Wisconsin Can Decertify Unions, Has Full Authority (1)

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By Michael J. Bologna

The Wisconsin Employment Relations Commission has full authority to decertify collective bargaining units that fail to timely file representation election petitions, the Wisconsin Supreme Court ruled Feb. 28.

In a 5-2 opinion, the court also upheld the WERC’s authority under Wisconsin Act 10 to establish rules that require “a demonstration of interest from labor organizations interested in representing collective bargaining units.”

The ruling marked another vote of support from the state’s highest court for Gov. Scott Walker’s (R) landmark law restricting the collective bargaining rights of public employees and requiring annual recertification elections.

The ruling reinstates a decision by the WERC decertifying the Wisconsin Association of State Prosecutors, which has bargained on behalf of all state district attorneys, and Service Employees International Union Local 150, which has represented Milwaukee Public Schools food service workers and custodians.

Both unions had sought recertification in election petitions in September 2014. The petitions triggered more than three years of litigation after the WERC decertified the two unions for missing their statutory deadline by approximately one hour.

The ruling also reinstates features of the WERC’s annual recertification process that were struck down by a circuit court and the Wisconsin Court of Appeals. In October 2016, the appeals court ruled the WERC had improperly issued regulations requiring unions representing state and local employees to annually petition the agency for recertification.

While the case was pending, the WERC didn’t require unions to file petitions for annual recertification elections, commission general counsel Peter G. Davis said. The agency will now resume the petition process beginning with school district and state employee elections scheduled for the fall, Davis said. In this context, unions failing to meet the Sept. 15 deadline for filing election petitions will be decertified.

“We are happy to be upheld,” Davis told Bloomberg Law. “Effective this fall we will be back to the business of enforcing this rigorously.”

Setback for Unions

The ruling is a setback for organized labor, which has filed numerous legal and regulatory challenges to W.A. 10 since it became law in 2011.

The Supreme Court majority ignored the fact that the WERC’s rules are essentially restrictive and can be used to silence workers in elections involving their collective bargaining rights, said Nathan D. Eisenberg, who represented WASP and the SEIU on appeal. He is a partner with the Previant Law Firm S.C. in Milwaukee.

Eisenberg credited Justices Ann Walsh Bradley and Shirley Abrahamson for a dissenting opinion that said the majority engaged in “analytical gymnastics” to render an opinion to permit the WERC “to cancel elections.” The two dissenting justices stressed that an agency’s administrative regulations can’t override statutory language. As W.A. 10 specifies that the WERC “shall” conduct annual recertification elections, the dissenters said no rule can diminish or interfere with that duty.

“The issue here was about disenfranchising workers from voting in these annual certification elections,” said Eisenberg. “The disappointing thing is it sort of continues this trend of disenfranchising Wisconsin workers. Ann Walsh Bradley highlighted that in her dissent.”

Annual Recertification Rule

The ruling relates to a WERC regulation under W.A. 10 stating that all unions representing municipal and state employees must annually petition the agency for a recertification election by the close of business Sept. 15. Such elections are required to determine whether 51 percent of the bargaining unit employees eligible to vote favor collective bargaining representation by the petitioning union for the coming year.

WASP and SEIU sued the WERC after missing the deadline. At both the circuit court and the appeals court levels, judges rejected the WERC’s contention that it held authority to issue reasonable rules implementing W.A. 10 with regard to the recertification process.

The Supreme Court disagreed, finding the WERC hadn’t exceeded its authority under W.A. 10. In addition, the court found the WERC had full authority to decertify bargaining units in cases where a union fails to comply with the agency’s rules.

“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,” Justice Annette Kingsland Ziegler wrote on behalf of the majority.

The case is Wis. Ass’n of State Prosecutors v. Wis. Emp’t Relations Comm’n, Wis., No. 2018 WI 17, opinion 2/28/18.

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