103.50(2m)(a)1.
1. All laborers, workers, mechanics and truck drivers employed on the site of a project that is subject to this section, or employed to deliver mineral aggregate such as sand, gravel or stone that is immediately incorporated into the work, and not stockpiled or further transported by truck, to or from the site of a project that is subject to this section by depositing the material substantially in place, directly or through spreaders from the transporting vehicle, or employed to transport excavated material or spoil from and return to the site of a project that is subject to this section.
103.50(2m)(a)2.
2. All laborers, workers, mechanics and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies or equipment on the site of a project that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project that is subject to this section by a contractor, subcontractor, agent or other person performing any work on the site of the project.
103.50(2m)(b)
(b) Notwithstanding
par. (a), a laborer, worker, mechanic or truck driver who is regularly employed in the processing, manufacturing or delivery of materials or products by or for a commercial establishment that has a fixed place of business from which the establishment regularly supplies processed or manufactured materials or products is not entitled to receive the prevailing wage rate determined under
sub. (3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined under
sub. (3).
103.50(2m)(c)
(c) A truck driver who is an owner-operator of a truck shall be paid separately for his or her work and for the use of his or her truck.
103.50(3)
(3) Investigations; determinations. The department shall conduct investigations and hold public hearings necessary to define the trades or occupations that are commonly employed in the highway construction industry and to inform itself as to the prevailing wage rates and prevailing hours of labor in all areas of the state for those trades or occupations, in order to ascertain and determine the prevailing wage rates and prevailing hours of labor accordingly.
103.50(4)
(4) Certification of prevailing wage rates and hours of labor. The department of industry, labor and job development shall, by May 1 of each calendar year, certify to the department of transportation the prevailing wage rates and the prevailing hours of labor in each area for all trades or occupations commonly employed in the highway construction industry. The certification shall, in addition to the current prevailing wage rates and prevailing hours of labor, include future prevailing wage rates and prevailing hours of labor when such prevailing wage rates and prevailing hours of labor can be determined for any such trade or occupation in any area and shall specify the effective date of those future prevailing wage rates and prevailing hours of labor. If a construction project extends into more than one area there shall be but one standard of prevailing wage rates and prevailing hours of labor for the entire project.
103.50(4m)
(4m) Wage rate data. In determining prevailing wage rates for projects that are subject to this section, the department shall use data from projects that are subject to this section,
s. 66.293 or
103.49 or
40 USC 276a.
103.50(5)
(5) Appeals to governor. If the department of transportation considers any determination of the department of industry, labor and job development as to the prevailing wage rates and the prevailing hours of labor in an area to have been incorrect, it may appeal to the governor, whose determination shall be final.
103.50(6)
(6) Contents of contracts. A reference to the prevailing wage rates and the prevailing hours of labor determined under
sub. (3) shall be published in the notice issued for the purpose of securing bids for a project. If any contract or subcontract for a project that is subject to this section is entered into, the prevailing wage rates and prevailing hours of labor determined under
sub. (3) shall be physically incorporated into and made a part of the contract or subcontract, except that for a minor subcontract, as determined by the department of industry, labor and job development, that department shall prescribe by rule the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force. For the information of the employes working on the project, the prevailing wage rates and prevailing hours of labor determined by the department and the provisions of
subs. (2) and
(7) shall be kept posted by the department of transportation in at least one conspicuous and easily accessible place on the site of the project.
103.50(7)(a)(a) Except as provided in
pars. (b),
(d) and
(f), any contractor, subcontractor or agent thereof who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that any such violation continues shall be considered a separate offense.
103.50(7)(b)
(b) Whoever induces any individual who seeks to be or is employed on any project that is subject to this section to give up, waive or return any part of the wages to which the individual is entitled under the contract governing such project, or who reduces the hourly basic rate of pay normally paid to an employe for work on a project that is not subject to this section during a week in which the employe works both on a project that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from such employment or by any other means is guilty of an offense under
s. 946.15 (1).
103.50(7)(c)
(c) Any person employed on a project that is subject to this section who knowingly permits a contractor, subcontractor or agent thereof to pay him or her less than the prevailing wage rate set forth in the contract governing such project, who gives up, waives or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the person works both on a project that is subject to this section and on a project that is not subject to this section, is guilty of an offense under
s. 946.15 (2).
103.50(7)(d)
(d) Whoever induces any individual who seeks to be or is employed on any project that is subject to this section to permit any part of the wages to which the individual is entitled under the contract governing such project to be deducted from the individual's pay is guilty of an offense under
s. 946.15 (3), unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from an individual who is working on a project that is subject to
40 USC 276c.
103.50(7)(e)
(e) Any person employed on a project that is subject to this section who knowingly permits any part of the wages to which he or she is entitled under the contract governing such project to be deducted from his or her pay is guilty of an offense under
s. 946.15 (4), unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from an individual who is working on a project that is subject to
40 USC 276c.
103.50(7)(f)
(f) Paragraph (a) does not apply to any person who fails to provide any information to the department to assist the department in determining prevailing wage rates or prevailing hours of labor under
sub. (3) or
(4).
