How to Post and Distribute the Notice of WERC’s Annual Certification Election
October 17, 2013

By D&K's School and Higher Education Law Team

In school districts[1] where the labor organization representing district employees filed a timely Petition for an Annual Certification Election with the Wisconsin Employment Relations Commission (WERC), the school district has an obligation to post and distribute the Notice of Election form, which is provided to the school district by the WERC and which announces that elections will occur via secret telephonic ballot between November 1, 2013, and November 21, 2013, to determine “whether at least 51% of the employees in the bargaining unit want to continue to be represented…for purposes of collective bargaining” by the labor organization identified in the Direction of Election. Many school district officials have presented questions about what will satisfy the obligation to post and distribute the Notice of Election.

According to Wis. Admin. Code § ERC 70.07(2), the municipal employer (i.e., school district) is required to “post notices to personnel concerning the election at times, locations and in a form specified by the commission.” According to WERC General Counsel, Peter Davis, the Notice of Election form should be posted and distributed as soon as possible, wherever and however necessary to provide eligible voters with notice of the election. Moreover, the Notice of Election form should remain posted and distributed until noon on November 21, 2013. The WERC did not include any further specific directions with regard to how, where and by what method the school district should post and/or distribute the Notice of Election form.

In the past, the WERC has opined that the obligation to post election notices requires the municipal employer to display such notices in paper form on bulletin boards, near time clocks, in break rooms, adjacent to employee internal mailboxes, and in other conspicuous locations where the municipal employer displays other notices that are required to be posted by law, such as the posters required by the Fair Labor Standards Act, Family and Medical Leave Acts, and other state and federal labor and employment laws. In cases where employees work in several buildings, the notice must be posted in each building. In a large facility, the notice must be posted in several locations throughout the building. In situations where the municipal employer employs individuals, who do not visit the worksite on a regular basis, the municipal employer would be expected to distribute the posting via internal mail service or electronic mail.

The stated purpose of the Notice of Election form and the posting/distribution obligations is to ensure that all eligible voters learn about the upcoming election with sufficient time so as to allow them to participate in the election. Given this purpose, it is advisable for a municipal employer to post the Notice of Election form in a variety of locations throughout the employer’s buildings and worksites where the employees will have access to it and the opportunity to read it. Moreover, the municipal employer should consider distributing the Notice of Election via internal mail or email, especially if there is reason to be concerned that simply posting the notices will not be sufficient to ensure that all of the district’s employees who may be eligible to vote in the Annual Certification Election have notice of the election.

If you have any questions regarding this article, please contact your Davis & Kuelthau attorney or the School and Higher Education Law Chair, James R. Macy, at 920.232.4841 / jmacy@dkattorneys.com.



[1]Wis. Admin. Code § ERC 71.01, et seq., enumerates the rules governing the annual certification elections for represented municipal sector general non-school district employees. We expect that the WERC will establish a deadline for labor organization representing non-school district employees to file Petitions for Annual Certification Elections later this calendar year with the elections taking place in the spring. The same rules governing the posting and distribution of the Notice of Election form will almost certainly apply to the activities of non-school district municipal employers when those elections are scheduled.

 

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