111.02(7)
(7) The term "employer" means a person who engages the services of an employee, and includes any person acting on behalf of an employer within the scope of his or her authority, express or implied, but shall not include the state or any political subdivision thereof, or any labor organization or anyone acting in behalf of such organization other than when it is acting as an employer in fact. For purposes of this subsection, a person who engages the services of an employee includes the University of Wisconsin Hospitals and Clinics Authority and a local cultural arts district created under
subch. V of ch. 229.
111.02(7m)
(7m) "Fair-share agreement" means an agreement between the University of Wisconsin Hospitals and Clinics Authority and a labor organization representing employees of that authority under which all of the employees in a collective bargaining unit are required to pay their proportionate share of the cost of the collective bargaining process and contract administration measured by the amount of dues uniformly required of all members.
111.02(8)
(8) The term "jurisdictional strike" shall mean a strike growing out of a dispute between 2 or more employees or representatives of employees as to the appropriate unit for collective bargaining, or as to which representative is entitled to act as collective bargaining representative, or as to whether employees represented by one or the other representative are entitled to perform particular work.
111.02(9)
(9) The term "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 such majority is affiliated may be considered a party to the labor dispute.
111.02(9m)
(9m) "Maintenance of membership agreement" means an agreement between the University of Wisconsin Hospitals and Clinics Authority and a labor organization representing employees of that authority which requires that all of the employees whose dues are being deducted from earnings under
s. 20.921 (1) or
111.06 (1) (i) at the time the agreement takes effect shall continue to have dues deducted for the duration of the agreement and that dues shall be deducted from the earnings of all employees who are hired on or after the effective date of the agreement.
111.02(10)
(10) The term "person" includes one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees or receivers.
111.02(10m)
(10m) ``Referendum" means a proceeding conducted by the commission in which employees of the University of Wisconsin Hospitals and Clinics Authority in a collective bargaining unit may cast a secret ballot on the question of directing the labor organization and the employer to enter into a fair-share or maintenance of membership agreement or to terminate such an agreement.
111.02(11)
(11) The term "representative" includes any person chosen by an employee to represent the employee.
111.02(12)
(12) The term "secondary boycott" shall include combining or conspiring to cause or threaten to cause injury to a person with whom no labor dispute exists in order to bring that person, against that person's will, into a concerted plan to coerce or inflict damage upon another, whether by:
111.02(12)(a)
(a) Withholding patronage, labor or other beneficial business intercourse;
111.02(12)(c)
(c) Refusing to handle, install, use or work on particular materials, equipment or supplies; or
111.02(13)
(13) The term "unfair labor practice" means any unfair labor practice as defined in
s. 111.06.
111.04
111.04
Rights of employees. Employees shall have the right of self-organization and the right to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection; and such employees shall also have the right to refrain from any or all of such activities.
111.05
111.05
Representatives and elections. 111.05(1)
(1) Representatives chosen for the purposes of collective bargaining by a majority of the employees voting in a collective bargaining unit shall be the exclusive representatives of all of the employees in such unit for the purposes of collective bargaining, provided that any individual employee or any minority group of employees in any collective bargaining unit shall have the right at any time to present grievances to their employer in person or through representatives of their own choosing, and the employer shall confer with them in relation thereto.
111.05(2)
(2) Except as provided in
sub. (5), whenever a question arises concerning the determination of a collective bargaining unit as defined in
s. 111.02 (3), it shall be determined by secret ballot, and the commission, upon request, shall cause the ballot to be taken in such manner as to show separately the wishes of the employees in any craft, division, department or plant as to the determination of the collective bargaining unit.
111.05(3)
(3) Whenever a question arises concerning the representation of employees in a collective bargaining unit the commission shall determine the representatives thereof by taking a secret ballot of employees and certifying in writing the results thereof to the interested parties and to their employer or employers. There shall be included on any ballot for the election of representatives the names of all persons submitted by an employee or group of employees participating in the election, except that the commission may, in its discretion, exclude from the ballot a person who, at the time of the election, stands deprived of the person's rights under this subchapter by reason of a prior adjudication of the person's having engaged in an unfair labor practice. The ballot shall be so prepared as to permit of a vote against representation by anyone named on the ballot. The commission's certification of the results of any election shall be conclusive as to the findings included therein unless reviewed in the same manner as provided by
s. 111.07 (8) for review of orders of the commission.
