pursuant to §111.93(3), Stats. Jones v. DOC, 98-0069-PC, 11/18/98
The Commission’s jurisdiction for constructive discharge claims under §230.44(1)(c), is superseded by the collective bargaining agreement for positions covered by a collective bargaining agreement. Krueger v. DHSS, 92-0068-PC-ER, 7/23/96
An employe has a right to obtain review by the Commission of a suspension imposed while the employe was in an unrepresented position, even though the conduct that resulted in the discipline occurred while the employe was in a represented position. Krasny v. DOC, 94-0036-PC, 11/17/95
The Commission's authority to review the approval by the Administrator of the Division of Merit Recruitment and Selection of an appointing authority's request to establish or revise the employing unit structure of the agency was not superseded by the applicable collective bargaining agreement, where a bargaining agreement provision related to notice of and opportunity for input into the determination to establish or revise employment units and the corresponding statutory provision related to the determination itself. WPEC v. DMRS, 95-0107-PC, 9/29/95
Any potential jurisdiction which the Commission might have under ch. 230, Stats, over the pay calculations made as a result of a reclassification and regrade would be superseded by the bargaining agreement. Heath & Mork v. DOC & DER, 94-0550-PC, 12/22/94
The provision in the bargaining agreement purporting to give the Commission the discretion to appoint a hearing officer to hear "appeals from actions taken by the Employer under Section 111.91(2)(b) 1 and 2, Wis. Stats.," does not provide the Commission with that authority, citing Board of Regents v. Wis. Pers. Comm., 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981), and Wilson v. DOC, 94-0065-PC, 7/8/94. Lentz v. UW & DER, 93-0217-PC, 9/9/94
Since the applicable collective bargaining agreement specifically deals with the issue of transfers within and between employing units which was the subject of the appeal, the Commission's jurisdiction was superseded by §111.93(3), Stats. Gandt v. DOC, 93-0170-PC, 1/11/94
The Commission's jurisdiction over an issue relating to the impact of ongoing collective bargaining on wages to be paid in the future (after possible reinstatement) is superseded by action of §111.93(3), Stats. However, pay upon reinstatement is subject to a certain amount of discretion on the part of the appointing authority. The decision is not governed by the applicable collective bargaining agreement and, as a result, the Commission's jurisdiction pursuant to §230.44(1)(d), Stats., is not precluded by operation of §111.93(3), Stats. Cross-Madsen et al. v. UW & DER 92-0828-PC, 7/30/93
The rate of pay on demotion is not a prohibited subject of bargaining so any jurisdiction by the Commission is superseded by operation of §111.93(3), Stats. Ballweg v. DHSS, 92-0378-PC, 11/13/92
The Commission's jurisdiction over hazardous employment injury benefits for an employe within a bargaining unit is superseded by the operation of §111.93(3). Bell v. DOT, 91-0098-PC, 10/17/91
The Commission's jurisdiction under §230.44(1)(d) over a decision not to select the appellant for a vacant position was not superseded where the contract provided that if the vacancy could not be filled by transfer, it could be filled "in accordance with the Wisconsin Statutes" and where there had been no applicants for transfer. The appellant had been ineligible for transfer because she was still serving a probationary period in the same classification as the vacancy but she was considered for hire as one of seven certified promotional candidates. There was no provision in the bargaining agreement governing the exercise of the appointing authority's discretionary hiring authority subsequent to the exercise of its discretion to consider the appellant's candidacy for the hire. Jorgensen v. DOT, 90-0298-PC, 6/12/91
The Commission lacks jurisdiction over an appeal filed by a represented employe who transferred under the terms of a collective bargaining agreement and was then terminated from his new position during permissive probation. Harshman v. UW, 91-0019-PC, 4/18/91
