Defending Wisconsin's Rules for Public-Employee Union Certification

Wisconsin Association of State Prosecutors v. Wisconsin Employee Relations Commission

With the passage of 2011 Wisconsin Act 10, the Wisconsin Legislature created a new election procedure for public-employee unions. Under this law, public workers who are currently represented by a union are no longer presumed to want to retain representation. Instead, by December 1 of each year, the Wisconsin Employment Relations Commission (“WERC”) “shall conduct an election to certify the representative of a collective bargaining unit,” with the ballot consisting of all labor organizations “having an interest in representing” the employees. Interested organizations must also pay a statutory fee to participate in such elections.


Pursuant to the authority delegated to it by the Legislature, WERC promulgated rules implementing these new election procedures. Under these rules, any union “having an interest in representing” public employees must submit a simple, two-page petition of interest, along with the statutory fee, to WERC by September 15 in order to be on the December 1 ballot. If no petitions are filed by that date for a given bargaining unit, WERC does not hold an election that year for that unit, and the unit’s incumbent representative is immediately decertified.


The Wisconsin Association of State Prosecutors and Service Employees International Union, Local 150 challenged WERC’s authority to promulgate these rules and won in the Milwaukee County Circuit Court and the District I Court of Appeals. Before the Wisconsin Supreme Court, the Solicitor General's Office argued that a) WERC acted well within its broad rulemaking authority in promulgating the above rules; and b) WERC’s rules providing for immediate decertification of unions who fail to give timely notice of their “interest in representing” the employees is consistent with both statutory language and legislative intent.


Status: Awaiting decision by the Wisconsin Supreme Court.

Litigation Closed: