On August 23, 2011, the Wisconsin Employment Relations Commission (“WERC”) issued its draft emergency rules, Chapter ERC-70-74 dealing with “Initial Annual Certification Elections for Represented Municipal Sector General Employees.” These proposed rules are subject to final approval by Governor Walker’s Office. 

WERC Chairman James R. Scott recently updated us on the newly-proposed regulations. Notably, these rules only deal with the initial union re-certification elections and not the annual re-certification voting procedures, as those will be developed at a later date. It is anticipated that the new election rules will be available in final form as approved by the Governor’s Office within the next few weeks. The new election rules do not cover bargaining units of public safety employees or transit employees.

I.  Re-certification Election Process:

The timing of the re-certification election is determined by the type of bargaining unit, whether a contract or contract extension exists and when any contract expires. An “extension” of a collective bargaining agreement is defined as:

(a) An overall agreement specifying wages, hours and conditions of employment.

(b) Without a definite expiration date.

     (c) Subject to termination by either of the parties upon notification or advance notification to the other.           

II.  The Re-certification Election Timetable for the Respective Bargaining Units:

III. Steps in Recertification Election Process

1. Upon petition by the Union – WERC to conduct an initial election involving the incumbent union or any other petitioning labor organization.
2. Filing Fees. The unions will be required to pay for the entire filing fee and, therefore, the election should have no fiscal impact on taxpayers. The fee chart listed in the regulations is based on the size of the bargaining unit and ranges between $200 and $2,000 per election.
3. Failure of an incumbent union to timely file a petition for recertification will result in loss of status as exclusive representative of the bargaining unit as of the date the petition was due. Employers were advised to notify the WERC if in fact they have a bargaining unit and the union does not timely petition for recertification. The WERC will then issue a notice relating to the representative status of the union.
4. Within 10 days of the petition, the employer is to provide an electronic list of employees in alphabetical order with last name first, last four digits of the employee’s Social Security Number, and such other directory information as the WERC may request.
5. Once a union is decertified, a subsequent petition to represent substantially the same employee group may not occur until after a one-year bar. A 30% showing of interest is required. The election would follow the WERC procedures for an election. If the union wins the recertification election, they will still stand for annual recertification elections.
6. The vote for recertification will be determined based on 51% of the total eligible voters in the bargaining unit.

IV.  Election Details: Who will Conduct These Elections?

1. The American Arbitration Association will conduct the elections. The employer will need to post election details provided by WERC. The election will take place telephonically over a two-week period. Employees will be given a toll-free number and they will need to enter the first four letters of their last name and the last four digits of their Social Security Number. The employee will then be prompted to vote electronically. The AAA alone will have access to the voting process while it is underway and the WERC will not be involved in the actual voting process.
2. Challenged Ballots – A separate phone line will be established for individual employees to cast ballots challenged by either the employer or the union. The challenged ballots will only be dealt with if the challenges are dispositive of the results of the election.
3. Results of Election: WERC will promptly issue an Order certifying the results of the election as in the past.
4. The WERC does not have a list of all the bargaining units and the contract expiration dates. Also, we would advise that all public employers consider serving advance notice to their labor organization if they are intending to “terminate” the contract at expiration (see ERC-70.02 Scope (1))

V.   Supervisory Training:

Consistent with the current regulations, the WERC will not issue rules and regulations regarding union recertification campaign conduct. However, case law developed over the years outlines prohibited conduct and the necessity to maintain “laboratory conditions” during the pre-election period. Public employers should be prepared to train their administrators and supervisors as to the appropriate conduct during these campaigns to avoid challenges to the conduct of an election.

VI.   Employer Bargaining Options

For those employers who are bargaining now, there are options available, including bargaining just on “base wages” for a one year contract. If an agreement is reached on a new one-year contract, it is envisioned that the decertification, if effective, would take place at the expiration of that one-year contract based on the timetable above.

VII.   Independent Hearing Officers

The WERC has also advised that their staff is available to serve as Independent Hearing Officers for local government units under the new Grievance Procedures mandated by

§ 66.0509, Stats. The WERC has a concern that their workload will be dropping and that their staff may face layoffs.

VIII.  C.P.I. Calculations for Base Wage Computations

As far as C.P.I. calculations and coordination with the Wisconsin Department of Revenue and application to any base wage computations, Peter Davis sent the C.P.I. Scope Statement (notice request to issue regulations) request to the Governor’s Office on July 15, 2011 per Wis. Stats. 227.135. WERC is awaiting a response from the Governor before proceeding to draft the new C.P.I. regulations.

To review the proposed WERC emergency recertification rules, please click here.

Disclaimer: Care was taken in the preparation of this summary. However, these comments are written in general terms and summarize the proposed new rules.  Most, if not all, legal matters are fact specific and will require a complete analysis of the law based on the totality of the underlying circumstances. You are strongly advised to seek specific legal advice before taking any action based on this information. No responsibility can be taken for any loss arising from action taken or refrained from on the basis of general advice given.