Wisconsin Association of State Prosecutors, Plaintiff-Respondent, v. Wisconsin Employment Relations Commission, James R. Scott and Rodney G. Pasch, Defendants-Appellants-Petitioners. Service Employees International Union, Local 150, Plaintiff-Respondent, v. State of Wisconsin, Office of State Employment Relations, Intervenor-Appellant, Wisconsin Employment Relations Commission, James R. Scott and Rodney G. Pasch, Defendants-Appellants-Petitioners. Wisconsin Association of State Prosecutors, Plaintiff-Respondent, v. Wisconsin Employment Relations Commission, Defendant-Appellant-Petitioner. Service Employees International Union, Local 150, Plaintiff-Respondent, v. Wisconsin Employment Relations Commission, Defendant-Appellant-Petitioner. Service Employees International Union, Local 150, Plaintiff-Respondent, v. Wisconsin Employment Relations Commission, Defendant-Appellant-Petitioner, State of Wisconsin, Office of State Employment Relations, Intervenor-Appellant.
No. 2015AP2224
SUPREME COURT OF WISCONSIN
February 28, 2018
2018 WI 17
REVIEW OF A DECISION OF THE COURT OF APPEALS. Reported at 372 Wis. 2d 347, 888 N.W.2d 237. PDC No: 2016 WI App 85 - Published. Oral Argument: December 5, 2017. Source of Appeal: Court: Circuit; County: Milwaukee; Judge: John J. DiMotto.
JUSTICES:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed).
ATTORNEYS:
For the defendants-appellants-petitioners, there were briefs filed by Misha Tseytlin, solicitor general, with whom on the briefs were Brad D. Schimel,
For the plaintiffs-respondents, there was a brief filed by Nathan D. Eisenberg, Erin F. Medeiros, and The Previant Law Firm, S.C., Milwaukee. There was an oral argument by Nathan D. Eisenberg.
NOTICE: This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
(L.C. Nos. 2014CV9307, 2014CV9658, 2015CV328, 2015CV329, 2015CV501)
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published decision of the court of appeals, Wis. Ass‘n of State Prosecutors v. Wis. Emp‘t Relations Comm‘n, 2016 WI App 85, 372 Wis. 2d 347, 888 N.W.2d 237, [hereinafter “WASP“], affirming the Milwaukee County circuit court‘s1 declaration that the Wisconsin Employment Relations Commission (“WERC“) exceeded its authority under
¶2 The cause before us consists of five consolidated cases: two petitions for declaratory judgment and writ of prohibition under
¶3 The circuit court declared
¶4 On appeal, WERC argued that the requirement was necessary because, without a petition, it could not otherwise know which labor organizations have an interest in representation, that is, which labor organizations should be included on the ballot. The court of appeals rejected this argument and held that a current representative has a continuing interest in representation. See WASP, 372 Wis. 2d 347, ¶21. The court of appeals then held that “shall” is mandatory in
¶6 Second, we consider the subsidiary issue of whether WERC may decertify a current representative labor organization on September 15 where there are no timely petitions for election filed. We conclude that WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, where there are no timely petitions for election filed because the plain language of the statute requires WERC to conduct elections on or before December 1.
¶7 Thus, we reverse the decision of the court of appeals and reinstate WERC‘s orders dismissing the Unions’ petitions for election.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶8 This case arises from Act 103 amendments to two subchapters of the Wisconsin Statutes. The first subchapter at issue governs municipal employment relations and applies to SEIU. See
b. Annually, the commission shall conduct an election to certify the representative of the collective bargaining unit that contains a general municipal employee. The election shall occur no later than December 1 for a collective bargaining unit containing school district employees and no later than May 1 for a collective bargaining unit containing general municipal employees who are not school district employees. The commission shall certify any representative that receives at least 51 percent of the votes of all of the general municipal employees in the collective bargaining unit. If no representative receives at least 51 percent of the votes of all of the general municipal employees in the collective bargaining unit, at the expiration of the collective bargaining agreement, the commission shall decertify the current representative and the general municipal employees shall be nonrepresented. Notwithstanding sub. (2), if a representative is decertified under this subd. 3.b., the affected general municipal employees may not be included in a substantially similar collective bargaining unit for 12 months from the date of decertification. The commission shall assess and collect a certification fee for each election conducted under this subd. 3.b. Fees collected under this subd. 3.b. shall be credited to the appropriation account under s. 20.425(1)(i).
c. Any ballot used in a representation proceeding under this subdivision shall include the names of all persons
having an interest in representing or the results.