It is those provisions which are actually bargained and actually stated in a collective bargaining agreement which are given superseding effect, citing Taddey v. DHSS, 86-0156-PC, 6/11/87. Coulter v. DOC, 90-0355-PC, 1/24/91
Appellant's allegation that respondent's action in allowing another employe to transfer from one position to another violated the provisions of the applicable collective bargaining agreement was precluded by §111.93(3), Stats. However, the appellant was permitted to pursue her allegation that the respondent abused its discretion in failing to have informed the appellant of the possibility of transfer at the time she was being considered to fill the position from which the other employe later transferred. Cordle v. DATCP, 89-0037-PC, 8/24/89
The language of §111.93(3), Stats., acts to supersede Commission jurisdiction over an appeal of the denial of hazardous employment injury benefits under §230.36(4), Stats., by a represented employe, citing Wendt v. DHSS, 81-110-PC, 12/3/81. Lynch v. DHSS, 88-0041-PC, 8/10/88
While the Commission cannot explicitly award back pay in a reclassification/reallocation appeal, an appeal filed by a represented employe relating to the effective date for a reallocation decision is not barred by §111.93(3), Stats. Popp v. DER, 88-0002-PC, 5/12/88
The Commission lacked jurisdiction over an appeal by a represented employe of a suspension. The contract, which otherwise would have expired, had been extended by mutual agreement during the pendency of contract negotiations and employes covered by the extended contract could still file grievances under the contact, even though the grievance might not move through the various steps until after negotiations ended. Mugerauer v. DHSS, 87-0122-PC, 9/10/87
The phrase "wages, fringe benefits, hours and conditions of employment" used in §111.93(3), Stats., is construed to mean mandatory and permissive subjects of bargaining, but not prohibited subjects of bargaining. The Commission's decision in Jones v. DNR, 78-PC-ER-12, 11/8/79, was specifically overruled. Taddey v. DHSS, 86-0156-PC, 6/11/87
Pay schedules that were attached to the collective bargaining agreement specifically "for informational purposes only" and were not a subject of negotiations by the parties to the contract, were not a mandatory subject of bargaining and, if a permissive subject, the parties to the negotiations did not bargain and reach agreement on it. Therefore, the provisions of the agreement did not supersede the statutes granting the Commission the authority to review respondent's decision establishing appellant's starting salary. Taddey v. DHSS, 86-0156-PC, 6/11/87
The Commission lacks jurisdiction over an appeal by represented employes which alleges that respondent improperly used hiring above the minimum (HAM) rather than raised hiring rate (RHR) when setting the rate of pay for new employes within appellant's classifications, since this subject matter constituted "wages, hours and conditions of employment" as that term was used in §111.93(3), Stats., and therefore the collective bargaining agreement has a superseding effect. This result is not disturbed by the fact that respondent has consistently agreed in other forums that this subject matter is a prohibited subject of bargaining, since subject matter jurisdiction cannot be conferred by waiver, and furthermore, respondent was unsuccessful in the aforesaid contention in the cited arbitrations. Brehmer v. DER, 85-0218-PC, 4/4/86; explained in denial of petition for rehearing, 5/23/86
The Commission lacks subject matter jurisdiction under §230.45(l)(c), Stats., over an appeal of a non-contractual grievance concerning certain temporary layoffs and the decision not to restore certain fringe benefits lost as a result of the layoffs to employes who, like appellant, were represented at the time of the layoffs but nonrepresented at the time the fringe benefits were restored. While the Commission held the subject matter was included within the meaning of the term "condition of employment" as used in §230.450)(c), Stats., read in connection with §ER 46.03(l), Wis. Adm. Code, it held that the subject matter of the grievance was not within the control of the employing agency (DHSS) as defined in §ER 46.020), Wis. Adm. Code, since authority for the decision was vested in DER. Schmaltz v. DHSS & DER, 85-0067-PC, 2/6/86 and 7/25/86
