Commentary: Striker replacement bill resurfaces in the Wisconsin Legislature.

• Author: Finerty, John

Byline: John Finerty

The National Labor Relations Act provides that "Employees shall have the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for ... other mutual aid or protection ...." 29 U.S.C. s. 157. These rights, known as Section 7 rights, allow employees to organize a union and withhold labor, or strike, to achieve their mutual goals.

In contrast, employers may hire temporary, or in some circumstances permanent, replacement workers during a strike. When employers hire permanent replacements, it may be weeks, months, or even years after the end of a strike before the striking employee can return to work, if ever.

An employer's right to hire replacements, whether temporary or permanent, has been the subject of proposed federal legislation, executive orders, state and municipal laws. State laws that prohibit employers from hiring permanent replacements have been uniformly held to be preempted by the National Labor Relations Act. A new bill, however, circulating through the state Senate, adopts a slightly different approach in an attempt to stop employers from hiring replacement workers during a strike.

The Latest Striker Replacement Proposal

A number of state Senators are considering whether to propose an Act to amend Wis. Stats. s. 103.545, and to create additional state laws, to prohibit temporary help agencies from providing temporary employees to a third-party employer whose employees are on strike or locked out.

Current law prohibits employers, and temporary agencies working on their behalf, from hiring "strike breakers" to replace employees on strike or who have been locked out. A strike breaker is defined as any employee who, within the previous 12 months, accepted employment during a strike or lock out in place of employees involved in the strike or lock out. The bill as written would expand this prohibition.

Under the proposed temporary agency striker replacement bill, employers would be prohibited from entering into contracts with temporary agencies for the purpose of retaining temporary employees during a strike or lock out. The proposal effectively eliminates the strike breaker requirement under existing law and prohibits temporary agencies from providing temporary employees to any employer engaged in a strike or lock out.

Further, the proposed law would prohibit any person from transporting or arranging to transport a temporary replacement worker to a...