111.05(3g)
(3g) Notwithstanding
subs. (3) and
(4), if on June 30, 1997, there is a representative recognized or certified to represent any of the units specified in
s. 111.825 (1) (f) 1.,
5. or
9., that representative shall become the representative of the employees in the corresponding collective bargaining units specified in
sub. (5) (a) 1. to
3., without the necessity of filing a petition or conducting an election, subject to the right of any person to file a petition under this section on or after October 1, 1998.
111.05(3m)
(3m) Whenever an election has been conducted pursuant to
sub. (3) in which the name of more than one proposed representative appears on the ballot and results in no conclusion, the commission may, in its discretion, if requested by any party to the proceeding within 30 days from the date of the certification of the results of such election, conduct a runoff election. In such runoff election, the commission may drop from the ballot the name of the representative that received the least number of votes at the original election, or the privilege of voting against any representative when the least number of votes cast at the first election was against representation by any named representative.
111.05(4)
(4) Questions concerning the determination of collective bargaining units or representation of employees may be raised by petition of any employee or the employee's employer, or the representative of either of them. Where it appears by the petition that any emergency exists requiring prompt action, the commission shall act on the petition immediately and hold the election requested within such time as will meet the requirements of the emergency presented. The fact that one election has been held does not prevent the holding of another election among the same group of employees, provided that it appears to the commission that sufficient reason for another election exists.
111.05(5)(a)(a) Collective bargaining units for representation of the employees of the University of Wisconsin Hospitals and Clinics Authority shall include one unit for employees engaged in each of the following functions:
111.05(5)(b)
(b) Collective bargaining units for representation of the employees of the University of Wisconsin Hospitals and Clinics Authority who are engaged in a function not specified in
par. (a) shall be determined in the manner provided in this section. The creation of any collective bargaining unit for such employees is subject to approval of the commission. The commission shall not permit fragmentation of such collective bargaining units or creation of any such collective bargaining unit that is too small to provide adequate representation of employees. In approving such collective bargaining units, the commission shall give primary consideration to the authority's needs to fulfill its statutory missions.
111.05(6)
(6) If a single representative is recognized or certified to represent more than one of the collective bargaining units specified in
sub. (5), that representative and the employer may jointly agree to combine the collective bargaining units, subject to the right of the employees in any of the collective bargaining units that were combined to petition for an election under
subs. (3) and
(3g). Any agreement under this subsection is effective upon written notice of the agreement by the parties to the commission and terminates upon written notice of termination by the parties to the commission or upon decertification of the representative entering into the agreement as representative of one of the combined collective bargaining units, whichever occurs first.
111.06
111.06
What are unfair labor practices. 111.06(1)
(1) It shall be an unfair labor practice for an employer individually or in concert with others:
111.06(1)(a)
(a) To interfere with, restrain or coerce the employer's employees in the exercise of the rights guaranteed in
s. 111.04.
111.06(1)(b)
(b) To initiate, create, dominate or interfere with the formation or administration of any labor organization or contribute financial support to it, provided that an employer shall not be prohibited from reimbursing employees at their prevailing wage rate for the time spent conferring with the employer, nor from cooperating with representatives of at least a majority of the employer's employees in a collective bargaining unit, at their request, by permitting employee organizational activities on company premises or the use of company property facilities where such activities or use create no additional expense to the company, provided, however, that it shall not be an unfair labor practice for an employer to become a member of the same labor organization of which the employer's employees are members, when the employer and the employer's employees work at the same trade.
