                                                      2018 WI 17

                  SUPREME COURT       OF   WISCONSIN
CASE NO.:            2015AP2224
COMPLETE TITLE:      Wisconsin Association of State Prosecutors,
                                Plaintiff-Respondent,
                          v.
                     Wisconsin Employment Relations Commission, James
                     R. Scott and Rodney G. Pasch,
                                Defendants-Appellants-Petitioners.

                     ------------------------------------------------
                     Service Employees International Union, Local
                     150,
                                Plaintiff-Respondent,
                          v.
                     State of Wisconsin, Office of State Employment
                     Relations,
                                Intervenor-Appellant,
                     Wisconsin Employment Relations Commission, James
                     R. Scott and Rodney G. Pasch,
                                Defendants-Appellants-Petitioners.

                     ------------------------------------------------
                     Wisconsin Association of State Prosecutors,
                               Plaintiff-Respondent,
                          v.
                     Wisconsin Employment Relations Commission,
                               Defendant-Appellant-Petitioner.

                     ------------------------------------------------
                     Service Employees International Union, Local
                     150,
                               Plaintiff-Respondent,
                          v.
                     Wisconsin Employment Relations Commission,
                               Defendant-Appellant-Petitioner.

                     ------------------------------------------------
                     Service Employees International Union, Local
                     150,
                                Plaintiff-Respondent,
                          v.
                     Wisconsin Employment Relations Commission,
                                Defendant-Appellant-Petitioner,
                     State of Wisconsin, Office of State Employment
                     Relations,
                                Intervenor-Appellant.
                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 372 Wis. 2d 347, 888 N.W.2d 237
                              PDC No: 2016 WI App 85 - Published

OPINION FILED:         February 28, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         December 5, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              John J. DiMotto

JUSTICES:
   CONCURRED:
   DISSENTED:          A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
                       J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For      the    defendants-appellants-petitioners,   there   were
briefs filed by Misha Tseytlin, solicitor general, with whom on
the briefs were Brad D. Schimel, attorney general, and Amy C.
Miller, assistant solicitor general.         There was an oral argument
by Luke Berg, deputy solicitor general.


       For the plaintiffs-respondents, there was a brief filed by
Nathan D. Eisenberg,         Erin F. Medeiros,   and   The Previant Law
Firm, S.C., Milwaukee.         There was an oral argument by Nathan D.
Eisenberg.




                                         2
                                                                       2018 WI 17
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.    2015AP2224
(L.C. Nos.   2014CV9307, 2014CV9658, 2015CV328, 2015CV329, 2015CV501)

STATE OF WISCONSIN                           :               IN SUPREME COURT

Wisconsin Association of State Prosecutors,

             Plaintiff-Respondent,

      v.

Wisconsin Employment Relations Commission,
James R. Scott and Rodney G. Pasch,

             Defendants-Appellants-Petitioners.

-----------------------------------------------

Service Employees International Union, Local
150,
                                                                    FILED
             Plaintiff-Respondent,
                                                                FEB 28, 2018
      v.
                                                                   Sheila T. Reiff
State of Wisconsin, Office of State Employment                 Clerk of Supreme Court
Relations,

             Intervenor-Appellant,

Wisconsin Employment Relations Commission,
James R. Scott and Rodney G. Pasch,

             Defendants-Appellants-Petitioners.

-----------------------------------------------
Wisconsin Association of State Prosecutors,

         Plaintiff-Respondent,

    v.

Wisconsin Employment Relations Commission,

         Defendant-Appellant-Petitioner.

-----------------------------------------------

Service Employees International Union, Local
150,

         Plaintiff-Respondent,
    v.

Wisconsin Employment Relations Commission,

         Defendant-Appellant-Petitioner.

-----------------------------------------------

Service Employees International Union, Local
150,

         Plaintiff-Respondent,
    v.

Wisconsin Employment Relations Commission,

         Defendant-Appellant-Petitioner,

State of Wisconsin, Office of State Employment
Relations,

         Intervenor-Appellant.




    REVIEW of a decision of the Court of Appeals.   Reversed.




                                 2
                                                                                No.    2015AP2224



       ¶1         ANNETTE KINGSLAND ZIEGLER, J.                   This is a review of a

published decision of the court of appeals, Wis. Ass'n of State

Prosecutors v. Wis. Emp't Relations Comm'n, 2016 WI App 85, 372

Wis. 2d 347, 888 N.W.2d 237, [hereinafter "WASP"], affirming the

Milwaukee County circuit court's1 declaration that the Wisconsin

Employment Relations Commission ("WERC") exceeded its authority

under Wis. Stat. ch. 111 (2013-14)2 in promulgating Wis. Admin.

Code chs. ERC 70 and 80, and the circuit court's subsequent

order that WERC hold certification elections for the Wisconsin

Association             of     State    Prosecutors        ("WASP")      and     the    Service

Employees International Union, Local 150 ("SEIU").

       ¶2         The    cause     before     us       consists    of    five    consolidated

cases:       two     petitions          for   declaratory         judgment      and    writ    of

prohibition under Wis. Stat. § 227.40 and three petitions for

judicial review of an agency decision under Wis. Stat. §§ 227.52

and 227.53.             In their petitions for declaratory judgment, SEIU

and WASP (collectively "the Unions") sought a declaration that

Wis. Admin. Code chs. ERC 70 and 80 were invalid because the
requirement             that     labor    organizations           file    a     petition      for

election as a condition precedent to holding a certification

election          irreconcilably         conflicts        with    the    statutory      mandate

that       WERC    hold        annual    certification       elections;         consequently,

they sought writs of prohibition preventing WERC from enforcing

       1
           The Honorable John J. DiMotto presided.
       2
       All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise noted.


                                                   3
                                                                                No.    2015AP2224



those   rules       and    refusing      to     conduct     certification             elections.

The petitions for judicial review of an agency decision then

sought orders overturning WERC's decisions to deny certification

elections for the Unions on the basis that their petitions for

election were not timely filed.

       ¶3     The circuit court declared Wis. Admin. Code chs. ERC

70 and 80 invalid and issued orders overturning WERC's decisions

not to hold certification elections for the Unions.                                  It reasoned

that the use of "shall" in Wis. Stat. §§ 111.70(4)(d)3.b. and

111.83(3)(b)        imposes       a     mandatory        duty      to     hold        an   annual

certification         election;         that    WERC      had      neither          express    nor

implied power to impose a condition precedent to its statutorily

mandated      duty;       and    that    such       a   requirement           was    unnecessary

because an incumbent labor organization has "a real, de facto

and legal interest in continued representation."                               WERC appealed.

       ¶4     On    appeal,       WERC     argued        that      the        requirement      was

necessary because, without a petition, it could not otherwise

know        which     labor       organizations             have         an     interest        in
representation,           that   is,    which       labor   organizations             should    be

included on the ballot.                  The court of appeals rejected this

argument and held that a current representative has a continuing

interest in representation.                     See WASP, 372 Wis. 2d 347, ¶21.

The court of appeals then held that "shall" is mandatory in Wis.

Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b), and that, therefore,

making annual elections contingent on the filing of a petition

for election is in direct conflict with the legislative mandate.
Id., ¶¶19, 23.        WERC petitioned for review.
                                                4
                                                                                No.       2015AP2224



    ¶5      There       are     two    issues       on    this        appeal.         First,      we

consider    whether       WERC    exceeded        its     statutory        authority            under

Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC

70 and 80.        We conclude that WERC did not exceed its authority

because it has express authority under Wis. Stat. ch. 111 to

promulgate rules that require a demonstration of interest from

labor    organizations           interested          in     representing              collective

bargaining    units;           consequently,        we     reinstate        WERC's          orders

dismissing the Unions' petitions for election as untimely.

    ¶6      Second, we consider the subsidiary issue of whether

WERC may decertify a current representative labor organization

on September 15 where there are no timely petitions for election

filed.       We    conclude           that    WERC        may     decertify           a    current

representative labor organization on September 15, or at the

expiration    of    the        collective      bargaining             agreement,          whichever

occurs later, where there are no timely petitions for election

filed because the plain language of the statute requires WERC to

conduct elections on or before December 1.
    ¶7      Thus, we reverse the decision of the court of appeals

and reinstate WERC's orders dismissing the Unions' petitions for

election.


                   I.    FACTUAL AND PROCEDURAL BACKGROUND

    ¶8      This        case    arises       from    Act        103    amendments          to     two

subchapters of the Wisconsin Statutes.                          The first subchapter at

    3
         See 2011 Wis. Act 10.


                                              5
                                                                 No.   2015AP2224



issue    governs     municipal     employment     relations   and   applies   to

SEIU.     See     Wis.   Stat.    §§ 111.70-111.77    [hereinafter      "MERA"].

The second subchapter governs state employment labor relations

and     applies     to   WASP.        See    Wis.    Stat.    §§ 111.81-111.94

[hereinafter "SELRA"].           In particular, we are asked to interpret

Wis.    Stat.     §§ 111.70(4)(d)3.b.       and   111.83(3)(b)   to    determine

whether WERC exceeded its authority under MERA or SELRA when it

promulgated Wis. Admin. Code chs. ERC 70 and 80, respectively.

