Wisconsin Association of State Prosecutors v. Wisconsin Employment Relations Commission ( 2018 )

2018 WI 17SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2224
COMPLETE TITLE: 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.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 347, 888 N.W.2d 237PDC No: 2016 WI App 85 - Published
OPINION FILED: February 28, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 5, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: John J. DiMotto
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants-petitioners, there were
briefs filed by Misha Tseytlin, solicitor general, with whom on
the briefs were Brad D. Schimel, attorney general, and Amy C.
Miller, assistant solicitor general. There was an oral argument
by Luke Berg, deputy solicitor general.
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.
2
2018 WI 17NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2224
(L.C. Nos. 2014CV9307, 2014CV9658, 2015CV328, 2015CV329, 2015CV501)
STATE OF WISCONSIN : IN SUPREME COURT
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,
FILED
Plaintiff-Respondent,
FEB 28, 2018
v.
Sheila T. Reiff
State of Wisconsin, Office of State Employment Clerk of Supreme Court
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.
REVIEW of a decision of the Court of Appeals. Reversed.
2
No. 2015AP2224
¶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 Wis. Stat. ch. 111 (2013-14)2 in promulgating Wis. Admin.
Code chs. ERC 70 and 80, and the circuit court's subsequent
order that WERC hold certification elections for the Wisconsin
Association of State Prosecutors ("WASP") and the Service
Employees International Union, Local 150 ("SEIU").
¶2 The cause before us consists of five consolidated
cases: two petitions for declaratory judgment and writ of
prohibition under Wis. Stat. § 227.40 and three petitions for
judicial review of an agency decision under Wis. Stat. §§ 227.52and 227.53. In their petitions for declaratory judgment, SEIU
and WASP (collectively "the Unions") sought a declaration that
Wis. Admin. Code chs. ERC 70 and 80 were invalid because the
requirement that labor organizations file a petition for
election as a condition precedent to holding a certification
election irreconcilably conflicts with the statutory mandate
that WERC hold annual certification elections; consequently,
they sought writs of prohibition preventing WERC from enforcing
1
The Honorable John J. DiMotto presided.
2
All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise noted.
3
No. 2015AP2224
those rules and refusing to conduct certification elections.
The petitions for judicial review of an agency decision then
sought orders overturning WERC's decisions to deny certification
elections for the Unions on the basis that their petitions for
election were not timely filed.
¶3 The circuit court declared Wis. Admin. Code chs. ERC
70 and 80 invalid and issued orders overturning WERC's decisions
not to hold certification elections for the Unions. It reasoned
that the use of "shall" in Wis. Stat. §§ 111.70(4)(d)3.b. and
111.83(3)(b) imposes a mandatory duty to hold an annual
certification election; that WERC had neither express nor
implied power to impose a condition precedent to its statutorily
mandated duty; and that such a requirement was unnecessary
because an incumbent labor organization has "a real, de facto
and legal interest in continued representation." WERC appealed.
¶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 Wis.
Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b), and that, therefore,
making annual elections contingent on the filing of a petition
for election is in direct conflict with the legislative mandate.
Id., ¶¶19, 23. WERC petitioned for review.
4
No. 2015AP2224
¶5 There are two issues on this appeal. First, we
consider whether WERC exceeded its statutory authority under
Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC
70 and 80. We conclude that WERC did not exceed its authority
because it has express authority under Wis. Stat. ch. 111 to
promulgate rules that require a demonstration of interest from
labor organizations interested in representing collective
bargaining units; consequently, we reinstate WERC's orders
dismissing the Unions' petitions for election as untimely.
¶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
3
See 2011 Wis. Act 10.
5
No. 2015AP2224
issue governs municipal employment relations and applies to
SEIU. See Wis. Stat. §§ 111.70-111.77 [hereinafter "MERA"].
The second subchapter governs state employment labor relations
and applies to WASP. See Wis. Stat. §§ 111.81-111.94[hereinafter "SELRA"]. In particular, we are asked to interpret
Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b) to determine
whether WERC exceeded its authority under MERA or SELRA when it
promulgated Wis. Admin. Code chs. ERC 70 and 80, respectively.
Section 111.70(4)(d)3. states in relevant part as follows:
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
6
No. 2015AP2224
names of all persons having an interest in
representing or the results.
§ 111.70(4)(d)3.b., c. Section 111.83(3)(b) states as follows:
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).
§ 111.83(3)(b).4
¶9 Under these statutes, WERC is directed to "conduct an
election[5] to certify the representative of a collective
4
For the purposes of our review, there are no significant
differences in the language of the provisions. See infra ¶41.
