(8) Enforcement and prosecution.
The department of transportation shall require adherence to subs. (2)
. The department of transportation may demand and examine, and every contractor, subcontractor and contractor's or subcontractor's agent shall keep and furnish upon request by the department of transportation, copies of payrolls and other records and information relating to compliance with this section. Upon request of the department of transportation or upon complaint of alleged violation, the district attorney of the county in which the work is located shall investigate as necessary and prosecute violations in a court of competent jurisdiction. Section 111.322 (2m)
applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.
See s. 227.01 (13) (t)
for provision that determinations of hours, wages and truck rentals need not be filed as rules but are subject to review under ch. 227
See also ch. DWD 290
, Wis. adm. code.
WERC had no jurisdiction to enforce wage rates on a highway project as an unfair labor practice when the complaining union had no members among the employees affected and was not seeking to represent them. Chauffeurs, Teamsters & Helpers v. WERC, 51 Wis. 2d 391
, 187 N.W.2d 364
The department may not make more than one annual certification of the prevailing hours of labor or prevailing wage rates to apply to state highway project contracts. 59 Atty. Gen. 23.
Federal law does not preempt application of Wisconsin's prevailing wage law, s. 103.50, to truck drivers who perform transportation and delivery work pursuant to joint federal-state highway contracts. Frank Brothers, Inc. v. DOT, 409 F.3d 332
Substance abuse prevention on public works projects. 103.503(1)(a)
"Accident" means an incident caused, contributed to, or otherwise involving an employee that resulted or could have resulted in death, personal injury, or property damage and that occurred while the employee was performing the work described in s. 66.0903 (4)
or 103.49 (2m)
on a project.
"Contracting agency" means a local governmental unit, as defined in s. 66.0903 (1) (d)
, or a state agency, as defined in s. 103.49 (1) (f)
, that has contracted for the performance of work on a project.
"Drug" means any controlled substance, as defined in s. 961.01 (4)
, or controlled substance analog, as defined in s. 961.01 (4m)
, for which testing is required by an employer under its substance abuse prevention program under this section.
"Employer" means a contractor, subcontractor, or agent of a contractor or subcontractor that performs work on a project.
(2) Substance abuse prohibited.
No employee may use, possess, attempt to possess, distribute, deliver, or be under the influence of a drug, or use or be under the influence of alcohol, while performing the work described in s. 66.0903 (4)
or 103.49 (2m)
on a project. An employee is considered to be under the influence of alcohol for purposes of this subsection if he or she has an alcohol concentration that is equal to or greater than the amount specified in s. 885.235 (1g) (d)
(3) Substance abuse prevention programs required. 103.503(3)(a)(a)
Before an employer may commence work on a project, the employer shall have in place a written program for the prevention of substance abuse among its employees. At a minimum, the program shall include all of the following:
A requirement that employees performing the work described in s. 66.0903 (4)
or 103.49 (2m)
on a project submit to random, reasonable suspicion, and post-accident drug and alcohol testing and to drug and alcohol testing before commencing work on a project, except that testing of an employee before commencing work on a project is not required if the employee has been participating in a random testing program during the 90 days preceding the date on which the employee commenced work on the project.
A procedure for notifying an employee who violates sub. (2)
, who tests positive for the presence of a drug in his or her system, or who refuses to submit to drug or alcohol testing as required under the program that the employee may not perform work on a project until he or she meets the conditions specified in sub. (4) (b) 1.
Each employer shall be responsible for the cost of developing, implementing, and enforcing its substance abuse prevention program, including the cost of drug and alcohol testing of its employees under the program. The contracting agency is not responsible for that cost, for the cost of any medical review of a test result, or for any rehabilitation provided to an employee.
No employer may permit an employee who violates sub. (2)
, who tests positive for the presence of a drug in his or her system, or who refuses to submit to drug or alcohol testing as required under the employer's substance abuse prevention program under sub. (3)
to perform work on a project until he or she meets the conditions specified in par. (b) 1.
An employer shall immediately remove an employee from work on a project if any of the following occurs:
The employee violates sub. (2)
, tests positive for the presence of a drug in his or her system, or refuses to submit to drug or alcohol testing as required under the employer's substance abuse prevention program.
