Wisconsin Association of State Prosecutors v. Wisconsin Employment Relations Commission

• Court: Wisconsin Supreme Court
• Decided: February 28, 2018
• Docket: 2015AP002224
• Status: Published

Opinion

2018 WI 17

SUPREME 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 237 PDC 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 17 NOTICE 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,

----------------------------------------------- Wisconsin Association of State Prosecutors,

Wisconsin Employment Relations Commission,

Defendant-Appellant-Petitioner.

Service Employees International Union, Local 150,

Plaintiff-Respondent, v.

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. §§ 227.52

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

1 The Honorable John J. DiMotto presided. 2 All references to the Wisconsin Statutes are to the 2013- 14 version unless otherwise noted.

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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.

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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

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.

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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

(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.

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rehearing regarding this dismissal pursuant to Wis. Stat.

¶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

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

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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

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

promulgate rules that require a demonstration of interest from

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

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

occurs later, where there are no timely petitions for election

filed because the plain language of the statute requires WERC to

¶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

Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC

70 and 80. We conclude that WERC did not exceed its authority

promulgate rules that require a demonstration of interest from

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

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

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. . . .

5 No. 2015AP2224.awb

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 214

6 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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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).").

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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).

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