Annually, no later than December 1, the commission shall conduct an election to certify the representative of a collective bargaining unit that contains a general employee. There shall be included on the ballot the names of all labor organizations having an interest in representing the general employees participating in the election. The commission may exclude from the ballot one who, at the time of the election, stands deprived of his or her rights under this subchapter by reason of a prior adjudication of his or her having engaged in an unfair labor practice. The commission shall certify any representative that receives at least 51 percent of the votes of all of the general employees in the collective bargaining unit. If no representative receives at least 51 percent of the votes of all of the general employees in the collective bargaining unit, at the expiration of the collective bargaining agreement, the commission shall decertify the current representative and the general employees shall be nonrepresented. Notwithstanding s. 111.82, if a representative is decertified under this paragraph, the affected general employees may not be included in a substantially similar collective bargaining unit for 12 months from the date of decertification. The commission‘s certification of the results of any election is conclusive unless reviewed as provided by s. 111.07(8). The commission shall assess and collect a certification fee for each election conducted under this paragraph. Fees collected under this paragraph shall be credited to the appropriation account under s. 20.425(1)(i).
¶9 Under these statutes, WERC is directed to “conduct an election5 to certify the representative of a collective bargaining unit.”
¶11 The petition also instructs the interested labor organization to submit the petition to WERC, along with the applicable certification fee, and notes that “[p]etition filing is not complete until [WERC] has received both the petition . . . and the required fee.” The form itself does not provide a deadline, but the rules do:
¶12 The rules also prescribe the consequences of a failure to timely file: the existing representative labor organization is decertified either as of September 15 or, if there is a collective bargaining agreement in effect, at the expiration of that bargaining agreement; and the employees in the bargaining unit may not be included in a substantially similar collective bargaining unit for a minimum of one year. See
¶13 As noted above, the cause before us consists of five consolidated cases. These five cases deal with four petitions for election. Three of the cases were filed by SEIU regarding three petitions for election; specifically, SEIU sought certification as the representative labor organization for Milwaukee Public Schools (“MPS“) Building Service Helpers and Food Service Workers, and for St. Francis School District (“SFSD“) Custodians. Two of the cases were filed by WASP regarding one petition for election; specifically, WASP sought certification as the representative labor organization for assistant district attorneys in the state of Wisconsin.
A. SEIU
¶14 SEIU is a “labor organization.”9 As of September 14, 2014, SEIU was the exclusive
¶15 On September 15, 2014, SEIU filed petitions for election for all three bargaining units, but it did so after WERC‘s 4:30 p.m. close-of-business deadline, at 5:25 p.m. (Building Service Helpers), 5:27 p.m. (Food Service Workers), and 6:19 p.m. (Custodians). SEIU‘s certification fees were submitted and received the following day, on September 16, 2014. On October 14, 2014, WERC voted 2—0 not to accept SEIU‘s petitions for election on the basis that they were not timely filed, and notified SEIU of its vote.
¶16 On November 13, 2014, SEIU filed a petition for declaratory judgment and a petition for writ of prohibition (Case No. 14CV9658)12 pursuant to
¶17 On November 14, 2014, WERC issued Commission‘s Decision No. 35447, Order Dismissing Petitions for Annual Certification Election (regarding MPS Building Service Helpers and Food Service Workers), and Commission‘s Decision No. 35446, Order Dismissing Petition for Annual Certification Election (regarding SFSD Custodians).13 SEIU filed a petition
¶18 As of December 1, 2014, WERC had not conducted a certification election for MPS Building Service Helpers, MPS Food Service Workers, or SFSD Custodians because no union had expressed interest in representing them by the September 15 deadline. As a result, SEIU was treated as decertified by WERC, MPS, and SFSD as of September 15, 2014.