An officer or employee of the contracting agency has a reasonable suspicion that the employee is in violation of sub. (2)
and requests the employer to immediately remove the employee from work on the project.
An employee who is barred or removed from work on a project under par. (a)
may commence or return to work on the project upon his or her employer providing to the contracting agency documentation showing all of the following:
That the employee has tested negative for the presence of drugs in his or her system and is not under the influence of alcohol as described in sub. (2)
That the employee has been approved to commence or return to work on the project in accordance with the employer's substance abuse prevention program.
Testing for the presence of drugs or alcohol in an employee's system and the handling of test specimens shall be conducted in accordance with guidelines for laboratory testing procedures and chain-of-custody procedures established by the substance abuse and mental health services administration of the federal department of health and human services.
(5) Local ordinances; strict conformity required.
A local governmental unit, as defined in s. 66.0903 (1) (d)
, may enact an ordinance regulating the conduct regulated under this section only if the ordinance strictly conforms to this section.
Collective bargaining; definitions.
When used in ss. 103.505
, and for the purposes of those sections:
A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in a single industry, trade, craft, or occupation; or who are employees of one employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is any of the following:
Between one or more employers or associations of employers and one or more employees or associations of employees.
Between one or more employers or associations of employers and one or more employers or associations of employers.
Between one or more employees or associations of employees and one or more employees or associations of employees.
Between any conflicting or competing interests in a labor dispute of persons participating or interested in the labor dispute.
A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against the person or association and if the person or association is engaged in the industry, trade, craft, or occupation in which the labor dispute occurs, or is a member, officer, or agent of any association of employers or employees engaged in that industry, trade, craft, or occupation.
"Labor dispute" means any controversy between an employer and the majority of the employer's employees in a collective bargaining unit concerning the right or process or details of collective bargaining or the designation of representatives. Any organization with which either the employer or the majority of the employer's employees is affiliated may be considered a party to the labor dispute.
History: 1993 a. 492
; 1995 a. 225
; 1997 a. 35
; 1997 a. 253
; Stats. 1997 s. 103.505.
Public policy as to collective bargaining.
In the interpretation and application of ss. 103.505
, the public policy of this state is declared as follows:
Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his or her freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual worker have full freedom of association, self-organization, and the designation of representatives of the worker's own choosing, to negotiate the terms and conditions of the worker's employment, and that the worker shall be free from the interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
History: 1995 a. 225
; 1997 a. 253
"Yellow-dog" contracts. 103.52(1)
Every undertaking or promise made after July 1, 1931, whether written or oral, express or implied, between any employee or prospective employee and that person's employer, prospective employer or any other individual, firm, company, association or corporation is declared to be against public policy if either party to the undertaking or promise undertakes or promises any of the following:
To join or to remain a member of some specific labor organization or to join or remain a member of some specific employer organization or any employer organization.
Not to join or not to remain a member of some specific labor organization or any labor organization, or of some specific employer organization or any employer organization.
To withdraw from an employment relation in the event that the party joins or remains a member of some specific labor organization or any labor organization, or of some specific employer organization or any employer organization.
No undertaking or promise described in sub. (1)
shall afford any basis for the granting of legal or equitable relief by any court against a party to the undertaking or promise, or against any other person, who may advise, urge or induce, without fraud, violence or threat of fraud or violence either party to the undertaking or promise to act in disregard of the undertaking or promise.
History: 1993 a. 492
; 1997 a. 253
Lawful conduct in labor disputes. 103.53(1)
The following acts, whether performed singly or in concert, shall be considered legal:
Ceasing or refusing to perform any work or to remain in any relation of employment regardless of any promise, undertaking, contract or agreement in violation of the public policy declared in s. 103.52
Becoming or remaining a member of any labor organization or of any employer organization, regardless of any undertaking or promise as is described in s. 103.52
Paying or giving to any person any strike or unemployment benefits or insurance or other moneys or things of value.
Aiding, by lawful means, any person who is being proceeded against in, or is prosecuting, any action or suit in any court of the United States or of any state.