Section 111.70(4)(d)3. states in relevant part as follows:

            b. Annually, the commission shall conduct an
       election   to  certify   the   representative  of   the
       collective bargaining unit that contains a general
       municipal employee. The election shall occur no later
       than December 1 for a collective bargaining unit
       containing school district employees and no later than
       May 1 for a collective bargaining unit containing
       general municipal employees who are not school
       district employees.   The commission shall certify any
       representative that receives at least 51 percent of
       the votes of all of the general municipal employees in
       the collective bargaining unit.    If no representative
       receives at least 51 percent of the votes of all of
       the general municipal employees in the collective
       bargaining unit, at the expiration of the collective
       bargaining agreement, the commission shall decertify
       the current representative and the general municipal
       employees shall be nonrepresented.      Notwithstanding
       sub. (2), if a representative is decertified under
       this subd. 3.b., the affected general municipal
       employees may not be included in a substantially
       similar collective bargaining unit for 12 months from
       the date of decertification.      The commission shall
       assess and collect a certification fee for each
       election conducted under this subd. 3.b.           Fees
       collected under this subd. 3.b. shall be credited to
       the appropriation account under s. 20.425(1)(i).

            c. Any    ballot used    in  a   representation
       proceeding under this subdivision shall include the


                                        6
                                                          No.    2015AP2224


     names   of   all   persons   having       an    interest      in
     representing or the results.
§ 111.70(4)(d)3.b., c.       Section 111.83(3)(b) states as follows:

          Annually,   no   later    than  December   1, the
     commission shall conduct an election to certify the
     representative of a collective bargaining unit that
     contains a general employee. There shall be included
     on the ballot the names of all labor organizations
     having an interest in representing the general
     employees   participating   in   the  election.    The
     commission may exclude from the ballot one who, at the
     time of the election, stands deprived of his or her
     rights under this subchapter by reason of a prior
     adjudication of his or her having engaged in an unfair
     labor practice.     The commission shall certify any
     representative that receives at least 51 percent of
     the votes of all of the general employees in the
     collective bargaining unit.       If no representative
     receives at least 51 percent of the votes of all of
     the general employees in the collective bargaining
     unit, at the expiration of the collective bargaining
     agreement, the commission shall decertify the current
     representative and the general employees shall be
     nonrepresented.     Notwithstanding s. 111.82, if a
     representative is decertified under this paragraph,
     the affected general employees may not be included in
     a substantially similar collective bargaining unit for
     12 months from the date of decertification.        The
     commission's certification of the results of any
     election is conclusive unless reviewed as provided by
     s. 111.07(8). The commission shall assess and collect
     a certification fee for each election conducted under
     this paragraph.    Fees collected under this paragraph
     shall be credited to the appropriation account under
     s. 20.425(1)(i).
§ 111.83(3)(b).4

     ¶9   Under these statutes, WERC is directed to "conduct an

election[5]   to   certify    the   representative   of   a     collective

     4
       For the purposes of our review, there are no significant
differences in the language of the provisions. See infra ¶41.


                                     7
                                                                   No.    2015AP2224



bargaining     unit."        Wis.      Stat.        §§ 111.70(4)(d)3.b.         and

111.83(3)(b)     (footnote   added).            These     statutory      provisions

address   WERC's   responsibilities         in     conducting      the    election,

including    its   responsibility          to     certify    and    decertify     a

representative.6    The language of the statutes also requires WERC

to include on the ballot "the names of all [labor organizations]

having an interest" in representation.                  §§ 111.70(4)(d)3.c. and

111.83(3)(b).7      To   this   end,       WERC    is    authorized      to   "adopt

reasonable [] rules relative to the exercise of its powers and

authority and proper rules to govern its proceedings and to

regulate the conduct of all elections and hearings."                     Wis. Stat.

§§ 111.71(1), 111.94(1).        Under these enabling statutes, WERC

promulgated rules to govern the election process, one of which

requires that labor organizations interested in representing a

bargaining unit file a "petition for election."                 See Wis. Admin.

Code §§ ERC 70.03 and 80.03.




     5
       "'Election' means a proceeding conducted by the commission
in which the employees in a collective bargaining unit cast a
secret ballot for collective bargaining representatives, or for
any other purpose specified in this subchapter."      Wis. Stat.
§§ 111.70(1)(e) and 111.81(6).
     6
       "'Commission' means the employment relations commission."
Wis. Stat. §§ 111.70(1)(c) and 111.81(3).
     7
       We further note that Wis. Stat. § 111.83(3)(b) permits
WERC to exclude from the ballot any labor organization that "at
the time of the election, stands deprived of his or her
rights . . . by reason of a prior adjudication of his or her
having engaged in an unfair labor practice." § 111.83(3)(b).


                                       8
                                                                               No.     2015AP2224



       ¶10        The petition for election at issue here8 is a two-page

form       that    requires       that       a   labor     organization        interested      in

representing            a     particular         bargaining       unit   (1)    provide        the

contact information of the employer; (2) describe the bargaining

unit (i.e., the name and number of employees); (3) provide the

termination         date       and     status      of     the   most     recent      collective

bargaining         agreement;          (4)   provide      the     contact   information         of

anyone who may claim to currently represent the employees; (5)

indicate whether the petitioner is the current representative;

(6) indicate when the petitioner served a copy of the petition

on the employer; (7) provide any additional relevant facts; and

(8) provide the contact information for the petitioner.                                        See

also Wis. Admin. Code §§ ERC 70.03(6) and 80.03(6).

       ¶11        The       petition    also       instructs       the   interested          labor

organization to submit the petition to WERC, along with the

applicable certification fee, and notes that "[p]etition filing

is     not        complete        until          [WERC]     has     received         both     the

petition . . . and the required fee."                           The form itself does not
provide a deadline, but the rules do:                            Wis. Admin. Code §§ ERC

70.03(7)(a)         and       80.03(7)(a)         state     that    "[t]o      be    timely,    a

petition must be filed on or before September 15"; sections ERC

70.03(2) and 80.03(2) state that "[a] petition is not filed

unless       it     is        accompanied         by     the    applicable          filing    fee


       8
       The form has changed since 2014. The current version is
available   at   http://werc.wi.gov/doaroot/annual_certification_
election_information_sheet.pdf.


                                                   9
                                                                             No.       2015AP2224



established       by    sub.      (4),    contains      the    required      signature        or

signature facsimile, and has                    been    received by [WERC] at its

Madison office during normal business hours specified in s. ERC

10.06(1)"; and, Wis. Admin. Code § ERC 10.06(1) provides that

"[WERC's] normal business hours at all work locations are 7:45

AM to 4:30 PM, Monday through Friday, excluding legal holidays."

       ¶12   The rules also prescribe the consequences of a failure

to timely file: the existing representative labor organization

is decertified either as of September 15 or, if there is a

collective bargaining agreement in effect, at the expiration of

that bargaining agreement; and the employees in the bargaining

unit may not be included in a substantially similar collective

bargaining unit for a minimum of one year.                        See Wis. Admin. Code

§§ ERC    70.03(7)(b)        and     80.03(7)(b).             These    rules       mirror    the

consequences       in       the    statute,          which    apply    when        a    current

representative labor organization does not receive at least 51

percent      of   the       votes     in    an       election.         See     Wis.         Stat.

§§ 111.70(4)(d)3.b. and 111.83(3)(b).
       ¶13   As noted above, the cause before us consists of five

consolidated cases.               These five cases deal with four petitions

for election.          Three of the cases were filed by SEIU regarding

three     petitions         for     election;          specifically,         SEIU        sought

certification          as   the     representative           labor     organization          for

Milwaukee Public Schools ("MPS") Building Service Helpers and

Food    Service        Workers,     and    for       St.     Francis    School         District

("SFSD")     Custodians.            Two    of    the    cases    were    filed         by   WASP
regarding one petition for election; specifically, WASP sought
                                                10
                                                                            No.    2015AP2224



certification      as     the    representative            labor       organization        for

assistant district attorneys in the state of Wisconsin.

                                       A.     SEIU
    ¶14     SEIU is a "labor organization."9                      As of September 14,

2014, SEIU was the exclusive certified bargaining unit for MPS

Building    Service       Helpers      and    Food       Service      Workers.        As   of

September    14,     2014,      SEIU    was       also    the    exclusive         certified

bargaining    unit      for     SFSD   Custodians.              MPS    Building      Service

Helpers     and    Food    Service        Workers        and    SFSD       Custodians      are

"general municipal employees"10; SEIU is, therefore, subject to

MERA.     Additionally, as of September 15, 2014, the MPS Building

Service Helpers and Food Service Workers and SFSD Custodians

were school district employees,11 represented by an exclusive

representative       (SEIU),        and      not     subject          to    a     collective

bargaining agreement; SEIU is, therefore, subject to Wis. Admin.