¶19 On January 15, 2015, SEIU filed two petitions for judicial review (Case Nos. 15CV328 and 15CV329) pursuant to
B. WASP
¶20 WASP is a “labor organization.”14 As of September 14, 2014, WASP was the exclusive certified bargaining representative for all assistant district attorneys in Wisconsin. Assistant district attorneys in Wisconsin are state “employees”15; WASP is, therefore, subject to SELRA. Additionally, as of September 15, 2014, the bargaining unit for state assistant district attorneys was a general state employee bargaining unit, as defined in
¶21 On September 15, 2014, WASP filed a petition for election for certification for this bargaining unit, but it did so after WERC‘s 4:30 p.m. close-of-business deadline, at 5:46 p.m. WASP‘s certification fee was submitted and received the following day, on September 16, 2014. On October 14, 2014, WERC voted 2—0 not to accept WASP‘s petition for election on the basis that it was not timely filed, and notified WASP of its vote.
¶22 On November 11, 2014, WASP filed a petition for declaratory judgment and a petition for writ of prohibition (Case No. 14CV9307)17 pursuant to
¶23 On November 14, 2014, WERC issued Commission‘s Decision No. 35445, Order Dismissing Petition for Annual Certification Election.18 WASP filed a petition with WERC for rehearing regarding this dismissal pursuant to
¶24 As of December 1, 2014, WERC had not conducted a certification election for the assistant district attorneys because no union had expressed interest in representing them by the September 15 deadline. As a result, WASP was treated as decertified by WERC and the Office of State Employee Relations as of September 15, 2014.
¶25 On January 15, 2015, WASP filed a petition for judicial review (Case No. 15CV501) pursuant to
C. Consolidation and Appeal
¶26 On February 25, 2015, these five cases were consolidated. Shortly thereafter, the parties filed cross-motions for summary judgment. The Unions argued that
¶27 WERC argued that its rules were reasonable given the requirements of the statute and the realities of conducting elections. First, “shall” can and should be construed in this context as directory, particularly in light of the fact that it would absurd to compel an election where there are no names on the ballot. In this regard, requiring a petition for election is reasonable given the statutory requirement that the ballot contain the names of labor organizations having an interest and the fact that there is no presumption of interest for incumbents. Second, it is reasonable to require that the petition be filed by September 15 given the logistical difficulties of conducting elections on or before December 1. WERC also argued that decertifying the incumbent union on September 15 was at least equally as reasonable as decertifying on December 1.
¶28 On July 31, 2015, the circuit court issued its decision and order. It declared invalid “those provisions in [Wis. Admin. Code chs.] ERC 70 and 80 requiring an existing exclusive representative to file a [petition for election] in order to qualify
¶29 WERC appealed. On October 12, 2016, the court of appeals affirmed. See WASP, 372 Wis. 2d 347. The court of appeals held that “shall” is mandatory in Wis. Stat.
¶30 WERC petitioned for review. On February 13, 2017, we granted the petition and now reverse.
II. STANDARD OF REVIEW
¶31 “‘Resolving an alleged conflict between a statute and an interpretive rule requires statutory interpretation,’ which is a question of law that we review de novo . . . .” Mallo v. DOR, 2002 WI 70, ¶14, 253 Wis. 2d 391, 645 N.W.2d 853 (quoting Seider v. O‘Connell, 2000 WI 76, ¶26, 236 Wis. 2d 211, 612 N.W.2d 659); see also Wis. Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶6, 270 Wis. 2d 318, 677 N.W.2d 612 (“The nature and scope of an agency‘s powers are issues of statutory interpretation.“).
III. ANALYSIS
¶32 There are two issues on this appeal. First, we consider whether WERC exceeded its statutory authority under
¶33 Second, we consider the subsidiary issue of whether WERC may decertify a current representative labor organization on September 15 where there are no timely petitions for election filed. We conclude that WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, where there are no timely petitions for election filed because the plain language
A. Whether WERC Exceeded Its Statutory Authority
¶34 We consider first whether WERC exceeded its statutory authority under
¶35 We conclude that WERC did not exceed its statutory authority because it has express authority under
1. General principles
¶36 “[T]he court shall declare [a] rule invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures.”