7
No. 2015AP2224
bargaining unit." Wis. Stat. §§ 111.70(4)(d)3.b. and
111.83(3)(b) (footnote added). These statutory provisions
address WERC's responsibilities in conducting the election,
including its responsibility to certify and decertify a
representative.6 The language of the statutes also requires WERC
to include on the ballot "the names of all [labor organizations]
having an interest" in representation. §§ 111.70(4)(d)3.c. and
111.83(3)(b).7 To this end, WERC is authorized to "adopt
reasonable [] rules relative to the exercise of its powers and
authority and proper rules to govern its proceedings and to
regulate the conduct of all elections and hearings." Wis. Stat.
§§ 111.71(1), 111.94(1). Under these enabling statutes, WERC
promulgated rules to govern the election process, one of which
requires that labor organizations interested in representing a
bargaining unit file a "petition for election." See Wis. Admin.
Code §§ ERC 70.03 and 80.03.
5
"'Election' means a proceeding conducted by the commission
in which the employees in a collective bargaining unit cast a
secret ballot for collective bargaining representatives, or for
any other purpose specified in this subchapter." Wis. Stat.
§§ 111.70(1)(e) and 111.81(6).
6
"'Commission' means the employment relations commission."
Wis. Stat. §§ 111.70(1)(c) and 111.81(3).
7
We further note that Wis. Stat. § 111.83(3)(b) permits
WERC to exclude from the ballot any labor organization that "at
the time of the election, stands deprived of his or her
rights . . . by reason of a prior adjudication of his or her
having engaged in an unfair labor practice." § 111.83(3)(b).
8
No. 2015AP2224
¶10 The petition for election at issue here8 is a two-page
form that requires that a labor organization interested in
representing a particular bargaining unit (1) provide the
contact information of the employer; (2) describe the bargaining
unit (i.e., the name and number of employees); (3) provide the
termination date and status of the most recent collective
bargaining agreement; (4) provide the contact information of
anyone who may claim to currently represent the employees; (5)
indicate whether the petitioner is the current representative;
(6) indicate when the petitioner served a copy of the petition
on the employer; (7) provide any additional relevant facts; and
(8) provide the contact information for the petitioner. See
also Wis. Admin. Code §§ ERC 70.03(6) and 80.03(6).
¶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: Wis. Admin. Code §§ ERC
70.03(7)(a) and 80.03(7)(a) state that "[t]o be timely, a
petition must be filed on or before September 15"; sections ERC
70.03(2) and 80.03(2) state that "[a] petition is not filed
unless it is accompanied by the applicable filing fee
8
The form has changed since 2014. The current version is
available at http://werc.wi.gov/doaroot/annual_certification_
election_information_sheet.pdf.
9
No. 2015AP2224
established by sub. (4), contains the required signature or
signature facsimile, and has been received by [WERC] at its
Madison office during normal business hours specified in s. ERC
10.06(1)"; and, Wis. Admin. Code § ERC 10.06(1) provides that
"[WERC's] normal business hours at all work locations are 7:45
AM to 4:30 PM, Monday through Friday, excluding legal holidays."
¶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 Wis. Admin. Code
§§ ERC 70.03(7)(b) and 80.03(7)(b). These rules mirror the
consequences in the statute, which apply when a current
representative labor organization does not receive at least 51
percent of the votes in an election. See Wis. Stat.
§§ 111.70(4)(d)3.b. and 111.83(3)(b).
¶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
10
No. 2015AP2224
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 certified bargaining unit for MPS
Building Service Helpers and Food Service Workers. As of
September 14, 2014, SEIU was also the exclusive certified
bargaining unit for SFSD Custodians. MPS Building Service
Helpers and Food Service Workers and SFSD Custodians are
"general municipal employees"10; SEIU is, therefore, subject to
MERA. Additionally, as of September 15, 2014, the MPS Building
Service Helpers and Food Service Workers and SFSD Custodians
were school district employees,11 represented by an exclusive
representative (SEIU), and not subject to a collective
bargaining agreement; SEIU is, therefore, subject to Wis. Admin.
Code ch. ERC 70. Wis. Admin. Code § ERC 70.02.
9
"'Labor organization' means any employee organization in
which employees participate and which exists for the purpose, in
whole or in part, of engaging in collective bargaining with
municipal employers concerning grievances, labor disputes,
wages, hours or conditions of employment." Wis. Stat.
§ 111.70(1)(h).
10
"'General municipal employee' means a municipal employee
who is not a public safety employee or a transit employee," Wis.
Stat. § 111.70(1)(fm); "'Municipal employee' means any
individual employed by a municipal employer other than an
independent contractor, supervisor, or confidential, managerial
or executive employee," § 111.70(1)(i).
11
"'School district employee' means a municipal employee
who is employed to perform services for a school district."
