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103.08(1) Allegations necessary
In an appeal of the denial of a non-contractual grievance, the Commission has the authority to hear the case, in the absence of the promulgation of rules by the Secretary of DER pursuant to ?230.45(l)(c), Stats., regarding the grievance procedure, but pursuant to the pre-existing APM, the decision of the employer must be upheld unless it is concluded that the decision violated the rules of the director or the provisions of Subch. II of Ch. 230. DOT v. Pers. Comm. (Kennel, Brauer & Murphy), Dane County Circuit Court, 79-CV-1312, 7/21/80
Where respondent's non-contractual grievance procedure limited fourth step grievances to those alleging violations of statutory or administrative code provisions, the agency's procedure was more restrictive in this regard than the provisions in Ch. ER 46, Wis. Adm. Code, which provided for fourth step grievances for allegations of agency abuse of discretion in applying the civil service statutes or rules, or written agency rules, policies or procedures. Since the DER rules in Ch. ER 46 govern the "scope and minimum requirements," ?230.04(14), Stats., of the noncontractual grievance procedure, the provisions of Ch. ER 46 superseded more restrictive provisions in the employing agency's own grievance procedure. Rentmeester v. Wis. Lottery, 92-0152, 0166-PC, 1/27/93
Where respondent's second step grievance answer clearly referenced an issue not identified on the first step grievance form, where respondent denied the grievance at the second step and where the third step grievance described itself as an appeal from the second step decision, the respondent effectively waived any objection to the appellant's failure to have identified the issue on the face of the grievance as being a subject of the grievance. Flannery v. DOC, 91-0047-PC, 2/21/92
Where the appellant alleged that respondent's conduct during the third step grievance hearing constituted an abuse of discretion but failed to indicate how she felt the identified conduct involved the application of civil service statutes or rules or written agency rules, policies or procedures, the grievance was dismissed for lack of jurisdiction. O'Brien v. DOT, 88-0059-PC, 6/14/91; rehearing denied, 7/25/91
The clear intent of ?ER 46.07(1), Wis. Adm. Code, is to require an allegation of an abuse of discretion with respect to the application of some written standard or policy. O'Brien v. DOT, 88-0059-PC, 6/14/91; rehearing denied, 7/25/91
The Commission dismissed a fourth step grievance premised on appellant's memo to his superior which took issue with a previous memo from the superior but which did not use a grievance form, was not designated as a grievance, was not filed with the appropriate person to receive a first step grievance and was not filed within the 30 day period for filing a first step grievance. The Commission concluded that neither the respondent nor the Commission was required to process the memo as a grievance. Truesdell v. DHSS, 88-0026-PC, 7/27/88
Matters that fall within the exceptions found in H ER 46.03(2) and 46.07(l), Wis. Adm. Code, do not become grievable simply because the appellant has alleged that "coercion or retaliation has been practiced" as provided in ? ER 46.03, Wis. Adm. Code. Wing v. UW System, 85-0007-PC, 9/20/85
The Commission lacks jurisdiction over an appeal of a reprimand under ?230.45(l)(c), Stats., where there is no allegation that the employing agency violated a civil service rule or statute. Jurisdiction over such an appeal is not conferred by 1) a statement in the agency's supervisory manual that states that grievances "may be further appealed" to the Commission; 2) the rights conferred by the Wisconsin Constitution to petition the government and for a prompt remedy for injuries or wrongs; or 3) the right to hearing conferred in ?227.064, Stats. (1984). Pawlak v. DHSS, 83-0170-PC, 3/14/84
The Commission lacks jurisdiction over an appeal of a non-contractual grievance inasmuch as it failed to allege any violations of the civil service code with respect to alleged supervisory inaction on a reclassification request, inadequate notice of a transfer, not explaining the method for review of a transfer, and the transfer itself. Ford v. DHSS & DP, 82-243-PC, 83-0011-PC, 83-0020-PC, 6/9/83
On a motion to dismiss for lack of subject matter jurisdiction, the Commission rejected the respondent's argument that the appeal should be dismissed because it failed to allege even a colorable claim of a violation of the civil service code, because the Commission could not conclude at that stage of the proceeding that the appellant's claim of civil service violations was not at least arguable. Harley v. DOT & DP, 80-77-PC, 5/15/80
In order for the Commission to have jurisdiction over an appeal of the denial of a non-contractual grievance, it must involve either a function of the administrator or an allegation of violation of civil service statutes or rules, and, if the latter, the allegation must be at least arguable. Wing v. UW, 78-137-PC, 4/19/79
