907 N.W.2d 425
Wis.2018Background
- In 2014 WERC promulgated administrative rules (ERC 70 & 80) requiring labor organizations to file a petition for election by September 15 and pay a fee to be placed on annual recertification ballots (statutory deadline for elections is on or before Dec. 1).
- SEIU and WASP (incumbent representatives) filed petitions after WERC’s 4:30 p.m. September 15 deadline; WERC dismissed the petitions as untimely and treated incumbents as decertified.
- The unions sued, arguing the rules conflict with Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b), which they read to mandate annual elections without a petition condition. The circuit court and court of appeals agreed with the unions.
- The Supreme Court granted review to decide (1) whether WERC exceeded its statutory authority by requiring petitions, and (2) whether WERC may decertify incumbents on September 15 when no timely petitions are filed.
- The Supreme Court reversed the court of appeals: it upheld WERC’s petition requirement as within statutory rulemaking authority and held WERC may decertify incumbents on Sept. 15 (or at CBA expiration) when no timely petitions are filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WERC exceeded statutory authority by requiring timely petitions for annual recertification elections | Petition rule conflicts with statutes that say the commission "shall conduct" annual elections; no statutory petition requirement exists | WERC has express rulemaking authority to adopt reasonable procedures to determine which labor organizations "have an interest" and a petition is a reasonable means to do so | WERC did not exceed authority; petition requirement is a permissible predicate to identify organizations "having an interest" and is authorized by statutes empowering WERC to adopt election rules |
| Whether a current representative is presumptively "interested" (and thus must be on the ballot without filing) | Incumbents have a continuing legal interest; therefore WERC cannot require them to file to appear on the ballot | Statute requires inclusion of organizations "having an interest" but does not create a presumption of incumbent interest; related statutory text shows legislature knows how to create such a presumption when intended | No presumption of incumbent interest absent statutory text; WERC may require demonstration of interest via petition to determine who to include on the ballot |
| Whether WERC may decertify a current representative on Sept. 15 if no timely petitions are filed | Decertification is authorized only after an election showing <51%—statutes mandate an election, so decertification without an election is invalid | "No later than Dec. 1" permits elections (and resulting certification/decertification) on or before Dec. 1; failure to file is functionally equivalent to an election yielding zero votes | WERC may decertify on Sept. 15 (or at CBA expiration, whichever later) when no timely petitions are filed because statutes allow elections on or before Dec. 1 and failure to file is equivalent to receiving <51% of votes |
| Whether ERC deadlines and penalties produce an absurd result or violate legislative intent to enfranchise employees | The rules nullify the statutory mandate and disenfranchise employees who would otherwise have a vote; "shall" is mandatory | Conducting elections with no parties on the ballot is absurd; administrative rules effectuate the statute and are reasonable and necessary for logistics | Court rejects the asserted absurdity and affirms the reasonableness of the petition deadline to permit WERC to identify interested parties and administer elections by Dec. 1 |
Key Cases Cited
- Mallo v. Dept. of Revenue, 253 Wis. 2d 391 (Wis. 2002) (resolving statute-rule conflicts requires statutory interpretation reviewed de novo)
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (Wis. 2004) (statutory language interpreted in context; avoid absurd results)
- Wis. Citizens Concerned for Cranes & Doves v. DNR, 270 Wis. 2d 318 (Wis. 2004) (agency rule invalid if it conflicts with unambiguous statute)
- Wisconsin Hospital Ass'n v. Natural Resources Board, 156 Wis. 2d 688 (Ct. App. 1990) (elemental approach: compare rule elements to enabling statute)
- Department of Revenue v. Menasha Corp., 311 Wis. 2d 579 (Wis. 2008) (construe regulations with statute to effectuate legislative purpose)
- State ex rel. Castaneda v. Welch, 303 Wis. 2d 570 (Wis. 2007) (when statute and administrative rule conflict, statute prevails)