Wis. Stat. § 111.70(1)(ne).
11
No. 2015AP2224
¶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 Wis. Stat. § 227.40 seeking a
declaration that Wis. Admin. Code ch. ERC 70 was invalid because
it exceeded WERC's statutory authority, and requesting a writ
requiring WERC to conduct certification elections. The petition
also sought an order tolling the December 1 statutory deadline
for holding certification elections until such elections could
be held, and an order that WERC pay SEIU's attorney fees and
costs.
¶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,
12
These petitions were filed against WERC as well as
against James R. Scott and Rodney Pasch——the commissioners of
WERC at the time——in their individual and official capacities.
12
No. 2015AP2224
Order Dismissing Petition for Annual Certification Election
(regarding SFSD Custodians).13 SEIU filed a petition with WERC
for rehearing regarding these dismissals pursuant to Wis. Stat.
§ 227.49, but WERC denied rehearing.
¶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 Wis.
Stat. §§ 227.52 and 227.53 seeking an order setting aside WERC's
decisions to deny SEIU certification elections. SEIU's
petitions also sought orders tolling the December 1 statutory
13
The parties briefly acknowledge that the Unions may have
had a justiciability issue. There are four prerequisites a
party must satisfy to seek declaratory relief: (1) a justiciable
controversy must exist; (2) the controversy must be between
persons whose interests are adverse; (3) the plaintiff must have
a legally protectable interest in the controversy; and (4) the
issue must be ripe for determination. See Loy v. Bunderson, 107
Wis. 2d 400, 410, 320 N.W.2d 175 (1982). The justiciability
issue here is with respect to the fourth prerequisite because
the Unions filed their petitions before WERC issued its official
decision and order. For declaratory judgment and injunctive
relief, however, the standard for ripeness is lower: harm may be
anticipatory, if imminence and practical certainty of act or
event exist. See Putnam v. Time Warner Cable of Se. Wis., Ltd.,
2002 WI 108, ¶¶43-46, 255 Wis. 2d 447, 649 N.W.2d 626. Given
that WERC advised the Unions of its October 14 vote, this
standard is met and the issue was justiciable.
13
No. 2015AP2224
deadline for holding certification elections until such
elections could be held, and that WERC pay SEIU's attorney fees
and costs.
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 Wis.
Stat. § 111.825,16 represented by an exclusive representative;
14
"'Labor organization' means any employee organization
whose purpose is to represent employees in collective bargaining
with the employer, or its agents, on matters that are subject to
collective bargaining under s. 111.91(1) or (3), whichever is
applicable . . . ." Wis. Stat. § 111.81(12).
15
"'Employee' includes: . . . [a]ssistant district
attorneys, except supervisors, management employees and
individuals who are privy to confidential matters affecting the
employer-employee relationship." Wis. Stat. § 111.81(7)(c).
16
Wisconsin Stat. § 111.825 states in relevant part as
follows:
(2) Collective bargaining units for employees in
the unclassified service of the state shall be
structured with one collective bargaining unit for
each of the following groups: . . .
(d) Assistant district attorneys.
Wis. Stat. § 111.825(2)(d).
14
No. 2015AP2224
WASP is, therefore, subject to Wis. Admin. Code ch. ERC 80.
Wis. Admin. Code § ERC 80.02(1).
¶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 Wis. Stat. § 227.40 seeking a
declaration that Wis. Admin. Code ch. ERC 80 was invalid because
it exceeded WERC's statutory authority, and requesting a writ
requiring WERC to conduct certification elections. The petition
also sought an order tolling the December 1 statutory deadline
for holding certification elections until such elections could
be held, and an order that WERC pay WASP's attorneys fees and
costs.
¶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
17
These petitions were filed against WERC as well as
against James R. Scott and Rodney Pasch——the commissioners of
WERC at the time——in their individual and official capacities.
18
See supra note 13.
15
No. 2015AP2224
rehearing regarding this dismissal pursuant to Wis. Stat.
§ 227.49, but WERC denied rehearing.
¶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 Wis. Stat.
§§ 227.52 and 227.53 seeking an order setting aside WERC's
decision to deny WASP a certification election.19 WASP's
petition also sought an order tolling the December 1 statutory
deadline for holding certification elections until such
elections could be held, and an order that WERC pay WASP's
attorney fees and costs.
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 Wis.
Admin. Code chs. ERC 70 and 80 were invalid because they
19
The State of Wisconsin and the Office of State Employee
Relations, by and through the Wisconsin Department of Justice,
filed a notice of appearance as of right under Wis. Stat.
§ 227.53(1)(d), requesting that they be permitted to participate
as a party or interested person. It does not appear from the
record that that request was ever granted.