The Commission lacks jurisdiction over an appeal of a denial of non-contract grievance where the only allegation of violation of the civil service law or rules was that the appointing authority had committed an illegal act or abuse of discretion, since ?Pers 26.02(8), Wis. Adm. Code, which provided that these matters were appealable, was superseded by Chapter 196, Laws of 1977, which repealed ?16.03(4)(a), Stats., (1975), which provided for such appeals to the director. Wing v. UW, 78-137-PC, 4/19/79
103.08(2)(a) Exhaustion of grievance remedies
Where appellant's grievance was not accepted at the 1st, 2nd or 3rd steps due to various alleged procedural deficiencies within the grievance document itself, the Commission is precluded from reaching the merits of appellant's allegations but retains the power to review respondent's decision not to accept the grievance as long as the grievant alleges that the procedural decision constitutes a violation of the grievance procedure set out in the APM or other rules of the administrator. Wing v. UW, 81-328, 420-PC, 6/25/82
103.08(3) Letter of reprimand
Written reprimands may not be grieved to the fourth step. Iwanski v. DHSS, 88-0124-PC, etc., 6/21/89
Even though it was not designated as such, the memo serving as the basis for the grievance was clearly a written reprimand and, therefore, was not grievable to the 4th step. Appellant's contention that he was actually grieving respondent's failure to discuss the substance of the memo before issuing it was not compelling and the grievance was dismissed. Truesdell v. DHSS, 88-0026-PC, 7/27/88
The Commission lacks jurisdiction over a grievance arising from oral and written reprimands. HER 46.03(2) and 46.07(l)(a), Wis. Adm. Code. Wing v. UW System, 85-0112-PC, 9/20/85
The Commission lacks jurisdiction over an appeal of a reprimand under ?230.45(l)(c), Stats., where there is no allegation that the employing agency violated a civil service rule or statute. Jurisdiction over such an appeal is not conferred by 1) a statement in the agency's supervisory manual that states that grievances "may be further appealed" to the Commission; 2) the rights conferred by the Wisconsin Constitution to petition the government and for a prompt remedy for injuries or wrongs; or 3) the right to hearing conferred in ?227.064, Stats (1984). Pawlak v. DHSS, 83-0170-PC, 3/14/84
In appeals of non-contractual grievances regarding reprimands, a prerequisite to subject matter jurisdiction is an allegation of a violation of the civil service code. These appeals could not be heard on theory that they constituted discipline without just cause, because the just cause requirement applies only to transactions enumerated in ?230.34, Stats. However, the employe was able to allege a violation of ?Pers. 24.04(2)(c), Wis. Adm. Code, and thus the jurisdictional prerequisite was present. Briggs v. DILHR, 81-172, 445, 330, 352-PC, 1/8/82
A reprimand is appealable under ?230.45(l)(c), Stats., although the particular reprimand involved was not appealed in a timely fashion. Lyons v. DHSS, 79-81-PC, 7/23/80; affirmed by Dane County Circuit Court, DHSS v. Wis. Pers. Comm. (Lyons), 80-CV-4948, 7/14/81
103.08(5) Merit increase
The Commission lacks jurisdiction over an appeal of the denial of a discretionary performance award (DPA) which was based on a policy to deny DPA's to positions assigned to a certain classification, citing Nikolai v. DOR, 80-0319-PC, 12/17/80 Mack & Bugge v. DER, 87-0182, 0183-PC, 6/2/88
Pursuant to ??230.12(5)(e) and 230.45(2), Stats., the Commission lacks jurisdiction over an appeal of the denial of a Discretionary Performance Award (DPA) which had been based on an agency policy denying DPA's to employes who were expected to receive salary increases for other reasons, inasmuch as the aforesaid statutory prohibition on appeals was not limited to DPA denials based on performance evaluations. Nikolai v. DOR, 80-319-PC, 12/17/80
Section 230.12(5)(e), Stats., precludes the Commission from hearing an appeal of the denial of a non-contractual grievance relating to a discretionary performance award, notwithstanding Art. I, Sec. 9, of the Wisconsin Constitution, which provides that for every wrong there is a remedy, because this section is primarily addressed to the right of persons to have access to the courts and to obtain justice on the basis of the law as it in fact exists, and does not create any independent legal rights. Schmeltzer v. DOR, 80-275-PC, 12/17/80
The Commission’s subject matter jurisdiction over a noncontractual grievance derives from ?230.45(1)(c), not ?230.44(1)(b), Stats., since it does not involve the type of decision which the administrator of DMRS has the authority to render. Peterson & Hoel et al. v. DOT, 78-178, 193-PC, 4/19/79
103.08(6) Erroneous grievance route
The Commission cannot have jurisdiction over a grievance without there ever having been a grievance presented to the agency prior to the fourth step. Meredith v. DHSS, 79-172-PC, 3/24/80
103.08(7) Existence of rules regarding procedure
In an appeal of the denial of a non-contractual grievance, the Commission has the authority to hear the case, in the absence of the promulgation of rules by the Secretary of DER pursuant to ?230.45(l)(c), Stats., regarding the grievance procedure, but pursuant to the preexisting APM, the decision of the employer must be upheld unless it is concluded that it violated the rules of the director or the provisions of subch. 11 of ch. 230, Stats. DOT v. Pers. Comm. (Kennel, Brauer & Murphy), Dane County Circuit Court, 79-CV-1312, 7/21/80
