ILNews

Battle over RTW heats up in courts

Back to TopCommentsE-mailPrintBookmark and Share

When Lake Superior Court Judge John Sedia handed Indiana’s right-to-work law a pink slip, conventional wisdom held that the Indiana Supreme Court would overturn that decision and put the law back to work.

Commentators noted even though Sedia entered a declaratory judgment on one count of the complaint, he dismissed four other counts.

However, Sedia knocked down Sections 8 and 10 of the right-to-work law because they violated the Indiana Constitution’s prohibition against demanding services without “just compensation.” Those two sections, most in the legal community say, are the heart of the law.

gruber Gruber

Without Section 8, which bars any requirement that an individual join a union and pay dues, and Section 10, which makes violating Section 8 a crime, Indiana does not have a right-to-work law.

If the Supreme Court affirms the Lake County order, “it could really turn (the law) on its head,” said Andrew Gruber, partner at Bingham Greenebaum Doll LLP. “Does the law survive if the decision is upheld? I don’t think so.”

Few expect Indiana’s right-to-work law would be left to die should the Supreme Court affirm. More likely, the Indiana General Assembly would again take up the measure, but some in the legal community believe for any new right-to-work law to hold muster with the courts, lawmakers will have to first rewrite the state’s constitution.

Two complaints

In James M. Sweeney, et. al. v. Gregory Zoeller, Attorney General of the State of Indiana, et. al., 45D01-1305-PL-52, Sedia provided a careful examination of state law, federal law, court precedent and the Indiana Constitution before he ruled that Indiana Code 22-6-6-8 and IC 22-6-6-10 violate Article I, Section 21 of the state’s constitution.

“There is no Court which is more loathe to declare any state statute unconstitutional than this one,” Sedia wrote in his order issued Sept. 5, 2013. “(Indiana Code) 22-6-6-8 and IC 22-6-6-10 stand clothed with the presumption of constitutionality. Debate regarding the wisdom or folly of this statute (about which the Court has purposely avoided using its title) lies in the political arena, not with the courts.”

torr Torr

Immediately after the ruling was issued, the attorney general’s office filed an appeal to the Supreme Court and vowed it would “aggressively defend the authority of the people’s elected representatives in the Legislature as we successfully defended this same statute from the same plaintiff who challenged it in federal court.”

The Sweeney complaint in state court is part of a two-pronged attack on the right-to-work law by the International Union of Operating Engineers Local 150. The union is also arguing James M. Sweeney v. Mitch E. Daniels, Jr., 13-1264, in the federal courts.

Both suits focus on Section 8, Subsections 2 and 3, of the measure but look at it through the lens of the Indiana Constitution and federal labor law.

The author of Indiana’s right-to-work law, Rep. Jerry Torr, R-Carmel, does not believe the union’s argument will convince the Supreme Court.

“We had a lot of awfully smart lawyers look at the language before we passed it,” he said. “I’m fairly confident it will be found to be constitutional.”

Torr had introduced a right-to-work bill in the Legislature since the 2004 session. He touted the benefits as attracting employers to Indiana and allowing individuals to make the choice themselves of whether or not they want to join a union.

If the Supreme Court agrees with the Lake County order, Torr said he is confident the Legislature would redraft the troubling language, using the Supreme Court’s opinion as a guide.

Rep. Ed DeLaney, D-Indianapolis, sees little chance the state’s highest court will affirm. The court has given “excessive deference” to the Legislature and passed up most opportunities to explain what the state’s constitution means to Indiana.

deLaney-ed-mug.jpg DeLaney

A strong opponent of right-to-work, DeLaney questioned how the courts could find that a corporation is a person (referring to the Citizen’s United decision by the U.S. Supreme Court) and not find that a union is a person. Instead, while federal law is requiring labor organizations to provide fair representation to all workers, even non-members, in a unit, the state is not allowing compensation for that representation.

DeLaney applauded Sedia’s decision. “I think it was well reasoned and rather courageous on the part of the judge,” he said.

Dale Pierson, general counsel for the International Union of Operating Engineers Local 150, said he was “very pleased in that the judge seemed to understand the constitutional argument we’re making.”

In the federal suit, the union is asserting the state steps outside the authority granted by Congress by not requiring employees to pay their “fair share” of the cost of collective bargaining. This section, Pierson said, allows for “free riding,” the term used to describe workers who do not pay union dues but still receive the benefits of representation.

Pierson maintained states are allowed to regulate union security clauses but that authority is limited to contractual requirements that all employees become members. Indiana’s right-to-work law goes beyond that by prohibiting any payment of dues, fees or assessments.

On the state level, the labor organization is arguing the same section violates the Indiana Constitution because the law is requiring unions to work without “just compensation.”

nierman Nieman

The U.S. District Court for the Northern District of Indiana, Hammond Division dismissed the union’s federal argument. Consequently, Local 150 appealed to the 7th Circuit Court of Appeals and presented oral arguments Sept. 12.

Pierson was cautious to read too much into the 7th Circuit judges’ questioning, but he felt they seemed to understand the union’s point that Subsections 2 and 3 are pre-empted by federal law.

Constitutional questions

Kenneth Dau-Schmidt, professor of labor and employment law at Indiana University Maurer School of Law, is not so certain the Lake County decision will be overturned. He said Sedia made such a “tightly reasoned” argument that the moderate justices on the Supreme Court might accept it.

dau schmidt Dau-Schmidt

The union’s position that the taking of a product or service cannot be done without payment mirrors conservative ideals. If he were to put money down, Dau-Schmidt said he would bet that politics will prevail and Sedia’s decision will be reversed, but he would not bet a lot.

However, if the ruling is upheld, Dau-Schmidt said the only way Indiana could get another right-to-work law to stand up in court would be to amend the state constitution. The “taking clause” in Indiana’s founding document not only covers products, like many state constitutions, but goes further to also include services.

An amendment would likely be to remove the service language. But, again, that would put conservatives in an unusual position. The Republicans would be arguing that government does have the power to take services without providing compensation — not a traditional conservative view.

Ogletree Deakins attorney Todd Nierman is not persuaded by the constitutional argument.

“With all due respect, I believe (Judge Sedia’s) decision is wrong and ultimately will be overturned,” he said.

The court held the state is demanding the union provide services for free. Nierman countered Indiana is not doing that because it is not demanding unions represent anybody. A labor organization chooses to represent workers at a particular business and if the organization decides there are too many free riders, it can leave without any consequences.

Still, should the Supreme Court affirm the Lake County order, Nierman, like Dau-Schmidt, does not see a legislative solution. He questions how the General Assembly could rewrite the law to be constitutional.

Negotiations

Although Sedia stayed his order pending appeal, his ruling could have a practical impact. Nierman said at the negotiating table unions and employers could point to the decision.

Unions may argue for a provision to be added to contracts that if the Lake County ruling is upheld, then union security language, making membership a condition of employment, is revived, he said. Employers would likely counter the right-to-work law is still valid so security language is illegal.

“It’s not practical for unions and employers to wait and see” what the Supreme Court is going to do, Nierman said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

ADVERTISEMENT