Statutory Authority – Petitions for Election

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WI Supreme Court

Case Name: Wisconsin Association of State Prosecutors v. Wisconsin Employment Regulations Commission, et al.

Case No.: 2018 WI 17

Focus:  Statutory Authority – Petitions for Election

This is a review of a published decision of the court of appeals, Wis. Ass’n of State Prosecutors v. Wis. Emp’t Relations Comm’n, 2016 WI App 85, 372 Wis. 2d 347, 888 N.W.2d 237, [hereinafter “WASP”], affirming the Milwaukee County circuit court’s1 declaration that the Wisconsin Employment Relations Commission (“WERC”) exceeded its authority under Wis. Stat. ch. 111 (2013-14)2 in promulgating Wis. Admin. Code chs. ERC 70 and 80, and the circuit court’s subsequent order that WERC hold certification elections for the Wisconsin Association of State Prosecutors (“WASP”) and the Service Employees International Union, Local 150 (“SEIU”).

The cause before us consists of five consolidated cases: two petitions for declaratory judgment and writ of prohibition under Wis. Stat. § 227.40 and three petitions for judicial review of an agency decision under Wis. Stat. §§ 227.52 and 227.53. On appeal, WERC argued that the requirement was necessary because, without a petition, it could not otherwise know which labor organizations have an interest in representation, that is, which labor organizations should be included on the ballot. The court of appeals rejected this argument and held that a current representative has a continuing interest in representation. See WASP, 372 Wis. 2d 347, ¶21. The court of appeals then held that “shall” is mandatory in Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b), and that, therefore, making annual elections contingent on the filing of a petition for election is in direct conflict with the legislative mandate. Id., ¶¶19, 23. WERC petitioned for review.

There are two issues on this appeal. First, we consider whether WERC exceeded its statutory authority under Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC 70 and 80. We conclude that WERC did not exceed its authority because it has express authority under Wis. Stat. ch. 111 to promulgate rules that require a demonstration of interest from labor organizations interested in representing collective bargaining units; consequently, we reinstate WERC’s orders dismissing the Unions’ petitions for election as untimely. Second, we consider the subsidiary issue of whether WERC may decertify a current representative labor organization on September 15 where there are no timely petitions for election filed. We conclude that WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, where there are no timely petitions for election filed because the plain language of the statute requires WERC to conduct elections on or before December 1. Thus, we reverse the decision of the court of appeals and reinstate WERC’s orders dismissing the Unions’ petitions for election.

Reversed and Reinstated

Concur:

Dissent: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed).

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