16
No. 2015AP2224
irreconcilably conflict with the statutory mandate. First, the
use of "shall" in Wis. Stat. §§ 111.70(4)(d)3.b. and
111.83(3)(b) mandates annual certification elections; therefore,
WERC cannot make certification elections contingent on the
filing of a petition for election because it would contravene
the statutory mandate. Second, the legislature does require
elsewhere that unions file petitions of interest under certain
circumstances; therefore, the absence of a statutory requirement
for such a petition here means that the legislature did not
intend for there to be any requirement. The Unions also argued
that immediate decertification on September 15 contravenes the
statute because it results in a certification period of less
than one year.
¶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 be 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
17
No. 2015AP2224
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 for a recertification election." Consequently,
it reversed WERC's decisions denying the Unions certification
elections; issued a writ of prohibition restraining WERC from
enforcing invalid provisions; and ordered that WERC conduct
certification elections for the Unions, to be held
simultaneously with the December 1, 2015 elections. The circuit
court also ordered that, if the Unions win, their
representational status shall be treated as uninterrupted.20
Specifically, the circuit court found that "shall" is used
mandatorily in Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b);
that WERC had neither express nor implied power to impose a
condition precedent to its statutorily mandated duty; and that
such a requirement was unnecessary because an incumbent labor
organization has "a real, de facto and legal interest in
continued representation."
¶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.
20
The circuit court's order did not address the Unions'
request for attorney fees and costs.
18
No. 2015AP2224
§§ 111.70(4)(d)3.b. and 111.83(3)(b), and that, therefore,
making annual elections contingent on the filing of a petition
for election is in direct conflict with the legislative mandate.
Id., ¶¶19, 23. It further held that a current representative
labor organization has a continuing interest in representation,
countering WERC's claim that, without a petition, WERC could not
otherwise know which labor organizations have an interest in
representation, that is, which labor organizations should be
included on the ballot. Id., ¶21.
¶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
Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC
70 and 80. We conclude that WERC did not exceed its authority
19
No. 2015AP2224
because it has express authority under Wis. Stat. ch. 111 to
promulgate rules that require a demonstration of interest from
labor organizations interested in representing collective
bargaining units; consequently, we reinstate WERC's orders
dismissing the Unions' petitions for election as untimely.
¶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 of the statute requires WERC to
conduct elections on or before December 1.
A. Whether WERC Exceeded Its Statutory Authority
¶34 We consider first whether WERC exceeded its statutory
authority under Wis. Stat. ch. 111 when it promulgated Wis.
Admin. Code chs. ERC 70 and 80. In short, WERC argued that
these rules are lawful because they were promulgated pursuant to
WERC's broad authority under Wis. Stat. §§ 111.71(1) and
111.94(1) to create reasonable and proper rules for
administering elections, and because the rules are consistent
with the statutory text and legislative intent. In short, the
Unions argued that the statutes mandate that WERC hold an annual
certification election, and that, therefore, WERC cannot make
20
No. 2015AP2224
holding that annual election contingent on the filing of a
petition for election.
¶35 We conclude that WERC did not exceed its statutory
authority because it has express authority under Wis. Stat.
ch. 111 to promulgate rules that require a demonstration of
interest from labor organizations interested in representing
collective bargaining units; consequently, we reinstate WERC's
orders dismissing the Unions' petitions for election as
untimely.
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." Wis. Stat.
§ 227.40(4)(a); see also Wis. Stat. § 227.10(2) ("No agency may
promulgate a rule which conflicts with state law."); Cranes &
Doves, 270 Wis. 2d 318, ¶14 ("[I]f an administrative rule
conflicts with an unambiguous statute or a clear expression of
legislative intent, the rule is invalid.").
¶37 Here, the Unions have challenged Wis. Admin. Code
chs. ERC 70 and 80 as exceeding WERC's statutory authority. "In
determining whether an administrative agency exceeded the scope
of its authority in promulgating a rule, we must examine the
enabling statute to ascertain whether the statute grants express
or implied authorization for the rule." Cranes & Doves, 270
Wis. 2d 318, ¶14. In this regard, "an agency's enabling statute
21
No. 2015AP2224
is to be strictly construed" because "agencies have 'only those
powers which are expressly conferred or which are necessarily
implied by the statutes under which it operates.'" Id. (quoting
Kimberly-Clark Corp. v. PSC, 110 Wis. 2d 455, 461-62, 329
N.W.2d 143 (1983)).
¶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 . . . ." Wis. Stat. § 227.11(2)(a); see also Wis. Hosp.
