Giving the Unions Their Dues: NLRB ALJ Finds Partial Preemption of Wisconsin Right-to-Work Law

by Seyfarth Shaw LLP
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Seyfarth Synopsis: Administrative Law Judge found that the NLRA preempts part of Wisconsin’s right-to-work law that restricts employers from deducting union dues directly from employees’ paychecks.

If you are an avid reader of our blog, you will undoubtedly recall that approximately two years ago, Wisconsin became the then-25th right-to-work state when it enacted legislation that made union security agreements requiring workers to pay union dues as a condition of employment illegal. In addition, the law also made it an unfair labor practice for an employer to collect dues from workers’ wages unless an employee directed it to do so by written notice, which was revocable with 30 days notice.

Almost two years to the day that the legislation was enacted, Administrative Law Judge Charles J. Muhl, a former NLRB attorney, found that the Wisconsin law was partially preempted by the National Labor Relations Act. Metalcraft of Mayville Inc. and District Lodge 10, International Association of Machinists, Case No. 18-CA-178322.

The parties’ collective bargaining agreement contained a dues check-off provision and was set to renew in June 2016, at which point, the contract would become subject to the Wisconsin right-to-work law. The employer initiated communications with the union in April to discuss the Wisconsin law’s impact on the contract.  The employer informed the union of its belief that the dues-checkoff provision would be unlawful once the law applied.  Two days prior to the renewal date of the contract, the employer informed the union that it would not enforce this provision.  The employer then sent several letters to employees intended to answer questions about the contract renewal, the right-to-work law, and the nature of paying union dues going forward.

A few days after the employer stopped remitting dues, the union filed a grievance, claiming that the employer violated section 8(a)(5) the NLRA by unilaterally changing working conditions by rescinding the dues-checkoff clause of their contract without bargaining. In response, the employer argued the Wisconsin right-to-work law required that it rescind its dues check-off.

In the decision, the ALJ concluded that the NLRA allowed Wisconsin the authority to “enact prohibitions on union security” but “preempts the state’s attempt to regulate dues checkoff.”  Specifically, the ALJ found that because the NLRA requires dues authorization forms be terminated with a year’s notice and the Wisconsin law minimizes the window to a 30-day period, “[t]he two provisions are directly at odds with one another” and, accordingly, “the provisions of Wisconsin’s law addressing that topic are preempted.”

The ALJ found that the employer violated the NLRA when it stopped collecting union dues and found several other labor violations. The decision ordered the employer to resume checking off and transferring dues to the union and to make the union whole for any payments that the employer missed.

Takeaway:

Although the Presidential election has led many to expect the labor law pendulum to swing quickly back toward a more pro-employer perspective, this decision reflects the reality that no such transition has yet occurred at the Board.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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