Code ch. ERC 70.        Wis. Admin. Code § ERC 70.02.
    9
       "'Labor organization' means any employee organization in
which employees participate and which exists for the purpose, in
whole or in part, of engaging in collective bargaining with
municipal employers concerning grievances, labor disputes,
wages, hours or conditions of employment."           Wis. Stat.
§ 111.70(1)(h).
    10
       "'General municipal employee' means a municipal employee
who is not a public safety employee or a transit employee," Wis.
Stat.   § 111.70(1)(fm);   "'Municipal   employee'   means   any
individual employed by a municipal employer other than an
independent contractor, supervisor, or confidential, managerial
or executive employee," § 111.70(1)(i).
    11
       "'School district employee' means a municipal employee
who is employed to perform services for a school district."
Wis. Stat. § 111.70(1)(ne).


                                             11
                                                                             No.    2015AP2224



       ¶15    On     September      15,       2014,    SEIU     filed       petitions       for

election for all three bargaining units, but it did so after

WERC's       4:30    p.m.     close-of-business          deadline,          at     5:25     p.m.

(Building Service Helpers), 5:27 p.m. (Food Service Workers),

and   6:19     p.m.       (Custodians).         SEIU's       certification         fees    were

submitted and received the following day, on September 16, 2014.

On    October       14,    2014,    WERC      voted    2—0     not    to    accept        SEIU's

petitions for election on the basis that they were not timely

filed, and notified SEIU of its vote.

       ¶16    On     November      13,       2014,    SEIU    filed     a    petition       for

declaratory         judgment    and      a   petition    for     writ       of    prohibition

(Case No. 14CV9658)12 pursuant to Wis. Stat. § 227.40 seeking a

declaration that Wis. Admin. Code ch. ERC 70 was invalid because

it exceeded WERC's statutory authority, and requesting a writ

requiring WERC to conduct certification elections.                               The petition

also sought an order tolling the December 1 statutory deadline

for holding certification elections until such elections could

be held, and an order that WERC pay SEIU's attorney fees and
costs.

       ¶17    On      November      14,       2014,     WERC     issued          Commission's

Decision       No.    35447,       Order      Dismissing       Petitions         for      Annual

Certification Election (regarding MPS Building Service Helpers

and Food Service Workers), and Commission's Decision No. 35446,


       12
       These petitions were filed against WERC as well as
against James R. Scott and Rodney Pasch——the commissioners of
WERC at the time——in their individual and official capacities.


                                               12
                                                                           No.   2015AP2224



Order     Dismissing       Petition       for    Annual     Certification        Election

(regarding SFSD Custodians).13                  SEIU filed a petition with WERC

for rehearing regarding these dismissals pursuant to Wis. Stat.

§ 227.49, but WERC denied rehearing.

     ¶18     As    of    December      1,   2014,    WERC      had   not    conducted     a

certification      election         for   MPS    Building      Service      Helpers,    MPS

Food Service Workers, or SFSD Custodians because no union had

expressed    interest          in   representing        them   by    the    September    15

deadline.     As a result, SEIU was treated as decertified by WERC,

MPS, and SFSD as of September 15, 2014.

     ¶19     On    January      15,    2015,     SEIU    filed      two    petitions    for

judicial review (Case Nos. 15CV328 and 15CV329) pursuant to Wis.

Stat. §§ 227.52 and 227.53 seeking an order setting aside WERC's

decisions     to        deny    SEIU      certification        elections.          SEIU's

petitions also sought orders tolling the December 1 statutory


     13
       The parties briefly acknowledge that the Unions may have
had a justiciability issue.     There are four prerequisites a
party must satisfy to seek declaratory relief: (1) a justiciable
controversy must exist; (2) the controversy must be between
persons whose interests are adverse; (3) the plaintiff must have
a legally protectable interest in the controversy; and (4) the
issue must be ripe for determination. See Loy v. Bunderson, 107
Wis. 2d 400, 410, 320 N.W.2d 175 (1982).       The justiciability
issue here is with respect to the fourth prerequisite because
the Unions filed their petitions before WERC issued its official
decision and order.    For declaratory judgment and injunctive
relief, however, the standard for ripeness is lower: harm may be
anticipatory, if imminence and practical certainty of act or
event exist. See Putnam v. Time Warner Cable of Se. Wis., Ltd.,
2002 WI 108, ¶¶43-46, 255 Wis. 2d 447, 649 N.W.2d 626.      Given
that WERC advised the Unions of its October 14 vote, this
standard is met and the issue was justiciable.


                                            13
                                                             No.    2015AP2224



deadline     for    holding    certification    elections     until      such

elections could be held, and that WERC pay SEIU's attorney fees

and costs.

                                 B.    WASP
    ¶20    WASP is a "labor organization."14 As of September 14,

2014, WASP was the exclusive certified bargaining representative

for all assistant district attorneys in Wisconsin.                  Assistant

district attorneys in Wisconsin are state "employees"15; WASP is,

therefore, subject to SELRA.          Additionally, as of September 15,

2014, the bargaining unit for state assistant district attorneys

was a general state employee bargaining unit, as defined in Wis.

Stat. § 111.825,16 represented by an exclusive representative;



    14
       "'Labor organization' means any employee organization
whose purpose is to represent employees in collective bargaining
with the employer, or its agents, on matters that are subject to
collective bargaining under s. 111.91(1) or (3), whichever is
applicable . . . ." Wis. Stat. § 111.81(12).
    15
       "'Employee'      includes: . . . [a]ssistant      district
attorneys,   except   supervisors,   management   employees   and
individuals who are privy to confidential matters affecting the
employer-employee relationship." Wis. Stat. § 111.81(7)(c).
    16
       Wisconsin      Stat.   § 111.825    states   in   relevant    part   as
follows:

         (2) Collective bargaining units for employees in
    the unclassified service of the state shall be
    structured with one collective bargaining unit for
    each of the following groups: . . .

           (d)     Assistant district attorneys.

Wis. Stat. § 111.825(2)(d).


                                      14
                                                                           No.    2015AP2224



WASP is, therefore, subject to Wis. Admin. Code ch. ERC 80.

Wis. Admin. Code § ERC 80.02(1).

       ¶21    On     September    15,      2014,    WASP     filed    a    petition     for

election for certification for this bargaining unit, but it did

so after WERC's 4:30 p.m. close-of-business deadline, at 5:46

p.m.        WASP's certification fee was submitted and received the

following day, on September 16, 2014.                  On October 14, 2014, WERC

voted 2—0 not to accept WASP's petition for election on the

basis that it was not timely filed, and notified WASP of its

vote.

       ¶22    On     November    11,       2014,    WASP   filed      a    petition     for

declaratory        judgment     and    a   petition    for     writ       of    prohibition

(Case No. 14CV9307)17 pursuant to Wis. Stat. § 227.40 seeking a

declaration that Wis. Admin. Code ch. ERC 80 was invalid because

it exceeded WERC's statutory authority, and requesting a writ

requiring WERC to conduct certification elections.                             The petition

also sought an order tolling the December 1 statutory deadline

for holding certification elections until such elections could
be held, and an order that WERC pay WASP's attorneys fees and

costs.

       ¶23    On     November     14,       2014,     WERC     issued          Commission's

Decision       No.    35445,     Order       Dismissing       Petition         for   Annual

Certification Election.18              WASP filed a petition with WERC for
       17
       These petitions were filed against WERC as well as
against James R. Scott and Rodney Pasch——the commissioners of
WERC at the time——in their individual and official capacities.
       18
            See supra note 13.


                                             15
                                                                                     No.     2015AP2224



rehearing    regarding          this          dismissal             pursuant    to       Wis.     Stat.

§ 227.49, but WERC denied rehearing.

    ¶24     As    of    December             1,    2014,        WERC    had    not       conducted    a

certification      election         for           the     assistant          district       attorneys

because no union had expressed interest in representing them by

the September 15 deadline.                        As a result, WASP was treated as

decertified by WERC and the Office of State Employee Relations

as of September 15, 2014.

    ¶25     On     January         15,        2015,          WASP     filed    a     petition       for

judicial    review       (Case      No.           15CV501)          pursuant       to    Wis.     Stat.

§§ 227.52    and    227.53         seeking           an      order     setting          aside    WERC's

decision    to     deny      WASP        a        certification         election.19              WASP's

petition also sought an order tolling the December 1 statutory

deadline    for        holding       certification                    elections          until     such

elections   could       be     held,         and     an      order     that    WERC        pay   WASP's

attorney fees and costs.

                          C.    Consolidation and Appeal
    ¶26     On     February          25,           2015,        these        five        cases     were
consolidated.          Shortly       thereafter,                the    parties          filed    cross-

motions    for   summary        judgment.                 The       Unions    argued       that    Wis.

Admin.    Code    chs.       ERC    70        and       80    were     invalid          because    they


    19
       The State of Wisconsin and the Office of State Employee
Relations, by and through the Wisconsin Department of Justice,
filed a notice of appearance as of right under Wis. Stat.
§ 227.53(1)(d), requesting that they be permitted to participate
as a party or interested person.    It does not appear from the
record that that request was ever granted.


