Wisconsin Court of Appeals Invalidates WERC Rules Requiring Filing of Election Petitions for Recertification Elections

Nathan Eisenberg

2011 Wisconsin Act 10 requires that the Wisconsin Employment Relations Commission hold annual recertification elections for existing bargaining units. In a recent decision the Wisconsin Court of Appeals, found that where Act 10 stated that “annually…the commission shall conduct an election to certify the representative of a bargaining unit” that “the holding of the annual recertification elections are mandatory and cannot be contingent upon the filing of a recertification election petition.” The decision invalidates WERC rules that require the filing of election petitions as a condition of holding the elections.

In Wisconsin Association of State Prosecutors, et al. v. Wisconsin Employment Relations Commission, et al., two unions challenged Commission rules which required that school district and state employees must file an election petition by September 15th or face immediate decertification. Attorney Nathan Eisenberg of The Previant Law Firm represented the unions in the case. Based on the language of both the State Employment Labor Relations Act (SELRA) and Municipal Employment Relations Act (MERA) the unions argued that where Act 10 required the commission shall hold such elections, that the elections could not be avoided by administrative rules which made the elections discretionary. The Court of Appeals agreed.

The decision means that labor unions who fail to file timely election petitions for the fall elections will be entitled to elections. Unions who miss the September 15th deadline cannot be decertified merely by the fact that they missed the filing deadline. However, the decision did not discuss the payment of the filing fee as a condition for the elections.