If you were to ask most any person on the street if they think an employer should have the right to communicate with their employees on important matters directly affecting the work environment, the answer would be yes. However, a narrow partisan majority of the members of the Wisconsin State Legislature answered this question with a resounding "no" when they recently passed 2009 Senate Bill 585 (SB 585).

SB 585 expands the Wisconsin Fair Employment Act (WFEA) to include a provision that says workers may refuse to attend mandatory workplace meetings where an employer or their representative expresses opinions on the merits of having a union represent the workforce. The worker can even refuse to accept print or other communications materials from the employer.

The United States Congress took a different position on this issue when it amended the National Labor Relations Act (NLRA) to specifically guarantee employers the right to communicate with workers when a union organizing campaign is underway in their workplace. Unions can communicate with the workforce in various ways, but employers are strictly limited to workplace communications.

If SB 585 is signed into law by Governor Jim Doyle, employers will no longer have that guaranteed right of communication. Or, put differently, if Wisconsin employers seek to exercise that NLRA guaranteed right, they risk being sued by their employees.

In a recent letter to Governor Doyle, we asked him to veto SB 585. Creating more opportunities for Wisconsin employers to be sued will not improve Wisconsin employers’ ability to create jobs and grow the economy. Further, SB 585 is preempted by the NLRA.

The NLRA is a carefully balanced law that has been heavily litigated over the last 60 years. The rights and responsibilities of employers and workers in union organizing campaigns are clearly established, and finely balanced. Advocates for SB 585 argue that it takes too long to process an unfair labor practice claim under the NLRA through the National Labor Relations Board (NLRB). However, they are apparently not aware of the fact that a WFEA claim can take years to go through review by the Equal Right’s Division and the Labor and Industry Review Commission here in Wisconsin.

If Governor Doyle chooses to sign SB 585 into law, there will be a court challenge. It will be costly for the business community to litigate this matter, and equally costly for taxpayers to defend the suit, but SB 585 will be struck down by the courts.

The United States Supreme Court has consistently held that the states may not regulate in areas that impinge on private sector labor that are under the jurisdiction of the NLRB, based on the authority of Section 8 of the NLRA. SB 585 conflicts directly with Section 8(c) of the NLRA.

To our colleagues who lead organized labor, we also say, be careful what you ask for. The NLRA is a uniform national system of law that regulates all private sector labor relations. The law is the same in Texas, California, New York and Florida as it is here in Wisconsin. Were the states able to regulate labor relations on their own, we are likely to have very different laws in Vermont, Louisiana, Indiana and Utah. There will be more pressure exerted by the business community in some states, and labor might prevail in others to try to gain advantage.

Perhaps more importantly, SB 585 will make private sector labor relations a partisan issue in Wisconsin, when we have a long heritage of labor-management cooperation in operating the Worker’s Compensation and Unemployment Insurance systems. The State Assembly, in the same floor period that it passed SB 585, largely along party lines, passed both an Unemployment Insurance and a Worker’s Compensation Reform bill that were the product of the respective labor-management Advisory Councils that advise the Legislature in these important areas of employment law. Worker’s Compensation reform, in states where it is a partisan matter, has resulted in legislative gridlock, and in other states, insurance carriers have completely abandoned the marketplace.

For those of you who contacted your State Senator and Assembly Representative and asked them to oppose SB 585, we thank you. Now, we strongly encourage you to contact Governor Jim Doyle and urge him to veto SB 585.

Related Material:
WMC Alert: An Employer’s Right to Communicate with Employees is in Danger

The Insight Column is a weekly column that provides commentary and background information from WMC lobbyists on issues affecting your business. For more information on this topic, contact James S. Haney, WMC President, (608) 258-3400 or jhaney@wmc.org .