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New Annual Recertification Election Rules

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

The Wisconsin Employment Relations Commission’s administrative rules governing annual union certification elections are permanent as of July 1, 2014. The only difference between the previous temporary rules and the new permanent rules is the deadline for unions representing school district employees to submit petitions for election; the new deadline is September 15, instead of August 30.

Thus, in accordance with the Wis. Admin. Code § ERC 70.03, a labor organization currently representing a bargaining unit of school district employees must file a petition for an annual election with the WERC on or before September 15, 2014, if the labor organization wishes to continue to serve as the exclusive representative of the bargaining unit. The labor organization must use the form provided by the WERC and pay the appropriate fee depending upon the size of the bargaining unit. At the same time the labor organization files the petition with the WERC, the labor organization must also serve a copy of the petition, via electronic mail, on the school district.

If the labor organization fails to file a timely petition for an annual election with the WERC, the representation will cease as of September 15, or upon the expiration of the existing collective bargaining agreement, whichever is later. Additionally, the employees in the bargaining unit represented by the labor organization may not be included in a substantially similar collective bargaining unit for a minimum of one year after the representation ceases. It is important to note that these consequences do not apply if the labor organization filed the petition with the WERC, but simply failed to serve a copy of the petition on the school district.

Upon receiving the petition for an annual recertification election, the school district must identify the employees who were employed in the bargaining unit described in the petition as of the pay period when the petition was filed or using another date selected by the WERC. As per Wis. Admin. Code § ERC 70.05, within 10 days of receiving the petition, the school district must furnish to the WERC, in an electronically sortable format, an alphabetical list of the names of these employees and the last 4 digits of each employee’s social security number. The WERC may also instruct the school district to provide each employee’s mailing address, including zip code, the employee’s work unit and location, and labels to be used by the WERC for mailing election ballots. It is important to note that not all employees in the bargaining unit are members of the union.

At the same time that the school district is providing information to the WERC, the school district must also provide the petitioning labor organization with an electronically sortable alphabetical list of the names of employees provided to the WERC. Thereafter, the labor organization has 10 days to respond to the school district’s list by identifying for the WERC any employees that should be added to or deleted from the school district’s list.

The WERC will hold the annual recertification elections in the fall. In accordance with Wis. Admin. Code §70.07, each election may be conducted on-site or by mail at the discretion of the WERC. The specific dates for each election will be set by the WERC at a later date.

For information about posting and distributing the WERC’s Notice of Annual Election, please click here to read our October 17, 2013 article.

Finally, it is important to remember that the annual recertification election process is slightly different than the process used for a regular certification election. The most important difference is the vote necessary for certification. With the annual recertification election, the union must receive at least 51% of the votes of all of the employees in the bargaining unit. With a regular certification election, the union must receive a majority of the employees who vote in the election.

If you have any questions regarding this article, please contact your Davis & Kuelthau attorney.