The absence of promulgation of rules by the DER Secretary under ?230.45(l)(c), Stats., is not fatal to Commission jurisdiction over an appeal of a grievance denial; pursuant to the transitional provisions of Chapter 196, Laws of 1977, ?129 (4q), the rules of the director and the current grievance procedure continue in force. Lustig et al. v. DILHR et al., 78-277-PC, etc., 1/12/81. Gohl v. DOR, 78-67-PC, 11/22/79
The fact that the Secretary of DER had not promulgated rules for a non-contractual grievance procedure pursuant to ?230.45(l)(c), Stats., did not operate as a bar to Commission jurisdiction over an appeal of a non-contractual grievance, because a transitional provision of Chapter 196, Laws of 1977 -- ?129(4q) -- provides for the continuation of the rules of the director until modified, and ?Pers 25.01, Wis. Adm. Code, and the derivative APM and departmental procedures remain in effect. The fact that the APM was not published as a rule does not render it ineffective as the legislature provided for the continuation in effect of ?Pers 25.01, Wis. Adm. Code, pending the promulgation of new rules, despite the fact that ?Pers 25.01, Wis. Adm. Code, on its face contemplates governance of the field by unpublished regulations. Harley v. DOT & DP, 80-77-PC, 5/15/80
103.08(8) Conditions of employment/management rights
A supervisor's grievance which dealt with the fact that his job required him to carry a pager and to remain on call outside of regular working hours throughout the entire year, even though he alleged he was not informed of this job requirement until two months after he was hired, constituted a condition of employment and was grievable. However, that aspect of the grievance which alleged that others who had been given similar responsibilities involving carrying a pager and being on call received additional compensation was clearly related to wages and the Commission lacked jurisdiction to consider this as a remedy. Loomis v. Wis. Pers. Comm., 179 Wis. 2d 25, 505 N.W.2d 462 (Court of Appeals, 1993)
The Commission lacks jurisdiction over an appeal relating to hiring above the minimum (HAM) because this does not involve a "condition of employment" cognizable pursuant to ?230.45(i)(c), Stats. DHSS v. Pers. Comm. (Hovel), Dane County Circuit Court, 79-CV-5630, 1/29/81
Respondent's reassignment/transfer of appellant constituted a management right pursuant to ?ER 46.04(2), Wis. Adm. Code, and hence was non-grievable under the noncontractual grievance procedure. However, since appellant alleged that respondent improperly failed to handle the transaction in the context of a layoff, this provided a basis for jurisdiction under ?230.44(1)(c), Stats. Ramsden v. DHSS, 92-0826-PC, 2/25/93
The decision to give appellant a particular route assignment is not grievable under the noncontractual grievance procedure because it constitutes a management right pursuant to ?ER 46.04(2), Wis. Adm. Code. Certain comments made by appellant's supervisor may also contain elements of management rights, but this cannot be determined on a motion to dismiss. Rentmeester v. WGC, 92-0152, 0166-PC, 1/27/93
The Commission lacks jurisdiction to hear a noncontractual grievance arising from appellant's claim that he was entitled to sick leave benefits for periods of overtime, because it relates to fringe benefits which are not grievable pursuant to ?ER 46.03(2)(k), Wis. Admin. Code. Knueppel v. DOT, 92-0194-PC, 7/22/92
An alleged spontaneous admonition from a supervisor that he felt the grievant was lying was not an "oral reprimand," so it could be grieved to the fourth step. An alleged directive from a supervisor to get back to work and to file a grievance when the grievant had time constituted "managing and directing" agency employes and fell within the "management rights" exception to the grievance procedure. However, the grievant's allegation that the directive was made in a threatening and hostile manner so as to violate respondent's work rules could be grieved. Gallenbeck v. Wis. Lottery, 92-0116, 0119-PC, 6/24/92
The power to transfer is a management right so the appointing authority's role in the transfer process is non-grievable. Brockington v. DOT & DMRS, 91-0031-PC, 5/29/91
Respondent's decision not to allow the appellant to participate in its work-at-home program fits within the scope of management rights. Jordan v. DNR, 90-0386-PC, 1/11/91
Management rights include the decision to assign an employe to a different level of supervision. Iwanski v. DHSS, 88-0124-PC, etc., 6/21/89
Management rights include the assignment of duties and the removal of duties from a position. Miller v. DHSS, 87-0209-PC, 2/8/89
Compensation for overtime hours is a "condition of employment" within the meaning of ?230.45(l)(c), Stats., and the Commission has jurisdiction over a grievance filed over the decision to grant compensatory time rather than overtime pay to the appellant. Corcoran v. DHSS, 86-0175-PC, 2/5/87
Vacation, holidays and length of service benefits are conditions of employment. Maher (Eisely) v. DHSS & DER, 85-0215-PC, 7/24/86