¶37 Here, the Unions have challenged
¶38 “Rule-making authority is expressly conferred on an agency [to] promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute . . . .”
¶39 This principle has been characterized in the case law as the “elemental approach.” See Cranes & Doves, 270 Wis. 2d 318, ¶14 (citing Wis. Hosp. Ass‘n, 156 Wis. 2d at 705-06) (“Wisconsin has adopted the ‘elemental’ approach to determining the validity of an administrative rule, comparing the elements of the rule to the elements of the enabling statute, such that the statute need not supply every detail of the rule.“) Under the elemental approach, “the reviewing court should identify the
2. WERC did not exceed its statutory authority in promulgating Wis. Admin. Code chs. ERC 70 and 80.
¶40 The first statute at issue is MERA, see
¶41 The statutes mandate that WERC do five things:
- Conduct an annual election to certify the representative of a collective bargaining unit that contains an employee no later than December 1;
- Include on the ballot the names of all labor organizations having an interest in representing the employees participating in the election;
- Certify any representative that receives at least 51 percent of the votes of all the employees in the collective bargaining unit;
- Decertify the current representative if no representative receives at least 51 percent of the votes of all the employees in the collective bargaining unit; and
- Assess and collect a certification fee for each election conducted.
See
¶42 A mandate is a command, and “‘[c]ommand includes permission. To mean to command any act to be done, and not to mean to permit it to be done, is impossible.‘” See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 193-94 (2012) (quoting Jeremy Bentham, “Nomography,” in 3 The Works of Jeremy Bentham 231, 262 (John Bowring ed., 1843)). Therefore, the statutory mandates are also statutory authorizations, and “[a]uthorization of an act also authorizes a necessary predicate act.” Id. at 192 (explaining the Predicate Act Canon); see also Estate of Miller v. Storey, 2017 WI 99, ¶52 n.21, 378 Wis. 2d 358, 903 N.W.2d 759. Therefore, WERC is expressly authorized under the statute to execute any predicate acts which are necessary to carrying out its mandated duties.
¶43 One of WERC‘s mandated duties is to include on the ballot only those labor organizations having an interest in representation. In order to include on the ballot only those labor organizations “having an interest,” WERC must necessarily determine which labor organizations have such an interest.21 Thus, it is expressly authorized to do so; that is, it is within WERC‘s express statutory authority to determine which labor organizations have an interest in being on a certification election ballot.
¶44 WERC is also expressly authorized to “adopt reasonable [] rules relative to the exercise of its powers and authority
¶45 In this regard, we reject the argument that the rules were not necessary because a current representative has a continuing interest in representing the bargaining unit. See
Whenever a question arises concerning the representation of employees in a collective bargaining unit . . . [t]here shall be included on any ballot for the election of representatives the names of all labor organizations having an interest in representing the employees participating in the election as indicated in petitions filed with the commission. The name of any existing representative shall be included on the ballot without the necessity of filing a petition.
(Emphasis added.) Although not applicable to the facts here,23 this provision demonstrates that the legislature is fully capable of specifying where an assumption of continuing interest applies; thus, we should not read in that assumption where it is not specified. See Scalia & Garner, supra ¶42 at 93 (“Nothing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est). That is, a matter not covered is to be treated as not covered.“); see also Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶14, 316 Wis. 2d 47, 762 N.W.2d 652; id., ¶14 n.9.24
¶46 We also reject the argument that there is an irreconcilable conflict between
¶47 In sum, we conclude that WERC did not exceed its statutory authorization when it promulgated
3. Consequently, WERC‘s orders dismissing the Unions’ petitions for certification elections are reinstated.
¶48 Below, because it concluded that the rules requiring a petition for election were invalid, the circuit court ordered that WERC‘s decisions and orders dismissing the Unions’ petitions for certification be reversed. The court of appeals affirmed. See WASP, 372 Wis. 2d 347, ¶25. Here, because we hold that the rules requiring a petition for election are valid, we reverse the court of appeals and consequently order that WERC‘s decisions and orders dismissing the Unions’ petitions for election be reinstated.
