Chapter 111

111.02(6)(b)1. 1. Refused or failed to return to work upon the final disposition of a labor dispute or a charge of an unfair labor practice by a tribunal having competent jurisdiction of the same or whose jurisdiction was accepted by the employee or the employee’s representative;

111.02(6)(b)2. 2. Been found to have committed or to have been a party to any unfair labor practice hereunder;

111.02(6)(b)3. 3. Obtained regular and substantially equivalent employment elsewhere; or

111.02(6)(b)4. 4. Been absent from his or her employment for a substantial period of time during which reasonable expectancy of settlement has ceased (except by an employer’s unlawful refusal to bargain) and whose place has been filled by another engaged in the regular manner for an indefinite or protracted period and not merely for the duration of a strike or lockout.

111.02(6)(c) (c) “Employee” shall not include any individual employed in the domestic service of a family or person at the person’s home or any individual employed by his or her parent or spouse or any employee who is subject to the federal railway labor act.

111.02(7) (7) 

111.02(7)(a) (a) “Employer” means a person who engages the services of an employee, and includes a person acting on behalf of an employer within the scope of his or her authority, express or implied.

111.02(7)(b) (b) “Employer” does not include any of the following:

111.02(7)(b)1. 1. The state or any political subdivision thereof.

111.02(7)(b)2. 2. Any labor organization or anyone acting in behalf of such organization other than when it is acting as an employer in fact.

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(9g) (9g) “Labor organization” means any employee organization in which employees participate and that exists for the purpose, in whole or in part, of engaging in collective bargaining with any employer concerning grievances, labor disputes, wages, hours, benefits, or other terms or conditions of employment.

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(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)(b) (b) Picketing;

111.02(12)(c) (c) Refusing to handle, install, use or work on particular materials, equipment or supplies; or

111.02(12)(d) (d) Any other unlawful means.

111.02(13) (13) The term “unfair labor practice” means any unfair labor practice as defined in s. 111.06.

111.02 History History: 1979 c. 89; 1983 a. 189; 1993 a. 112, 492; 1995 a. 27, 225; 1999 a. 65, 83; 2009 a. 28, 185; 2011 a. 10; 2015 a. 1.

111.04 111.04 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.

111.04(2) (2) 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.

111.04(3) (3) 

111.04(3)(a) (a) No person may require, as a condition of obtaining or continuing employment, an individual to do any of the following:

111.04(3)(a)1. 1. Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.

111.04(3)(a)2. 2. Become or remain a member of a labor organization.

111.04(3)(a)3. 3. Pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.

111.04(3)(a)4. 4. 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.

111.04(3)(b) (b) This subsection applies to the extent permitted under federal law. If a provision of a contract violates this subsection, that provision is void.

111.04 History History: 2015 a. 1.

111.04 Annotation 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, 16-0820.

111.04 Annotation 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 (2016).

111.04 Annotation Affirmed. 863 F.3d 674 (2017).

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) 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.

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(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 History History: 1983 a. 189 s. 329 (4); 1993 a. 492; 1995 a. 27; 1999 a. 83; 2009 a. 28; 2011 a. 10.

111.05 Cross-reference Cross-reference: See also chs. ERC 3, 7, and 17, Wis. adm. code.

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) (c) 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.

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, 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.

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 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.

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)(i) (i) To fail to give the notice of intention to engage in a strike provided in s. 111.115 (3).

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 sub. (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 History History: 1971 c. 245; 1973 c. 320; 1975 c. 74, 199; 1983 a. 189 s. 329 (29); 1993 a. 492; 1995 a. 27, 225; 1999 a. 83; 2011 a. 10; 2015 a. 1; s. 35.17 correction in (2) (m).

111.06 Cross-reference Cross-reference: See also ch. ERC 2, Wis. adm. code.

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 The Wisconsin Employment Relations Commission 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 article VII, section 2, of the Wisconsin Constitution nor does the procedure violate article I, section 7. 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 National Labor Relations Act. Clarkin v. Dingeldein, 107 Wis. 2d 373, 320 N.W.2d 40 (Ct. App. 1982).

111.06 Annotation Discussing federal preemption of labor relations. Lodge 76, International Ass’n of Machinists v. WERC, 427 U.S. 132, 96 S. Ct. 2548, 49 L. Ed. 2d 396 (1976).

111.06 Annotation 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 (2018).

111.06 Annotation Labor Law: Duty to Bargain Over Decision to Mechanize Operations. Boivin. 55 MLR 179 (1972).

111.06 Annotation Labor Law—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) (2) 

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) (b)

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.