Wis. Ass'n of State Prosecutors v. Wis. Emp't Relations Comm'n

380 Wis.2d 1

907 N.W.2d 425

2018 WI 17

WISCONSIN ASSOCIATION OF STATE PROSECUTORS, Plaintiff-Respondent,

v.WISCONSIN EMPLOYMENT RELATIONS COMMISSION, James R. Scott and Rodney G. Pasch, Defendants-Appellants-Petitioners.

Service Employees International Union, Local 150, Plaintiff-Respondent,

v.State of Wisconsin, Office of State Employment Relations, Intervenor-Appellant,Wisconsin Employment Relations Commission, James R. Scott and Rodney G. Pasch, Defendants-Appellants-Petitioners.

Wisconsin Association of State Prosecutors, Plaintiff-Respondent,

v.Wisconsin Employment Relations Commission, Defendant-Appellant-Petitioner.

Service Employees International Union, Local 150, Plaintiff-Respondent,

v.Wisconsin Employment Relations Commission, Defendant-Appellant-Petitioner.

Service Employees International Union, Local 150, Plaintiff-Respondent,

v.Wisconsin Employment Relations Commission, Defendant-Appellant-Petitioner,State of Wisconsin, Office of State Employment Relations, Intervenor-Appellant.

No. 2015AP2224

Supreme Court of Wisconsin.

ORAL ARGUMENT: December 5, 2017

OPINION FILED: February 28, 2018

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.

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, [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. §§ 227.52 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, 888 N.W.2d 237. 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. 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 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,...