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Public Union Recertification Elections Still On Hold

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

The Wisconsin Court of Appeals has refused to suspend an order issued just over a week ago by Dane County Circuit Court Judge Juan Colas. Judge Colas found the Wisconsin Employment Relations Commission (WERC) in contempt of court for proceeding with union recertification elections around the state and ordered the WERC to cease and desist from holding the elections. This means it is now up to the Wisconsin Supreme Court to decide whether the WERC will be allowed to conduct union recertification elections.

The Court of Appeals focused on technical issues that are related to review of contempt orders, rather than substantive issues related to the circuit court’s decision to block union recertification elections statewide. In this regard, the Court stressed that the issue before it did not have to do with the constitutionality of various provisions of Act 10 and Act 32, including those related to union elections, but rather concerned “whether the circuit court has properly found the (WERC) commissioners in contempt.” The Court did note that both parties had made a showing of potential harm that would follow from lifting Judge Colas’ order or, alternatively, leaving it in place. However, the Court indicated that it could not “reliably predict” whether recertification election statutes and other provisions of Act 10 would be upheld and that, as a result, staying the circuit court order was not appropriate.

The Court of Appeals’ decision means that — for now — the WERC is still prohibited from conducting union recertification elections statewide. However, after the WERC’s appeal from Judge Colas’ contempt order was filed in both the Supreme Court and Court of Appeals on October 25, 2013, the Supreme Court notified the parties that it would not rule on the matter until the Court of Appeals made its decision first. The Supreme Court further advised that any party wishing to challenge the Court of Appeals’ decision would have to do so no later than November 7, 2013, and that the Court would then hear legal arguments on this issue next Monday, November 11, 2013, as part of the oral arguments that were already scheduled to consider the more broad constitutional challenges to Act 10.

Reports indicate that the WERC will appeal the Court of Appeals’ decision to the Supreme Court in the next two days. As a result, it is at least possible that we will hear from the Supreme Court in the near future on whether the WERC can conduct the union recertification elections that are mandated by Act 10.

Davis & Kuelthau, s.c. will continue to monitor this case and provide updates to clients as events transpire. In the interim, please contact your Davis & Kuelthau, s.c. attorney.