The Commission lacks the authority to hear an appeal of an alleged constructive discharge where the employe's position was part of a bargaining unit, even though the employer had returned the employe's contractual grievance at the third step stating that because the employe had resigned he was no longer an employe and could not utilize the contractual grievance procedure. Wolfe v. UW System (Stevens Point), 85-0049-PC, 9/26/85
So long as the subject matter of the appeal relates to a bargainable subject, the fact that it is not arbitrable under the contract is not material in the context of §111.93(3), Stats., which applies "whether or not the matters contained in such statutes are set forth in such labor agreement." Wolfe v. UW System (Stevens Point), 85-0049-PC, 9/26/85
The Commission lacks jurisdiction over a decision establishing appellant's salary following a demotion in lieu of layoff where appellant is within a bargaining unit. Linde v. DER, 84-0050-PC, 8/31/84
The Commission lacks jurisdiction over a decision establishing initial pay upon reinstatement where the appellant's position is within a certified bargaining unit with a labor agreement in effect. Larson v. UW, 84-0017-PC, 7/19/84
The Commission lacks jurisdiction over an appeal of respondent's refusal to reinstate the appellant, where appellant would only be eligible for reinstatement if her separation was without delinquency or misconduct, where appellant had grieved her discharge to (but not beyond) the third step in the contractual grievance procedure and where the Commission lacks jurisdiction over bargainable subjects such as a review of appellant's discharge, pursuant to §111.93(3), Stats. Schmit v. DHSS, 83-0234-PC, 4/25/84
The Commission lacks jurisdiction over an appeal from an involuntary demotion where the employe is within a collective bargaining unit. Swenson v. DATCP, 83-0152-PC, 1/4/84; (petition for rehearing denied, 2/17/84)
The Commission lacks jurisdiction to hear an appeal of a salary level established upon appellant's voluntary demotion and reinstatement (resulting in a reduction of appellant's salary) where appellant's positions were covered by a collective bargaining agreement, regardless of whether or not the terms of the agreement were broad enough to permit arbitration of the decision in question. Zeier & Fogelberg v. DHSS, 83-0057, 0067-PC, 9/16/83
The Commission has jurisdiction pursuant to §230.44(l)(d), Stats., over the denial of a reinstatement following a certification, as against the argument that its jurisdiction is superseded by §111.93(3), Stats. Seep v. DHSS, 83-0032-PC, 7/7/83
No jurisdiction exists over an appeal alleging that a represented employe was being paid less than others in the same classification, inasmuch as the only potential basis for an appeal would be §230.44(l)(c), Stats., as an alleged reduction in pay, and any possible jurisdiction would be superseded by the operation of §111.93(3), Stats. Tedford v. DHSS, 81-455-PC, 3/4/82
The Commission lacks jurisdiction over an appeal of a voluntary demotion of an employe in a certified bargaining unit because pursuant to §§230.34(l)(ar) and 111.930), Stats., the collective bargaining agreement has a superseding effect. Rasmussen v. DHSS, 81-434-PC, 2/9/82
Although in a general sense the Commission has jurisdiction over involuntary resignations under §230.34(l)(am), Stats., as constructive discharges, this jurisdiction is superseded as to represented employes by the operation of §111.93(3), Stats. (see also §§111.92(2)(c), 111.90(3), and 111.91(l)(a), Stats.) notwithstanding that the appellant was terminated under the provisions of a statute that was effective after the negotiation of the current labor agreement, and the agreement did not contain a provision on abandonment/resignations as set forth in §230.340)(am), Stats., as this factor is immaterial under the language of §111.93(3), Stats. Matulle v. UW, 81-433-PC, 1/27/82; affirmed by Winnebago County Circuit Court, Matulle v. State Pers. Comm., 82-CV-207, 11/19/82
The Commission lacks jurisdiction over an appeal from the denial of hazardous duty benefits under §230.36, Stats., where the appellant's position was covered by a labor agreement that specifically provides both that the appeal of denials of such benefits are subject to the contract grievance mechanism and that the §230.36(4) appeal mechanism does not apply. Wendt v. DHSS, 81-110-PC, 12/3/81
