Circuit Court Rules That WERC Exceeded Its Rule-Making Authority

Just when you thought all of the Act 10 litigation had been resolved, along comes Wisconsin Association of State Prosecutors and Service Employees International Union, Local 150 v. WERC in several combined cases challenging the rule-making authority of the Wisconsin Employment Relations Commission (WERC) regarding the election process. Milwaukee County Circuit Court Judge John J. DiMotto issued an order on July 31, 2015 finding that the WERC exceeded its statutory authority under its administrative rules ERC 70 and 80 with respect to the requirement that a union file a petition for an annual recertification election. The court ruled that based upon the statutory language itself, the WERC did not have the authority to impose such a requirement. Therefore the Court held that the rules are invalid as to a petition prerequisite and reversed the WERC decisions regarding the failing and refusing to hold recertification elections where a Union failed to file a timely petition for election.

The court prohibited the WERC from enforcing the provisions in its rules which required a union to file a petition in order to qualify for a recertification election.

Impact of Decision

This case is a result of a two labor organizations that filed untimely petitions and were denied recertification elections by the WERC. The unions challenged the WERC rules requiring that a petition be filed to initiate the recertification election process. The court found such a requirement in direct conflict with the statutory provisions that state that the WERC “shall” conduct an election making such process a requirement not subject to other conditions.

While the initial reaction might be that this case only applies to the particular litigants in Milwaukee County since it is a circuit court case, the WERC may apply the court’s decision statewide since the decision directly addresses the agency’s administrative rules. While the WERC is likely to appeal, it is anticipated that in the meantime it will be notifying public employees and labor organizations that it will not require a petition for an annual recertification election in the interim. However, it is also anticipated that the WERC will still require the appropriate filing fees. The agency will also request certain necessary factual information on eligible voters, contact persons, etc., for handling the recertification election request. Unions will be reminded to copy employers on their recertification submittals to the WERC.

This ruling may have an indirect impact on employers. While the major burden to comply with the request for an annual recertification election and the payment of fees in a timely manner falls squarely on unions, this case raises some other potentially complicated issues.

For example, for those public employers who have had unions decertified for failing to file a recertification petition in a timely manner, or electing not to file a petition at all, are these unions entitled to another election? Are they now reinstated as the representative since no election was held? What obligations would the employer have to negotiate with such a union? Does any of this have any retroactive impact? While the decision will more likely than not have prospective application, thorny issues do exist.

As a practical matter, unions still have to have a majority of the bargaining unit vote to recertify in order to comply with the annual recertification process to continue to represent employees. Whether they have to file a formal petition or some other kind of information sheet will not alter the annual voting requirement.