Strikebreakers Case Analysis

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The decision effectively holds that Wisconsin’s ban on the employment of strikebreakers — sec. 103.545 — is preempted by federal law, as well.

Section 103.545(2) provides, “No employer may knowingly employ or contract with another to employ any strikebreaker to replace employees who are on strike against the employer or locked out by it.”

In subsec. (1), “strikebreaker” is defined as “any person who at least twice during the previous 12-month period has accepted employment for the duration of a strike or a lockout in place of employees who are involved in a strike or lockout …” The maximum penalty is $2,000 and one year of imprisonment. Sec. 103.545(5).

The same reasoning that the court employed to hold Illinois’ statute preempted would be equally applicable to Wisconsin’s statute, as well.

The decision is also particularly well-timed. Just as Illinois amended its strikebreaker statute in 2003 to ban the employment of workers from temporary help agencies, the Wisconsin legislature is currently considering a bill to do the same.

2005 Senate Bill 107 would add to sec. 103.545, provisions to criminalize the following:

“An employer from knowingly contracting with a temporary help agency, and a temporary help agency from knowingly contracting with an employer, for the provision to the employer by the temporary help agency of a temporary employee to replace an employee who is on strike against the employer or who is locked out by the employer”; and

	Related Links 7th Circuit Court of Appeals Related Article Federal law trumps strikebreakers law

“A temporary help agency from recruiting an individual for employment, from securing or offering to secure employment for an individual, or from transporting or arranging to transport an individual to a place where a strike or lockout exists for the purpose of providing the individual to a third-party employer to replace an employee who is on strike against the third-party employer or who is locked out by the third-party employer.”

In the wake of this decision, the amendments, if approved, would be clearly unenforceable, like the rest of the statute.

At the first whiff of an attempt to enforce the statute, employers would be wise to file suit in federal court, as the Congress Hotel did in this case. Presumably, Wisconsin courts would hold that the statute is preempted by federal law, just as the Seventh Circuit did. But, given that this case is binding precedent only in federal courts, there is no reason to take a chance.

– David Ziemer

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David Ziemer can be reached by email.