103.50(8)
(8) Enforcement and prosecution. The department of transportation shall require adherence to
subs. (2) and
(6). The department of transportation may demand and examine, and it shall be the duty of every contractor, subcontractor and agent thereof to keep and furnish to the department of transportation, copies of payrolls and other records and information relating to the wages paid to persons described in
sub. (2m) for work to which this section applies. 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 make such investigation 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.
103.50 Cross-reference
Cross-reference: 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 Chapter
227.
103.50 Annotation
The WERC has no jurisdiction to enforce wage rates on a highway project as an unfair labor practice if the rates are violated, where the complaining union had no members among the employes affected and was not seeking to represent them. Chauffeurs, Teamsters & Helpers v. WERC, 51 W (2d) 391, 187 NW (2d) 364.
103.50 Annotation
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.
103.51
103.51
Public policy as to collective bargaining. In the interpretation and application of
ss. 103.51 to
103.62 the public policy of this state is declared as follows:
103.51(1)
(1) Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employes. 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.
103.51 History
History: 1995 a. 225.
103.52
103.52
"Yellow-dog" contracts. 103.52(1)
(1) Every undertaking or promise made after July 1, 1931, whether written or oral, express or implied, between any employe or prospective employe 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 thereto undertakes or promises any of the following:
103.52(1)(a)
(a) 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.
103.52(1)(b)
(b) 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.
103.52(1)(c)
(c) 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.
103.52(2)
(2) 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 such undertaking or promise, or against any other persons who may advise, urge or induce, without fraud, violence, or threat thereof, either party thereto to act in disregard of such undertaking or promise.
103.52 History
History: 1993 a. 492.
103.53
103.53
Lawful conduct in labor disputes. 103.53(1)
(1) The following acts, whether performed singly or in concert, shall be legal:
103.53(1)(a)
(a) 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;
103.53(1)(b)
(b) Becoming or remaining a member of any labor organization or of any employer organization, regardless of any such undertaking or promise as is described in
s. 103.52;
103.53(1)(c)
(c) Paying or giving to, any person any strike or unemployment benefits or insurance or other moneys or things of value;
103.53(1)(d)
(d) By all lawful means aiding 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;
103.53(1)(e)
(e) 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 or persons may lawfully be, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof;
103.53(1)(f)
(f) Ceasing to patronize or to employ any person or persons, but nothing herein shall be construed to legalize a secondary boycott;
103.53(1)(g)
(g) Assembling peaceably to do or to organize to do any of the acts heretofore specified or to promote lawful interests;
103.53(1)(h)
(h) Advising or notifying any person or persons of an intention to do any of the acts heretofore specified;
103.53(1)(i)
(i) Agreeing with other persons to do or not to do any of the acts heretofore specified;
103.53(1)(j)
(j) Advising, urging, or inducing without fraud, violence, or threat thereof, others to do the acts heretofore specified, regardless of any such undertaking or promise as is described in
s. 103.52; and
103.53(1)(k)
(k) Doing in concert any or all of the acts heretofore specified shall not constitute an unlawful combination or conspiracy;
103.53(1)(L)
(L) Peaceful picketing or patrolling, whether engaged in singly or in numbers, shall be legal.
103.53(2)
(2) No court, nor any judge or judges thereof, shall have jurisdiction to issue any restraining order or temporary or permanent injunction which, in specific or general terms, prohibits any person or persons from doing, whether singly or in concert, any of the foregoing acts.
103.535
103.535
Unlawful conduct in labor controversies. It shall be unlawful for anyone to picket, or induce others to picket, the establishment, employes, supply or delivery vehicles, or customers of anyone engaged in business, or to interfere with the person's business, or interfere with any person or persons desiring to transact or transacting business with the person, when no labor dispute, as defined in
s. 103.62 (3), exists between the employer and the employer's employes or their representatives.
103.535 History
History: 1993 a. 492.
103.54
103.54
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 (as these terms are defined in
s. 103.62) shall 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, both of (a) the doing of such acts by persons who are officers, members or agents of any such association or organization, and (b) actual participation in, or actual authorization of, such acts, or ratification of such acts after actual knowledge thereof by such association or organization.
103.545
103.545
Recruitment of strikebreakers. 103.545(1)(b)
(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 employes who are involved in a strike or lockout of a specific employer, but does not include any supervisory or other permanent employe of the employer who is temporarily assigned to perform the duties of an employe involved in a strike or lockout or other permanent or contractual employe 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.
