Rule-Making Notices
Notice of Hearing
Employment Relations Commission
(Rescheduled hearing)
NOTICE IS HEREBY GIVEN that the Wisconsin Employment Relations Commission will hold a public hearing regarding promulgated emergency rules and the proposed creation of permanent rules to create Chapters
ERC 70,
71, and
80, relating to annual union certification elections.
Hearing Information
Date: Tuesday, January 7, 2014
Time: 10:00 a.m.
Location: 4868 High Crossing Blvd.
Madison, WI
Appearance at Hearing and Submission of Written Comments
The hearing site is accessible to people with disabilities. However, if you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact Peter Davis at 608 243-2421 or
peterg.davis@wisconsin.gov.
Comments on the proposed rule should be submitted by
November 22, 2013, and can be faxed to (608) 243-2433, emailed to
peterg.davis@wisconsin.gov, or mailed/hand-delivered to 4868 High Crossing Blvd., Madison, Wisconsin 53704-7403.
Analysis Prepared by the Commission
Statutes interpreted
Statutory authority
Explanation of agency authority
The Municipal Employment Relations Act and the State Employment Labor Relations Act both require that the Commission adopt administrative rules to regulate various proceedings. In addition, ss.
111.70 (4) (d) 3. b. and
111.83 (3) (b), Stats., require that the Commission assess a fee for each annual certification election and the fee level must be established by administrative rule.
Related statute or rule
None.
Rule summary
By these promulgated emergency rules and proposed rules, the Wisconsin Employment Relations Commission created and proposes to permanently create chs.
ERC 70,
71, and
80 concerning the cost, timing, and procedures for any requested annual certification elections required by
2011 Wisconsin Act 10 and
2011 Wisconsin Act 32 to determine whether a bargaining unit of general (i.e., non-public safety and non-transit) employees in the municipal or state sector that is represented by a labor organization for collective bargaining with the employer involved shall continue to be represented by that organization or by another organization or shall not be so represented.
These rules do not require the retroactive conduct of elections that would have been conducted on or before December 1, 2012, and May 1, 2013, but for a March 2012 federal court order enjoining such elections under the State Employment Labor Relations Act and the Commission's related March 2012 determination to suspend the conduct of such elections under the Municipal Employment Relations Act until the federal court litigation was concluded.
These rules are not applicable to the plaintiffs in Case 11CV3744 unless and until the Circuit Court's decision is no longer in effect.
Under these rules, a labor organization continues to represent employees (and thus is eligible to file a certification election petition under these rules) unless that organization lost an initial annual certification election conducted by the Commission or was required to but failed to file a petition for an annual certification election prior to March 2012.
2011 Wisconsin Act 32 requires that the Commission charge a fee for conducting any requested election. These rules require that the labor organization or organizations requesting the election should pay the fee and that the following fee structure applies.
$200: 1 to 100 eligible voters
$350: 101 to 250 eligible voters
$500: 251 to 500 eligible voters
$750: 501 to 1000 eligible voters
$1500: 1001 to 3000 eligible voters
$2000: over 3000 eligible voters
Under these rules, the timing of requested elections is as follows:
• No later than December 1 for units of all general state employees who, as of August 30, are not covered by a collective bargaining agreement or are covered by a collective bargaining agreement entered into on or after June 29, 2011 (covered in ch.
ERC 80). Unions wishing to continue as the collective bargaining representative must file an election petition and applicable fee on or before August 30;
• No later than December 1 for units of general municipal school district employees who, as of August 30, are not covered by a collective bargaining agreement or are covered by a collective bargaining agreement entered into on or after June 29, 2011 (covered in ch.
ERC 70). Unions wishing to continue as the collective bargaining representative must file an election petition and applicable fee on or before August 30;
• No later than May 1 for units of general municipal employees who, as of January 30, are not covered by a collective bargaining agreement or are covered by a collective bargaining agreement entered into on or after June 29, 2011 (covered in ch.
ERC 71). Unions wishing to continue as the collective bargaining representative must file an election petition and applicable fee on or before January 30.
Under these rules, if a union does not timely file an election petition and fee, the union loses its status as the collective bargaining representative as of the filing deadline.
In each of the new chapters, the first section, Section ERC xx.01, describes the general policy and purpose of chapter.
Section ERC xx.02, include definitions of terms as used in the chapter and defines the scope of application of the chapter as is outlined above.
Sections ERC xx.03(1) limit the right to file a petition to the existing representative and other any labor organization interested in representing the bargaining unit. No provision is made for petitions by employees or by the employer because decertification automatically results if no timely petition is filed by a labor organization.
Sections ERC xx.03(5) provide that no showing of interest is required to support a petition filed by the existing exclusive representative of the bargaining unit, but that a petition filed by another organization must be supported by a 30% showing of interest. The practice and procedure for submission and determination of the showing of interest is made parallel to that in existing s.
ERC 11.05 (2), which generally involve a commission determination as to the sufficiency of the showing of interest in the context of the employee personnel data provided by the employer, without providing a copy of the showing of interest to any party other than the party that submitted it.
Sections ERC xx.03(7) specify the time by which a petition must be filed and the consequences that follow from no timely petition being filed by any labor organization. Sections ERC xx.03 (7) (c) each provide that the commission will issue a notice equivalent to a decertification upon the request of any interested party or any affected employee.
Sections ERC xx.04 provide the procedures and consequences of a withdrawal of a petition. Each provides that if withdrawal of a petition leaves no pending timely petition, the consequences are the same as if the existing representative filed the only timely petition, an election was conducted, and no representative achieved the support of 51% of the eligible voters.
Sections ERC xx.05 describe the obligation of the employer and petitioning union(s) to provide the Commission with lists of proposed eligible voters and related information.
Sections ERC xx.06 provide for commission issuance of a direction of election or other dispositional order without an intervening hearing to resolve possible disputes concerning voter eligibility or other matters. In cases where the commission is directing an election, the direction shall provide that all individuals on the list provided by the municipal employer and on the list, if any, provided by the petitioner or any other interested party, shall be allowed to complete and submit a ballot, subject to the right of any interested party to challenge the eligibility of the voter during post-balloting procedures.
Sections ERC xx.07 provide that all elections are to be conducted by secret ballot and under the supervision of the commission or impartial agents designated by the commission, with the commission determining on a case by case basis whether the secret balloting shall be conducted on-site, by mail or automated telephone system. Each chapter also contains provisions generally paralleling those in s.
ERC 11.09, regarding notice of election, observers, challenge of voters, and count and tally of ballots.
Sections ERC xx.07 (6) provide that if more than one proposed representative appears on the ballot and if at least 51% of the eligible voters favor representation but no single representative receives the votes of at least 51% of the eligible voters, the commission, on receipt of a timely request of any party, may conduct a runoff election as provided in ss.
111.70 (4) (d) 4. or
111.83 (4), Stats.
Sections ERC xx.08 and xx.09 provide procedures concerning the commission's certification of results of election and the filing and service of objections to election.
Sections ERC xx.10 provide procedures for commission action on challenges or objections, including the conduct of a hearing if one is needed.
Sections ERC xx.11 list the consequences of no representative achieving support of 51% of the eligible voters in the election. Those consequences are that the commission will issue a certification of the results of the election decertifying the existing representative, and providing that for 12 months from the date of decertification the affected employees shall be nonrepresented and shall not be included in any substantially similar bargaining unit.
Sections ERC xx.12 outline the procedures by which any person aggrieved by a final order of the commission may file and have processed a petition for rehearing.
Summary of, and comparison with, existing or proposed federal regulations
None.
Comparison of proposed rules with rules promulgated by adjacent state labor relations agencies
Not applicable. A review of the following adjacent state rules reveals none providing procedures for certification elections conducted on an annual or other regularly periodic basis.
AGENCY Name and Source of Rules:
Minnesota Bureau of Mediation Services
Minnesota Rules,
Chapter 5505 - Private Rules
5505.0100 Definitions.
5505.0200 Purpose, Construction, And Waiver.
5505.0300 Request For Investigation.