The management rights exception to the grievance procedure does not cover decisions relating to the issuance of building keys nor decisions relating to the recording of paid time off granted for interviewing for other employment in state government. Wing v. UW System, 85-0122 & 0173-PC, 2/6/86
Management's decision not to include a separate time code for reporting time spent by an employe in filling out a survey falls within the definition of "management rights" and is not grievable. Holmblad v. DILHR, 85-0159-PC, 10/9/85
Alleged statements made by management at a second step grievance hearing that appellant argues constitute retaliation for prior disclosures and/or grievances and thereby violate, inter alia ?ERPers 24.04(2)(c), and ?ER 46.10, Wis. Adm. Code, do not fall within the scope of management rights and are within the Commission's jurisdiction. Wing v. UW System, 85-0007-PC, 9/20/85
An allegation that respondent denied appellant's request for "four hours paid release time" for the purpose of conducting an investigation related to a second grievance falls within the specific language of ?ER 46.09(2), Wis. Adm. Code which lets the employer decide the reasonableness of the time spent for investigating, preparing or presenting a grievance and the more specific provision prevents the application of the more general management rights provisions. Wing v. UW System, 85-0058-PC, 9/20/85
The denial to appellant of access to certain data bases falls within the listing of management rights and therefore, may not be grieved to the Commission. Wing v. UW System, 85-0007-PC, 9/20/85
The Commission lacks jurisdiction over a grievance based on allegations of 1) a refusal to provide appellant information necessary to perform his work assignments and 2) a refusal to permit the appellant to use a tape recorder in day-to-day work assignments because both allegations fall within the scope of management rights. Wing v. UW System, 85-0112-PC, 9/20/85
A matter filed with the Commission as the final step in the noncontractual grievance was dismissed because respondent's action of reassigning the grievant to another shift upon returning from vacation fell within the scope of management rights. Grievant was granted 15 days to file a whistleblower complaint. Henderson v. DHSS, 85-0045-PC, 8/15/85
A determination by management concerning the information to be made available to an employe for the performance of his duties falls within the definition of management rights and, therefore, may not be grieved. Wing v. UW System, 85-0007-PC, 5/22/85
Respondent's decision not to grant the appellant an add-on pay adjustment relates to "wages" rather than "conditions of employment" and the appellant's grievance must be dismissed accordingly. Bloom v. DHSS, 85-0026-PC, 4/12/85
Respondent's objection to subject matter jurisdiction was overruled, without prejudice to a reassertion of the objection if evidence at hearing should warrant it where the grievance arose from respondent's decision not to approve reimbursement of appellant's expenses for attending an out-of-state workshop. The Commission found that given the information before it, it could not find that the grievance involved a "management right" rather than a condition of employment. ??ER 46.03(2)(j) and 46.04(2), Wis. Adm. Code. Johnson v. DNR, 84-0250-PC, 4/12/85
The Commission, as the final step in the non-contract grievance procedure, lacks jurisdiction over an appeal regarding an involuntary demotion where the appellant was at all times a represented employe, citing Teggatz v. DHSS, 79-73-PC, 12/13/79. Swenson v. DATCP, 83-0152-PC, 2/17/84
The Commission lacks jurisdiction under ?230.45(l)(c), Stats., over a non-contractual grievance where the subject matter was the termination by the department of the arrangement by which the appellant worked 8 months each year and had 4 months off, inasmuch as this subject matter involves "hours" rather than "conditions of employment," which is a jurisdictional prerequisite under ?230.45(l)(c), Stats. Miller v. DOR, 82-196-PC, 3/17/83
The Commission lacks jurisdiction pursuant to ?230.45(l)(c), Stats., over a non-contractual grievance concerning a denial of compensation for claimed overtime hours worked, inasmuch as this involves "wages" as opposed to "conditions of employment." That the appellant alleges that there were rule violations is immaterial to the question of jurisdiction, since a prerequisite to jurisdiction under ?230.45(i)(c), Stats., is that the subject matter of the grievance concerns "conditions of employment." Luchsinger v. PSC, 82-233-PC, 1/31/83
The Commission lacks jurisdiction over an appeal of a non-contractual grievance alleging improper interference with the appellant's attempts to secure employment at a different UW campus, as this subject is not a "condition of employment" cognizable pursuant to ?230.45(l)(c), Stats. Wing v. UW, 82-75-PC, 9/30/82
An appeal of a non-contractual grievance relating to a decision by the employer that the appellant could no longer work certain hours because of the absence of a supervisor does not relate to a "condition of employment" pursuant to ?230.45(l)(c), Stats., and the Commission lacks jurisdiction. Johnson v. DHSS, 81-450-PC, 6/10/82
