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Wisconsin Association of State Prosecutors v. Wisconsin Employment Relations Commission

Supreme Court of Wisconsin

February 28, 2018

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. Reversed.

         Circuit Court Milwaukee County John J. DiMotto Judge. (L.C. Nos. 2014CV9307, 2014CV9658, 2015CV328, 2015CV329, 2015CV501)

          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.

          A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed), Dissented.

          OPINION

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 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');">888 N.W.2d 237');">888 N.W.2d 237');">888 N.W.2d 237, [hereinafter "WASP"], affirming the Milwaukee County circuit court's[1] declaration that the Wisconsin Employment Relations Commission ("WERC") exceeded its authority under Wis.Stat. ch. Ill. (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. §§ 227.52 and 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 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.

         ¶5 There are two issues on this appeal. First, we consider whether WERC exceeded its statutory authority under Wis.Stat. ch. Ill. 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. Ill. 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 10[3] amendments to two subchapters of the Wisconsin Statutes. The first subchapter at 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 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 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.

         ¶10 The petition for election at issue here[8] 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 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 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 7 0.02.

         ¶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, 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 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; WASP is, therefore, subject to Wis. Admin. Code ch. ERC 80. Wis. Admin. Code § ERC 8 0.02(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 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 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 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. §§ 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. Ill. 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. Ill. 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. Ill. 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 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. Ill. to promulgate rules that require a demonstration of interest from labor organizations interested in representing collective bargaining units; consequently, we ...


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