111.06(1)(c)1.1. To encourage or discourage membership in any labor organization, employee agency, committee, association or representation plan by discrimination in regard to hiring, tenure or other terms or conditions of employment except in a collective bargaining unit where an all-union, fair-share or maintenance of membership agreement is in effect. An employer is not prohibited from entering into an all-union agreement with the voluntarily recognized representative of the employees in a collective bargaining unit, where at least a majority of such employees voting have voted affirmatively, by secret ballot, in favor of such all-union agreement in a referendum conducted by the commission, except that where the bargaining representative has been certified by either the commission or the national labor relations board as the result of a representation election, no referendum is required to authorize the entry into such an all-union agreement. Such authorization of an all-union agreement shall be deemed to continue thereafter, subject to the right of either party to the all-union agreement to petition the commission to conduct a new referendum on the subject. Upon receipt of such petition, the commission shall determine whether there is reasonable ground to believe that the employees concerned have changed their attitude toward the all-union agreement and upon so finding the commission shall conduct a referendum. If the continuance of the all-union agreement is supported on any such referendum by a vote at least equal to that provided in this subdivision for its initial authorization, it may be continued in force thereafter, subject to the right to petition for a further vote by the procedure set forth in this subdivision. If the continuance of the all-union agreement is not thus supported on any such referendum, it is deemed terminated at the termination of the contract of which it is then a part or at the end of one year from the date of the announcement by the commission of the result of the referendum, whichever is earlier. The commission shall declare any all-union agreement terminated whenever it finds that the labor organization involved has unreasonably refused to receive as a member any employee of such employer, and each such all-union agreement shall be made subject to this duty of the commission. Any person interested may come before the commission as provided in
s. 111.07 and ask the performance of this duty. Any all-union agreement in effect on October 4, 1975, made in accordance with the law in effect at the time it is made is valid.
111.06(1)(c)2.
2. It is not a violation of this subchapter for an employer engaged primarily in the building and construction industry where the employees of such employer in a collective bargaining unit usually perform their duties on building and construction sites, to negotiate, execute and enforce an all-union agreement with a labor organization which has not been subjected to a referendum vote as provided in this subchapter.
111.06(1)(c)3.
3. It is not a violation of this subchapter for an employer engaged in the truck transportation of freight in the motor freight industry as a common or contract carrier of property as defined in
s. 194.01 (1) and
(2) to negotiate, execute and enforce an all-union agreement with a labor organization representing employees in a multi-state bargaining unit which has not been subjected to a referendum vote as provided in this subchapter; except that an election shall be held if a petition requesting such election is signed by 30% of the employees affected.
111.06(1)(c)4.
4. It is not a violation of this subchapter for an orchestra or band leader engaged to provide live musical entertainment to enter into or comply with a policy, practice or contract in which all of the musicians must be members of a labor organization as a condition of hire or employment without such policy, practice or contract being subject to a referendum vote as provided in this subchapter.
111.06(1)(d)
(d) To refuse to bargain collectively with the representative of a majority of the employer's employees in any collective bargaining unit with respect to representation or terms and conditions of employment, except as provided under
ss. 111.05 (5) and
111.17 (2); provided, however, that where an employer files with the commission a petition requesting a determination as to majority representation, the employer shall not be deemed to have refused to bargain until an election has been held and the result thereof has been certified to the employer by the commission.
111.06(1)(e)
(e) To bargain collectively with the representatives of less than a majority of the employer's employees in a collective bargaining unit, or to enter into an all-union agreement except in the manner provided in
par. (c).
111.06(1)(f)
(f) To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.
111.06(1)(g)
(g) To refuse or fail to recognize or accept as conclusive of any issue in any controversy as to employment relations the final determination, after appeal, if any, of any tribunal having competent jurisdiction of the same or whose jurisdiction the employer accepted.
111.06(1)(h)
(h) To discharge or otherwise discriminate against an employee because the employee has filed charges or given information or testimony in good faith under the provisions of this subchapter.
