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​Wisconsin Poised to Adopt Right to Work Law: Practical Consequences for Wisconsin Employers

Labor & Employment Law Alert Michael Aldana, David B. Kern

The Wisconsin State Senate passed a “Right to Work” bill (S.B. 44) on February 26th and the Assembly will begin debate on the legislation this week. Governor Walker is expected to sign the legislation if passed by the legislature and if he does, Wisconsin will become the 25th state with a right-to-work law limiting union security agreements.

If enacted in its current form, the biggest change for most unionized employers will be that employees will not be required to pay union dues as a condition of employment. Even if the law passes, employers should understand the limits of the law. First, unions will not evaporate overnight and existing union security clauses are not immediately illegal. Employers must keep in mind that they are still covered by the National Labor Relations Act and are still required to comply with employee rights under Section 7 of that law whether or not those employees are members of a union.

Due to the media attention given to this issue, it is critical that managers and supervisors be educated about the implications of the Wisconsin Right-to-Work legislation, so they can effectively and legally address employee questions and confront any union arguments.

What Will Right To Work Legislation Mean for Wisconsin Employers?

Here are some commonly asked questions about the impact of Right To Work legislation on your business.

What does a "right to work" law generally mean?

Under most right-to-work laws, “union security” clauses are illegal. Specifically, under the proposed right-to-work law here in Wisconsin, the legislation will prohibit future collective bargaining agreements from requiring an employee, as a condition of employment, to become or remain a union member or to pay any union dues, fees, assessments, charges, or other expenses to a union.

If our company has a current labor agreement in effect with a union security provision, is that provision illegal and unenforceable upon the enactment of the new law?

No. If the labor agreement is in effect on the effective date of the new law, a union security clause will still remain in effect for the term of the labor agreement. However, if the labor agreement is entered into, modified, renewed or extended after the effective date of the law, then as of that time, the union security clause in the agreement is no longer enforceable.

My company is non-union. What impact will this law have on our business?

In some ways, it may be easier for a union to attempt to organize. The law may weaken one of the main employer arguments against joining a union – avoiding the cost of dues, fees assessments, initiation fees and union rules. The law may make it easier for an employee to decide to vote for a union if union representation actually doesn't cost the employee anything in the way of union dues. The law may open the door to union pressure tactics to sign authorization cards since employees will not be required to join a union.

Are dues check-off provisions in a labor agreement illegal under the new law?

The proposed Right to Work legislation will not affect current dues check-off provisions. Any such provisions are still enforceable unless and until the parties agree to remove it during negotiations.

If our labor contract has a dues check-off clause, are we still required to continue to check-off the dues of employees who want to stay in the union and have agreed to pay union dues under signed authorization cards?

Yes. The check-off clause remains in effect for employees who choose to remain union members and who wish to have their union dues checked-off under the contractual check-off provision.

When the current labor agreement expires, can the Company unilaterally delete the union security/union shop clause?

If a labor agreement expires on or after the effective date of the new law, the employer can stop implementing the union security/union shop clause and must honor any employee's request to cancel his/her union dues check off. However, the employer is required to negotiate over the removal or retention of a dues check off clause.

Will resigning from the union affect an employee's job rights?

No. Employees will continue to be covered under the current labor agreement and have the same rights as do union members.

If an employee resigns from the union, must the union continue to represent him/her?

Yes. By law, the union must continue to represent non-union employees in negotiations and contract administration as long as it is the bargaining representative of the bargaining unit.

Is it legal for an employer to tell its workers about their rights under the proposed Right to Work law?

Yes. A company can tell employees:

(1) that the new Right to Work law was adopted;

(2) that, after the current labor agreement expires, they will no longer be required to be union members or pay union dues as a condition of employment; and

(3) that they have the right to resign union membership and stop dues check-off following the termination of the current labor agreement, if they choose.

However, businesses should be careful about how this information is relayed to employees, because, as noted above, the NLRA still applies, and employers cannot actively encourage employees to decertify a union. Businesses should consider consulting legal counsel about crafting communications regarding the impact of the new law.

Since the consequences of this new law will be developing for some time, it is critical that businesses stay informed and understand the new dynamic this law will create.

If you have questions or would like to discuss the legislation and its impact, please contact Mike Aldana at (414) 277-5151 / michael.aldana@quarles.com or other members of Quarles & Brady's NLRA team here in Wisconsin - Dave Kern at (414) 277-5653 / david.kern@quarles.com, Fred Gants at (608) 283-2618 / fred.gants@quarles.com, or Judi Williams-Killackey at (414) 277-5439 / judi.williams@quarles.com.