B. Whether WERC May Decertify On September 15
¶49 We consider second the subsidiary issue of whether WERC may decertify a current representative labor organization on September 15 where there are no timely petitions for election filed.25 In short, WERC argues that, because its rules requiring a petition for election are valid, it follows that WERC may decertify a current representative labor organization at the deadline for filing because that incumbent is treated as if it had failed to obtain the required 51 percent of the vote. In short, the Unions argue that the statutes permit decertification only where there has been an annual certification vote.
¶50 We conclude that WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining
¶51 “[S]tatutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.” Kalal, 271 Wis. 2d 633, ¶45. The statutes state in relevant part as follows:
If no representative receives at least 51 percent of the votes of all of the [employees] in the collective bargaining unit, at the expiration of the collective bargaining agreement, the commission shall decertify the current representative and the [employees] shall be nonrepresented.
¶52 The phrase “no later than December 1” is inclusive of dates on or before December 1. See Bryan A. Garner, Legal Usage 606 (3rd ed. 2011) (“no later than (= on or before)“); see also
¶53 In this regard, failure to timely file and failure to be elected are logically and legally equivalent: where no petition for election demonstrating interest in representing a particular collective bargaining unit is timely filed, there are no labor organizations to put on the ballot;28 where there are no labor organizations to put on the ballot, there is no need to conduct a certification election;29 where there is no certification election, the current representative labor organization will receive zero votes;30 and zero votes is less than “at least
¶54 Thus, WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, when no timely petition for election is filed because September 15 is within the inclusive range of dates on which WERC may conduct elections and subsequently certify or decertify labor organizations, and decertification by failure to be elected and decertification by failure to timely file a petition for election are not logically or legally distinguishable.31
IV. CONCLUSION
¶55 There are two issues on this appeal. First, we consider whether WERC exceeded its statutory authority under
¶56 Second, we consider the subsidiary issue of whether WERC may decertify a current representative labor organization on September 15 where there are no timely petitions for election filed. We conclude that WERC may decertify a current representative labor organization on September 15, or at the expiration of the collective bargaining agreement, whichever occurs later, where there are no timely petitions for election filed because the plain language of the statute requires WERC to conduct elections on or before December 1.
¶57 Thus, we reverse the decision of the court of appeals and reinstate WERC‘s orders dismissing the Unions’ petitions for election.
By the Court.—The decision of the court of appeals is reversed.
¶58 ANN WALSH BRADLEY, J. (dissenting). This case represents yet another decision of this court that disenfranchises
¶59 Although the texts of the applicable statutes mandate that annual recertification elections be held so that union members can vote for a representative, the majority concludes to the contrary. It instead embraces conflicting administrative code provisions that allow the Wisconsin Employment Relations Commission (WERC) to cancel elections.
¶60 To justify this conclusion the majority engages in analytical gymnastics, contorting its discussion to: (1) dodge the main issue in the case, relegating its analysis of the dispositive question to a single conclusory paragraph; (2) implicitly determine that “shall” does not mean “shall“; and (3) rewrite the statute by including a requirement that does not exist in the text and which defeats the statute‘s purpose.
¶61 Because I conclude, as did the circuit court and a unanimous court of appeals, that “shall” in fact does mean “shall” and that the statutes and administrative code provisions are in irreconcilable conflict, I respectfully dissent.
I
¶62 Taking its cue from WERC, the majority leads the reader astray by focusing its analysis on WERC‘s authority to regulate recertification elections pursuant to
¶63 As the court of appeals aptly stated: “The Commission spends a considerable amount of time discussing its legislatively delegated authority to promulgate reasonable rules related to the annual election statutes . . . [T]his is not the issue on appeal.” Wis. Ass‘n of State Prosecutors v. Wis. Emp‘t Relations Comm‘n, 2016 WI App 85, ¶22, 372 Wis. 2d 347, 888 N.W.2d 237. Yet the majority continues down this path, spending the bulk of its analysis on an ancillary issue.