The employe grieved his supervisor's use of abusive language and management indicated at the third step that the supervisor had been counseled. In his appeal to the Commission, the grievant requested stronger action against the supervisor. The Commission concluded that it lacked jurisdiction because the decision as to how to deal with the supervisor constituted a management right under ?111.90(2), Stats., and hence was not a condition of employment under ?230.45(l)(c), Stats. Furthermore, there was no provision of the civil service code which arguably had been violated by the respondent. Fox v. DNR, 81-381-PC, 2/9/82
The Commission lacks jurisdiction over an appeal of a non-contractual grievance relating to the denial of an exceptional performance award (EPA), because the EPA subject matter relates to 11wages" and not "conditions of employment" as set forth in ?230.45(l)(c), Stats. (To same effect, see Wing v. UW, 78-159-PC, 79-240-PC, 9/23/81) Wing v. UW, 80-256-PC, 4/1/81
The Commission lacks jurisdiction at the final step in the non-contractual grievance procedure over matters that are non-bargainable and, therefore, not "conditions of employment" and therefore lacks jurisdiction over an appeal of a grievance involving a question as to the structure of the attorney regrade part of the pay plan. Lustig et al. v. DILHR et al., 78-277-PC, etc., 1/12/81
The Commission lacks jurisdiction under ?230.45(l)(c), Stats., of an appeal by a represented employe of the denial of non-contract grievance relating to the assignment of duties because ?230.45(l)(c), Stats., limits jurisdiction to appeals of non-contract grievances "relating to conditions of employment" and, as to represented employes, ?111.91(3) supersedes the Commission's jurisdiction as to "conditions of employment." Teggatz v. DHSS, 79-73-PC, 12/13/79
103.08(8.5) Matters "subject to the control of the employer"
Length of service pay, 1% retirement pick-up and limitation of salary increases for non-represented employes at the maximum of the pay range to across-the-board increases were within the terms of the 1985-87 Compensation Plan adopted by DER pursuant to ?230.12, Stats., and, therefore, were not subject to the control of the grievant's employing agency, DHSS. Frisch et al. v. DHSS & DER, 86-0191-PC, 3/18/87
In a grievance relating to the fringe benefits to be awarded to the appellant as a consequence of her employment in a position authorized as a half-time position but in which appellant allegedly worked 1500 hours and 1850 hours in consecutive years, the appellants request for prorated fringe benefits involves a matter that is subject to the control of the employer agency under under ?ER 46.02(4), Wis. Adm. Code. However, to the extent the appellant seeks a change in the status of her position from half-time FTE to something more than that, the employer lacks control and the Commission lacks jurisdiction. Maher (Eisely) v. DHSS & DER, 85-0215-PC, 7/24/86
Appellant's employer, DHSS, did not have control over the decision not to restore fringe benefits to the appellant as a result of a legislatively mandated layoff. That control rested with DER. As a result, the matter does not qualify as a grievance under ?ER 46.02(4), Wis. Adm. Code. Schmaltz v. DHSS & DER, 85-0067-PC, 7/25/86
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 ?230.45(i)(c), Stats., reads in connection with ?ER 46.030), 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 46.02(3), 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
103.08(9) Employment or bargaining unit status of grievant as affecting jurisdiction
DER was not a proper party to a grievance where all of the grievants were employes of DHSS. Therefore, DHSS was the "employer" for purposes of ?ER 46.02(3), Stats. Frisch et al. v. DHSS & DER, 86-0191-PC, 3/18/87
Where the appellant is covered by a collective bargaining agreement, the Commission may not act as the final step review for the appellant's grievance. Kerr v. DOT, 85-0042-PC, 7/3/85
The Commission lacked jurisdiction over a grievance filed by an employe whose position was within a bargaining unit and who sought to grieve the reduction of his wage level caused by a classification survey. Cohen v. DP, 81-208-PC, 1/28/82
Where the appellant resigned prior to submitting her non-contractual grievance at the second step, and the APM issued pursuant to ?Pers 25.01, Wis. Adm. Code, provides the framework for the grievance procedure in the absence of promulgation of rules by the Secretary of DER pursuant to ?230.45(l)(c), Stats., and the APM states that voluntary termination of employment leads to immediate withdrawal of the grievance, then the respondent's refusal to process the grievance past the first step must be affirmed. Minor v. WCCJ, 80-329-PC, 3/2/81
The non-contractual grievance procedure is interpreted as not unavailable to an employe who is involuntarily terminated after the transactions grieved but before the grievances were filed; therefore, the Commission has jurisdiction over appeals of the denials of the grievances. Stasny v. DOT, 79-192, 253, 259-PC, 1/14/80
103.08(10) Particular matters grieved/appealed
Under certain circumstances, a nominally temporary assignment in the classified civil service may become permanent after the passage of a significant amount of time. In a case involving an issue of constructive discipline, "temporary" reassignment lasting less than a year did not become constructively permanent due to the passage of time. Appellant's non-contractual grievance relating to his reassignment from his position as superintendent of a correctional center to a community corrections office pending an investigation of appellant’s conduct at the correctional center was dismissed for lack of subject matter jurisdiction. Stacy v. DOC, 98-0039-PC, 8/26/98
