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Paying dues under right-to-work

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On its face, it seems like a case of union overreach: Concrete truck drivers withdrew their membership in a Fort Wayne union, yet the union continued to take dues out of their paychecks, an action the drivers say is tantamount to union security.

But practitioners and experts in Indiana labor law, as well as union representatives, say there is a simple solution to the drivers’ problems — officially withdrawing their dues checkoff cards. Once that’s done, experts say the union will no longer have the right to deduct dues, but the drivers say such a step is unnecessary. Thus, it is now up to the Indiana Court of Appeals to decide whether Teamster Local 414 is legally entitled to the dues and whether state courts can even address the issues the drivers raised.

The appellate panel of Judges Edward Najam, Melissa May and Cale Bradford heard arguments in the right-to-work case earlier this month at the Indiana University Maurer School of Law. The case traces its roots to March 2013, when a group of concrete truck drivers worked for Speedway Redi Mix Inc. and belonged to Local 414, the exclusive bargaining unit for all SRM ready-mix truck drivers.

An SRM sister company, Speedway Construction Products Corp., offered the drivers jobs with higher pay and better benefits, prompting the drivers to leave SRM and withdraw their membership in Local 414. However, after a series of unfair labor practice claims, SRM and SCP came to an agreement in which SCP would fire the drivers, who would then be rehired by SRM. The drivers were not party to the settlement, and according to Eilbacher Fletcher LLP lawyer Patrick Proctor, the attorney who represented the drivers before the Court of Appeals, the drivers were against the agreement because it forced them to take a pay cut and lose benefits.

After their return to SRM, the drivers did not rejoin Local 414, yet the union continued to withhold dues from their paychecks, despite the drivers’ objections. In their arguments before the Court of Appeals, Local 414 and SRM claim that the drivers never officially withdrew their Local 414 dues checkoff cards, giving the union the authority to continue to collect dues.

But Proctor told the appellate panel that as soon as the drivers withdrew from Local 414, any prior voluntary dues checkoff cards they had signed were no longer in effect. From the drivers’ perspective, the only way to stop paying the dues is to quit their jobs, a situation they say is the equivalent of an unwritten union security clause that is in direct violation of Indiana’s Right to Work law.

However, Kenneth Dau-Schmidt, labor and employment law professor at IU Maurer who sat in on the arguments, said the remedy for the

drivers seems to be very simple — filing a timely withdrawal of their dues checkoff cards to officially bring an end to Local 414’s practice of withdrawing dues. Stuart Buttrick, a partner at Faegre Baker Daniels LLP who leads the firm’s labor management relations team, agreed. He rejected the argument that the only way the drivers could stop paying the dues is by quitting their jobs.

“They don’t have to quit, they just send the notice (of revocation) pursuant to the card and they can remain employed,” Buttrick said.

Fillenwarth Dennerline Groth & Towe LLP attorney Geoffrey Lohman, who represented the defendants, told the appellate panel that the drivers had presented evidence in an earlier case before the U.S. District Court for the Northern District of Indiana showing that two of the drivers had asked the union to withdraw their cards, and the union honored that request. Despite their withdrawal, those drivers are still employed by SRM, undercutting the argument that the continual withdrawal of the dues has the same effect as a union security clause, Lohman said.

But Bradford said the question at the center of the case is whether the formal withdrawal of their checkoff cards is necessary or whether their withdrawal from the union invalidated those voluntary agreements. Lohman told the panel that such a question is one for federal law, not state courts.

Under the U.S. Supreme Court case of SeaPAK v. Industrial Technical & Professional Employees, 400 U.S. 985 (1971), the court held Section 14(b) of the National Labor Relations Act does not authorize states to regulate dues checkoff, and further held that any efforts by the state to engage in such regulation is preempted.

But Proctor argued SeaPAK was wrongly decided and noted in the appellants’ brief that, “Though SeaPAK was affirmed on appeal to the Supreme Court, it was affirmed without any opinion. Meanwhile, the law concerning preemption has continued to evolve … since SeaPAK was decided.”

Instead, Proctor turned to the 7th Circuit Court of Appeals case of Sweeney v. Pence, 767 F.3d 654, 659 (7th Cir. 2014), in which the court interpreted Section 14(b) “as protecting state’s authority to enact laws prohibiting union-security arrangements that are permissible under Section 8(a)(3) and other provisions of the NLRA.” Under that rationale, Proctor wrote that the drivers “question the validity of SeaPAK’s rationale in the Seventh Circuit, when it has already recognized … that the Indiana law prohibits ‘unions from collecting fees and dues from unwilling employees … .’”

But in the appellees’ brief, Lohman wrote the “language of Section 14(b) itself refers only to ‘agreements requiring membership in a labor organization as a condition of employment.’ Dues checkoff provisions do no such thing.”

Both Dau-Schmidt and Buttrick agreed the drivers’ claims seem to be preempted by federal law, especially in light of the regional director of the National Labor Relations Board’s findings that the drivers had not revoked the dues authorizations that SRM was required to honor under the settlement agreement.

“They’ve already had a bite of the apple with the NLRB, and they lost it there,” Dau-Schmidt said. “I don’t think the state courts can change that (NLRB) interpretation.”

Dau-Schmidt expects the appellate panel to rule in favor of SRM and Local 414, though no opinion in Mike Campbell, et al. v. Speedway Redi Mix Inc., et al., 02A04-1608-PL-02017, had been handed down at Indiana Lawyer deadline.•

Editor's note: The Indiana Court of Appeals ruled on the case March 23, reinstating the dismissed case but finding federal law preempts the state claims.

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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