COURT OF APPEALS

DECISION

DATED AND FILED

March 11, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP128 Cir. Ct. No. 2019CV1704

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

ROBERT L. SLAMKA,

 PETITIONER-APPELLANT,

 V.

GENERAL HEATING AND AIR CONDITIONING INC. AND WISCONSIN 

EMPLOYMENT RELATIONS COMMISSION,

 RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County: 

WILLIAM E. HANRAHAN, Judge. Affirmed. 

Before Blanchard, Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2020AP128

2

¶1 PER CURIAM. Robert L. Slamka appeals a circuit court order that 

affirmed a decision by the Wisconsin Employment Relations Commission 

(WERC) dismissing Slamka’s complaint against General Heating and Air 

Conditioning, Inc. Slamka argues that WERC erred by dismissing Slamka’s 

unfair labor practice claim on the ground that the claim is preempted by federal 

labor law. For the reasons set forth in this opinion, we reject Slamka’s arguments. 

We affirm. 

¶2 Slamka filed an unfair labor practice complaint with WERC,

alleging that General Heating violated WIS. STAT. § 111.04(3)(a) (2017-18),1

Wisconsin’s “right-to-work” law, by rejecting Slamka’s employment application

because Slamka was not a union member. WERC dismissed the complaint on the 

basis that Slamka’s claim is preempted by federal law under the National Labor 

Rights Act (NLRA). Slamka sought review in the circuit court, which affirmed 

WERC’s decision. 

¶3 In an appeal of a circuit court order reviewing an agency decision, 

we review the decision of the agency, not the circuit court. See Wisconsin Pro.

Police Ass’n v. WERC, 2013 WI App 145, ¶10, 352 Wis. 2d 218, 841 N.W.2d 

839. We independently review an agency interpretation of a statute. Wisconsin 

Bell, Inc. v. LIRC, 2018 WI 76, ¶29, 382 Wis. 2d 624, 914 N.W.2d 1. We also 

independently review whether federal preemption applies. Partenfelder v. Rhode, 

2014 WI 80, ¶25, 356 Wis. 2d 492, 850 N.W.2d 896.

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2020AP128

3

¶4 Slamka argues that WERC has jurisdiction to enforce Wisconsin’s 

right-to-work law. Slamka acknowledges that the NLRA vests jurisdiction in the 

National Labor Relations Board (NLRB) to hear claims of unfair labor practices. 

See 29 U.S.C. §§ 151-169. He asserts, however, that Wisconsin’s right-to-work 

law is constitutional, see International Association of Machinists District. 10 & 

Its Local Lodge 1061 v. State, 2017 WI App 66, 378 Wis. 2d 243 903 N.W.2d 

141, and that Wisconsin courts must have authority to enforce validly enacted 

state laws. He also argues that, in Sweeney v. Pence, 767 F.3d 654 (7th Cir. 

2014), the Seventh Circuit implicitly held that state right-to-work laws are not 

preempted by federal law. He acknowledges that Sweeney did not explicitly 

address application of the federal preemption doctrine to a claimed violation of a 

state right-to-work law. He contends, however, that Sweeney’s holding that a state 

had legally enacted a right-to-work law prohibiting certain union agreements, and 

its lack of a holding that federal tribunals would have exclusive jurisdiction to 

enforce those rights, imply that federal law does not preempt a state right-to-work

law. 

¶5 Slamka then asserts that NLRB does not enforce state laws, and that 

Wisconsin’s right-to-work law would be meaningless and he would be without a 

remedy if he could not pursue his claim in a state tribunal.2 He asserts that the 

plain language of WIS. STAT. § 111.06(1)(a) establishes that WERC has 

 

2

 In support, Slamka cites a letter from the Regional Director of NLRB that Slamka has 

included in the appendix to his brief. WERC and General Heating respond that the letter was not 

part of the record before the agency at the time it made its decision, and that the letter therefore 

should not be considered in our review of that decision. See WIS. STAT. § 227.57(1) (review of 

agency decision confined to record). Slamka does not dispute in reply that the letter is not 

properly before us. We therefore take this point as conceded. See Charolais Breeding Ranches, 

Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). 
No. 2020AP128

4

jurisdiction to hear a claim of a violation of the right-to-work law by stating that it 

is an unfair labor practice for an employer to violate WIS. STAT. § 111.04. He also 

argues that there is no case holding that Wisconsin’s right-to-work law is 

preempted by federal law. Finally, he contends that he is entitled to a remedy for a 

wrong under Article 1, Section 9 of the Wisconsin Constitution, and that his right 

must be in a state tribunal. 

¶6 WERC and General Heating respond that Slamka’s claim that 

General Heating discriminated against Slamka on the basis of union membership 

in its hiring process is preempted by the NLRA. See Nash v. Florida Indus.

Comm’n, 389 U.S. 235, 238 (1967) (NLRA is a comprehensive federal code that 

regulates labor relations in activities that affect interstate and foreign commerce); 

Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480 (1955) (state may regulate 

labor relations only to the extent that state regulations do not conflict with NLRA).

They contend that NLRB has exclusive jurisdiction over complaints in which the 

subject matter is arguably subject to the protections of the NLRA, such as 

Slamka’s claim that General Heating discriminated against him in hiring by 

making union membership a condition of employment.

3

 See 29 U.S.C. §§ 157, 

158(a)(3), and 160 (prohibiting discrimination in hiring based on participation in 

union and setting forth process to pursue claimed violation before NLRB); San 

Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 243-48 (1959) (“When it 

is clear or may fairly be assumed that the activities which a State purports to 

regulate are protected by [§] 7 of the National Labor Relations Act, or constitute 

an unfair labor practice under [§] 8, due regard for the federal enactment requires 

 

3

 WERC and General Heating assert that, not only was Slamka’s proper recourse to 

pursue his claim before NLRB, he in fact did so, and NLRB has rejected the claim on the merits. 
No. 2020AP128

5

that state jurisdiction must yield.”). They also assert that the narrow exception 

that allows state regulations that prohibit agreements requiring union membership 

does not apply here. See 29 U.S.C. § 164(b); Retail Clerks Int’l Ass’n v. 

Schermerhorn, 375 U.S. 96, 105 (1963) (“[S]tate power, recognized by [§] 14(b), 

begins only with actual negotiation and execution of the type of agreement 

described by [§] 14(b). Absent such an agreement, conduct that is arguably an 

unfair labor practice would be a matter for the National Labor Relations Board 

under Garmon.”). They contend that Slamka has not alleged an employer-union 

agreement in this case, and therefore this exception does not apply here and 

Slamka’s claims are preempted by federal law. 

¶7 We conclude that WERC properly dismissed Slamka’s complaint on 

preemption grounds. As WERC and General Heating set forth in their briefs, 

well-settled case law establishes that the type of claim Slamka asserts in this case 

has been preempted by the NLRA. See Garmon, 359 U.S. at 243-48. Slamka 

does not contend otherwise, and he does not contend that his claim falls within the 

exception for agreements between employers and unions. See Retail Clerks, 375 

U.S. at 105. Rather, Slamka argues that Wisconsin’s right-to-work law is 

constitutional and was legally enacted, and that the Wisconsin Constitution 

guarantees a remedy for a wrong. Those contentions, however, do not persuade us 

that Slamka’s claims are not preempted by the NLRA. 

¶8 Moreover, Slamka concedes in his reply brief that there is no case 

law stating that preemption does not apply in this case. Accordingly, Slamka has 

not established that WERC erred by dismissing Slamka’s complaint on preemption 

grounds. See City of La Crosse v. DNR, 120 Wis. 2d 168, 178, 353 N.W.2d 68 

(Ct. App. 1984) (“The burden in a [WIS. STAT.] ch. 227 review proceeding is on 
No. 2020AP128

6

the party seeking to overturn the agency action, not on the agency to justify its 

action.”). We affirm. 

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5. (2019-20).