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April 24, 2014

WERC Issues Emergency Rules On Union Recertification Elections

On September 14, 2011, the Wisconsin Employment Relations Commission (“WERC”) adopted emergency rules, Chapter ERC 70-74 dealing with “Initial Annual Certification Elections for Represented Municipal Sector General Employees” as required by Wis. Acts 10 and 32.

The new election rules do not cover bargaining units of public safety employees or transit employees.

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. 

 

 

Bargaining Unit

Timely Re-certification Petition Due From Union

 

Election Held

General State & Municipal employees who were subject to an extension of their collective bargaining agreement as of July 1, 2011 (ERC 70 & 80)

 

September 22, 2011

October 2011

(Round One)

General municipal sector general school district employees who, as of September 30, 2011 are not subject to a collective bargaining agreement, or to an extension of their collective bargaining agreement or, as of September 30, 2011 are covered by a collective bargaining agreement entered into on or after June 29, 2011 (ERC 71)

 

September 30, 2011

Not later than December 1, 2011

(Round Two)

General municipal non-school district employees who, as of January 30, 2012, are not subject to a collective bargaining agreement or to an extension of their collective bargaining agreement or, as of January 30, 2012 are covered by a collective bargaining agreement entered into on or after June 29, 2011(ERC 73)

 

January 30, 2012

Not later than May 1, 2012

(Round Three)

General municipal school district employees who, as of September 30, 2011, are subject to a collective bargaining agreement entered into before June 29, 2011 but not to an extension of the collective bargaining agreement

(ERC 72)

 

September 30, following the earliest of expiration, termination, modification, renewal or extension of the collective bargaining agreement

Not later than

December 1 following a timely petition

(Round Four)

General municipal sector nonschool district employees who, as of January 30, 2012 are subject to a collective bargaining agreement entered into before June 29, 2011 but not to an extension of their collective bargaining agreement (ERC 74)

 

January 30, following the earliest of expiration, termination, modification, extension or renewal of the collective bargaining agreement

Not later than

May 1 following a timely petition

(Round Five)

Steps in Recertification Election Process

1. Timely petition by the Union and submission of the applicable filing fee to the WERC and electronic service of the petition on the municipal employer. No showing of interest is required by the existing exclusive representative of the bargaining unit. A petition by any other labor organization must be supported by a 30% showing of interest.

2. The unions will be required to pay 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:

1-100 eligible voters = $200

101-250 eligible voters = $350

251-500 eligible voters = $500

501-1000 eligible voters = $750

1001-3000 eligible voters = $1500

3001 or more eligible voters = $2000

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 if no collective bargaining agreement is in effect. 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 receipt of the petition, the employer is to provide to the WERC and the union an electronic list of employees in alphabetical order with last name first, last four digits of the employee’s Social Security Number, worksite and location as of the pay period in which the timely petition is filed. Upon WERC request, the municipal employer must submit two sets of mailing labels if a mail ballot procedure is to be followed. Within 10 days of receipt of the list of eligible voters, the union may provide a list of employee names to be added or deleted from the list.

5. As soon as possible the WERC will, in writing, direct the election (including date and eligible voters submitted by both the employer and the union), dismiss the petition or make other orders regarding the petition.

6. All elections are conducted by secret ballot under supervision by the WERC or other WERC designated impartial agents, on-site, by mail and telephonically as determined by the WERC. The employer shall post notices containing date, time and location of the election as specified by the WERC. If conducted on site, any interested party may designate observers as may be allowed by the WERC.

7. The ballots will be counted and a tally of ballots issued to the parties. Challenged ballots by any party, observer or WERC agent will be segregated without being opened or counted unless determinative of the outcome of the election. A hearing on the challenged ballots will be held if the ballots will determine the outcome of the election.

8. The vote for recertification will be determined based on 51% of the total eligible voters in the bargaining unit. The results of the election will be certified by the WERC if the challenged ballots are not determinative of the outcome of the election. If a hearing is held on the challenged ballots, the certification of the results of the election will occur following the decision on the challenged ballots.

9. Any objections to the conduct of the election are due within eight days of receiving the tally of ballots.

10. If the 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 to file the petition. The election would follow the normal WERC procedures for an election. That is, an election for a union seeking to represent employees in a decertified unit after a one year moratorium is determined by a majority of those who actually vote in the election, not 51% of the eligible voters, a lower threshold for certification as the designated representative.

11. If the union wins the recertification election, annual recertification elections will be required.

If the union is recertified and the unit eligibility status of any position is in dispute based on the voter eligibility lists submitted, the employer should consider a unit clarification to determine that issue.

Election Details: Anticipated Process for the Conduct of Telephonic Elections?

1. The American Arbitration Association (“AAA”) may 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.

To review the WERC emergency recertification rules 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.

© MICHAEL BEST & FRIEDRICH LLP

About the Author

Robert W. Mulcaahy Michael Best Friedrich LLP
Partner

Rob Mulcahy is a partner and Chair of the firm’s Community Outreach Committee.  His practice covers both public and private sector management labor and employment law, including privatization, inter-governmental co-operation agreements, collective bargaining, contract administration, employment discrimination matters, wage and hour, open meeting, public records, ethics opinions and interest arbitration proceedings

414.225.2761

About the Author

Marion C. Smith  Michael Best Friedrich LLP
Director of Labor Research

Marion Smith is the Director of Labor Research. Ms. Smith’s background includes extensive experience on a broad range of labor and employment issues. Ms. Smith is experienced in the following areas:

414-225-2760

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