Ass'n v. Nat. Res. Bd., 156 Wis. 2d 688, 705-06, 457 N.W.2d 879(Ct. App. 1990) ("To expressly authorize a rule, the enabling
statute need not spell out every detail of the rule. If it did,
no rule would be necessary. Accordingly, whether the exact
words used in an administrative rule appear in the statute is
not the question.").
¶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 elements of the enabling statute and match
the rule against those elements. If the rule matches the
22
No. 2015AP2224
statutory elements, then the statute expressly authorizes the
rule." Wis. Hosp. Ass'n, 156 Wis. 2d at 706.
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 Wis. Stat.
§§ 111.70-111.77, which applies to SEIU. The second statute at
issue is SELRA, see Wis. Stat. §§ 111.81-111.94, which applies
to WASP. The question is whether WERC exceeded its authority
under MERA or SELRA when it promulgated Wis. Admin. Code
chs. ERC 70 and 80, respectively. Specifically, the Unions
challenge the requirement that any labor organizations
interested in representing collective bargaining units timely
submit a completed petition for election. See Wis. Admin. Code
§§ ERC 70.03 and 80.03.
¶41 The statutes mandate that WERC do five things:
1. Conduct an annual election to certify the
representative of a collective bargaining unit that
contains an employee no later than December 1;
2. Include on the ballot the names of all labor
organizations having an interest in representing the
employees participating in the election;
3. Certify any representative that receives at least 51
percent of the votes of all the employees in the
collective bargaining unit;
4. 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
5. Assess and collect a certification fee for each
election conducted.
See Wis. Stat. §§ 111.70(4)(d)3.b., c. and 111.83(3)(b).
23
No. 2015AP2224
¶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.
21
We briefly note here that there is no statutory
indication that past representation triggers a presumption of
interest in future representation. As will be discussed below,
the legislature knows full well how to indicate when such a
presumption applies. See infra ¶45.
24
No. 2015AP2224
¶44 WERC is also expressly authorized to "adopt reasonable
[] rules relative to the exercise of its powers and authority
and proper rules to govern its proceedings and to regulate the
conduct of all elections and hearings." Wis. Stat. §§ 111.71(1)
and 111.94(1). "When an administrative agency promulgates
regulations pursuant to a power delegated by the legislature, we
construe those regulations together with the statute to make, if
possible, an effectual piece of legislation in harmony with
common sense and sound reason." DOR v. Menasha Corp., 2008 WI
88, ¶45, 311 Wis. 2d 579, 754 N.W.2d 95. Here, the requirement
that labor organizations file a brief form indicating their
interest in representing the employees is a reasonable means by
which to determine which unions have that interest because it
effectuates the statute and is "in harmony with common sense and
sound reason."22 Id.¶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
Wis. Stat. § 227.11(2)(a) ("[A] rule is not valid if the rule
exceeds the bounds of correct interpretation."). This
conclusion is actually an assumption, but it has no basis in the
text of Wis. Stat. § 111.83(3)(b) and is refuted by the context
of surrounding provisions, specifically § 111.83(3)(a). See
State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶46,
22
See infra note 31.
25
No. 2015AP2224
271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory language is
interpreted in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes."). Section
111.83(3)(a), which addresses the situation where questions
regarding representation arise at times other than certification
elections, states in relevant part as follows:
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
23
Similarly, other provisions of Wis. ch. 111 that mention
"petitions" are not relevant to the facts here: Wis. Stat.
§§ 111.70(3)(a)4., 111.70(4)(d)5., 111.825(4) and (5), and
111.84(1)(d). These provisions address either a situation where
there is no current representative or a situation where an
employer is challenging a current representative's status.
26
No. 2015AP2224
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 the enabling statute and the
rule. See Wis. Stat. § 227.10(2) ("No agency may promulgate a
rule which conflicts with state law."). This conclusion rests
on the premise that the statute mandates an annual certification
election without regard to whether there is any labor
organization to elect. Taken to its logical end, however, this
premise would compel the absurd result that WERC is required to
conduct an election where there is nothing and no one for whom
to vote. See Kalal, 271 Wis. 2d 633, ¶46 ("[S]tatutory language
is interpreted . . . to avoid absurd or unreasonable results.").
Not only is it factually absurd to conduct an election where
there are no participants, but the statutory definition of
"election" presumes that there is at least one labor
organization on the ballot for which employees can vote, see
supra note 5, and neither MERA nor SELRA provide guidance for a
write-in election. Moreover, the statutes do not provide any
procedure for how a current representative would remove itself
24
We note further that there is no textual basis to treat
incumbents and non-incumbents differently under Wis. Stat.
§ 111.83(3)(b), and that doing so may raise an equal protection
problem. Thus, this interpretation should be avoided. See
Blake v. Jossart, 2016 WI 57, ¶27, 370 Wis. 2d 1, 884
N.W.2d 484; Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 247 (2012) ("A statute should be
interpreted in a way that avoids placing its constitutionality
in doubt.").