                                                    16
                                                                             No.    2015AP2224



irreconcilably conflict with the statutory mandate.                                First, the

use    of      "shall"          in     Wis.       Stat.        §§ 111.70(4)(d)3.b.          and

111.83(3)(b) mandates annual certification elections; therefore,

WERC    cannot       make     certification            elections      contingent      on    the

filing of a petition for election because it would contravene

the statutory mandate.                  Second, the legislature does require

elsewhere that unions file petitions of interest under certain

circumstances; therefore, the absence of a statutory requirement

for such a petition here means that the legislature did not

intend for there to be any requirement.                          The Unions also argued

that immediate decertification on September 15 contravenes the

statute because it results in a certification period of less

than one year.

       ¶27     WERC argued that its rules were reasonable given the

requirements         of   the     statute        and   the     realities     of    conducting

elections.          First, "shall" can and should be construed in this

context as directory, particularly in light of the fact that it

would be absurd to compel an election where there are no names
on    the    ballot.         In      this   regard,       requiring      a   petition       for

election is reasonable given the statutory requirement that the

ballot      contain       the     names     of    labor        organizations       having   an

interest and the fact that there is no presumption of interest

for incumbents.             Second, it is reasonable to require that the

petition       be     filed       by    September         15     given     the     logistical

difficulties of conducting elections on or before December 1.

WERC    also    argued        that     decertifying            the   incumbent      union   on


                                                 17
                                                                             No.    2015AP2224



September 15 was at least equally as reasonable as decertifying

on December 1.

    ¶28     On     July    31,    2015,       the       circuit      court      issued        its

decision and order.            It declared invalid "those provisions in

[Wis. Admin. Code chs.] ERC 70 and 80 requiring an existing

exclusive representative to file a [petition for election] in

order to qualify for a recertification election."                            Consequently,

it reversed WERC's decisions denying the Unions certification

elections; issued a writ of prohibition restraining WERC from

enforcing    invalid      provisions;         and    ordered        that     WERC       conduct

certification        elections         for        the       Unions,        to      be        held

simultaneously with the December 1, 2015 elections.                             The circuit

court     also     ordered        that,       if        the       Unions        win,        their

representational         status   shall       be     treated       as    uninterrupted.20

Specifically,      the    circuit      court        found     that      "shall"        is    used

mandatorily in Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b);

that WERC had neither express nor implied power to impose a

condition precedent to its statutorily mandated duty; and that
such a requirement was unnecessary because an incumbent labor

organization       has    "a   real,     de       facto     and    legal        interest       in

continued representation."

    ¶29     WERC appealed.          On October 12, 2016, the court of

appeals affirmed.           See WASP, 372 Wis. 2d 347.                       The court of

appeals     held     that      "shall"        is     mandatory          in      Wis.        Stat.

    20
       The circuit court's order did not address the Unions'
request for attorney fees and costs.


                                             18
                                                                          No.    2015AP2224



§§ 111.70(4)(d)3.b.          and     111.83(3)(b),            and    that,      therefore,

making annual elections contingent on the filing of a petition

for election is in direct conflict with the legislative mandate.

Id., ¶¶19, 23.        It further held that a current representative

labor organization has a continuing interest in representation,

countering WERC's claim that, without a petition, WERC could not

otherwise know which labor organizations have an interest in

representation,       that    is,     which      labor   organizations          should    be

included on the ballot.            Id., ¶21.

    ¶30       WERC petitioned for review.                On February 13, 2017, we

granted the petition and now reverse.

                             II.    STANDARD OF REVIEW
    ¶31       "'Resolving an alleged conflict between a statute and

an interpretive rule requires statutory interpretation,' which

is a question of law that we review de novo . . . ."                             Mallo v.

DOR, 2002 WI 70, ¶14, 253 Wis. 2d 391, 645 N.W.2d 853 (quoting

Seider   v.    O'Connell,      2000    WI     76,      ¶26,    236   Wis. 2d 211,        612

N.W.2d 659); see also Wis. Citizens Concerned for Cranes & Doves
v. DNR, 2004 WI 40, ¶6, 270 Wis. 2d 318, 677 N.W.2d 612 ("The

nature and scope of an agency's powers are issues of statutory

interpretation.").

                                    III.    ANALYSIS
    ¶32       There   are    two     issues      on    this     appeal.         First,   we

consider   whether     WERC        exceeded      its   statutory      authority      under

Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC
70 and 80.      We conclude that WERC did not exceed its authority


                                            19
                                                                    No.       2015AP2224



because it has express authority under Wis. Stat. ch. 111 to

promulgate rules that require a demonstration of interest from

labor    organizations         interested      in     representing        collective

bargaining      units;    consequently,       we     reinstate   WERC's         orders

dismissing the Unions' petitions for election as untimely.

    ¶33       Second, we consider the subsidiary issue of whether

WERC may decertify a current representative labor organization

on September 15 where there are no timely petitions for election

filed.        We    conclude     that   WERC        may   decertify       a     current

representative labor organization on September 15, or at the

expiration     of   the   collective      bargaining      agreement,          whichever

occurs later, where there are no timely petitions for election

filed because the plain language of the statute requires WERC to

conduct elections on or before December 1.


         A.    Whether WERC Exceeded Its Statutory Authority

    ¶34       We consider first whether WERC exceeded its statutory

authority under Wis. Stat. ch. 111 when it promulgated Wis.
Admin. Code chs. ERC 70 and 80.                 In short, WERC argued that

these rules are lawful because they were promulgated pursuant to

WERC's    broad     authority     under      Wis.     Stat.   §§ 111.71(1)          and

111.94(1)      to     create     reasonable         and    proper     rules         for

administering elections, and because the rules are consistent

with the statutory text and legislative intent.                     In short, the

Unions argued that the statutes mandate that WERC hold an annual

certification election, and that, therefore, WERC cannot make



                                        20
                                                                            No.     2015AP2224



holding    that    annual      election       contingent       on    the    filing       of     a

petition for election.

    ¶35     We conclude that WERC did not exceed its statutory

authority       because   it    has     express      authority       under        Wis.   Stat.

ch. 111    to    promulgate         rules    that    require     a    demonstration            of

interest    from    labor      organizations         interested        in    representing

collective bargaining units; consequently, we reinstate WERC's

orders     dismissing       the       Unions'       petitions        for     election          as

untimely.

                               1.    General principles
    ¶36     "[T]he    court         shall    declare    [a]     rule       invalid       if    it

finds that it violates constitutional provisions or exceeds the

statutory authority of the agency or was promulgated without

compliance with statutory rule-making procedures."                                Wis. Stat.

§ 227.40(4)(a); see also Wis. Stat. § 227.10(2) ("No agency may

promulgate a rule which conflicts with state law."); Cranes &

Doves,     270    Wis. 2d 318,         ¶14     ("[I]f    an     administrative            rule

conflicts with an unambiguous statute or a clear expression of
legislative intent, the rule is invalid.").

    ¶37     Here,     the      Unions       have    challenged       Wis.    Admin.       Code

chs. ERC 70 and 80 as exceeding WERC's statutory authority.                                   "In

determining whether an administrative agency exceeded the scope

of its authority in promulgating a rule, we must examine the

enabling statute to ascertain whether the statute grants express

or implied authorization for the rule."                        Cranes & Doves, 270
Wis. 2d 318, ¶14.         In this regard, "an agency's enabling statute


                                             21
                                                                                     No.    2015AP2224



is to be strictly construed" because "agencies have 'only those

powers which are expressly conferred or which are necessarily

implied by the statutes under which it operates.'"                                    Id. (quoting

Kimberly-Clark        Corp.      v.    PSC,          110     Wis. 2d 455,             461-62,     329

N.W.2d 143 (1983)).

      ¶38     "Rule-making authority is expressly conferred on an

agency [to] promulgate rules interpreting the provisions of any

statute enforced or administered by the agency, if the agency

considers      it    necessary        to    effectuate              the     purpose          of   the

statute . . . ."          Wis. Stat. § 227.11(2)(a); see also Wis. Hosp.

Ass'n v. Nat. Res. Bd., 156 Wis. 2d 688, 705-06, 457 N.W.2d 879

(Ct. App. 1990) ("To expressly authorize a rule, the enabling

statute need not spell out every detail of the rule.                                       If it did,

no rule would be necessary.                      Accordingly, whether the exact

words used in an administrative rule appear in the statute is

not the question.").

      ¶39     This principle has been characterized in the case law

as    the    "elemental         approach."                 See     Cranes        &     Doves,     270
Wis. 2d 318,        ¶14   (citing       Wis.         Hosp.        Ass'n,    156        Wis. 2d     at

705-06)      ("Wisconsin        has   adopted         the        'elemental'          approach     to

determining the validity of an administrative rule, comparing

the   elements       of   the    rule      to    the        elements        of       the     enabling

statute, such that the statute need not supply every detail of

the rule.")         Under the elemental approach, "the reviewing court

should identify the elements of the enabling statute and match

the   rule    against      those      elements.              If    the     rule       matches     the


                                                22
                                                                      No.     2015AP2224



statutory elements, then the statute expressly authorizes the

rule."    Wis. Hosp. Ass'n, 156 Wis. 2d at 706.

            2. WERC did not exceed its statutory authority
         in promulgating Wis. Admin. Code chs. ERC 70 and 80.
    ¶40     The first statute at issue is MERA, see Wis. Stat.

