Is Right to Work in Wisconsin old news? After all, it was on March 9, 2015, that Gov.
Scott Walker signed Right to Work legislation, adding Wisconsin to a growing list of Right to Work states. While the law took effect immediately, employers and unions with collective bargaining agreements (CBA) in effect prior to the Governor’s signing were unaffected until those agreements with provisions inconsistent with Right to Work were modified, amended, or expired.
With many CBAs typically three years long, a number of employers and unions will head to the bargaining table this summer for the first time under Right to Work, now two years old. These employers and the unions should be aware of the new issues and unique challenges in the Right to Work environment.
For employers and unions operating under Right to Work, the law as drafted in Wisconsin presents unique challenges that employers should be aware of as they onboard and pay new employees:
Union Security Clauses in Collective Bargaining Agreements
Union security clauses are legal and enforceable for the term of a CBA in effect as of March 9, 2015. Union security clauses are void in agreements that are entered into, modified, renewed, or extended after this date.
Krista Ebbens, Iowa 2003, is general counsel and corporate secretary with J. F. Ahern Co.
in Fond du Lac, where she concentrates her practice on mechanical contracting issues and general corporate issues including, construction, contracting, and regulatory compliance.
Do all CBAs no longer have a union security clause?
Likely not. While time will tell, it is likely that unions may desire to preserve this clause in the event of a repeal of Right to Work.
What effect does it have on the agreement if the clause remains in but is void?
Probably none, but unions and employers will have to decide how this clause will be bargained when they meet at the negotiating table.
The Consent to Pay Dues Form and Union Employees
Prior to the enactment of Right to Work, many employers presented the Consent to Pay Dues Form to union employees for signature as part of general new hire paperwork. With Right to Work, Wis. Stat. section 111.06(1)(c) prohibits an employer from encouraging or discouraging membership in any labor organization in regards to hiring, tenure, or other terms of conditions of employment.
Does an employer presenting the Consent to Pay Dues Form to the union employee violate the statute?
It does if the employer’s representative during that process attempts to influence the union employee to sign or not sign the form. Given that the employer may have limited control over the environment in which the form is presented, a best practice would be for the employer to require the union to provide the form to the employer. Requiring the union to obtain the form and present it to the employer removes doubts about whether or not the employer may have attempted to persuade the potential union member to either pay or not pay dues. Under Right to Work statutes, the union has the ability to influence members’ decisions and educate them on the benefits of paying dues.
When Should Employers Start Withholding Employee Dues?
In order to comply with Right to Work statutes, an employer should not withhold dues until it has received the Consent to Pay Dues Form from the union. While construction is a fast-paced business, and construction workers frequently move between employers on short notice, an employer should not pay any administrative dues deduction until it receives a signed Consent to Pay Dues Form from the union. Back dues can be deducted once this is received, but dues should not be held on the presumption that a Consent to Pay Dues Form will be received.
Employers should also check their records to ensure that they have on file a Consent to Pay Dues Form for all union employees, not just those hired since their CBA became subject to Right to Work.
Two years later, Right to Work is not old news. Employers subject to a CBA are well-advised when they are aware of the practical implications of Right to Work, and work closely with their unions to ensure that their internal hiring and employee onboarding practices align with the requirements of the law.