27
No. 2015AP2224
from the ballot if it no longer wished to represent the
employees; thus, if we were to read in a presumption of
continuing interest, it is unclear how that presumption could be
defeated where a current representative wants to disclaim
interest.
¶47 In sum, we conclude that WERC did not exceed its
statutory authorization when it promulgated Wis. Admin. Code
chs. ERC 70 and 80 because its power to require a petition for
election as a demonstration of interest is necessarily
authorized by the statutory mandate that the ballot "shall"
include only the names of labor organizations "having an
interest" in representation.
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
28
No. 2015AP2224
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 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.
¶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
25
Below, because it concluded that the rules requiring a
petition for election were invalid, the circuit court did not
reach the issue of when WERC may decertify a current
representative labor organization if no petitions for election——
or only untimely petitions for election——are filed. The court
of appeals also declined to reach this issue. See WASP, 2016 WI
App 85, ¶24, 372 Wis. 2d 347, 888 N.W.2d 237. We note, however,
that the parties argued this issue in their briefing here, and
in the circuit court and court of appeals below; thus, this
issue was not forfeited.
29
No. 2015AP2224
bargaining agreement, the commission shall decertify
the current representative and the [employees] shall
be nonrepresented.
Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b). Each statute
also requires that WERC conduct the certification election "no
later than December 1."26 Id.¶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
Wis. Stat. § 990.01(1) ("All words and phrases shall be
construed according to common and approved usage . . . .");
Kalal, 271 Wis. 2d 633, ¶45 ("Statutory language is given its
common, ordinary, and accepted meaning . . . ."); Scalia &
Garner, supra ¶42 at 69 ("Words are to be understood in their
ordinary, everyday meanings——unless the context indicates that
they bear a technical sense."). Therefore, the statute
authorizes27 WERC to hold elections at any time on or before
December 1; and in fact, WERC did hold certification elections
for different labor organizations between November 1—21 in the
fall of 2014. Where a certification election is held prior to
December 1, it is possible that the results of that election
will become available prior to December 1; when the results of
26
Wisconsin Stat. § 111.70(4)(d)3.b. actually provides two
election dates: December 1 for school district employees and
May 1 for general municipal employees who are not school
district employees. As noted above, see supra ¶14 note 11, the
employees SEIU sought to represent are school district
employees; thus, the December 1 date applies.
27
See supra ¶42.
30
No. 2015AP2224
the election become available, WERC "shall certify any
representative that receives at least 51 percent of the votes"
and, "[i]f no representative receives at least 51 percent of the
votes . . . shall decertify the current representative and the
[employees] shall be nonrepresented." Wis. Stat.
§§ 111.70(4)(d)3.b., 111.83(3)(b). Therefore, decertification
before December 1 is consistent with the plain meaning of the
statutory language, so long as WERC has established that the
representative will not receive the requisite number of votes
and there is no collective bargaining agreement in place that
would otherwise dictate when decertification occurs.
¶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
28
See supra ¶¶40-47.
29
See supra ¶46.
30
To hold that, where there is no certification election, a
current representative labor organization could avoid
decertification would be an atextual and absurd result because,
then, a labor organization could avoid decertification by not
filing a petition for election (assuming, of course, that no
other labor organization files one either).
31
No. 2015AP2224
than "at least 51 percent of the votes of all of the [employees]
in the collective bargaining unit." Therefore, a current
representative labor organization's failure to timely file is
logically equivalent to an election in which a current
representative labor organization does not receive at least 51
percent of the votes of all employees in the collective
bargaining unit, and we can identify no statutory or other legal
basis on which they should be distinguished.
¶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
31
The reasonableness of September 15 as a deadline for
petitions for election was not raised as an issue here, but we
would note that September 15 seems a reasonable date on which to
set the deadline for petitions for election, given the
logistical requirements of conducting an election: where a
petition for election is timely filed and an election is then to
be conducted, WERC must (1) obtain and coordinate information
from the employer and the interested labor organization to
determine which employees are eligible to vote; (2) set a date
for the election and determine how best to conduct the election,
with time enough to notify employees of when and how they should
vote; and (3) conduct the election. And it must do all of those
things for hundreds of labor organizations, representing tens of
thousands of employees; for example, in the fall of 2014, WERC
conducted 305 certification elections, involving 54,662
(continued)
32
No. 2015AP2224
IV. CONCLUSION
¶55 There are two issues on this appeal. First, we
consider whether WERC exceeded its statutory authority under
Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC
70 and 80. We conclude that WERC did not exceed its authority
because it has express authority under Wis. Stat. ch. 111 to
promulgate rules that require a demonstration of interest from
labor organizations interested in representing collective
bargaining units; consequently, we reinstate WERC's orders
dismissing the Unions' petitions for election as untimely.
