COURT OF APPEALS DECISION DATED AND RELEASED December 21, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2449
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
VILLAGE OF CASSVILLE,
Petitioner-Respondent-Cross
Appellant,
v.
WISCONSIN EMPLOYMENT
RELATIONS
COMMISSION,
Respondent-Co-Appellant-Cross Respondent,
TEAMSTERS LOCAL 579,
Respondent-Appellant-Cross Respondent.
APPEAL and CROSS-APPEAL
from an order of the circuit court for Grant County: GEORGE S. CURRY, Judge. Reversed
and cause remanded with directions.
Before Eich, C.J.,
Gartzke, P.J., and Dykman, J.
PER
CURIAM. The Wisconsin Employment Relations Commission (WERC)
and Teamsters Local 579 (the Union) appeal from an order remanding this case to
WERC for further proceedings. They
contend that the trial court should have affirmed WERC's order on a prohibited
labor practices complaint. The Village
of Cassville cross-appeals the remand order, contending that the trial court
should have set aside WERC's order. We
reverse and remand, directing the trial court to enter an order affirming
WERC's order.
In April 1992, the Union
filed an election petition to allow certain village employees to vote for Union
representation. In May 1992, the
Village president, William Whyte, signed a stipulation for election with the
Union, which defined the bargaining unit as the non-management and
non-confidential employees of the water/sewer and street departments. In June, the election was held and four of
the five stipulated employees in the proposed unit voted for the Union. On July 1, 1992, WERC certified the
results.
On July 22, 1992, the
Union filed a complaint with WERC alleging that the Village had engaged in
prohibitive practices under the Municipal Employment Relations Act, §§
111.70-111.77, Stats.
In March 1993, WERC's
hearing examiner found that the Village had engaged in certain prohibited
practices, and ordered it to remedy the situation. In doing so, the examiner rejected the Village's contention that
the certified bargaining unit was inappropriate, holding "[a] claim of
inappropriate bargaining unit may not serve as a defense to a refusal to
bargain allegation ... where the party advancing such a defense has not sought
reconsideration of the certification by the Commission or judicial review of
the final order in the representation proceeding."
The Village moved for
reconsideration, presenting evidence for the first time that the bargaining
unit certification was void because Whyte lacked the authority to sign the May
1992 election stipulation that led to the certification. The hearing examiner refused to reconsider
her decision. On administrative appeal
WERC affirmed, holding that it would not address the issue of Whyte's authority
because it was not timely raised.
The sole issue presented
in the Village's petition for judicial review concerned WERC's failure to
consider the evidence presented on reconsideration. In its decision, the trial court ordered WERC to reconsider the
evidence on remand, citing § 227.49(3)(b), Stats., which directs that a rehearing will be granted on the
basis of "some material error of fact." On appeal, the Union and WERC contend that the Village lost the
opportunity to litigate the issue when it failed to seek timely review of the
certification issued on July 1, 1992.
On cross-appeal, the Village contends that the court's remand order was
unnecessary because the evidence presented on reconsideration undisputedly
established that the certification was invalid.
The Village cannot
challenge the validity of the election in this proceeding. WERC's certification of the election issued
on July 1, 1992, was final and judicially reviewable. City of West Allis v. WERC, 72 Wis.2d 268, 272, 240
N.W.2d 416, 418 (1976). The Village had
twenty days to petition for reconsideration of that decision under
§ 227.49(1), Stats., and
thirty days to petition for judicial review under § 227.53(1)(a)2, Stats.
Because it did neither, the certification had preclusive effect in all
subsequent actions. Hlavinka v.
Blunt, Ellis & Loewi, Inc., 174 Wis.2d 381, 398-99, 497 N.W.2d 756,
763 (Ct. App. 1993).
Even if the Village
could have raised the issue of Whyte's authority, it did not timely do so. The Village first presented its evidence in
its petition for a rehearing. Newly
discovered evidence will result in reconsideration only if the evidence
"could not have been previously discovered by due diligence." Section 227.49(3)(c), Stats.
The Village offered no reason for its delay in submitting the
evidence. For these reasons, we reverse
the trial court's order and remand, directing the trial court to enter an order
affirming WERC's order.
By
the Court.—Order reversed and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.