Feb. 28, 2018 – A prosecutors’ union argued that the Wisconsin Employment Relations Commission (WERC) could not refuse to hold an annual union certification election for failure to file a petition for election. Recently, the state supreme court said it could.

Under Wisconsin law, WERC must annually conduct an election to certify the exclusive collective bargaining representative of a bargaining unit. Specifically, Wis. Stat. section 111.70(4)(d)3.b, applicable to municipal employees and 111.83(3)(b), applicable to state employees, says WERC “shall” conduct an election to certify the representative.

But WERC promulgated rules requiring labor organizations to file a petition for election in order for WERC to initiate the mandated annual certification election.

The prosecutor union, and other certified unions, did not timely file a petition for election. Thus, WERC refused to hold the certification election and decertified those unions. Five union cases were consolidated in actions against WERC.

The Milwaukee County Circuit Court ruled that WERC exceeded its authority in promulgating administrative rules that require certified unions to annually file a petition for election as a condition precedent to holding an annual recertification election.

An appeals court affirmed. But in Wisconsin Association of State Prosecutors v. WERC, 2018 WI 17 (Feb. 28, 2018), a Wisconsin Supreme Court majority reversed (5-2), concluding WERC has authority to require that all interested labor organizations file a petition for election, and WERC could decertify unions that did not timely file it.

Certified Union Must Still File Petition for Election

WERC argued that a petition for election is required so it knows which interested labor organizations to place on the ballot. The unions countered that a current representative – one that is already certified – has a “continuing interest” in representation and the statutes governing annual elections “require” WERC to hold a certification election.

But the supreme court majority ruled that WERC had authority to impose the duty to file a petition for annual election, even on the current certified representative.

The majority pointed to statutes that require WERC to include, on the ballot, the names of labor organizations with an interest in representing the bargaining unit and WERC was fulfilling this obligation through regulations that require a petition for election.

“[W]e reject the argument that the rules were not necessary because a current representative has a continuing interest in representing the bargaining unit,” wrote Justice Annette Ziegler, noting that the legislature could have indicated that certified representatives are exempt from filing the petition for annual recertification.

A related statute, § 111.83(3)(a), says “[t]he name of any existing representative shall be included on the ballot without the necessity of filing a petition” whenever “a question arises concerning the representation of employees in a collective bargaining unit.”

That exemption language is not included in the following provision, § 111.83(3)(b), which governs the annual recertification election, the majority explained.

“Although not applicable to the facts here, [§ 111.83(3)(a)] demonstrates that the legislature is fully capable of specifying where an assumption of continuing interest applies; thus, we should not read in that assumption where it is not specified,” Justice Ziegler wrote.

Because WERC regulations on petitions for election were valid, the majority also ruled that WERC could decertify the unions that did not timely file the petition.

“Here, because we hold that the rules requiring a petition for election are valid, we reverse the court of appeals and consequently order that WERC’s decisions and orders dismissing the Unions’ petitions for election be reinstated,”  Ziegler wrote.

Dissent

In a dissenting opinion, Justice Ann Walsh Bradley (joined by Justice Shirley Abrahamson) said the majority engaged in “analytical gymnastics” to justify its conclusion, and WERC’s rules are in “irreconcilable conflict” with the statutes.

The dissenters said that administrative regulations do not trump statutes and the case is a straightforward question of statutory interpretation: The statutes state that WERC “shall” conduct an annual recertification election; no rule can undermine that mandate.

“[T]he statutes mandated that there ‘shall’ be an election, while the administrative code provisions allow an election to be cancelled,” Justice A.W. Bradley wrote. “By creating a barrier that does not exist, WERC rules are necessarily in conflict with state law.”

A.W. Bradley also took issue with the majority’s assertion that requiring the petition for election is necessary to avoid the absurd result of requiring an election even when no labor unions, including the previously certified union, is interested in running.

That is, Justice A.W. Bradley said the “absurd result” identified by the majority’s decision is “easily avoidable through a simple disclaimer process that is available at any time and is already in use in both federal and state labor law.”

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