¶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.
employees. Given that these responsibilities must be fulfilled
such that all elections are completed on or before December 1,
September 15 would seem a reasonable deadline for petitions for
election.
33
No. 2015AP2224
By the Court.-The decision of the court of appeals is
reversed.
34
No. 2015AP2224.awb
¶58 ANN WALSH BRADLEY, J. (dissenting). This case
represents yet another decision of this court that
disenfranchises voters.1
¶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
1
See League of Women Voters of Wis. Educ. Network, Inc. v.
Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302; Milwaukee
Branch of NAACP v. Walker, 2014 WI 98, 357 Wis. 2d 469, 851
N.W.2d 262.
1
No. 2015AP2224.awb
regulate recertification elections pursuant to Wis. Stat.
§§ 111.71(1) and 111.94(1). See majority op., ¶¶34-45.
Consequently, the issue as presented and decided by both the
circuit court and court of appeals is obscured.
¶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
2
No. 2015AP2224.awb
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 majority's "absurd" consequence is thus easily avoidable
through a simple disclaimer process that is available at any
time and is already in use in both federal and state labor law.
See Dycus v. Nat'l Labor Relations Bd., 615 F.2d 820, 826 (9th
Cir. 1980); see also 1 Emp. and Union Member Guide to Labor Law
§ 3:12 (2017).
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
2
Baraboo Joint Sch. Dist. No. 1, WERC Dec. No. 14885-B at 8
(Mar. 10, 1977) ("The commission has allowed a labor
organization to withdraw from an election if it indicates to the
commission that it does not desire to appear on the ballot and
does not desire to represent the employe[e]s."); see also Wis.
Law Enf't Ass'n v. AFSCME Council 24, WERC Dec. No. 31397-B at
32 (Aug. 1, 2006) (citing Bake-Line Prods., Inc., 329 NLRB 247,
249 (1999) (explaining that "an exclusive bargaining agent may
avoid its statutory duty to bargain on behalf of the unit it
represents by unequivocally and in good faith disclaiming
further interest in representing the unit . . . .")).
3
No. 2015AP2224.awb
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; Wis. Stat. § 227.10(2). "When a conflict occurs
between a statute and a rule, the statute prevails." Debeck,
172 Wis. 2d at 388 (citation omitted).
¶68 The dispositive question is whether SELRA3 and MERA4
conflict with the petition requirement in Wis. Admin. Code chs.
3
Wisconsin Stat. § 111.83(3)(b) provides in relevant part:
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. . . .
4
Wisconsin Stat. § 111.70(4)(d)3.b. sets forth in relevant
part:
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
(continued)
4
No. 2015AP2224.awb
ERC 70 and 80.5 In order to answer this question, I must examine
first whether "shall" does indeed mean "shall." Is it mandatory
or merely directory?
¶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." Wis.
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. . . .
5
Wis. Admin. Code §§ ERC 70.01 and 80.01 state in relevant
part:
. . . 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. . . .
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Stat. §§ 111.83(3)(b), 111.70(4)(d)3.b. (emphasis added). In
other words, each requires that an election be held annually.
Full stop. No conditions.
¶71 Wisconsin Admin. Code §§ ERC 70.01 and 80.01 allow
WERC to cancel an election. See also Wis. Admin. Code §§ ERC
70.03(7)(b) and 80.03(7)(b) (explaining the consequences of
failure to timely file a petition). Ignoring a line of analysis
both the circuit court and court of appeals deemed dispositive,
the majority implicitly determines that "shall" does not mean
"shall" and that there is therefore no conflict between the
statutes and WERC's administrative rules.
¶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 2146
In Karow v. Milwaukee Cty. Civil Serv. Comm'n, 82
Wis. 2d 565, 572, 263 N.W.2d 214 (1978), we set forth five
factors to consider in determining whether "shall" as used in a
statute is mandatory or directory: the inclusion or omission of
a prohibition or a penalty in the statute, the consequences
resulting from one construction or the other, the nature of the
statute, the evil to be remedied, and the general object sought
to be accomplished by the legislature.
6
No. 2015AP2224.awb
(1978). Application of these factors here indicates that
"shall" as used in Wis. Stat. §§ 111.83(3)(b) and
111.70(4)(d)3.b. is mandatory.
¶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 of expanding
employees' ability to vote on whether they are represented by a
union, the majority opinion takes all choice away from
7
See majority op., ¶15.
7
No. 2015AP2224.awb
employees, leaving them without union representation regardless
of their actual wishes.
¶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 Wis.
