MERA Representation Case Guide
A GUIDE TO WERC ELECTION LAW AND PROCEDURES
UNDER THE MUNICIPAL EMPLOYMENT RELATIONS ACT
Presented to
WISCONSIN PUBLIC SECTOR LABOR RELATIONS CONFERENCE
May 1, 2008 -- Madison, Wisconsin
by Peter G. Davis
WERC General Counsel **
(**The speaker’s remarks do not necessarily reflect the views of the WERC.)
The Municipal Employment Relations Act (Chapter 111.70-MERA) gives employees of school districts, cities, counties, towns, villages, library boards, sewerage districts and other political subdivision of the State of Wisconsin (i.e. a “municipal employer”) the right to be represented by a union for the purpose of collective bargaining with their employer over wages, hours and conditions of employment. This guide provides some information as to how that right can be pursued through the Wisconsin Employment Relations Commission (WERC).
Frequently Asked Questions:
Can any employee of a municipal employer be represented by a union?
Except for supervisors, confidential, managerial and executive employees, all employees of a municipal employer (including part-time, casual and temporary employees and employees who are also students) have the right to seek union representation for the purposes of collective bargaining. See Sec. 111.70 (1) (i) and (j), and 111.70 (2), Stats.
Law enforcement and firefighting supervisors have the right to be represented by a union, but the municipal employer has no obligation to bargain with the union.
See Sec. 111.70 (8) (b), Stats.
Law enforcement supervisors employed by the City of Milwaukee and Milwaukee County have the right to seek union representation for the purposes of collective bargaining. See Sec. 111.70 (8) (a), Stats.
If I’m interested in being represented by a union, how do I start?
You can contact an existing union or form your own union (pick a name and decide that your union exists to represent employees for the purposes of collective bargaining).
Am I protected against retaliation by my employer if I am interested in being represented by a union?
Yes-Wisconsin law ( MERA) prohibits such action by the employer. See Sec. 111.70 (3) (a) 1 and 3, Stats.
How does a union seek to become the representative of the employees?
The union files a petition for election with the WERC.
The union can ask the employer to voluntarily recognize it as the collective bargaining representative and if the employer agrees, the union has all the rights it would have if it won a WERC election. However, even in the face of substantial evidence that a majority of the employees want the union to represent them, the employer can insist that the union win a WERC election in order to become the representative. See Sec. 111.70 (3) (a) 4, Stats.; NEW RICHMOND SCHOOLS, DEC. NO. 15172-B (WERC, 5/78)
When filing a petition for an election among currently unrepresented employees, must the union demonstrate that it has the support of a certain number of employees?
No.
When filing a petition for an election among currently represented employees, must the petitioning rival union or the employees seeking to end the union representation demonstrate the support of a certain number of employees?
Yes.
If the employees are currently represented by a union, then an election petition filed by another union seeking to represent those same employees or by an employee who wants to end union representation must be accompanied by the signatures of at least 30% of the currently represented employees indicating support for the election.
If the 30% showing of interest has been met by a petitioning union, any other unions that wish to intervene must provide a 10% showing of interest.
Can a petition for an election as to currently unrepresented employees be filed by a union at any time?
Yes.
Can a petition for election as to currently represented employees be filed at any time?
No.
If the employees are currently represented by a union, then an election petition filed by another union seeking to represent those same employees or by an employee who wants to end union representation can only be timely filed: (1) during the 60 days prior to the date specified in an existing contract when the union advises the employer that it wishes to begin bargaining a successor contract; or (2) any time after the specified term of the existing contract has expired if no interest arbitration petition has been previously filed and both parties have not ratified a new contract; or (3) if at least one year has passed from the date the union became the collective bargaining representative and no agreement has been reached on a first contract and no interest arbitration petition has been previously filed. MUKWONAGO SCHOOLS, DEC. NO 24600 (WERC, 4/87)
If the existing contract does not have contractually established date for reopening bargaining on a successor agreement (option 1 above), WERC does not have a hard and fast timeliness rule. Filing well before bargaining has historically begun is the best option.
If an interest arbitration petition is pending, an election petition is still timely if: (1) the longest contract period covered by a final offer has passed and the election petition is filed no more than 60 days from the date of the interest arbitrator’s award; or (2) the interest arbitrator’s award is issued during or after the 60 day contractual reopener period but prior to the expiration of the contract and the election petition is filed no more than 60 days after the date the interest arbitrator’s award is issued. MUKWONAGO, SUPRA.
When a petition for an election among currently represented employees is filed and the showing of interest has been provided, does the employer have an obligation to bargain a new contract during the pendency of the election petition?
No. But the incumbent union has a continuing obligation/right to process grievances and resolve day to day workplace issues. BROWN COUNTY, DEC. NO. 19942-A (WERC, 9/82); SAWYER COUNTY, DEC. NO. 25681-A (WERC, 3/89)
When a petition for election is filed by a union as to currently unrepresented employees, what important decision must the union make?
The petition for election form asks the union to describe the group of employees (the bargaining unit) that it wishes to represent. The MERA requires that the unit be “appropriate” (i.e. one that the law allows to exist). There may be more than one possible “appropriate” unit that the union could propose.
When a petition for election is filed by a union as to currently represented employees, can the union propose an “appropriate unit” other than the current unit?
Yes. And if it does so, the 30% showing of interest is measured against the number of employees in the proposed bargaining unit. ST. CROIX COUNTY, DEC. NO. 31608 (WERC, 2/06)
When a petition for election is filed by an employee seeking to end union representation, can the employee propose an “appropriate unit” other than the current unit?
No. ST. CROIX COUNTY, SUPRA.
What does WERC do once it receives a petition for election?
WERC reviews the bargaining unit proposed by the union in the petition. If WERC has concerns as to whether the proposed unit is one that the MERA allows, WERC will contact the union and the employer to discuss the matter.
If WERC is satisfied that the proposed unit appears to be “appropriate”, it sends a copy of the petition to the employer with a form (Stipulation for Election) that asks: (1) if the employer agrees that the bargaining unit described in the petition is “appropriate” for collective bargaining and, if so, (2) which employees the employer believes fit within the bargaining unit description and thus the employer contends are eligible to vote.
By completing the Stipulation for Election, the employer advises the union and WERC if it agrees that the bargaining unit proposed by the union is appropriate and, if so, who the employer believes is eligible to vote.
If the employer agrees that the unit sought is “appropriate”, the union then reviews the names of the employees the employer asserts are eligible to vote. If the union agrees with the employer’s proposed voter eligibility list is correct, the union signs the Stipulation and sends it to the WERC. If the union disagrees with the employer’s proposed eligibility list, the union, the employer and the WERC discuss the matter in hopes that agreement can be reached. If agreement is reached, then the Stipulation and eligibility list are sent to WERC.
If the employer disagrees with the proposed bargaining unit (and the union, employer and WERC cannot thereafter informally resolve the unit issue) and/or if the union and employer cannot reach an agreement of the voter eligibility list, the WERC will conduct a hearing at which the union and employer (with assistance for the WERC) present the evidence needed by WERC to resolve the dispute. WERC then issues a written decision resolving the dispute.
If more than one union is involved, WERC follows the same procedure set forth above regarding the determination of the appropriate unit and the eligible voters.
If all parties agree that a proposed unit is “appropriate”, will WERC automatically accept the unit as “appropriate”?
If the description of the bargaining unit is “appropriate” on its face, WERC will generally accept the unit and direct the election.
If all parties agree on an “appropriate unit” that excludes certain types of positions/employees, will WERC subsequently allow a party to escape the “deal” by seeking to add the positions/employees?
Generally, not. But the agreement must be clear and can’t be inconsistent with the law. NORTHERN OZAUKEE SCHOOLS, DEC. NO. 14211-C (WERC, 9/05)
What kinds of proposed bargaining units are not “appropriate”?
The unit mixes employees with the “power of arrest” with employees who do not have the “power of arrest”. CITY OF MENASHA, DEC. NO. 24446 (WERC. 4/87)
What kinds of proposed units are not likely to be “appropriate”?
The unit excludes regular part-time employees who are performing the same work as the regular full-time employees. CITY OF NEW BERLIN, DEC. NO. 32015 (WERC, 2/07).
The unit doesn’t include all regular full-time and regular part-time employees of a small employer.
The unit would consist of employees who are currently included in a larger bargaining unit and have been so for several years. CITY OF MIDDLETON, DEC. NO 15358-B (WERC, 6/07)
How does the WERC resolve disputes over the “appropriate unit”?
When resolving disputes over the “appropriate unit”, WERC considers the extent to which employees in the proposed “appropriate unit” share a “community of interest” and the extent to which creation of the proposed unit will be contrary to the language of Sec. 111.70 (4)(d) 2.a. Stats. which provides that WERC “shall whenever possible, avoid fragmentation by maintaining as few collective bargaining units as practicable in keeping with the size of the total municipal work force.”
Therefore, WERC holds a hearing and receives evidence as to: (1) the duties and skills of the employees; (2) where the employees work; (3) who supervises the employees; (4) the wages, hours and fringe benefits of the employees; (5) what other bargaining units exist, how many employees are in those bargaining units, and how many other employees are currently eligible for union representation; (6) whether the employees in the proposed unit share a common purpose through their work; and (7) are the employees included in an existing bargaining unit or , if unrepresented, have they been treated as a group for the purposes of determining wages, hours and conditions of employment. ARROWHEAD UNITED TEACHERS V WERC, 116 WIS. 2D 580 (1984).
What happens if the WERC determines that the bargaining unit sought by the union is not "appropriate"?
The WERC dismisses the election petition.
What are examples of voter eligibility disputes?
The union and the employer may disagree over who is a supervisor or a confidential, or managerial employee (i.e. employee who cannot be included in a bargaining unit because they are not “municipal employees with the meaning of Sec. 111.70 (1)(i), Stats.).
-Except for firefighters, “supervisor” is defined in Sec. 111.70 (1) (o) 1, Stats. Often the question of whether the employee is a supervisor turns on the employee’s authority to effectively recommend the hiring and firing of employees. As to firefighters, “supervisor” is defined in Sec. 111.70 (1) (o) 2, Stats. which makes the number of fire stations and the rank of employees the critical factors.
-A confidential employee is an individual whose duties give them knowledge of the employer’s strategy in collective bargaining and/or contract administration. MINERAL POINT UNIFED SCHOOL DISTRICT V WERC, 251 WIS 2D.325 (CT. APP 2002).
-A managerial employee is an individual who participates at a high level in the formulation, determination and implementation of significant management policy or possesses effective authority to commit the employer’s resources as to matters that affect the services the employer provides. CITY OF MILWAUKEE V WERC, 71 WIS. 2D 709 (1976)
The union and employer may disagree over who is a professional or craft employee (who have the right to vote on whether they wish to be included in the same bargaining unit as other employees).
-A craft employee is defined in Sec. 111.70 (1) (d), Stats. and is limited to plumbers, electricians, sheet metal workers etc.
-A professional employee is defined in Sec. 111.70 (1) (L), Stats. The critical question is generally whether the knowledge needed to perform the work is usually acquired through a four-year specialized degree. BARRON COUNTY, DEC. NO. 15711-F (WERC, 11/07)
If the union(s) and employer resolve an eligibility dispute by agreeing that an employee is or is not a supervisor, or a confidential employee, or a managerial employee or a craft employee or a professional employee, does WERC allow the union or employer to litigate that issue in the future?
Yes. Because these are statutory issues, WERC has a responsibility to resolve such issues even where the parties have previously agreed to a resolution. BARRON COUNTY, DEC. NO. 15711-F (WERC, 11/07).
Once the appropriate unit and the voter eligibility list are established (either by agreement of the parties or by WERC decision), what happens next?
WERC has discretion to decide when, where and how to conduct the election in a manner that maximizes the opportunity of employees to vote.
By law, the ballot must include the opportunity to vote against the union(s) on the ballot.
WERC will generally conduct the election by mail ballot absent good cause for an on-site election. Ballots are mailed to the employees' homes and counted in the WERC's Madison offices 20 calendar days after the ballots are placed in the mail. WERC immediately contacts the union and employer (if they are not present for the count) with the election results.
If the election is conducted on-site, WERC consults with the union and employer and then determines the date, time and place of the election. Employees who will be out of town on the date the election will be held can request and receive absentee ballots. A WERC employee conducts the election and ballots are counted once the polls close. The union and the employer can have observers present during the vote to assist the WERC in identifying voters.
How many votes does a union need to win the election?
A union must receive a majority of the votes cast to win. If more than one union is on the ballot (for instance where one union is seeking to replace another union as the collective bargaining representative) and neither union receives a majority of the votes cast, a union may request that WERC conduct a run-off election. If WERC conducts a run-off election, the ballot choice (including no union representation) that received the smallest number of votes in the first election is dropped off the second ballot.
When are election results final?
Within 8 calendar days of the date the union(s) and the employer receive a tally of the election results, objections can be filed with WERC claiming that the election was tainted by error or misconduct. If objections are filed, WERC holds a hearing to determine whether errors or misconduct occurred and. if so, whether the election should be conducted again. If WERC determines that the objections do not warrant conducting a new election, it then certifies the election results. If WERC determines that new election should be conducted, a new election is held.
If no objections are filed, WERC certifies the election results shortly after the 8-day period for filing objections expires.
If a union won the election, the date the WERC certifies the election results is the date on which the union legally becomes the collective bargaining representative of the employees.
If the union loses the election, how soon can another election petition be filed?
Generally, one year from the date the election. VILLAGE OF DEERFIELD, DEC. NO. 26168 (9/89)
How can election forms and materials be filed with WERC?
All petitions and documents can be filed by fax, email, mail or hand-delivery except for the employee signatures that are needed to establish that at least 30% of the employees support the filing of an election. WERC needs to review the originals of such signatures and thus they can only be filed by mail or hand-delivery.