Oct. 13, 2016 – The Wisconsin Employment Relations Commission (WERC) exceeded its authority when refusing to hold union recertification elections for the unions representing state prosecutors and other workers, a state appeals court has ruled.

Under the controversial 2011 Wisconsin Act 10, which curbed collective bargaining rights for public workers, WERC was required to conduct union recertification elections. It was also charged with promulgating rules concerning annual recertification elections.

WERC issued a rule that set an annual deadline (end of business hours on Sept. 15 each year) for the existing exclusive representative of union employees to file a petition “requesting the commission to conduct a secret ballot election to determine whether a minimum of 51 percent of the bargaining unit employees eligible to vote favor collective bargaining representation by the petitioner or another petitioning labor organization.”

If the existing union missed the deadline, there would be no secret election to determine whether 51 percent of employees favored collective bargaining representation by any labor organization, and the existing representative was decertified.

In 2014, both the Wisconsin Association of State Prosecutors (Prosecutors’ Union) and Service Employees International Union, Local 150 (Local 150), missed the Sept. 15 deadline to request the secret ballot election. Both filed petitions on Sept. 15, as required under the rule, but after business hours. Both filed their filing fees the next day.

WERC notified the Prosecutors’ Union, which represents Wisconsin’s assistant district attorneys, that no recertification elections would be held, meaning the union would be decertified. WERC made the same decision with respect to Local 150, which represents school building helpers, school custodians, and school service workers.

Both unions filed lawsuits, challenging WERC’s authority to promulgate a rule requiring the existing exclusive representative to annually file a petition for a recertification election. They said a petition is not required to hold mandatory recertification elections.

Ultimately, the Milwaukee County Circuit Court, Judge John DiMotto, ruled in favor of the unions, invalidating the rules that required the existing union to file an annual recertification petition and directing WERC to hold the secret ballot elections.

In Wisconsin Association of State Prosecutors v. Wisconsin Employment Relations Commission, 2015AP2224 (Oct. 12, 2016), a three-judge panel for the District I Court of Appeals affirmed, concluding WERC lacked authority to require those petitions.

The panel noted that Act 10 authorizes WERC to promulgate rules relating to the conduct of recertification elections, but exceeded its authority in this instance.

That’s because provisions in both the State Employment Labor Relations Act (SELRA) and the Municipal Employment Relations Act (MERA), both amended by Act 10, say WERC “shall conduct an election to recertify the representative of a collective bargaining unit that contains a general employee” every year, and the ballot “shall” include the names of all labor organizations interested in representing a bargaining unit.

“Shall” is the operative word there, according to the three-judge appeals court panel of Judge William Brash, III, Judge Kitty Brennan, and Reserve Judge Daniel LaRocque.

“Here, the legislature clearly used the word ‘shall’ when referring to conducting an election to certify the representative of a collective bargaining unit that contains a general employee,” wrote Judge Brash, III. “The legislature’s use of the word ‘shall’ indicates that the act of holding an election by the Commission is mandatory.”

In other words, a rule requiring a petition for recertification elections conflicted with the statutory language that mandates the elections. Thus, WERC exceeded its authority.

WERC argued that a petition must be filed because, under SELRA and MERA, only labor organizations “having an interest” in representing employees are included on the ballot. Without a petition, WERC said, there is no way to know who is interested.

But the panel noted that existing exclusive representatives “have an interest” until they are decertified, and they can’t be decertified without a mandatory election.

“According to the plain language of the statute, an incumbent labor organization remains the representative of the bargaining unit until it is decertified by the Commission after the votes are tallied,” wrote Judge Brash, III, noting that this decision means WERC must hold annual recertification elections regardless of any petition.