§§ 111.70-111.77, which applies to SEIU.                   The second statute at

issue is SELRA, see Wis. Stat. §§ 111.81-111.94, which applies

to WASP.        The question is whether WERC exceeded its authority

under    MERA     or    SELRA    when   it       promulgated   Wis.    Admin.       Code
chs. ERC    70    and    80,    respectively.         Specifically,         the    Unions

challenge        the    requirement      that        any   labor      organizations

interested in representing collective bargaining units timely

submit a completed petition for election.                   See Wis. Admin. Code

§§ ERC 70.03 and 80.03.

    ¶41     The statutes mandate that WERC do five things:

    1.      Conduct   an    annual   election   to    certify the
            representative of a collective bargaining unit that
            contains an employee no later than December 1;

    2.      Include on the ballot the names of all labor
            organizations having an interest in representing the
            employees participating in the election;

    3.      Certify any representative that receives at least 51
            percent of the votes of all the employees in the
            collective bargaining unit;

    4.      Decertify    the   current    representative   if    no
            representative receives at least 51 percent of the
            votes   of  all   the  employees   in   the  collective
            bargaining unit; and

    5.      Assess and collect               a    certification    fee       for     each
            election conducted.
See Wis. Stat. §§ 111.70(4)(d)3.b., c. and 111.83(3)(b).

                                         23
                                                                             No.     2015AP2224



    ¶42        A    mandate    is     a     command,    and     "'[c]ommand          includes

permission.         To mean to command any act to be done, and not to

mean to permit it to be done, is impossible.'"                                   See Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 193-94 (2012) (quoting Jeremy Bentham, "Nomography,"

in 3 The Works of Jeremy Bentham 231, 262 (John Bowring ed.,

1843)).        Therefore, the statutory mandates are also statutory

authorizations, and "[a]uthorization of an act also authorizes a

necessary predicate act."                 Id. at 192 (explaining the Predicate-

Act Canon); see also Estate of Miller v. Storey, 2017 WI 99, ¶52

n.21,    378       Wis. 2d 358,       903    N.W.2d 759.         Therefore,          WERC   is

expressly authorized under the statute to execute any predicate

acts which are necessary to carrying out its mandated duties.

    ¶43        One of WERC's mandated duties is to include on the

ballot    only      those     labor    organizations         having     an       interest   in

representation.          In order to include on the ballot only those

labor organizations "having an interest," WERC must necessarily

determine      which    labor       organizations       have     such       an     interest.21
Thus, it is expressly authorized to do so; that is, it is within

WERC's    express      statutory          authority     to    determine          which   labor

organizations         have    an    interest       in   being    on     a    certification

election ballot.


    21
       We briefly note here that there is no statutory
indication that past representation triggers a presumption of
interest in future representation. As will be discussed below,
the legislature knows full well how to indicate when such a
presumption applies. See infra ¶45.


                                              24
                                                                          No.   2015AP2224



       ¶44    WERC is also expressly authorized to "adopt reasonable

[] rules relative to the exercise of its powers and authority

and proper rules to govern its proceedings and to regulate the

conduct of all elections and hearings."                       Wis. Stat. §§ 111.71(1)

and    111.94(1).       "When        an    administrative         agency    promulgates

regulations pursuant to a power delegated by the legislature, we

construe those regulations together with the statute to make, if

possible,      an   effectual    piece          of    legislation    in    harmony   with

common sense and sound reason."                      DOR v. Menasha Corp., 2008 WI

88, ¶45, 311 Wis. 2d 579, 754 N.W.2d 95.                       Here, the requirement

that    labor    organizations        file      a     brief   form   indicating      their

interest in representing the employees is a reasonable means by

which to determine which unions have that interest because it

effectuates the statute and is "in harmony with common sense and

sound reason."22      Id.

       ¶45    In this regard, we reject the argument that the rules

were    not     necessary    because        a     current      representative     has    a

continuing interest in representing the bargaining unit.                                See
Wis. Stat. § 227.11(2)(a) ("[A] rule is not valid if the rule

exceeds       the   bounds      of        correct       interpretation.").           This

conclusion is actually an assumption, but it has no basis in the

text of Wis. Stat. § 111.83(3)(b) and is refuted by the context

of    surrounding     provisions,          specifically        § 111.83(3)(a).          See

State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶46,


       22
            See infra note 31.


                                             25
                                                                       No.   2015AP2224



271    Wis. 2d 633,       681     N.W.2d 110       ("[S]tatutory        language      is

interpreted in the context in which it is used; not in isolation

but    as   part   of     a    whole;   in      relation    to   the    language      of

surrounding        or         closely-related       statutes.").                  Section

111.83(3)(a),      which       addresses     the    situation     where      questions

regarding representation arise at times other than certification

elections, states in relevant part as follows:

            Whenever   a   question  arises   concerning  the
       representation of employees in a collective bargaining
       unit . . . [t]here shall be included on any ballot for
       the election of representatives the names of all labor
       organizations having an interest in representing the
       employees participating in the election as indicated
       in petitions filed with the commission.    The name of
       any existing representative shall be included on the
       ballot without the necessity of filing a petition.
(Emphasis added.)         Although not applicable to the facts here,23

this    provision       demonstrates       that    the     legislature       is    fully

capable of specifying where an assumption of continuing interest

applies; thus, we should not read in that assumption where it is

not specified.          See Scalia & Garner, supra ¶42 at 93 ("Nothing

is to be added to what the text states or reasonably implies
(casus omissus pro omisso habendus est).                   That is, a matter not

covered is to be treated as not covered."); see also Heritage



       23
       Similarly, other provisions of Wis. ch. 111 that mention
"petitions" are not relevant to the facts here: Wis. Stat.
§§ 111.70(3)(a)4., 111.70(4)(d)5., 111.825(4) and (5), and
111.84(1)(d). These provisions address either a situation where
there is no current representative or a situation where an
employer is challenging a current representative's status.


                                           26
                                                                            No.     2015AP2224



Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶14, 316 Wis. 2d 47,

762 N.W.2d 652; id., ¶14 n.9.24

     ¶46        We    also      reject   the       argument         that    there       is   an

irreconcilable          conflict    between        the    enabling      statute     and      the

rule.     See Wis. Stat. § 227.10(2) ("No agency may promulgate a

rule which conflicts with state law.").                          This conclusion rests

on the premise that the statute mandates an annual certification

election        without      regard      to    whether          there      is     any    labor

organization to elect.              Taken to its logical end, however, this

premise would compel the absurd result that WERC is required to

conduct an election where there is nothing and no one for whom

to vote.        See Kalal, 271 Wis. 2d 633, ¶46 ("[S]tatutory language

is interpreted . . . to avoid absurd or unreasonable results.").

Not only is it factually absurd to conduct an election where

there     are    no    participants,      but       the       statutory     definition       of

"election"           presumes     that    there          is    at    least        one    labor

organization on the ballot for which employees can vote, see

supra note 5, and neither MERA nor SELRA provide guidance for a
write-in election.              Moreover, the statutes do not provide any

procedure for how a current representative would remove itself

     24
       We note further that there is no textual basis to treat
incumbents and non-incumbents differently under Wis. Stat.
§ 111.83(3)(b), and that doing so may raise an equal protection
problem.   Thus, this interpretation should be avoided.     See
Blake v. Jossart, 2016 WI 57, ¶27, 370 Wis. 2d 1, 884
N.W.2d 484; Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 247 (2012) ("A statute should be
interpreted in a way that avoids placing its constitutionality
in doubt.").


                                              27
                                                                                     No.        2015AP2224



from   the    ballot            if   it    no     longer      wished       to     represent           the

employees;        thus,         if   we    were     to       read    in    a    presumption            of

continuing interest, it is unclear how that presumption could be

defeated      where         a    current         representative           wants       to        disclaim

interest.

       ¶47   In        sum,     we   conclude       that      WERC    did       not        exceed     its

statutory     authorization               when    it    promulgated         Wis.      Admin.         Code

chs. ERC 70 and 80 because its power to require a petition for

election      as        a       demonstration           of    interest          is     necessarily

authorized        by    the      statutory        mandate      that       the    ballot          "shall"

include      only       the      names      of    labor       organizations            "having         an

interest" in representation.

       3. Consequently, WERC's orders dismissing the Unions'
        petitions for certification elections are reinstated.
       ¶48   Below, because it concluded that the rules requiring a

petition for election were invalid, the circuit court ordered

that    WERC's          decisions         and      orders       dismissing            the        Unions'

petitions for certification be reversed.                              The court of appeals

affirmed.         See WASP, 372 Wis. 2d 347, ¶25.                              Here, because we
hold that the rules requiring a petition for election are valid,

we reverse the court of appeals and consequently order that

WERC's decisions and orders dismissing the Unions' petitions for

election be reinstated.

             B.     Whether WERC May Decertify On September 15
       ¶49   We     consider         second       the    subsidiary         issue          of    whether

WERC may decertify a current representative labor organization
on September 15 where there are no timely petitions for election

                                                  28
                                                                  No.       2015AP2224



filed.25    In short, WERC argues that, because its rules requiring

a petition for election are valid, it follows that WERC may

decertify    a    current      representative     labor    organization       at   the

deadline for filing because that incumbent is treated as if it

had failed to obtain the required 51 percent of the vote.                           In

short, the Unions argue that the statutes permit decertification

only where there has been an annual certification vote.