111.06(1)(i)
(i) To deduct labor organization dues or assessments from an employee's earnings, unless the employer has been presented with an individual order therefor, signed by the employee personally, and terminable at the end of any year of its life by the employee giving at least thirty days' written notice of such termination unless there is an all-union, fair-share or maintenance of membership agreement in effect. The employer shall give notice to the labor organization of receipt of such notice of termination.
111.06(1)(j)
(j) To employ any person to spy upon employees or their representatives respecting their exercise of any right created or approved by this subchapter.
111.06(1)(k)
(k) To make, circulate or cause to be circulated a blacklist as described in
s. 134.02.
111.06(1)(L)
(L) To commit any crime or misdemeanor in connection with any controversy as to employment relations.
111.06(2)
(2) It shall be an unfair labor practice for an employee individually or in concert with others:
111.06(2)(a)
(a) To coerce or intimidate an employee in the enjoyment of the employee's legal rights, including those guaranteed in
s. 111.04, or to intimidate the employee's family, picket the employee's domicile, or injure the person or property of the employee or the employee's family.
111.06(2)(b)
(b) To coerce, intimidate or induce any employer to interfere with any of the employer's employees in the enjoyment of their legal rights, including those guaranteed in
s. 111.04, or to engage in any practice with regard to the employer's employees which would constitute an unfair labor practice if undertaken by the employer on the employer's own initiative.
111.06(2)(c)
(c) To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.
111.06(2)(d)
(d) To refuse or fail to recognize or accept as conclusive of any issue in any controversy as to employment relations the final determination, after appeal, if any, of any tribunal having competent jurisdiction of the same or whose jurisdiction the employees or their representatives accepted.
111.06(2)(e)
(e) To cooperate in engaging in, promoting or inducing picketing that does not constitute an exercise of constitutionally guaranteed free speech, boycotting or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employees of an employer against whom such acts are primarily directed have voted by secret ballot to call a strike.
111.06(2)(f)
(f) To hinder or prevent, by mass picketing, threats, intimidation, force or coercion of any kind the pursuit of any lawful work or employment, or to obstruct or interfere with entrance to or egress from any place of employment, or to obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance.
111.06(2)(g)
(g) To engage in a secondary boycott; or to hinder or prevent, by threats, intimidation, force, coercion or sabotage, the obtaining, use or disposition of materials, equipment or services; or to combine or conspire to hinder or prevent, by any means whatsoever, the obtaining, use or disposition of materials, equipment or services, provided, however, that nothing herein shall prevent sympathetic strikes in support of those in similar occupations working for other employers in the same craft.
111.06(2)(h)
(h) To take unauthorized possession of property of the employer or to engage in any concerted effort to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike.
111.06(2)(j)
(j) To commit any crime or misdemeanor in connection with any controversy as to employment relations.
111.06(2)(L)
(L) To engage in, promote or induce a jurisdictional strike.
111.06(2)(m)
(m) To coerce or intimidate an employer working at the same trade of the employer's employees to induce the employer to become a member of the labor organization of which they are members, permissible pursuant to
s. 111.06 (1) (b).
111.06(3)
(3) It shall be an unfair labor practice for any person to do or cause to be done on behalf of or in the interest of employers or employees, or in connection with or to influence the outcome of any controversy as to employment relations any act prohibited by
subs. (1) and
(2).
111.06 Annotation
A company is not required to bargain over a decision to use equipment that eliminates jobs, but it is required to bargain over the effects of the decision on the rights of the employees to severance pay, seniority, and related issues. Libby, McNeill & Libby v. WERC,
48 Wis. 2d 272,
179 N.W.2d 805 (1970).
111.06 Annotation
Federal law has preempted the question of whether a union rule imposing a fine for exceeding production ceilings constitutes an unfair labor practice. UAW, Local 283 v. Scofield,
50 Wis. 2d 117,
183 N.W.2d 103 (1971).
111.06 Annotation
The failure to exhaust the available grievance remedies by an employee who was allegedly discharged in violation of the contract precluded recourse to the courts absent a wrongful refusal by the union to process the employee's grievance. Mahnke v. WERC,
