MacIver News Service | Feb. 28, 2018
By M.D. Kittle
MADISON, Wis. – Big labor was handed another big loss Wednesday when the Wisconsin Supreme Court reversed a lower court decision in a union certification case.
The ruling is another in a long line of court wins for Gov. Scott Walker’s 2011 public sector collective-bargaining reform law known as Act 10, which has faced a litany of lawsuits from organized labor and their allies.
In its 5-2 decision, the court found that the Wisconsin Employment Relations Commission did not exceed its authority in requiring labor groups to file petitions for certification elections in a timely fashion. It also upheld the constitutional authority of government agencies to promulgate rules in support of laws.
“Thus, we reverse the decision of the court of appeals and reinstate WERC’s orders dismissing the Unions’ petitions for election,” concludes the Supreme Court majority opinion, written by Justice Annette Kingsland Ziegler.
The court’s big labor-backed liberals, Justices Shirley Abrahamson and Ann Walsh Bradley, dissented.
Ultimately, the decision is more instructive than restorative. The unions continued to represent members during the appeals process and filed petitions before the deadline the following year. They lost nothing in the bargain but, once again, the Supreme Court has ended another litigation ploy by big labor.
The court’s conservative majority rejected the argument by the Wisconsin Association of State Prosecutors and Service Employees International Union that WERC’s administrative requirements were “invalid” because they “irreconcilably conflict” with state law requiring annual public employee recertification votes.
SEIU and WASP made their arguments after they were tardy in filing petitions to be named as collective-bargaining representatives on 2014 certification ballots. WERC subsequently voted not to accept the unions’ petitions because they were not filed in a timely manner.
The unions sued, arguing that they shouldn’t have to file a petition in the first place because, as the sole unions already representing their respective employees, they are required under Act 10 to go through an annual recertification vote. In essence, they shouldn’t need to file a petition and that the requirement is invalid to begin with. Further, the “absence of a statutory requirement … means that the legislature did not intend for there to be any requirement.”
Milwaukee County Circuit Court Judge John J. DiMotto agreed with the unions, declaring WERC’s petition rules invalid and overturning the commission’s decisions not to hold certification elections for the unions.
DiMotto decided 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.’”
An appeals court agreed with DiMotto.
The Supreme Court doesn’t share those interpretations of the law.
WERC has “express authority” under Wisconsin Statute Chapter 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,” the opinion states.
Wisconsin’s enabling statute, giving agencies the ability to create rules, “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,” the ruling states.
As for the petition requirement, the decision notes that WERC necessarily must determine which labor organizations have an interest of being on the certification ballot. The unions’ argument is a presumption – that they would continue to be the only collective-bargaining agent for government employees they had previously represented. WERC is not allowed under law to assume such things.
“(T)here is no statutory indication that past representation triggers a presumption of interest in future representation,” the Supreme Court ruling states.
“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.”Wisconsin unions have repeatedly tried - and failed - to bring down Act 10 in the courtroom, losing at the state and federal levels. #wiright #wipolitics Click To Tweet
James Daley, chairman of the Wisconsin Employment Relations Commission, said the decision underscores the Legislature’s authority to entrust WERC to “execute their wishes in regards to collective bargaining in Wisconsin.”
Daley said the expectation of unions filing required paperwork in a timely fashion is no different than candidates for office – incumbents or newcomers – expected to file nomination papers on time.
“Our goal is to create an election atmosphere for collective-bargaining elections that is respectful and takes every voter into account,” he said. “This is a simple case where the union failed to apply in a timely manner.”
Wisconsin unions have repeatedly tried – and failed – to bring down Act 10 in the courtroom, losing at the state and federal levels.
That hasn’t stopped the endless litigation.
Earlier this month, the state Supreme Court rejected an argument by Madison Teachers Inc. that they should be allowed access to voter names while a union certification election is going on. The union, which has filed other lawsuits against Act 10, claimed it wanted to make sure WERC was fairly administering elections.
The court, again in a 5-2 decision, ruled that WERC did not violate Wisconsin’s open records law in denying access to the names until after the voting period concluded.
“[T]he public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in the case before us,” Chief Justice Patience Roggensack wrote in majority opinion.
Organized labor is hurting in the wake of laws that have given workers the right to choose whether they want to be in unions. Many are taking a pass.
Following the enactment of worker freedom laws in Wisconsin, overall union membership in Wisconsin has declined from 354,882 members in 2010 to 218,233 in 2016, a drop of 38.5 percent.