     ¶50    We        conclude    that     WERC   may     decertify     a     current

representative labor organization on September 15, or at the

expiration       of    the    collective    bargaining     agreement,       whichever

occurs later, where there are no timely petitions for election

filed because the plain language of the statute requires WERC to

conduct elections on or before December 1.

     ¶51    "[S]tatutory interpretation begins with the language

of the statute.              If the meaning of the statute is plain, we

ordinarily stop the inquiry."              Kalal, 271 Wis. 2d 633, ¶45.            The

statutes state in relevant part as follows:

     If no representative receives at least 51 percent of
     the votes of all of the [employees] in the collective
     bargaining unit, at the expiration of the collective

     25
       Below, because it concluded that the rules requiring a
petition for election were invalid, the circuit court did not
reach the issue of when WERC may decertify a current
representative labor organization if no petitions for election——
or only untimely petitions for election——are filed.    The court
of appeals also declined to reach this issue. See WASP, 2016 WI
App 85, ¶24, 372 Wis. 2d 347, 888 N.W.2d 237. We note, however,
that the parties argued this issue in their briefing here, and
in the circuit court and court of appeals below; thus, this
issue was not forfeited.


                                           29
                                                                   No.    2015AP2224


       bargaining agreement, the commission shall decertify
       the current representative and the [employees] shall
       be nonrepresented.
Wis. Stat. §§ 111.70(4)(d)3.b. and 111.83(3)(b).                    Each statute

also requires that WERC conduct the certification election "no

later than December 1."26          Id.

       ¶52    The phrase "no later than December 1" is inclusive of

dates on or before December 1.              See Bryan A. Garner, Legal Usage

606 (3rd ed. 2011) ("no later than (= on or before)"); see also

Wis.    Stat.        § 990.01(1)    ("All     words   and   phrases       shall    be
construed      according     to    common     and   approved   usage . . . .");

Kalal, 271 Wis. 2d 633, ¶45 ("Statutory language is given its

common,      ordinary,     and     accepted    meaning . . . .");         Scalia    &

Garner, supra ¶42 at 69 ("Words are to be understood in their

ordinary, everyday meanings——unless the context indicates that

they    bear     a     technical    sense.").         Therefore,    the     statute

authorizes27 WERC to hold elections at any time on or before

December 1; and in fact, WERC did hold certification elections

for different labor organizations between November 1—21 in the

fall of 2014.          Where a certification election is held prior to
December 1, it is possible that the results of that election

will become available prior to December 1; when the results of

       26
       Wisconsin Stat. § 111.70(4)(d)3.b. actually provides two
election dates: December 1 for school district employees and
May 1 for general municipal employees who are not school
district employees. As noted above, see supra ¶14 note 11, the
employees   SEIU  sought   to  represent   are school  district
employees; thus, the December 1 date applies.
       27
            See supra ¶42.


                                         30
                                                                      No.     2015AP2224



the    election         become    available,        WERC    "shall     certify       any

representative that receives at least 51 percent of the votes"

and, "[i]f no representative receives at least 51 percent of the

votes . . . shall decertify the current representative and the

[employees]        shall         be    nonrepresented."                Wis.      Stat.

§§ 111.70(4)(d)3.b.,         111.83(3)(b).           Therefore,      decertification

before December 1 is consistent with the plain meaning of the

statutory language, so long as WERC has established that the

representative will not receive the requisite number of votes

and there is no collective bargaining agreement in place that

would otherwise dictate when decertification occurs.

       ¶53    In this regard, failure to timely file and failure to

be    elected     are    logically     and       legally   equivalent:       where   no

petition for election demonstrating interest in representing a

particular collective bargaining unit is timely filed, there are

no labor organizations to put on the ballot;28 where there are no

labor organizations to put on the ballot, there is no need to

conduct       a   certification        election;29         where     there     is     no
certification       election,         the    current       representative        labor

organization will receive zero votes;30 and zero votes is less
       28
            See supra ¶¶40-47.
       29
            See supra ¶46.
       30
        To hold that, where there is no certification election, a
current    representative   labor   organization    could   avoid
decertification would be an atextual and absurd result because,
then, a labor organization could avoid decertification by not
filing a petition for election (assuming, of course, that no
other labor organization files one either).


                                            31
                                                                             No.       2015AP2224



than "at least 51 percent of the votes of all of the [employees]

in   the    collective       bargaining           unit."     Therefore,            a    current

representative labor organization's failure to timely file is

logically        equivalent      to     an        election   in     which          a    current

representative labor organization does not receive at least 51

percent     of    the    votes     of    all        employees      in       the    collective

bargaining unit, and we can identify no statutory or other legal

basis on which they should be distinguished.

      ¶54    Thus,      WERC    may     decertify       a    current         representative

labor organization on September 15, or at the expiration of the

collective bargaining agreement, whichever occurs later, when no

timely petition for election is filed because September 15 is

within the inclusive range of dates on which WERC may conduct

elections        and    subsequently              certify     or        decertify         labor

organizations, and decertification by failure to be elected and

decertification         by     failure       to    timely    file       a    petition        for

election are not logically or legally distinguishable.31

      31
       The reasonableness of September 15 as a deadline for
petitions for election was not raised as an issue here, but we
would note that September 15 seems a reasonable date on which to
set the deadline for petitions for election, given the
logistical requirements of conducting an election: where a
petition for election is timely filed and an election is then to
be conducted, WERC must (1) obtain and coordinate information
from the employer and the interested labor organization to
determine which employees are eligible to vote; (2) set a date
for the election and determine how best to conduct the election,
with time enough to notify employees of when and how they should
vote; and (3) conduct the election. And it must do all of those
things for hundreds of labor organizations, representing tens of
thousands of employees; for example, in the fall of 2014, WERC
conducted   305   certification   elections,  involving   54,662
                                                     (continued)
                                              32
                                                                        No.       2015AP2224




                                   IV.    CONCLUSION
    ¶55     There     are    two    issues      on     this   appeal.         First,     we

consider    whether    WERC    exceeded         its    statutory    authority         under

Wis. Stat. ch. 111 when it promulgated Wis. Admin Code chs. ERC

70 and 80.        We conclude that WERC did not exceed its authority

because it has express authority under Wis. Stat. ch. 111 to

promulgate rules that require a demonstration of interest from

labor    organizations        interested          in     representing         collective

bargaining    units;        consequently,        we     reinstate    WERC's          orders

dismissing the Unions' petitions for election as untimely.

    ¶56     Second, we consider the subsidiary issue of whether

WERC may decertify a current representative labor organization

on September 15 where there are no timely petitions for election

filed.       We    conclude        that    WERC        may    decertify       a    current

representative labor organization on September 15, or at the

expiration    of    the     collective      bargaining        agreement,          whichever

occurs later, where there are no timely petitions for election

filed because the plain language of the statute requires WERC to
conduct elections on or before December 1.

    ¶57     Thus, we reverse the decision of the court of appeals

and reinstate WERC's orders dismissing the Unions' petitions for

election.



employees. Given that these responsibilities must be fulfilled
such that all elections are completed on or before December 1,
September 15 would seem a reasonable deadline for petitions for
election.


                                           33
                                                           No.     2015AP2224




    By   the   Court.-The   decision   of   the   court   of     appeals   is

reversed.




                                  34
                                                                         No.    2015AP2224.awb


       ¶58     ANN     WALSH       BRADLEY,       J.      (dissenting).          This        case

represents           yet        another        decision      of     this        court        that

disenfranchises voters.1

       ¶59     Although the texts of the applicable statutes mandate

that       annual    recertification            elections     be   held    so    that    union

members can vote for a representative, the majority concludes to

the contrary.              It instead embraces conflicting administrative

code provisions that allow the Wisconsin Employment Relations

Commission (WERC) to cancel elections.

       ¶60     To    justify       this       conclusion     the   majority      engages       in

analytical gymnastics, contorting its discussion to:                              (1) dodge

the    main    issue       in    the    case,     relegating       its   analysis       of   the

dispositive         question       to     a    single     conclusory       paragraph;        (2)

implicitly determine that "shall" does not mean "shall"; and (3)

rewrite the statute by including a requirement that does not

exist in the text and which defeats the statute's purpose.

       ¶61     Because I conclude, as did the circuit court and a

unanimous       court      of     appeals,      that    "shall"     in    fact    does       mean
"shall" and that the statutes and administrative code provisions

are in irreconcilable conflict, I respectfully dissent.

                                                 I

       ¶62     Taking       its    cue    from       WERC,   the    majority      leads      the

reader astray by focusing its analysis on WERC's authority to


       1
       See League of Women Voters of Wis. Educ. Network, Inc. v.
Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302; Milwaukee
Branch of NAACP v. Walker, 2014 WI 98, 357 Wis. 2d 469, 851
N.W.2d 262.


                                                 1
                                                                              No.     2015AP2224.awb


regulate         recertification           elections              pursuant     to     Wis.     Stat.

§§ 111.71(1)            and    111.94(1).               See        majority     op.,        ¶¶34-45.

