Wisconsin’s Right-to-Work law, which became effective on March 11, 2015, prohibits employers and unions from entering into agreements which require membership in the union or the payment of dues as a condition of employment (“union security agreements”). The law also prohibits employers from deducting union dues from an employee’s wages unless the employee has signed an authorization that is revocable upon thirty days’ notice (“dues checkoff”), rather than the one-year period permitted under the National Labor Relations Act. The NLRA expressly allows states to enact Right-to-Work laws that prohibit union security agreements – but it does not contain a similar provision relating to dues checkoff. So, do the provisions of the NLRA that relate to dues checkoff supersede, or preempt, the more employee-friendly provisions of the Wisconsin law?

On March 14, 2017, an administrative law judge from the National Labor Relations Board found that it does. In Metalcraft of Mayville, Case 18-CA-178322, Metalcraft’s contract with its union renewed in June 2016, subjecting any renewed agreement to the provisions of the Wisconsin Right-to-Work law. Once it did, Metalcraft notified the union that it would no longer enforce the union security and dues checkoff provisions of the expired agreement – prompting the union to file an unfair labor practice charge contending that the cessation of the dues checkoff provision constituted an unfair labor practice, and that the state law provision that allowed it was preempted by the NLRA. The ALJ agreed.

Section 8(a)(3) of the NLRA allows employers and unions to enter into agreements that require union membership and/or the payment of agency fees for the cost of representation as conditions of employment. However, Section 14(b) of the Act allows states to enact laws that prohibit such agreements (states that choose to do so have become known as “Right-to-Work” states), but makes no mention of dues checkoff, which is addressed elsewhere in the Act, in Section 302. Section 302 authorizes the deduction of dues from an employee’s wages, provided the employer has received an authorization from the employee that “shall not be irrevocable for a period of more than a year.” In other words, it expressly allows checkoff authorizations that cannot be revoked for a year – and the Wisconsin law requires termination upon 30-days’ notice.

Relying on established precedent, including a recent decision on the Wisconsin law from the Western District of Wisconsin, see, IAM v. Allen, Case No. 16-cv-77-wmc (W.D. Wis., Dec. 28, 2016), the ALJ held that the provision of the Wisconsin law that permits revocation of a dues checkoff authorization upon 30-days’ notice was “directly at odds” with federal law and therefore preempted by the NLRA.

What does this mean to unionized employers in Wisconsin? While the state Right-to-Work law remains intact as it relates to union security agreements, prohibiting employers from entering into agreements that require membership in the union and/or the payment of dues as a condition of employment, any dues checkoff authorizations signed by employees that are not revocable for a year remain in full force and effect, despite the 30-day notice provision required under Wisconsin law.

If you have any questions about the ALJ’s decision or the Wisconsin Right-to-Work law, feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.