A supervisor's grievance which dealt with the fact that his job required him to carry a pager and to remain on call outside of regular working hours throughout the entire year, even though he alleged he was not informed of this job requirement until two months after he was hired, constituted a condition of employment and was grievable. However, that aspect of the grievance which alleged that others who had been given similar responsibilities involving carrying a pager and being on call received additional compensation was clearly related to wages and the Commission lacked jurisdiction to consider this as a remedy. Loomis v. Wis. Pers. Comm., 179 Wis. 2d 25, 505 N.W.2d 462 (Court of Appeals, 1993)
The Commission lacks jurisdiction over an appeal relating to hiring above the minimum (HAM) because this does not involve a "condition of employment" cognizable pursuant to ?230.45(i)(c), Stats. DHSS v. Pers. Comm. (Hovel), Dane County Circuit Court, 79-CV-5630, 1/29/81
The Commission lacks jurisdiction to hear an appeal relating to a letter placing appellant "on notice that any reoccurrence of . . . problematic behavior will result in the implementation of progressive discipline" where there was no "demotion, layoff, suspension, discharge or reduction in base pay" pursuant to ?230.44(1)(c), Stats., nor did appellant proceed through the first three steps of the non-contractual grievance procedure, distinguishing Basinas v. State, 104 Wis. 2d 539, 312 N.W.2d 483 (1981). Klemmer v. DHFS, 97-0034-PC, 7/2/97
In dicta, the Commission held it lacked the authority to hear a fourth step grievance to the extent the appellant identified his requested relief as earning compensatory time for the time he was required to carry a pager outside his scheduled hours, interpreting Loomis v. Wis. Pers. Comm., 179 Wis. 2d 25, 505 N.W.2d 462 (Ct. App., 1993). Such relief related to compensation (wages) and hours, thereby falling within the exclusion found in ?ER 46.03(2)(k), Wis. Adm. Code. Loomis v. UW, 92-0035-PC, 2/15/96
In dicta, the Commission held it lacked the authority to hear a fourth step grievance relating to the job requirement that appellant carry a pager, interpreting Loomis v. Wis. Pers. Comm., 179 Wis. 2d 25, 505 N.W.2d 462 (Ct. App., 1993). Such a condition of employment is a right of the employer as provided in ?ER 46.04(2), Wis. Adm. Code. Loomis v. UW, 92-0035-PC, 2/15/96
The Commission has jurisdiction over a fourth step non-contractual grievance in which the appellant contested the respondent's decision to require her to pay respondent $240 she had received from an airline after she was bumped from an employment-related commercial flight where appellant alleged that the decision was contrary to department policy. The grievance did not contest the underlying written policy but alleged respondent had abused its discretion in applying that policy to a set of facts. Larson v. DOR, 94-0114-PC, 12/22/94
The Commission lacked jurisdiction over a claim that respondent did not abide by the guidelines established in the compensation plan and, as a consequence, did not pay appellant at the rate of time-and-a-half for the hours he spent supervising staff training. Schneider v. DOC, 94-0261-PC, 9/9/94
An alleged spontaneous admonition from a supervisor that he felt the grievant was lying was not an "oral reprimand," so it could be grieved to the fourth step. An alleged directive from a supervisor to get back to work and to file a grievance when the grievant had time constituted "managing and directing" agency employes and fell within the "management rights" exception to the grievance procedure. However, the grievant's allegation that the directive was made in a threatening and hostile manner so as to violate respondent's work rules could be grieved. Gallenbeck v. Wis. Lottery, 92-0116, 0119-PC, 6/24/92
The Commission lacks jurisdiction over a grievance arising from the alleged failure of respondent to grant appellant premium pay for overtime hours he worked in a certain capacity. Bornick v. DOC, 91-0084-PC, 4/1/92
The Commission lacks subject matter jurisdiction over a grievance arising from a nonselection decision. O'Brien v. DOT, 88-0059-PC, 6/14/91; rehearing denied, 7/25/91
Any action by DMRS in failing to approve appellant's transfer is excluded from the grievance procedure because it is directly appealable to the Commission pursuant to ?230.44(1)(a). Brockington v. DOT & DMRS, 91-0031-PC, 5/29/91
The Commission lacks jurisdiction over a grievance relating to the appellant's eligibility for a lump sum wage adjustment arising from his employment by the respondent in a represented position. Oestreich v. DOT, 91-0014-PC, 4/5/91
The Commission lacks subject matter jurisdiction over a grievance arising from the decision denying the appellant's request to be compensated at a higher pay rate for a certain period and to adjust his base pay rate. Cestkowski v. DOC, 90-0403-PC, 2/8/91