Stat. §§ 111.83(3)(b) and 111.70(4)(d)3.b. leads to the
conclusion that there is an irreconcilable conflict between
these statutes and Wis. Admin. Code ERC §§ 70.01 and 80.01.
Simply stated, the statutes mandate that there "shall" be an
election, while the administrative code provisions allow an
election to be cancelled.
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.
8
No. 2015AP2224.awb
¶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., Wis. Stat. §§ 111.70(3)(a)4.,
111.70(4)(d)5., 111.825(4), 111.825(5), 111.83(3)(a),
111.84(1)(d).
¶82 The legislature thus knows full well how to write a
petition requirement into a labor relations statute. In the
case of Wis. Stat. §§ 111.83(3)(b) and 111.70(4)(d)3.b., it
chose not to include one. The language of these statutes is
clear. An election "shall" take place.
¶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 Wisconsin Stat. §§ 111.83(3)(b) and 111.70(4)(d)3.b.
prescribe only one manner in which WERC may decertify a
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." In other words, an election is required as a
9
No. 2015AP2224.awb
precondition for decertification. The statutes do not provide
an additional manner in which a bargaining representative may be
decertified.
¶85 Conversely, Wis. Admin. Code §§ ERC 70.03(7)(b) and
80.03(7)(b) provide that decertification is to occur "[i]f no
timely petition is filed by any labor organization." This
conflicts with the statute because it provides an additional
avenue to decertification the statute does not contemplate.
Again, "[w]hen a conflict occurs between a statute and a rule,
the statute prevails." Debeck, 172 Wis. 2d at 388.
¶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
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No. 2015AP2224.awb
court of appeals. I conclude that both SELRA and MERA are in
irreconcilable conflict with the petition requirement in Wis.
Admin. Code chs. ERC 70 and 80, and that "shall" means "shall."
¶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 ch.
8
See State v. Villamil, 2017 WI 74, ¶60, 377 Wis. 2d 1, 898
N.W.2d 482 ("[W]e conclude that the State has failed to rebut
the presumption that 'shall' is mandatory" in operating after
revocation penalty statutes); City of Eau Claire v. Booth, 2016
WI 65, ¶23, 370 Wis. 2d 595, 882 N.W.2d 738 ("The legislature's
use of 'shall' in Wisconsin's OWI escalating penalty
scheme . . . is mandatory . . . ."); Bank of New York Mellon v.
Carson, 2015 WI 15, ¶23, 361 Wis. 2d 23, 859 N.W.2d 422 ("The
context in which 'shall' is used in Wis. Stat. § 846.102(1)
indicates that the legislature intended it to be mandatory.");
State v. Hemp, 2014 WI 129, ¶27, 359 Wis. 2d 320, 856 N.W.2d 811("[W]e interpret 'shall' to be mandatory" in the context of
expunction statutes); Vill. of Elm Grove v. Brefka, 2013 WI 54,
¶26, 348 Wis. 2d 282, 832 N.W.2d 121 (determining that "shall"
is mandatory in statute providing for revocation of drivers
license for refusal to take a test for intoxication); State v.
Thompson, 2012 WI 90, ¶62, 342 Wis. 2d 674, 818 N.W.2d 904(explaining that Wis. Stat. § 970.02(1)(a) imposes several
mandatory duties on the circuit court); Watton v. Hegerty, 2008
WI 74, ¶19 n.13, 311 Wis. 2d 52, 751 N.W.2d 369 ("[W]e conclude
that 'shall' has a mandatory meaning within § 51.30(4)(a).").
11
No. 2015AP2224.awb
980, an undocumented immigrant, and now in this case, a voter in
a union recertification election.9
¶90 Accordingly, for the reasons set forth above, I
respectfully dissent.
¶91 I am authorized to state that SHIRLEY S. ABRAHAMSON
joins this dissent.
9
See State v. Reyes Fuerte, 2017 WI 104, ¶55, 378
Wis. 2d 504, 904 N.W.2d 773 (Abrahamson, J., dissenting) (by
applying the harmless error rule, the majority essentially
renders the word "shall" meaningless); State v. Romero-Georgana,
2014 WI 83, ¶114, 360 Wis. 2d 522, 849 N.W.2d 668 (Ann Walsh
Bradley, J., dissenting) (explaining that the majority
disregards the plain meaning of "shall" in Wis. Stat.
§ 971.08(2)); In re Commitment of Gilbert, 2012 WI 72, ¶¶87-89,
342 Wis. 2d 82, 816 N.W.2d 215 (Ann Walsh Bradley, J.,
dissenting) (observing that the majority finds ambiguity in a
statute containing "shall" by ignoring the surrounding context).
12
No. 2015AP2224.awb
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