The term “representative" includes any person chosen by an employee to represent the employee.
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:
Withholding patronage, labor or other beneficial business intercourse;
Refusing to handle, install, use or work on particular materials, equipment or supplies; or
The term “unfair labor practice" means any unfair labor practice as defined in s. 111.06
Rights of employees. 111.04(1)(1)
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.
Employees shall have the right to refrain from self-organization; forming, joining, or assisting labor organizations; bargaining collectively through representatives; or engaging in activities for the purpose of collective bargaining or other mutual aid or protection.
No person may require, as a condition of obtaining or continuing employment, an individual to do any of the following:
Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.
Pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.
Pay to any 3rd party an amount that is in place of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of, or employees represented by, a labor organization.
This subsection applies to the extent permitted under federal law. If a provision of a contract violates this subsection, that provision is void.
History: 2015 a. 1
Congress specifically reserved to the individual states the right to prohibit agreements that require employees to pay representative fees as a condition of employment. Passage of the right-to-work law in Wisconsin was within the province of the legislature. Sub. (3), as created by 2015 Wis. Act 1
, does not appropriate, transfer, or encumber money. Act 1 does not require labor organizations to provide services to anyone. Act 1 merely prohibits employers from requiring union membership or the payment of fees as a condition of employment. Unions have no constitutional entitlement to the fees of non-member employees. Machinists Local Lodge 1061 v. Walker, 2017 WI App 66
, 378 Wis. 2d 243
, 903 N.W.2d 141
Under the holding and reasoning of Sweeney
, 767 F.3d 654
(2014), 2015 Wis. Act 1
, and specifically sub. (3) (a) 3., is not preempted by the National Labor Relations Act and does not work an unconstitutional taking. International Union of Operating Engineers Local 139 v. Schimel, 210 F. Supp. 3d 1088
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.
Whenever a question arises concerning the determination of a collective bargaining unit, 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.
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.
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.
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.
See also chs. ERC 3
, and 17
, Wis. adm. code.
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:
To interfere with, restrain or coerce the employer's employees in the exercise of the rights guaranteed in s. 111.04
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.
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.
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, 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.
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.
To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.
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.
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.
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 by the employee giving to the employer at least 30 days' written notice of the termination. This paragraph applies to the extent permitted under federal law.
To employ any person to spy upon employees or their representatives respecting their exercise of any right created or approved by this subchapter.
To make, circulate or cause to be circulated a blacklist as described in s. 134.02
To commit any crime or misdemeanor in connection with any controversy as to employment relations.
It shall be an unfair labor practice for an employee individually or in concert with others:
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.
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.
To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.
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.
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.
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.
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.
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.
To commit any crime or misdemeanor in connection with any controversy as to employment relations.
To engage in, promote or induce a jurisdictional strike.
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)
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)
See also ch. ERC 2
, Wis. adm. code.
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
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
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
WERC is authorized by sub. (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, s. 2 nor does the procedure violate Art. I, s. 8. Layton School of Art & Design v. WERC, 82 Wis. 2d 324
, 262 N.W.2d 218
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).
Federal preemption of labor relations is discussed. Machinists v. WERC, 427 U.S. 132
The federal Labor Management Relations Act (a/k/a the Taft-Hartley Act) preempts Wisconsin's attempt in 2015 Wis. Act 1
to change the rules for payroll deductions that allow employees to pay union dues through dues-checkoff authorizations. Under the Taft-Hartley Act, a state simply is not allowed to impose its own view of how best to balance the interests of labor and management in zones that Congress deliberately left for resolution by collective bargaining. Under 29 USC 186 (c) (4), the Taft-Hartley Act leaves it to private actors—not the states—to decide how long a dues-checkoff authorization should last, as long as the authorization is individual, in writing, and not irrevocable for longer than one year. Sub. (1) (i) attempts to shorten this maximum period to 30 days. That attempt to add additional regulatory requirements for dues-checkoffs, and thus to change the scope of permissible collective bargaining, is preempted. International Ass'n of Machinists District Ten & Local Lodge 873 v. Allen, 904 F.3d 490
Duty to bargain over decision to mechanize operations. Boivin. 55 MLR 179.
Duty to bargain basic business decisions prior to implementation. 1971 WLR 1250.
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.
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.
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.
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.
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.
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.
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.
The commission may make findings and orders or may authorize an examiner to make findings and orders. Any party in interest who is dissatisfied with the findings or order may file a written petition with the commission 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 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 unless set aside, reversed, or modified by the commission or examiner within such time. If the findings or order are set aside by the commission 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, 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.
The commission shall have the power to remove or transfer the proceedings pending before an examiner. It may also, on its own motion, set aside, modify, or change any order, findings, or award, whether made by an examiner or by the commission, 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.
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
The order of the commission shall also be subject to review under ch. 227
Commencement of proceedings under sub. (7)
shall, unless otherwise specifically ordered by the court, operate as a stay of the commission's order.
Petitions filed under this section shall have preference over any civil cause of a different nature pending in the circuit court, shall be heard expeditiously, and the circuit courts shall always be deemed open for the trial thereof.
A substantial compliance with the procedure of this subchapter shall be sufficient to give effect to the orders of the commission, and they shall not be declared inoperative, illegal, or void for any omission of a technical nature in respect thereto.
A transcribed copy of the evidence and proceedings or any part thereof on any hearing taken by the stenographer appointed by the commission, being certified by such stenographer to be a true and correct transcript, carefully compared by the stenographer with the stenographer's original notes, and to be a correct statement of such evidence and proceedings, shall be received in evidence with the same effect as if such reporter were present and testified to the fact so certified.
The right of any person to proceed under this section shall not extend beyond one year from the date of the specific act or unfair labor practice alleged.