By: Thomas W. Mackenzie
We issued an E-Alert on April 13 addressing Right to Work. Since then, a number of clients have asked for further clarity on the status of Wisconsin’s Right to Work law following the issuance of the Dane County decision.
On April 8, 2016, a Dane County Circuit Court judge found unconstitutional the 2015 statute making Wisconsin the 25th Right to Work state. The law, which took effect on March 11, 2015, prohibited an employer and union to agree in a collective bargaining agreement that employees must be union members. The trial judge found that because federal law requires unions to represent all employees – union members or not – it is an unlawful taking of property to deny the union fair compensation in the form of union dues for the services the union provides to employees who would choose not to be union members.
The Wisconsin Attorney General (“AG”) appealed the decision to the Wisconsin Court of Appeals late last week. The trial court judge denied the AG’s request for a “stay” pending the appeal. We here at Lindner & Marsack anticipate that the AG will seek and likely be granted a “stay” from the Court of Appeals. We also join most experts in predicting that the Dane County court decision will be reversed on appeal.
In the interim, however, employers and employees are left in a quandary in how to proceed. In assessing the issue, employers fall into one of three camps. If your contract has not expired since the law’s passage in March, 2015 – your union security provision remains lawful. As your contract expires, you should seek legal counsel on how to approach the issue. Pending final resolution, unions will resist any argument that mandatory union membership is illegal in Wisconsin.
If your contract already expired and you eliminated all forms of union security from your contract, you need to do nothing. You have no language requiring union membership and your employees are free to choose to be members or refrain from union membership.
If, however, you fall in the third camp and you agreed to so called “snap-back” language that nullified your former union security clause only to the extent prohibited by law, the Dane County decision has put you in a legal gray area. Until the circuit court decision is “stayed” or reversed, you will need a strategy.
First, start with your “snap-back” language and determine whether the union has a claim that the union security clause has been “reactivated.” Second, wait and see how your union reacts. Some unions may elect not to push the issue until the judicial dust settles. Third, if your union insists on compliance with the union security which would mean the employer could be required to terminate an employee who fails to meet his or her dues obligation, the failure to terminate could trigger a grievance or an unfair labor practice charge. Delaying the matter while the grievance or NLRB charge is processed is one option. There are strong legal arguments that the Dane County decision only applies in Dane County and only applies to the Machinists (IAM), Steelworkers and the AFL-CIO, the plaintiffs in that case. The other option is to tell your reluctant union member employees that they should keep current on dues while the matter is resolved through the courts. If the non-members elect to satisfy the asserted dues obligation they might want to pay the union directly rather than using payroll deduction (so called dues checkoff). Signing a union dues authorization card would obligate the employer to deduct dues for up to a one year period, even if the Dane County decision is reversed.
Again, the issue is put on hold if the Court of Appeals or Wisconsin Supreme Court issues a “stay.” Likewise, it goes away altogether if the Court of Appeals or Wisconsin Supreme Court reverses the Circuit Court. These are likely outcomes, but until they occur, some unions may push the issue and force some hard choices while the matter plays out in the courts.
If you have questions about anything in this e-alert, feel free to call Tom Mackenzie or any other Lindner & Marsack attorney at 414-273-3910.