MacIver News Service | Aug. 30, 2018
By M.D. Kittle
MADISON – Wisconsin employers or labor groups that require workers to join a union or pay dues – a Class A misdemeanor under the Badger State’s right-to-work law – could face a fine of $10,000, nine months in jail, or both.
But they probably won’t.
While the 2015 law is clear on penalties for violators, apparently enforcement has yet to be tested.
The Wisconsin Employment Relations Commission (WERC) up until recently hadn’t received complaints involving conditional employment allegations, according to agency chairman James Daley.
That doesn’t mean there haven’t been violations of the law.
Mark Mix, president of the National Right to Work Legal Defense Foundation, said Wisconsin and the nation’s 26 other right-to-work states have seen an increase in unions attempting to skirt the laws – designed to protect union and non-union workers alike.
As MacIver News Service reported last week, some employers continue to post job ads with union membership requirements. In one case, Pewaukee-based Total Mechanical posted multiple online ads seeking a residential HVAC service technician/installer. The position comes with a requirement that the prospective employee join the union.
“TOTAL Residential is a union shop; if not already a member of Sheet Metal Workers Union Local 18, individual will be required to join,” the ad declares.
That requirement is illegal under Wisconsin law.
Section 111.04 spells out the rights of employees in the right-to-work Badger State. No employer may require, as a condition of obtaining or continuing employment, an employee “(b)ecome or remain a member of a labor organization.” An employee also cannot be compelled to, “Pay dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value to a labor organization.”
WERC notes that controversies concerning unfair labor practices may be submitted to the commission, “but nothing therein shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction.”
In fact, criminal charges may only be brought by the district attorney of the county where the right-to-work violation is alleged to have occurred, according to Daley.
In the days following the implementation of the law, the Progressive magazine reported that staffers in DAs offices in Madison and Milwaukee, run by highly partisan Democrat district attorneys, were caught by surprise. They had no idea that county prosecutors would be responsible for bringing criminal charges in right-to-work cases. Madison staff, the Progressive reported, thought violations were a civil matter.
“There’s been no coordination with us about right to work,” Dane County District Attorney Ismael Ozanne griped to the liberal publication at the time. “If the legislature makes a penalty, they may or may not communicate with us about it.” Ismael said any complaint of a criminal violation would first have to be investigated by local police and, if there’s merit, “They would refer it to the DA.”
State Sen. Duey Stroebel (R-Saukville), who made right-to-work legislation the centerpiece of his 2014 Senate campaign, said state law is very clear: no worker in Wisconsin can be forced to join a union in order to get a job or keep it. And no worker can be prevented from joining a union under state law.
“Workers who face these sorts of demands should reach out to their local district attorneys,” the senator said.
Stroebel said labor unions have been trying to get around worker freedom laws since their implementation.
Mix, of the National Right to Work Legal Defense Foundation, agrees. He said requiring someone to join a union as a condition of employment is even more egregious, surpassing legal demands laid out in the early days of government-protected organized labor.
“If you remember back in 1935 when the National Labor Relations Act, then known as the Wagner Act, passed. You had to formally be a member of a private organization,” Mix said. “When people started looking at that they said, ‘Wait a minute, we’ve gone too far.’ You can be forced to pay up to 100 percent of dues to get a job in a non-right-to-work-state but you can’t be forced to be a member of a private organization.”
“It’s doubly illegal,” Mix added. “The idea that you must join the union is a violation and then the fact that you have to participate and pay fees in any way is a violation of Wisconsin law.”
Daley, the chairman of the Wisconsin Employment Relations Commission, could not speak to individual cases but confirmed that the agency has received two right-to-work law complaints in recent weeks.
Asked about the penalties for violating the right-to-work law, Daley said that if there is a “bad actor” WERC would have to look at the actions and “attempt to find a remedy in equity for that violation.”
Legal remedies, again, would have to come from local law enforcement and the criminal court system.