Consequently, the issue as presented and decided by both the

circuit court and court of appeals is obscured.

       ¶63       As the court of appeals aptly stated:                         "The Commission

spends       a     considerable             amount           of     time      discussing           its

legislatively delegated authority to promulgate reasonable rules

related to the annual election statutes . . . [T]his is not the

issue on appeal."              Wis. Ass'n of State Prosecutors v. Wis. Emp't

Relations Comm'n, 2016 WI App 85, ¶22, 372 Wis. 2d 347, 888

N.W.2d 237.            Yet the majority continues down this path, spending

the bulk of its analysis on an ancillary issue.

       ¶64       Contrary to the majority's framing of the issue, this

case   presents          a    rather      straightforward            question        of    statutory

interpretation.               The    issue       is    whether        there     is     a   conflict

between          the     relevant          statutes           and     administrative               code

provisions.

       ¶65       The majority relegates its analysis of this issue to a
single, conclusory paragraph.                         See majority op., ¶46.                 In its

cursory analysis of the conflict, the majority ascribes great

import    to      an    assertion         that    the    unions'          preferred        statutory

construction           "would       compel       the    absurd       result         that    WERC     is

required to conduct an election where there is nothing and no

one for whom to vote."                    Majority op., ¶46.                  According to the

majority, this absurdity would result because "the statutes do

not provide any procedure for how a current representative would
remove    itself         from       the    ballot       if    it     no    longer         wished    to

                                                   2
                                                           No.    2015AP2224.awb


represent the employees" and it is thus "unclear" what is to

happen if a current representative wants to disclaim an interest

in representing a bargaining unit.         Id.

      ¶66   This assertion ignores the larger context of labor law

in which this case arises.           A union can avoid its duty to

bargain     or   remove   itself    from   a     ballot    by    unequivocally

disclaiming further interest in representing a bargaining unit.2

The   majority's   "absurd"   consequence      is   thus   easily    avoidable

through a simple disclaimer process that is available at any

time and is already in use in both federal and state labor law.

See Dycus v. Nat'l Labor Relations Bd., 615 F.2d 820, 826 (9th

Cir. 1980); see also 1 Emp. and Union Member Guide to Labor Law

§ 3:12 (2017).

                                     II

      ¶67   Administrative agencies do not have powers superior to

those of the legislature.          Debeck v. Wis. Dep't of Nat. Res.,

172 Wis. 2d 382, 387-88, 493 N.W.2d 234 (Ct. App. 1992).                 Thus,

even if the majority were correct in focusing its analysis and
conclusions on WERC's authority to promulgate rules regarding


      2
       Baraboo Joint Sch. Dist. No. 1, WERC Dec. No. 14885-B at 8
(Mar.   10,   1977)  ("The   commission  has   allowed  a   labor
organization to withdraw from an election if it indicates to the
commission that it does not desire to appear on the ballot and
does not desire to represent the employe[e]s."); see also Wis.
Law Enf't Ass'n v. AFSCME Council 24, WERC Dec. No. 31397-B at
32 (Aug. 1, 2006) (citing Bake-Line Prods., Inc., 329 NLRB 247,
249 (1999) (explaining that "an exclusive bargaining agent may
avoid its statutory duty to bargain on behalf of the unit it
represents by unequivocally and in good faith disclaiming
further interest in representing the unit . . . .")).


                                      3
                                                            No.   2015AP2224.awb


recertification elections, it is to no avail.               An administrative

agency may not promulgate a rule that conflicts with state law.

Seider    v.    O'Connell,   2000   WI   76,   ¶21,   236   Wis. 2d 211,    612

N.W.2d 659; Wis. Stat. § 227.10(2).              "When a conflict occurs

between a statute and a rule, the statute prevails."                   Debeck,

172 Wis. 2d at 388 (citation omitted).

     ¶68       The dispositive question is whether SELRA3 and MERA4

conflict with the petition requirement in Wis. Admin. Code chs.

     3
         Wisconsin Stat. § 111.83(3)(b) provides in relevant part:

     Annually, no later than December 1, the commission
     shall   conduct    an   election    to    certify    the
     representative of a collective bargaining unit that
     contains a general employee.   There shall be included
     on the ballot the names of all labor organizations
     having an interest in representing the general
     employees participating in the election        . . . The
     commission shall certify any representative that
     receives at least 51 percent of the votes of all of
     the general employees in the collective bargaining
     unit.    If no representative receives at least 51
     percent of the votes of all of the general employees
     in the collective bargaining unit, at the expiration
     of the collective bargaining agreement, the commission
     shall decertify the current representative and the
     general employees shall be nonrepresented. . . .
     4
         Wisconsin Stat. § 111.70(4)(d)3.b. sets forth in relevant
part:

     Annually, the commission shall conduct an election to
     certify    the   representative    of   the    collective
     bargaining unit that contains a general municipal
     employee.    The election shall occur no later than
     December 1 for a collective bargaining unit containing
     school district employees and no later than May 1 for
     a   collective   bargaining   unit   containing   general
     municipal employees who are not school district
     employees.      The   commission    shall   certify   any
     representative that receives at least 51 percent of
     the votes of all of the general municipal employees in
                                                        (continued)
                                 4
                                                            No.       2015AP2224.awb


ERC 70 and 80.5         In order to answer this question, I must examine

first whether "shall" does indeed mean "shall."                 Is it mandatory

or merely directory?

       ¶69      Statutory interpretation begins with the language of

the statute.          State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004       WI   58,   ¶45,   271   Wis. 2d 633,   681   N.W.2d 110.        If    the

meaning of the statute is plain, we need not inquire further.

Id.

       ¶70      The language of both SELRA and MERA is plain.                   Each

statute provides that annually, "the commission shall conduct an

election        to    certify      the   representative    of     a    collective

bargaining unit that contains a general . . . employee."                        Wis.

       the collective bargaining unit.   If no representative
       receives at least 51 percent of the votes of all of
       the general municipal employees in the collective
       bargaining unit, at the expiration of the collective
       bargaining agreement, the commission shall decertify
       the current representative and the general municipal
       employees shall be nonrepresented. . . .
       5
           Wis. Admin. Code §§ ERC 70.01 and 80.01 state in relevant
part:

        . . . The existing exclusive representative of such
       employees that wishes to continue said representation,
       or   any  other   labor   organization   interested   in
       representing such employees, must file a petition on
       or before September 15 requesting the commission to
       conduct a secret ballot election to determine whether
       a minimum of 51 percent of the bargaining unit
       employees eligible to vote favor collective bargaining
       representation   by    the    petitioner   or    another
       petitioning labor organization. If no timely petition
       is filed, the result is the same as if only the
       existing representative filed a timely petition and
       the election resulted in decertification of the
       existing representative. . . .


                                          5
                                                             No.       2015AP2224.awb


Stat. §§ 111.83(3)(b), 111.70(4)(d)3.b. (emphasis added).                           In

other words, each requires that an election be held annually.

Full stop.      No conditions.

    ¶71    Wisconsin      Admin.    Code   §§ ERC   70.01    and       80.01    allow

WERC to cancel an election.           See also Wis. Admin. Code §§ ERC

70.03(7)(b)      and   80.03(7)(b)    (explaining     the        consequences       of

failure to timely file a petition).            Ignoring a line of analysis

both the circuit court and court of appeals deemed dispositive,

the majority implicitly determines that "shall" does not mean

"shall" and that there is therefore no conflict between the

statutes and WERC's administrative rules.

    ¶72    The     word    "shall"    is     ordinarily      presumed          to   be

mandatory when it appears in a statute.              Vill. of Elm Grove v.

Brefka,   2013    WI   54,   ¶23,    348     Wis. 2d 282,        832   N.W.2d 121.

However, "shall" may be construed as directory if necessary to

carry out the legislature's clear purpose.            Id.

    ¶73    In     determining      whether     "shall"      is     mandatory        or

directory, I focus on two dispositive factors:               the consequences
resulting from each construction and the general object sought

to be accomplished by the legislature.6             See Karow v. Milwaukee

Cty. Civil Serv. Comm'n, 82 Wis. 2d 565, 572, 263 N.W.2d 214


    6
       In Karow v. Milwaukee Cty. Civil Serv. Comm'n, 82
Wis. 2d 565, 572, 263 N.W.2d 214 (1978), we set forth five
factors to consider in determining whether "shall" as used in a
statute is mandatory or directory: the inclusion or omission of
a prohibition or a penalty in the statute, the consequences
resulting from one construction or the other, the nature of the
statute, the evil to be remedied, and the general object sought
to be accomplished by the legislature.


                                       6
                                                                          No.   2015AP2224.awb


(1978).           Application        of    these     factors       here    indicates         that

"shall"       as         used       in      Wis.     Stat.      §§ 111.83(3)(b)               and

111.70(4)(d)3.b. is mandatory.

       ¶74    First, the majority's construction has significant and

drastic      consequences           for     employees.          It    denies          blameless

employees the right to vote for union representation if their

union narrowly misses a deadline.                      As a result, employees not

only lose their ability to vote on whether they are represented

by a union, but also are stripped of their voice in negotiations

with their employer, all because their union was less than an

hour       late    filing       a    petition.7             Conversely,         the     unions'

interpretation protects against this harsh outcome.