103.545(2)
(2) No employer may knowingly employ or contract with another to employ any strikebreaker to replace employes who are on strike against the employer or locked out by it.
103.545(3)
(3) 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 employe in an industry or establishment where a strike or lockout exists.
103.545(4)
(4) 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 employes in an industry or establishment where a strike or lockout exists.
103.545(5)
(5) 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.
103.545(6)
(6) Upon complaint of an affected employer, labor organization or employe, 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.
103.55
103.55
Public policy as to labor litigation. In the interpretation and application of
ss. 103.56 to
103.59, the public policy of this state is declared to be:
103.55(1)
(1) 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 the reasons that:
103.55(1)(a)
(a) The existing state of affairs cannot be maintained but is necessarily altered by the injunction;
103.55(1)(b)
(b) 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;
103.55(1)(c)
(c) Error in issuing the injunctive relief is usually irreparable to the opposing party; and
103.55(1)(d)
(d) Delay incident to the normal course of appellate practice frequently makes ultimate correction of error in law or in fact unavailing in the particular case.
103.55 History
History: 1979 c. 110 s.
60 (9);
1985 a. 135.
103.56
103.56
Injunctions: conditions of issuance; restraining orders. 103.56(1)(1) No court nor any judge or judges thereof shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as defined in
s. 103.62, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of all the following facts by the court or judge or judges thereof:
103.56(1)(a)
(a) That unlawful acts have been threatened or committed and will be executed or continued unless restrained;
103.56(1)(b)
(b) That substantial and irreparable injury to complainant's property will follow unless the relief requested is granted;
103.56(1)(c)
(c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial thereof than will be inflicted upon defendants by the granting thereof;
103.56(1)(e)
(e) That complainant has no adequate remedy at law; and
103.56(1)(f)
(f) That the public officers charged with the duty to protect complainant's property have failed or are unable to furnish adequate protection.
103.56(2)
(2) Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to those public officers charged with the duty to protect complainant's property. Provided, however, that if a complainant shall also allege that unless a temporary restraining order shall be issued before such hearing may be had, a substantial and irreparable injury to complainant's property will be unavoidable, such a temporary restraining order may be granted upon the expiration of such reasonable notice of application therefor as the court may direct by order to show cause, but in no case less than forty-eight hours.
103.56(3)
(3) Such order to show cause shall be served upon such party or parties as are sought to be restrained and as shall be specified in said order, and then only upon testimony under oath, or in the discretion of the court, upon affidavits, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing as herein provided for.
103.56(4)
(4) Such a temporary restraining order shall be effective for no longer than five days, and at the expiration of said five days shall become void and not subject to renewal or extension, provided, however, that if the hearing for a temporary injunction shall have been begun before the expiration of the said five days the restraining order may in the court's discretion be continued until a decision is reached upon the issuance of the temporary injunction.
103.56(5)
(5) No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney's fee) and expense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.
103.56(6)
(6) The undertaking herein mentioned shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue an ordinary remedy by suit at law or in equity.
103.56 History
History: 1993 a. 492.
103.56 Annotation
Sub. (1) and 103.62, relating to limitations upon the jurisdiction of a court to issue injunctions in cases arising from labor disputes, are inapplicable to actions brought by the state or its political subdivisions against public employes. Joint School v. Wisconsin Rapids Ed. Asso. 70 W (2d) 292, 234 NW (2d) 289.
103.57
103.57
Clean hands doctrine. No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any legal obligation which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available machinery of governmental mediation or voluntary arbitration, but nothing herein contained shall be deemed to require the court to await the action of any such tribunal if irreparable injury is threatened.
103.58
103.58
Injunctions: contents. Except as provided in
s. 103.56, no restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and expressly included in said findings of fact made and filed by the court as provided herein; and shall be binding only upon the parties to the suit, their agents, servants, employes and attorneys, or those in active concert and participation with them, and who shall by personal service or otherwise have received actual notice of the same.
103.59
103.59
Injunctions: appeals. If any court issues or denies any temporary injunction in a case involving or growing out of a labor dispute, the court shall, upon the request of any party to the proceedings, and on filing the usual bond for costs, forthwith certify the entire record of the case, including a transcript of the evidence taken, to the appropriate appellate court for its review. Upon the filing of the record in the appropriate appellate court the appeal shall be given preference.
103.59 History
History: 1983 a. 219.
103.60
103.60
Contempt cases. If a person is charged with contempt under this chapter for violation of a restraining order or injunction issued by a court or judge or judges thereof, the accused shall enjoy:
103.60(1)
(1) The rights as to admission to bail that are accorded to persons accused of crime.
103.60(2)
(2) The right to be notified of the accusation and a reasonable time to make a defense, provided the alleged contempt is not committed in the immediate view or presence of the court.