The Commission lacks jurisdiction to review the determination of a beginning salary following promotion where appellant's position is covered by a labor agreement. Leick v. DOT, 81-305-PC, 11/19/81
The Commission lacks jurisdiction to review the salary level established upon demotion in lieu of layoff where the appellant's position is covered by a labor agreement. §111.93(3), Stats. Welch v. DHSS, 81-272-PC, 10/30/81
The Commission lacks jurisdiction over a question of the initial starting salary of an employe in a certified bargaining unit because of the superseding effect of §111.93(3), Stats., citing a September 6, 1978 Attorney General's opinion to the effect that the subjects of raised hiring rates and hiring above the minimum are not prohibited subjects of bargaining. Dobbins v. DHSS, 81-91-PC, 6/3/81
The establishment of priorities of pay adjustments resulting from personnel transactions such as reallocations, completion of probation, and promotions involves a prohibited subject of bargaining. Therefore, the Commission's jurisdiction is not superseded by the contract. Stellick v. DOR & DP, 79-211-PC, 4/10/81
The Commission lacks jurisdiction over an appeal regarding step increases following probationary periods inasmuch as the subject matter is a subject of bargaining and any possible jurisdictional basis is superseded by the operation of §111.93(3), Stats. Anderson v. DATCP, 80-175-PC, 4/9/81
Appeals whose subject matter is a prohibited subject of bargaining and is identified as such in the collective bargaining agreement, do not fall within the heading of "wages, hours and conditions of employment," and §111.93(3), Stats., does not act to supersede the Commission's jurisdiction. Lustig et al. v. DILHR, et al, 78-277-PC, etc., 1/12/81
The Commission lacks jurisdiction over an appeal from non-selection to a vacant position where if the appellant were appointed to the vacant position, the transaction would have been a transfer and subject to the contract. Rasmussen v. DHSS, 79-353-PC, 8/19/80
The Commission lacks jurisdiction over the appeal of a discharged represented employe, pursuant to §111.93(3), Stats. Walsh v. UW, 80-109-PC, 7/28/80
The Commission lacks authority to hear an appeal from a layoff decision where the appellant's position is covered by a labor agreement, even though the union had declined to represent the appellant in arbitration proceedings. Lott v. DHSS & DP, 79-160-PC, 3/24/80
An appeal of a denial of a request for leave of absence without pay is not cognizable under §§230.36(4) and 230.45(l)(d), Stats., because it involves a represented employe and a matter that is subject to bargaining and hence the Commission's jurisdiction is superseded by §111.93(3), Stats. Preston v. DOT, 79-374-PC, 3/24/80
The Commission lacks jurisdiction over an appeal as to the rate of pay received by the appellant prior to her reclassification, where §111.91(1), Stats., specifically includes "salary adjustments upon temporary assignment of employes to duties of a higher classification" as being subject to bargaining and where the appellant was a member of a bargaining unit. Sopa v. DILHR, 79-36-PC, 2/15/80
Commission has no jurisdiction in light of provisions of §§111.91(2) (b)l and 111.93(3), Stats., over an agreement between the union and an agency to limit the scope of competition for vacancies in the classified service on a campus. Kienbaum v. UW, 79-213-PC, 12/13/79
The Commission lacks jurisdiction over an appeal, by an employe covered by the WSEU collective bargaining agreement, of non-payment of additional salary following appointment in an acting capacity to a supervisory position, inasmuch as there is no statutory provision for direct appeal of this subject matter and also, jurisdiction is precluded by the effect of §§111.91(l) and 111.93(3), Stats. Reissman v. DILHR, 78-78-PC, 2/28/79
103.06 Bargaining unit placement
The Commission lacks jurisdiction to review a decision to place a certain classification within one bargaining unit rather than another. Harpster v. DER, 84-0121-PC, 8/31/84
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.