Giving publicity to and obtaining or communicating information regarding the existence of, or the facts involved in, any dispute, whether by advertising, speaking, patrolling any public street or any place where any person may lawfully be, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat of fraud, violence or breach of the peace.
Ceasing to patronize or to employ any person, except that nothing in this paragraph shall be construed to legalize a secondary boycott.
Assembling peaceably to do or to organize to do any of the acts specified in pars. (a)
or to promote lawful interests.
Advising or notifying any person or persons of an intention to do any of the acts specified in pars. (a)
Agreeing with other persons to do or not to do any of the acts specified in pars. (a)
Advising, urging, or inducing without fraud, violence, or threat of fraud or violence, others to do the acts specified in pars. (a)
, regardless of any undertaking or promise as described in s. 103.52
No court shall have jurisdiction to issue any restraining order or temporary or permanent injunction which, in specific or general terms, prohibits any person from doing, whether singly or in concert, any of the acts specified in sub. (1)
History: 1997 a. 253
Unlawful conduct in labor controversies.
No person may picket, or induce others to picket, the establishment, employees, supply or delivery vehicles, or customers of anyone engaged in business, or interfere with the person's business, or interfere with any person desiring to transact or transacting business with the person, when no labor dispute exists between the employer and the employer's employees or their representatives.
History: 1993 a. 492
; 1997 a. 253
Responsibility for unlawful acts.
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute may be held responsible or liable in any civil action at law or suit in equity, or in any criminal prosecution, for the unlawful acts of individual officers, members, or agents, except upon proof by a preponderance of the evidence and without the aid of any presumptions of law or fact of all of the following:
That individual officers, members or agents of the association or organization committed those acts.
That the officer or member, or association or organization, sought to be held liable or responsible actually participated in or authorized those acts or ratified those acts with actual knowledge of those acts.
History: 1997 a. 253
Recruitment of strikebreakers. 103.545(1)(b)
"Strikebreaker" means any person who at least twice during the previous 12-month period has accepted employment for the duration of a strike or a lockout in place of employees who are involved in a strike or lockout of a specific employer, but does not include any supervisory or other permanent employee of the employer who is temporarily assigned to perform the duties of an employee involved in a strike or lockout or other permanent or contractual employee whose services are necessary to ensure that the plant or other property of the employer involved in the strike or lockout is properly maintained and protected for the resumption of normal operations at any time.
No employer may knowingly employ or contract with another to employ any strikebreaker to replace employees who are on strike against the employer or locked out by it.
No person who is not directly involved in a strike or lockout may recruit any strikebreaker for employment or secure or offer to secure employment for any strikebreaker when the purpose thereof is to have the strikebreaker replace an employee in an industry or establishment where a strike or lockout exists.
No person, including a licensed employment agent, may transport or arrange to transport to this state any strikebreaker to be engaged in employment for the purpose of replacing employees in an industry or establishment where a strike or lockout exists.
Whoever violates this section or any order of the department issued under this section may be fined not more than $2,000 or imprisoned in the county jail for not more than one year or both.
Upon complaint of an affected employer, labor organization or employee, the department may investigate violations and issue orders to enforce this section. The investigations and orders shall be made as provided under s. 103.005
. Orders are subject to review as provided in ch. 227
. The department of justice may, upon request of the commission, prosecute violations of this section in any court of competent jurisdiction.
Public policy as to labor litigation.
In the interpretation and application of ss. 103.56
, the public policy of this state is declared to be:
Equity procedure that permits a complaining party to obtain sweeping injunctive relief that is not preceded by or conditioned upon notice to and hearing of the responding party or parties, or that issues after hearing based upon written affidavits alone and not wholly or in part upon examination, confrontation and cross-examination of witnesses in open court, is peculiarly subject to abuse in labor litigation for all of the following reasons:
That the existing state of affairs cannot be maintained but is necessarily altered by the injunction.
That determination of issues of veracity and of probability of fact from affidavits of the opposing parties that are contradictory and, under the circumstances, untrustworthy rather than from oral examination in open court is subject to grave error.