¶64 Contrary to the majority‘s framing of the issue, this case presents a rather straightforward question of statutory interpretation. The issue is whether there is a conflict between the relevant statutes and administrative code provisions.
¶65 The majority relegates its analysis of this issue to a single, conclusory paragraph. See majority op., ¶46. In its cursory analysis of the conflict, the majority ascribes great import to an assertion that the unions’ preferred statutory construction “would compel the absurd result that WERC is required to conduct an election where there is nothing and no one for whom to vote.” Majority op., ¶46. According to the majority, this absurdity would result because “the statutes do not provide any procedure for how a current representative would remove itself from the ballot if it no longer wished to represent the employees” and it is thus “unclear” what is to happen if a current representative wants to disclaim an interest in representing a bargaining unit. Id.
¶66 This assertion ignores the larger context of labor law in which this case arises. A union can avoid its duty to bargain or remove itself from a ballot by unequivocally disclaiming further interest in representing a bargaining unit.2 The
II
¶67 Administrative agencies do not have powers superior to those of the legislature. Debeck v. Wis. Dep‘t of Nat. Res., 172 Wis. 2d 382, 387-88, 493 N.W.2d 234 (Ct. App. 1992). Thus, even if the majority were correct in focusing its analysis and conclusions on WERC‘s authority to promulgate rules regarding recertification elections, it is to no avail. An administrative agency may not promulgate a rule that conflicts with state law. Seider v. O‘Connell, 2000 WI 76, ¶21, 236 Wis. 2d 211, 612 N.W.2d 659;
¶68 The dispositive question is whether SELRA3 and MERA4 conflict with the petition requirement in
¶69 Statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is plain, we need not inquire further. Id.
¶70 The language of both SELRA and MERA is plain. Each statute provides that annually, “the commission shall conduct an election to certify the representative of a collective bargaining unit that contains a general . . . employee.”
¶71
¶72 The word “shall” is ordinarily presumed to be mandatory when it appears in a statute. Vill. of Elm Grove v. Brefka, 2013 WI 54, ¶23, 348 Wis. 2d 282, 832 N.W.2d 121. However, “shall” may be construed as directory if necessary to carry out the legislature‘s clear purpose. Id.
¶73 In determining whether “shall” is mandatory or directory, I focus on two dispositive factors: the consequences resulting from each construction and the general object sought to be accomplished by the legislature.6 See Karow v. Milwaukee Cty. Civil Serv. Comm‘n, 82 Wis. 2d 565, 572, 263 N.W.2d 214 (1978). Application of these factors here indicates that “shall” as used in
¶74 First, the majority‘s construction has significant and drastic consequences for employees. It denies blameless employees the right to vote for union representation if their union narrowly misses a deadline. As a result, employees not only lose their ability to vote on whether they are represented by a union, but also are stripped of their voice in negotiations with their employer, all because their union was less than an hour late filing a petition.7 Conversely, the unions’ interpretation protects against this harsh outcome.
¶75 Second, a directory construction would run afoul of the general object sought to be accomplished by the legislature. Counsel for WERC asserted at oral argument that a purpose of Act 10 is to enfranchise employees. Accepting WERC‘s assertion, annual recertification elections provide employees with greater opportunity to decide whether they will continue to be represented by their union.
¶76 Despite WERC‘s assertion that a purpose of Act 10 is the enfranchisement of voters, the majority‘s construction of the statute accomplishes the opposite. Instead
¶77 I therefore conclude that “shall” as used in SELRA and MERA is mandatory. The majority does not engage in even a modicum of analysis on this point and thus provides no persuasive reason to depart from a mandatory construction of “shall.”
¶78 Applying a mandatory construction of “shall” in
III
¶79 The majority exacerbates this conflict by writing into the statute a requirement that does not exist in the text and which defeats the statute‘s purpose.