A grievance arising from the respondent's decision not to allow the appellant to participate in its work-at-home program is not reviewable by the Commission at the fourth step of the non-contractual grievance procedure. Jordan v. DNR, 90-0386-PC, 1/11/91
A grievance relating to the procedure followed by the respondent in processing a grievance falls within the Commission's jurisdiction at the fourth step. Masear v. DILHR, 89-0065-PC, 11/1/89
The Commission lacks jurisdiction to hear grievances relating to the methodology used by appellant's supervisor in completing a performance evaluation, as well as allegations of actual or constructive demotion. Alleged comments to the effect that the appellant's sick leave use was excessive were not grievable decisions. Miller v. DHSS, 87-0209-PC, 2/8/89
The Commission has jurisdiction to consider whether respondent violated ?ER 46.01(2), Wis. Adm. Code, in a third-step grievance hearing, with respect to certain comments by respondent's representative which allegedly had the effect of denying the appellant an opportunity to be heard. Wing v. UW System, 85-0065-PC, 2/12/86
The Commission lacks jurisdiction to hear a grievance arising from a decision relating to the issuance of building keys where the respondent's third step response showed that respondent effectively reversed its original decision soon after it was issued. Wing v. UW System, 85-0122, 0173-PC, 2/6/86
The Commission has jurisdiction to hear a grievance arising from a failure of appellant's supervisors to conduct a second step hearing on another grievance within the established time limits. Wing v. UW System, 85-0122, 0173-PC, 2/6/86
The Commission lacks jurisdiction over a grievance arising from oral and written reprimands. H ER 46.03(2) and 46.07(l)(a), Wis. Adm. Code. Wing v. UW System, 85-0112-PC, 9/20/85
An allegation that respondent violated the grievance procedure by refusing to allow the appellant to tape record the first step meeting is grievable to the Commission. Wing v. UW System, 85-0007-PC, 5/22/85
Because the standard definition of the term "evaluation" includes both the act and result of evaluating, the Commission is precluded by ?ER 46.070) from hearing grievances arising from the methodology used in preparing performance evaluations. Holmblad v. DILHR, 84-0091-PC, 8/31/84
The Commission lacks jurisdiction over an appeal of a noncontractual grievance inasmuch as it failed to allege any violations of the civil service code with respect to alleged supervisory inaction on a reclassification request, inadequate notice of a transfer, not explaining the method for review of a transfer, and the transfer itself. Ford v. DHSS & DP, 82-243-PC, 83-0011-PC, 83-0020-PC, 6/9/83
The Commission has jurisdiction pursuant to ?230.45(l)(c), Stats., over a non-contractual grievance concerning a reprimand, where the employe alleged that the respondent's action in imposing the reprimand violated the state Code of Ethics, ch. Pers 24, Wis. Adm. Code. The Commission rejected the respondent's argument that there could not possibly be a violation of the rules, because the alleged "disclosure" by the employe under ?Pers 24.04(2)(c)2, Wis. Adm. Code, was not made to the "public" but rather was made to higher officials within the employing agency, holding that such a disclosure was covered by the rule. Luchsinger v. PSC, 82-192-PC, 1/31/83
Where appellant's grievance was not accepted at the Ist, 2nd or 3rd steps due to various alleged procedural deficiencies within the grievance document itself, the Commission is precluded from reaching the merits of appellant's allegations but retains the power to review respondent's decision not to accept the grievance as long as the grievant alleges that the procedural decision constitutes a violation of the grievance procedure set out in the APM or other rules of the administrator. Wing v. UW, 81-328, 420-PC, 6/25/82
The Commission may hear a grievance alleging a retaliatory reduction in work responsibilities where the appellant has alleged that the retaliation violated ?Pers 24.04(2)(c), Wis. Adm. Code, which prohibits reprisals against employes for the release of information to the public. Wing v. UW, 81-328,420-PC, 6/25/82
An appeal of a non-contractual grievance relating to a decision by the employer that the appellant could no longer work certain hours because of the absence of a supervisor does not relate to a "condition of employment" pursuant to ?230.45(l)(c), Stats., and the Commission lacks jurisdiction. Johnson v. DHSS, 81-450-PC, 6/10/82
The Commission lacks jurisdiction over an appeal of a non-contractual grievance relating to alleged unprofessional conduct and lack of decorum by court commissioners and departmental attorneys at "supplemental hearings" held to discover the assets of delinquent taxpayers for purposes of collection, because there is no arguable violation of the civil service code. Pogliano v. DOR, 81-466-PC, 6/10/82
The Commission lacks jurisdiction over a grievance relating to reimbursement for travel expenses. Cloutier v. DNR, 81-34-PC, 4/2/82
