Memorandum on Legal Rights

1. What can employees do to protest SS. SB11 within the scope of protected, concerted activity and constitutionally-protected activity without crossing the line into activity that may have disciplinary consequences in the workplace or subject them to criminal charges or civil forfeitures; and

2. What can labor organizations do to assist and encourage their employees to engage in objecting to or protesting SS. SB11 without risking liability for inducing or encouraging their members to commit a ULP or risking union liability for criminal conspiracy.

This memo attempts to draw the lines for both individual and labor organizations. Labor unions must avoid giving any explicit or implicit direction to an employee to take actions that would amount to a violation of the law. Each employee must be guided by his or her own conscience in deciding what he/she should do in petitioning the government for redress. In that vein, some persons (including some union representatives) have decided that they are willing to risk civil disobedience, including the criminal charges and/or civil forfeitures that may accompany such disobedience (e.g., disorderly conduct charges), and have been arrested as a result.

I. RIGHT TO STRIKE/PICKET/HANDBILL

SCFL’s affiliates include both private sector and public sector labor organizations. Even some public sector labor unions include locals made up entirely of private sector employees.

1. Private Sector Strikes and Related Activity

Strikes and picketing are protected by the NLRA as long as they are lawful, a determination that may depend on the purpose of the strike, its timing, or the conduct of the strikers. Such issues often have to be decided by the NLRB. The consequences can be severe. For example, employees who participate in an unlawful strike may be fired and are not entitled to reinstatement.

A. Lawful strikes fall into two classes:

i. Economic Strikes

If the object of a strike is to obtain higher wages, shorter hours, or better working conditions, the striking employees are called "economic strikers". They cannot be discharged, but they can be replaced. If the employer has hired bona fide permanent replacements, the strikers are not entitled to immediate reinstatement if they offer unconditionally to return to work. In that case, they are entitled to be recalled to jobs when openings occur.

ii. ULP Strikes

Employees who strike to protest an unfair labor practice committed by their employer are called "unfair labor practice strikers". Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged. Unfair labor practice strikers have greater rights of reinstatement to their jobs.
If the NLRB finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers back pay starting at the time they should have been reinstated.

Neither the introduction nor passage of either the budget repair bill or the budget bill creates a circumstance under which a local union could claim a lawful strike on either an economic or ULP basis, since the actions to which the activity is directed is not that of the employer, but rather is that of the State.

B. Picketing

Picketing can also be lawful or unlawful depending on its purpose, its timing, or misconduct. For example, a union cannot "threaten, coerce, or restrain" an employer to force it to stop doing business with another employer who is the primary target of a labor dispute. At worksites with more than one employer, such as a construction site, picketing is only permitted if the protest is clearly directed exclusively at the primary employer.

C. Hand-billing

Hand-billing is allowed as long as it is "for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer." A recent Board decision found that holding a stationary banner in place at a secondary employer's place of business is more like hand-billing than picketing, and so is generally lawful.

2. Public Sector Strikes and Related Activity

A. State Employees.

Persons in bargaining units covered by SELRA (represented employees of the State) are categorically prohibited from striking by SELRA.

B. County, Municipal Employees and School District Employees.

While MERA affords a Wisconsin municipal employer the theoretical right to enter into a Collective Bargaining Agreement that allows strike activity, no municipal employer has in fact entered into such an agreement. Thus, in fact, employees in bargaining units covered by MERA are also prohibited from striking.

II. CONSTITUTIONAL RIGHTS.

Article I, Section IV, of the Wisconsin Constitution provides: “The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.” Employees, whether private or public sector, have the right under the Wisconsin Constitution to engage in free speech activity on public premises. This extends to picketing and hand billing on premises such as the steps and sidewalks outside courthouses and other public buildings. I have not had sufficient time to research whether public officials may restrict such activities inside public buildings, but where such activities interfere with the carrying out of business therein, it is likely that the government may impose such restrictions in the least restrictive matter necessary to permit such government business. These arguments are currently playing themselves out in the litigation related to the closing of the State Capitol building.

Because a private sector employer is, by definition, not the government, such an employer could only very rarely run afoul of the Constitution by its actions (i.e., only when acting in a capacity that amounts to a de facto agent of the government). The State, a county, a municipality or a school district is, however, prohibited (including when acting as an employer) from taking action against an individual who petitions the government through actions or words (written or spoken). Even public employers, though, are permitted to enforce reasonable work rules and policies that limit actions and speech if those rules are applied equally to non-political speech. Thus, an employer who prohibits the posting of all materials on walls or cubicles, or the wearing of any buttons on clothing, can probably legally prohibit an employee’s display of any political buttons or signs in the workplace. However, if a public employer were to adopt such rules, for the first time, after employees began to engage in expressions that attack the budget bill or proposed budget, then a strong argument could be made that such restrictions are directed at the content of the speech and are, therefore, unconstitutional.

III. CIVIL DISOBEDIENCE

Expressive actions and speech may be subject to challenge by law enforcement authorities. This happens most commonly where a public official concludes that “protesters” are a threat to persons or property, are in a “restricted” area, or have remained in an area after “regular” or “business” hours. In such situations, law enforcement officers may ask our members to leave the premises or cease certain activities. In such situations, there may be legitimate questions whether the officers are violating the constitutional rights of the employees, but, in the first instance, the officers as a practical matter have the power (whether legal or not) to remove persons who will not comply with their orders.

Where an individual fails to comply with a law enforcement officer’s directive to vacate property or to cease certain activities, the person is subject to citation for municipal or county ordinance violation (similar to a traffic citation, but possibly more expensive), or potentially, depending on the nature of the individual’s conduct, to criminal charges. The extent to which an individual complies with a law enforcement officer’s commands in “civil disobedience” situations may well have an impact on any charging decisions by a city attorney’s or district attorney’s office.

It is important that union locals not become involved in suggesting or directing that their members engage in conduct that could later be deemed criminal, because there is a potential for the local itself to then be charged as a party to a criminal conspiracy.Local labor unions should consult with their respective labor attorneys to address specific actions that they may contemplate taking to object to the Budget Repair Bill.

IV. OTHER EXPRESSIONS OF SOLIDARITY

Company work rules often impose on employees the obligation to do certain tasks that give rise to the opportunity for expressions of employee solidarity, when all employees choose to abide by the “letter of the law” in carrying out such tasks. For example, an employer may require that employees perform certain safety check-offs with respect to their tools or equipment, which employees routinely ignore or only partially complete. However, when employees make the collective decision to conscientiously perform such tasks on a daily basis – or engage in other demonstrations of solidarity within the terms of their labor agreement – such a decision may well have the effect of sending to the employer an implicit message from employees, without presenting a substantial risk of harm to employees.