¶80 WERC‘s rules add an additional requirement to the conduct of an election——the filing of a petition. By creating a barrier that does not exist in the statutes, the WERC rules are necessarily in conflict with state law. See State ex rel. Castaneda v. Welch, 2007 WI 103, ¶59, 303 Wis. 2d 570, 735 N.W.2d 131. As previously discussed, when a statute and an administrative rule conflict, the statute prevails. Debeck, 172 Wis. 2d at 388. To avoid the conflict, the majority in essence writes a petition requirement into the statutes.
¶81 A reading of the surrounding context of the statutes at issue reveals that the legislature chose not to include a petition requirement. Chapter 111 is replete with statutory means by which an election may be triggered by the filing of a petition. See, e.g.,
¶82 The legislature thus knows full well how to write a petition requirement into a labor relations statute. In the case of
¶83 Additionally, the majority rewrites the statutes, inserting words to allow decertification of a bargaining representative in a manner the statutes do not contemplate. The statutes provide but one path to union decertification——the failure to gain 51% of the votes in an election. The WERC rules provide another——failure to file a petition by the stated deadline.
¶84
¶85 Conversely,
¶86 Instead of acknowledging this conflict, the majority adds words to the statute. It concludes that “failure to timely file and failure to be elected are logically and legally equivalent[.]” Majority op., ¶53. The majority‘s analytical gymnastics are unpersuasive, given that “failure to be elected” is the sole statutorily authorized manner for decertification. “Failure to timely file” can only be the “logical and legal” equivalent if the majority reads a petition requirement into the statute that simply is not there.
¶87 The majority‘s conclusion further runs afoul of Act 10‘s purported purpose to enfranchise employees. Instead of expanding employees’ choice in whether they wish to be represented by a union, the majority‘s decision decertifies an elected representative without allowing employees to say a word about it.
¶88 Unlike the majority, I would uphold the purpose WERC asserts is behind Act 10——to enfranchise voters——and affirm the court of appeals. I conclude that both SELRA and MERA are in irreconcilable conflict with the petition requirement in
¶89 Finally, I observe that in determining that “shall” does not mean “shall,” the majority circumvents this court‘s recent interpretative trajectory. Indeed, when this court has been faced with a question of whether “shall” is mandatory or directory, it has overwhelmingly ruled on the side of a mandatory construction. Over the last ten years, in most contexts this court has repeatedly arrived at the conclusion that “shall” means “shall,” i.e. it is of a mandatory nature.8 During the same time period, this court has declined to apply “shall” as mandatory in only a few contexts, including those involving a sexually violent person committed pursuant to
¶90 Accordingly, for the reasons set forth above, I respectfully dissent.
Notes
Annually, no later than December 1, the commission shall conduct an election to certify the representative of a collective bargaining unit that contains a general employee. There shall be included on the ballot the names of all labor organizations having an interest in representing the general employees participating in the election . . . The commission shall certify any representative that receives at least 51 percent of the votes of all of the general employees in the collective bargaining unit. If no representative receives at least 51 percent of the votes of all of the general employees in the collective bargaining unit, at the expiration of the collective bargaining agreement, the commission shall decertify the current representative and the general employees shall be nonrepresented. . . .
Annually, the commission shall conduct an election to certify the representative of the collective bargaining unit that contains a general municipal employee. The election shall occur no later than December 1 for a collective bargaining unit containing school district employees and no later than May 1 for a collective bargaining unit containing general municipal employees who are not school district employees. The commission shall certify any representative that receives at least 51 percent of the votes of all of the general municipal employees in the collective bargaining unit. If no representative receives at least 51 percent of the votes of all of the general municipal employees in the collective bargaining unit, at the expiration of the collective bargaining agreement, the commission shall decertify the current representative and the general municipal employees shall be nonrepresented. . . .
. . . The existing exclusive representative of such employees that wishes to continue said representation, or any other labor organization interested in representing such employees, must file a petition on or before September 15 requesting the commission to conduct a secret ballot election to determine whether a minimum of 51 percent of the bargaining unit employees eligible to vote favor collective bargaining representation by the petitioner or another petitioning labor organization. If no timely petition is filed, the result is the same as if only the existing representative filed a timely petition and the election resulted in decertification of the existing representative. . . .