The employe grieved his supervisor's use of abusive language and management indicated at the third step that the supervisor had been counseled. In his appeal to the Commission, the grievant requested stronger action against the supervisor. The Commission concluded that it lacked jurisdiction because the decision as to how to deal with the supervisor constituted a management right under ?111.90(2), Stats., and hence was not a condition of employment under ?230.45(l)(c), Stats. Furthermore, there was no provision of the civil service code which arguably had been violated by the respondent. Fox v. DNR, 81-381-PC, 2/9/82
Where the subject of a non-contractual grievance related to the appellant's personnel file, there was no subject matter jurisdiction since the complainant could not allege a violation of the civil service code (Subch. II of Ch. 230, Stats., and Ch. Pers. Wis. Adm. Code) as required by the APM concerning non-contractual grievances because the civil service code does not govern employe access to personnel files. This subject is covered by ?103.13, Stats., which was referred to by the grievant both in his grievance and in his written arguments before the Commission. Wing v. UW, 80-274-PC, 4/1/81
Where the appellant argued that his concerns in his non-contractual grievance were with his performance evaluation and not the decision on a monetary performance award per se, his appeal was still barred by ?230.45(2), Stats., which makes it clear that appeals pursuant to ?230.450)(c), Stats., of non-contractual grievances do not include grievances based on the evaluations used to determine awards as well as grievances based on the amount of the awards. Wing v. UW, 80-256-PC, 4/1/81
The appointing authority's decision to use a particular position or person as an "activity Therapy Resource person" is not reviewable. Marshall et al. v. DP & DHSS, 79-136, 169-PC, 3/6/81
Notwithstanding that the Commission lacks jurisdiction over a non-contractual grievance to the extent that it relates to the denial of a discretionary performance award, the Commission would consider a charge that the agency failed to comply with the required procedure for processing a non-contractual grievance. Williamson v. DOR, 80-303-PC, 12/17/80
Although the DOT grievance procedure limits to the third step grievances relating to matters wholly within the department’s discretion, the decision to transfer is not wholly within the agency's discretion, and thus an appeal to the Commission (fourth step) is not barred. Harley v. DOT & DP, 80-77-PC, 5/15/80
Where the respondent argued that the appellant's transfer involved a management right and hence was not a "condition of employment" under ?230.45(l)(c), Stats., and the appellant argued that his grievance concerned the seniority provisions and the procedures to be followed in lieu of layoff, it was determined that the decision on the objection would be deferred until after the hearing on the merits. Harley v. DOT & DP, 80-77-PC, 5/15/80
The Commission lacks jurisdiction pursuant to ?230.45(l)(c), Stats., of a non-contractual grievance concerning the denial of permission to attend certain meetings held outside the prison, since the transaction does not involve a personnel decision, and an arguable violation of the civil service code, required for a fourth step appeal pursuant to the APM, could not be perceived. Corcoran v. DHSS, 79-147, 199-PC, 2/15/80
The Commission lacks jurisdiction over an appeal of a denial of a non-contract grievance relating to the denial of the use of a state vehicle as this transaction does not involve a function of the administrator nor is it covered by the civil service law or rules. Humphrey v. DOT, 78-287-PC, 8/15/79
The Commission lacks jurisdiction over an appeal of the denial of a non-contract grievance which had requested 10% time off for the appellant to gather information for other appeals and grievances, since the grievance subject matter did not involve an allegation of violation of the civil service law or rules or function of the administrator, and the repeal of ?16.03(4), Stats. (1975), eliminated the argument that any action by an appointing authority alleged to be illegal or an abuse of discretion is appealable. Wing v. UW, 79-20-PC, 7/5/79
The Commission lacks jurisdiction over an appeal of the denial of a non-contractual grievance relating to a management decision as to the location of the appellant's office since the subject matter of the grievance does not involve an allegation of a violation of the civil service laws or rules or a function of administrator, or for that matter, a personnel transaction. Scurlock v. DILHR, 79-44-PC, 6/12/79
The Commission lacks jurisdiction over an appeal of the denial of a non-contractual grievance where the employe alleged that the agency failed to advise him of his right to assistance, as set forth in the grievance procedure, in an appeal of a reallocation to Commission, since the section of the grievance procedure providing for assistance only applies to grievance proceedings and could not apply to an appeal of a reallocation since such appeals are not processed through the grievance procedure but are made directly to the Commission. Wing v. UW, 78-137-PC, 4/19/79
and are governed by Chapter 20, Stats., so there can be no allegation of a violation of the civil service law or involvement by the administrator and thus no basis for an appeal to the Commission under the non-contractual grievance procedure. Gohl v. DOR, 78-67-PC, 11/22/78
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.