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WERC Issues Revised Union Election Rules

On September 15, 2011 the Wisconsin Employment Relations Commission (WERC) published final administrative rules regarding union elections required under 2011 Wisconsin Acts 10 and 32 after receiving Governor Walker’s approval. These rules do not apply to public safety or transit employees.

This chart below will help you determine when a union election will take place. If a union misses the filing deadline, it will be decertified. If a union is decertified, it will no longer be able to represent the employees for at least one year.

“Extension” Of Contract Narrowly Defined

While many employers thought that they “extended” their existing contracts before the Acts 10 and 32 became effective, the definition of “extension” adopted by the WERC does not include almost any employer that entered into an additional one or two year agreement.

An “extension” of a collective bargaining agreement is defined as including all of the following:

(a) An overall agreement specifying wages, hours and conditions of employment.
(b) Without a definite expiration date.
(c) Subject to termination by either of the parties upon notification or advance notification to the other.

It is unlikely that many municipalities or school districts will meet this definition.

Rounds 4 And 5

For those public employers with existing contracts that were agreed upon before June 29, 2011 and are in effect on the filing deadline dates (September 30/January 30), the timing of the union election will be:

By law, the elections for school districts must take place “on or before December 1” and for municipalities “on or before May 1”. The WERC’s timetable above ensures that the petition will be filed and the election conducted in plenty of time before the statutory deadline. The rules also provide that, upon the agreement of both parties, the WERC will conduct an election earlier.

For example, in a school district with a contract that was agreed upon before June 29, 2011, with an effective date from July 1, 2009 to June 30, 2012, the union would have to file a petition by September 30, 2012 to continue to represent the employees. The election would take place in October/November 2012.

There is the potential for delay in a contract that expired on December 31, 2010. In that instance, the union would have to wait until January 30, 2012 to file an election petition. However, in most cases, the petition for election must be filed soon after the contract expires.

If the union does not file a timely petition, the union will be decertified.

It appears that some unions may decide to forego the filing of the election petition. In fact, the state teachers’ union (WEAC), said it is up to each local union to decide whether it is in their interests to become certified. The difficulty in prevailing in an election and having to collect dues may outweigh the benefits of being able to bargain over only total base wages, capped by the consumer price index. Some unions have publicly stated that they believe they will be more successful obtaining higher wage increases and preserving existing benefits by relying on informal discussions with elected officials. We will continue to monitor these developments so as to keep our clients fully informed.

The rules specify the procedure that both parties must follow in the election process:

(1) Union files election petition with the WERC including filing fees ranging from $200 to $2000 per election based on the number of employees.

(2) Within ten days of the petition, the employer must provide an electronic list of employees, the last four digits of the employee’s social security number and other information.

(3) The WERC or its agent will conduct an election and certify the results. The voter eligibility date will always be one during the payroll period when the election petition is filed. Elections may be conducted three ways: on-site balloting, mail balloting and telephonic balloting.

(4) The union must receive support from 51% of the total eligible voters in the bargaining unit to retain certification as the bargaining representative.

(5) If the union is decertified, no union may represent the same employee group until after one year.

In an interesting twist, an election for a union trying to represent employees in a decertified unit after a one year moratorium, is governed by a far more attainable standard, whereby the election outcome is determined by a majority of those who actually vote in the election — not the higher standard of 51% of all employees in the unit.

The rules regarding the certification of union elections is now available on the WERC’s website: