Wisconsin Appeals Court Hands Victory to Union

MILWAUKEE (CN) — In a rare union victory, an appeals court slammed the Wisconsin employment commission for leaving state prosecutors and school workers in the lurch without representation.

By refusing to hold elections in September 2014, the three-judge panel affirmed Wednesday, the Wisconsin Employment Relations Commission unreasonably left the employees without representation until July 2015 intervention by the court.

The Wisconsin Association of State Prosecutors and Local 150 of the Service Employees International Union brought separate lawsuits in Milwaukee County Circuit Court early last year, challenging the commission's decision to disqualify them as bargaining representatives because they filed their petitions after business hours the day of the deadline.

Both unions, which were the current representatives of the groups in question, paid their filing fees the following day, but the commission was unmoved and strictly applied Sections 70 and 80 of its rules under the Wisconsin Administrative Code.

Typically, after a petition is timely filed, the commission holds an election to determine whether the employees want to continue with their current representation or make a change, either to another union or to being unrepresented.

But as the appeals court pointed out this week, state law requires the commission to hold yearly elections allowing represented employees to choose their bargaining representative, and state law trumps administrative code.

"If the statutes were intended to require the filing of an election petition as a prerequisite for holding a recertification election, the legislature would have included such requirement in the language of the statute; it did not," Judge William Brash III wrote for a three-person panel.

Rejecting the commission's claims that unions must file a petition so that it knows who is interested in representing the employees, Brash cited state law that says an incumbent representative remains in place until and unless it is unseated by an election in which it receives less than 51 percent of the vote.

Judge Kitty Brennan joined in the ruling as did reserve Judge Daniel LaRocque.

Johnny Koremenos, a spokesman for state officials, said in an email Friday that the department is reviewing the decision.

There is no indication in the electronic court record that the commission has appealed the decision to the conservative-majority Wisconsin Supreme Court.

Nathan Eisenberg, who represented the unions, has not returned a voicemail left after business hours Thursday in the general inbox of The Previant Law Firm S.C.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit