April 28, 2010Client Alert

Governor to Decide Whether to Limit Employers’ Ability to Meet With Workers During Union Organizing Campaigns

In the scramble to finish its work before the clock ran out on April 22nd, the Wisconsin Legislature last week passed 2009 Senate Bill 585 (“the Bill”), which, if signed into law by Governor Doyle, will limit an employer’s ability to communicate with employees during a union organizing campaign. Specifically, the Bill amends Wisconsin Statutes Section 111.31(3) to prohibit an employer from discriminating against any individual on the basis of “declining to attend a meeting or to participate in any communication about religious matters or political matters.” The Bill defines “political matters” to include “political party affiliation, a political campaign, an attempt to influence legislation, or the decision to join or not join, or to support or not to support, any lawful political group, constituent group, or political or constituent group activity.”

The Bill Will Disadvantage Employers
While the Bill, if enacted, would, for example, prohibit an employer from forcing employees to attend a meeting in support of a particular political party, it would also limit the ability of employers to have meetings with employees during union organizing campaigns. Such meetings are commonplace and specifically allowed under current law. Meetings at the workplace are a primary means by which employers communicate the realities of union membership, facts about union workplaces, and the advantages in their view of remaining union-free. While the Bill also prohibits “labor organizations” (i.e., unions) from discriminating against an individual for declining to attend similar union-sponsored meetings, as a practical matter, unions rarely are the employing entity, which is the regulated subject of this Bill.

The Bill, therefore, will tilt the union organizing playing field in unions’ favor and disadvantage employers. Accordingly, employers are voicing opposition against the Bill. For example, the Wisconsin Manufacturers & Commerce (“WMC”), an organization that represents business interests, has publicly criticized the Bill and argued against its passage. [See WMC Website:]

Five More Charges a Year?
In preparing its fiscal estimate, the Wisconsin Department of Workforce Development (“DWD”) makes the following assumptions. First, in 2009, 3,242 complainants filed employment discrimination complaints involving 5,165 separate bases of discrimination with the DWD. Of that total, 1 percent of the complaints involved the issue of religion or creed. Since SB 585 “slightly expands” these protections, the DWD estimates passage of the Bill will result in “less than five additional complaints filed each year.” Hmmm? Anyone want to bet that, an employee or labor organization that feels a new workplace right has been violated will resist filing a charge? Anyone want to bet there will be more than five complaints filed in the first year?

ERD Now Will Hear Cases NLRB Heard Before
Under the Wisconsin Fair Employment Act (“WFEA”), the Equal Rights Division (“ERD”) is the division of the DWD that hears and decides complaints. The ERD investigation unit, and its hearing unit, is experienced in handling employment discrimination claims involving race, sex, disability, and other forms of protected characteristics of the worker in the employment relationship. Now they will be called upon to decide whether certain conduct -- speech relating to "political matters" including labor organizations between the employer and employee -- and resulting adverse employment action, constitute a violation of the amended WFEA. Under current law and the current regulatory scheme, cases involving speech or conduct occurring in the context of union organizing campaigns are decided by the National Labor Relations Board ("NLRB") nearly exclusively. This amendment sweeps into the WFEA and before the ERD an entire set of conduct and speech. Through no fault of its own, the ERD has no prior experience or expertise in resolving disputes between unions, employees, or employers in this context.

Is the Bill Constitutional?
As a legal matter, we believe the Bill is preempted by the National Labor Relations Act (“NLRA”). While the NLRA has no specific pre-emption provision, courts have held that a state statute may still be preempted if it conflicts with federal law, would frustrate the federal scheme, or if the totality of the circumstances make clear that Congress sought to occupy the field to the exclusion of the states. In the NLRA context, the two most recognized types of preemption that may apply to preempt the Bill are so-called Garmon and Machinists preemption. Garmon preemption prohibits state regulation that impinges on the regulatory jurisdiction of the NLRB in regulating activities that are protected by Section 7 of the NLRA or constitute an unfair labor practice under Section 8 of the NLRA. Machinists preemption, on the other hand, prohibits state regulation of conduct that Congress intended to be left to be controlled by the free-play of economic forces.

The NLRA currently regulates the conduct of speech of unions, employers and employees during a union organizing campaign. That federal law preempts state and local laws nearly entirely, with the limited exception being a state's exercise of police powers to prevent threats of violence or other public safety issues relating to persons or property. This Wisconsin law would now allow an employee to walk out of an employer's meeting or object as soon as the subject turns to a "political matter" which includes support or non support of a labor organization. There is no public safety or health issue at stake. One can imagine staged walk outs, planted questions and other tactics to test the lines of when the meeting turns "political." The NLRA is a well developed body of law that has regulated this conduct and speech for decades and has pre-emptive effect over Wisconsin's attempt to regulate these federal matters.

Next Steps
Governor Doyle has 6 days (not including Sundays) after official receipt of the Bill to approve or veto it. If the governor does not act on the Bill within that timeframe (which is unlikely), the Bill becomes law without his signature. The 2009-2010 Session Schedule requires bills to be sent to the Governor by May 13, 2010, though he may act before then by requesting the chief clerk to transmit the official copy of the Bill to the Governor’s office.

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