66 Wis. 2d 524,
225 N.W.2d 617 (1975).
111.06 Annotation
WERC is authorized by s. 111.06 (1) (L) to determine whether conduct in violation of criminal law has occurred. Such authorization is not a delegation of judicial power in violation of Art. VII, sec. 2 nor does the procedure violate Art. I, sec. 8. Layton School of Art & Design v. WERC,
82 Wis. 2d 324,
262 N.W.2d 218 (1978).
111.06 Annotation
State jurisdiction was preempted when a secondary boycott violated the federal act. Clarkin v. Dingeldein,
107 Wis. 2d 373,
320 N.W.2d 40 (Ct. App. 1982).
111.06 AnnotationFederal preemption of labor relations is discussed. Machinists v. WERC,
427 U.S. 132.
111.06 Annotation
Duty to bargain over decision to mechanize operations. Boivin, 55 MLR 179.
111.06 Annotation
Duty to bargain basic business decisions prior to implementation. 1971 WLR 1250.
111.07
111.07
Prevention of unfair labor practices. 111.07(1)
(1) Any controversy concerning unfair labor practices may be submitted to the commission in the manner and with the effect provided in this subchapter, but nothing herein shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction.
111.07(2)(a)(a) Upon the filing with the commission by any party in interest of a complaint in writing, on a form provided by the commission, charging any person with having engaged in any specific unfair labor practice, it shall mail a copy of such complaint to all other parties in interest. Any other person claiming interest in the dispute or controversy, as an employer, an employee, or their representative, shall be made a party upon application. The commission may bring in additional parties by service of a copy of the complaint. Only one such complaint shall issue against a person with respect to a single controversy, but any such complaint may be amended in the discretion of the commission at any time prior to the issuance of a final order based thereon. The person or persons so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the notice of hearing. The commission shall fix a time for the hearing on such complaint, which will be not less than 10 nor more than 40 days after the filing of such complaint, and notice shall be given to each party interested by service on the party personally or by mailing a copy thereof to the party at the party's last-known post-office address at least 10 days before such hearing. In case a party in interest is located without the state and has no known post-office address within this state, a copy of the complaint and copies of all notices shall be filed with the department of financial institutions and shall also be sent by registered mail to the last-known post-office address of such party. Such filing and mailing shall constitute sufficient service with the same force and effect as if served upon the party located within this state. Such hearing may be adjourned from time to time in the discretion of the commission and hearings may be held at such places as the commission shall designate.
111.07(2)(b)1.1. The commission shall have the power to issue subpoenas and administer oaths. Depositions may be taken in the manner prescribed by
s. 103.005 (13) (c). No person may be excused from attending and testifying or from producing books, records, correspondence, documents or other evidence in obedience to the subpoena of the commission on the ground that the testimony or evidence required of him or her may tend to incriminate him or her or subject him or her to a penalty or forfeiture under the laws of the state of Wisconsin; but no individual may be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, documentary or otherwise, before the commission in obedience to a subpoena issued by it; provided, that an individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
111.07(2)(c)
(c) Any person who shall willfully and unlawfully fail or neglect to appear or testify or to produce books, papers and records as required, shall, upon application to a circuit court, be ordered to appear before the commission, there to testify or produce evidence if so ordered, and failure to obey such order of the court may be punished by the court as a contempt thereof.
111.07(2)(d)
(d) Each witness who appears before the commission by its order or subpoena at the request of the commission on its own motion shall receive for his or her attendance the fees and mileage provided for witnesses in civil cases in courts of record, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the chairperson of the commission and charged to the appropriation under
s. 20.425 (1) (a). Each witness who appears before the commission as a result of an order or subpoena issued by the commission at the request of a party shall receive for his or her attendance the fees and mileage as provided for witnesses in civil cases in courts of record, which shall be paid by the party requesting the order or subpoena in advance of the time set in the order or subpoena for attendance.
111.07(3)
(3) A full and complete record shall be kept of all proceedings had before the commission, and all testimony and proceedings shall be taken down by the reporter appointed by the commission. Any such proceedings shall be governed by the rules of evidence prevailing in courts of equity and the party on whom the burden of proof rests shall be required to sustain such burden by a clear and satisfactory preponderance of the evidence.