       ¶75    Second, a directory construction would run afoul of

the general object sought to be accomplished by the legislature.

Counsel for WERC asserted at oral argument that a purpose of Act

10 is to enfranchise employees.                        Accepting WERC's assertion,

annual recertification elections provide employees with greater

opportunity         to     decide         whether    they     will        continue      to    be
represented by their union.

       ¶76    Despite WERC's assertion that a purpose of Act 10 is

the enfranchisement of voters, the majority's construction of

the statute accomplishes the opposite.                          Instead of expanding

employees' ability to vote on whether they are represented by a

union,       the    majority         opinion        takes    all     choice       away       from




       7
           See majority op., ¶15.


                                               7
                                                                        No.     2015AP2224.awb


employees, leaving them without union representation regardless

of their actual wishes.

    ¶77     I therefore conclude that "shall" as used in SELRA and

MERA is mandatory.             The majority does not engage in even a

modicum     of    analysis       on      this       point   and        thus     provides      no

persuasive reason to depart from a mandatory construction of

"shall."

    ¶78     Applying a mandatory construction of "shall" in Wis.

Stat.     §§ 111.83(3)(b)          and        111.70(4)(d)3.b.            leads        to     the

conclusion       that    there     is    an     irreconcilable          conflict       between

these statutes and Wis. Admin. Code ERC §§ 70.01 and 80.01.

Simply stated, the statutes mandate that there "shall" be an

election,    while       the   administrative            code    provisions           allow   an

election to be cancelled.

                                              III

    ¶79     The majority exacerbates this conflict by writing into

the statute a requirement that does not exist in the text and

which defeats the statute's purpose.
    ¶80     WERC's       rules     add    an        additional    requirement           to    the

conduct of an election——the filing of a petition.                              By creating a

barrier that does not exist in the statutes, the WERC rules are

necessarily      in     conflict      with     state     law.      See        State    ex    rel.

Castaneda    v.    Welch,      2007      WI     103,    ¶59,     303    Wis. 2d 570,          735

N.W.2d 131.        As previously discussed, when a statute and an

administrative rule conflict, the statute prevails.                              Debeck, 172

Wis. 2d at 388.          To avoid the conflict, the majority in essence
writes a petition requirement into the statutes.

                                                8
                                                                       No.       2015AP2224.awb


       ¶81    A reading of the surrounding context of the statutes

at issue reveals that the legislature chose not to include a

petition requirement.             Chapter 111 is replete with statutory

means by which an election may be triggered by the filing of a

petition.              See,     e.g.,        Wis.          Stat.     §§ 111.70(3)(a)4.,

111.70(4)(d)5.,               111.825(4),           111.825(5),               111.83(3)(a),

111.84(1)(d).

       ¶82    The legislature thus knows full well how to write a

petition requirement into a labor relations statute.                                    In the

case   of     Wis.     Stat.    §§ 111.83(3)(b)             and    111.70(4)(d)3.b.,          it

chose not to include one.                   The language of these statutes is

clear.       An election "shall" take place.

       ¶83    Additionally,        the      majority         rewrites       the     statutes,

inserting       words     to    allow       decertification           of     a     bargaining

representative in a manner the statutes do not contemplate.                                  The

statutes      provide     but    one     path     to       union   decertification——the

failure to gain 51% of the votes in an election.                             The WERC rules

provide      another——failure          to    file      a    petition       by     the   stated
deadline.

       ¶84    Wisconsin Stat. §§ 111.83(3)(b) and 111.70(4)(d)3.b.

prescribe       only    one     manner      in    which       WERC    may        decertify     a

bargaining unit:           "if no representative receives at least 51

percent of the votes of all of the general employees in the

collective bargaining unit, at the expiration of the collective

bargaining agreement, the commission shall decertify the current

representative           and      the        general          employees           shall       be
nonrepresented."          In other words, an election is required as a

                                              9
                                                                No.    2015AP2224.awb


precondition for decertification.                The statutes do not provide

an additional manner in which a bargaining representative may be

decertified.

       ¶85    Conversely,      Wis. Admin. Code        §§ ERC 70.03(7)(b) and

80.03(7)(b) provide that decertification is to occur "[i]f no

timely   petition    is     filed    by    any   labor    organization."          This

conflicts with the statute because it provides an additional

avenue   to    decertification       the    statute      does   not   contemplate.

Again, "[w]hen a conflict occurs between a statute and a rule,

the statute prevails."          Debeck, 172 Wis. 2d at 388.

       ¶86    Instead of acknowledging this conflict, the majority

adds words to the statute.           It concludes that "failure to timely

file   and    failure     to    be   elected     are     logically    and    legally

equivalent[.]"      Majority op., ¶53.             The majority's analytical

gymnastics are unpersuasive, given that "failure to be elected"

is the sole statutorily authorized manner for decertification.

"Failure to timely file" can only be the "logical and legal"

equivalent if the majority reads a petition requirement into the
statute that simply is not there.

       ¶87    The majority's conclusion further runs afoul of Act

10's purported purpose to enfranchise employees.                        Instead of

expanding      employees'      choice      in    whether    they      wish   to    be

represented by a union, the majority's decision decertifies an

elected representative without allowing employees to say a word

about it.

       ¶88    Unlike the majority, I would uphold the purpose WERC
asserts is behind Act 10——to enfranchise voters——and affirm the

                                          10
                                                            No.   2015AP2224.awb


court of appeals.        I conclude that both SELRA and MERA are in

irreconcilable conflict with the petition requirement in Wis.

Admin. Code chs. ERC 70 and 80, and that "shall" means "shall."

    ¶89     Finally, I observe that in determining that "shall"

does not mean "shall," the majority circumvents this court's

recent interpretative trajectory.         Indeed, when this court has

been faced with a question of whether "shall" is mandatory or

directory,    it   has   overwhelmingly       ruled   on    the   side     of   a

mandatory    construction.     Over     the    last   ten    years,   in    most

contexts this court has repeatedly arrived at the conclusion

that "shall" means "shall," i.e. it is of a mandatory nature.8

During the same time period, this court has declined to apply

"shall" as mandatory in only a few contexts, including those

involving a sexually violent person committed pursuant to ch.

    8
       See State v. Villamil, 2017 WI 74, ¶60, 377 Wis. 2d 1, 898
N.W.2d 482 ("[W]e conclude that the State has failed to rebut
the presumption that 'shall' is mandatory" in operating after
revocation penalty statutes); City of Eau Claire v. Booth, 2016
WI 65, ¶23, 370 Wis. 2d 595, 882 N.W.2d 738 ("The legislature's
use   of   'shall'   in   Wisconsin's  OWI   escalating   penalty
scheme . . . is mandatory . . . ."); Bank of New York Mellon v.
Carson, 2015 WI 15, ¶23, 361 Wis. 2d 23, 859 N.W.2d 422 ("The
context in which 'shall' is used in Wis. Stat. § 846.102(1)
indicates that the legislature intended it to be mandatory.");
State v. Hemp, 2014 WI 129, ¶27, 359 Wis. 2d 320, 856 N.W.2d 811
("[W]e interpret 'shall' to be mandatory" in the context of
expunction statutes); Vill. of Elm Grove v. Brefka, 2013 WI 54,
¶26, 348 Wis. 2d 282, 832 N.W.2d 121 (determining that "shall"
is mandatory in statute providing for revocation of drivers
license for refusal to take a test for intoxication); State v.
Thompson, 2012 WI 90, ¶62, 342 Wis. 2d 674, 818 N.W.2d 904
(explaining that Wis. Stat. § 970.02(1)(a) imposes several
mandatory duties on the circuit court); Watton v. Hegerty, 2008
WI 74, ¶19 n.13, 311 Wis. 2d 52, 751 N.W.2d 369 ("[W]e conclude
that 'shall' has a mandatory meaning within § 51.30(4)(a).").


                                   11
                                                       No.   2015AP2224.awb


980, an undocumented immigrant, and now in this case, a voter in

a union recertification election.9

     ¶90   Accordingly,   for   the    reasons   set   forth    above,   I

respectfully dissent.

     ¶91   I am authorized to state that SHIRLEY S. ABRAHAMSON

joins this dissent.




     9
       See State v. Reyes Fuerte, 2017 WI 104, ¶55, 378
Wis. 2d 504, 904 N.W.2d 773 (Abrahamson, J., dissenting) (by
applying the harmless error rule, the majority essentially
renders the word "shall" meaningless); State v. Romero-Georgana,
2014 WI 83, ¶114, 360 Wis. 2d 522, 849 N.W.2d 668 (Ann Walsh
Bradley,   J.,    dissenting)   (explaining that    the   majority
disregards the plain meaning of "shall"           in Wis. Stat.
§ 971.08(2)); In re Commitment of Gilbert, 2012 WI 72, ¶¶87-89,
342   Wis. 2d 82,   816   N.W.2d 215   (Ann Walsh   Bradley,   J.,
dissenting) (observing that the majority finds ambiguity in a
statute containing "shall" by ignoring the surrounding context).


                                  12
    No.   2015AP2224.awb




1
