888 N.W.2d 237
Wis. Ct. App.2016Background
- In 2011 the Wisconsin Legislature (Act 10) amended SELRA and MERA to require the Wisconsin Employment Relations Commission (Commission) to conduct annual recertification elections (by Dec. 1 for state units; similar timing for municipal/school units). The statute requires the ballot to include "all labor organizations having an interest" and certifies any representative receiving at least 51% of votes.
- The Commission adopted Wis. Admin. Code §§ ERC 70 and 80, which required an existing exclusive representative (incumbent) to file a recertification petition (including a showing of interest and fee) by September 15 during normal business hours, or risk loss of exclusive status and a one-year exclusion from substantially similar units.
- WIASP and Local 150 filed petitions on September 15, 2014 after Commission business hours; filing fees were received the next day. The Commission deemed the petitions untimely and refused to hold recertification elections.
- WIASP and Local 150 sought declaratory relief and a writ of prohibition in circuit court; the circuit court invalidated the ERC 70/80 provisions that required incumbents to file petitions and ordered recertification elections.
- The Commission appealed. The court of appeals affirmed: it held the statutes unambiguously required the Commission to hold annual elections and that the Commission exceeded its statutory authority by making holding elections contingent on incumbents filing petitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commission may require an incumbent to file a petition to trigger the statutorily mandated annual recertification election | Petition requirement is invalid because statutes unambiguously mandate annual elections and do not condition them on a petition | ERC 70/80 are reasonable election rules; petition is needed to determine which organizations "have an interest" and to allow orderly administration | The statutes unambiguously require annual elections; the Commission exceeded statutory authority by conditioning elections on a petition (rule invalid) |
| Whether an incumbent presumptively "has an interest" in representing the unit absent a new petition | Incumbent remains representative until decertified and thus has an interest sufficient to be on the ballot | Without a petition the Commission cannot know interests and might have no names on the ballot | Incumbent retains representational status until decertified and therefore has an interest in representing the unit; lack of petition does not excuse the Commission from holding the election |
| Appropriate relief/remedy (hold elections and treat incumbency as uninterrupted if they win) | Court should order elections without requiring new showings or petitions and treat any incumbent victory as uninterrupted | Commission urged deference to its rules and procedures | Court affirmed circuit court: ordered recertification elections and treated representational status as continuous if incumbents prevail |
| Whether rulemaking authority allows the Commission to impose a condition precedent that conflicts with statute | Plaintiffs: agency cannot substitute its policy for the legislature; reasonable doubts resolved against agency | Commission: has delegated authority to regulate elections and adopt reasonable rules | Where a rule conflicts with an unambiguous statutory mandate, the statute controls and the rule is invalid |
Key Cases Cited
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (2004) (statutory interpretation principles; presume legislature means what it says)
- Wisconsin Citizens Concerned for Cranes and Doves v. DNR, 270 Wis. 2d 318 (2004) (agency rule review; de novo review on scope of agency power)
- Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455 (1983) (agencies have only expressly or necessarily implied powers)
- DeBeck v. DNR, 172 Wis. 2d 382 (1992) (agency may not substitute its policy for the legislature; statute controls when conflict exists)
- Georgina G. v. Terry M., 184 Wis. 2d 492 (1994) (use of "shall" construed as mandatory)
- County of Walworth v. Spalding, 111 Wis. 2d 19 (1983) (interpretation of mandatory statutory language)