111.07(4)
(4) Within 60 days after hearing all testimony and arguments of the parties the commission shall make and file its findings of fact upon all of the issues involved in the controversy, and its order, which shall state its determination as to the rights of the parties. Pending the final determination by it of any controversy before it the commission may, after hearing, make interlocutory findings and orders which may be enforced in the same manner as final orders. Final orders may dismiss the charges or require the person complained of to cease and desist from the unfair labor practices found to have been committed, suspend the person's rights, immunities, privileges or remedies granted or afforded by this subchapter for not more than one year, and require the person to take such affirmative action, including reinstatement of employees with or without pay, as the commission deems proper. Any order may further require the person to make reports from time to time showing the extent to which the person has complied with the order.
111.07(5)
(5) The commission may authorize a commissioner or examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order of a commissioner or examiner may file a written petition with the commission as a body to review the findings or order. If no petition is filed within 20 days from the date that a copy of the findings or order of the commissioner or examiner was mailed to the last-known address of the parties in interest, such findings or order shall be considered the findings or order of the commission as a body unless set aside, reversed or modified by such commissioner or examiner within such time. If the findings or order are set aside by the commissioner or examiner the status shall be the same as prior to the findings or order set aside. If the findings or order are reversed or modified by the commissioner or examiner the time for filing petition with the commission shall run from the time that notice of such reversal or modification is mailed to the last-known address of the parties in interest. Within 45 days after the filing of such petition with the commission, the commission shall either affirm, reverse, set aside or modify such findings or order, in whole or in part, or direct the taking of additional testimony. Such action shall be based on a review of the evidence submitted. If the commission is satisfied that a party in interest has been prejudiced because of exceptional delay in the receipt of a copy of any findings or order it may extend the time another 20 days for filing a petition with the commission.
111.07(6)
(6) The commission shall have the power to remove or transfer the proceedings pending before a commissioner or examiner. It may also, on its own motion, set aside, modify or change any order, findings or award, whether made by an individual commissioner, an examiner, or by the commission as a body, at any time within 20 days from the date thereof if it shall discover any mistake therein, or upon the grounds of newly discovered evidence.
111.07(7)
(7) If any person fails or neglects to obey an order of the commission while the same is in effect the commission may petition the circuit court of the county wherein such person resides or usually transacts business for the enforcement of such order and for appropriate temporary relief or restraining order, and shall certify and file in the court its record in the proceedings, including all documents and papers on file in the matter, the pleadings and testimony upon which such order was entered, and the findings and order of the commission. Upon such filing the commission shall cause notice thereof to be served upon such person by mailing a copy to the last-known post-office address, and thereupon the court shall have jurisdiction of the proceedings and of the question determined therein. Said action may thereupon be brought on for hearing before said court upon such record by the commission serving 10 days' written notice upon the respondent; subject, however, to provisions of law for a change of the place of trial or the calling in of another judge. Upon such hearing the court may confirm, modify, or set aside the order of the commission and enter an appropriate decree. No objection that has not been urged before the commission shall be considered by the court unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact made by the commission, if supported by credible and competent evidence in the record, shall be conclusive. The court may, in its discretion, grant leave to adduce additional evidence where such evidence appears to be material and reasonable cause is shown for failure to have adduced such evidence in the hearing before the commission. The commission may modify its findings as to facts, or make new findings by reason of such additional evidence, and it shall file such modified or new findings with the same effect as its original findings and shall file its recommendations, if any, for the modification or setting aside of its original order. The court's judgment and decree shall be final except that the same shall be subject to review by the court of appeals in the same manner as provided in
s. 102.25.
111.07(8)
(8) The order of the commission shall also be subject to review under
ch. 227.
111.07(10)
(10) Commencement of proceedings under
sub. (7) shall, unless otherwise specifically ordered by the court, operate as a stay of the commission's order.
