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Struggles mount for labor

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(Editor's note: This story has been corrected)

Indiana this year became the 23rd state to enact a right-to-work law in which workers cannot be compelled to pay union dues. Within months, individual workers in union shops opted out, even as court challenges linger.

“Workers are starting to use it, and we are receiving calls about it,” said Anthony Riedel, deputy legal information director for the National Right to Work Legal Defense Foundation in Springfield, Va.

labor-15col.jpg Groups marched in the Super Bowl Village in Indianapolis in protest of the 2012 Indiana General Assembly’s right-to-work bill. (IL Photo/ Julie Kirkendoll)

One of those first workers was Robert Symonds, a truck driver who worked at Indianapolis Haulage. Symonds sought the foundation’s assistance in his successful effort to stop paying dues to Teamsters Local 135.

“You shouldn’t have to pay union dues to get or keep a job, which is why Indiana’s new right-to-work law is right for Hoosiers everywhere,” foundation vice president Patrick Semmens said in a July 16 statement issued after the foundation intervened and the local union agreed to stop deducting dues from Symonds’ pay.

Adoption of right to work in Indiana and the recent Supreme Court decision, Knox v. SEIU, 10-1121, limiting unions’ ability to force members to pay for political activity, are the latest in a series of recent blows that observers say could stagger organized labor.

“I think it will strip a lot of the basic ability to organize,” David Gray said of Indiana’s right-to-work law. A director at Lewis & Kappes in Indianapolis, Gray said his firm traditionally has represented employers in labor disputes.

“(The law is) going to fundamentally hurt unions,” he said. “The number of union members, I think, will go down dramatically.”

The full effect of Indiana’s right-to-work law is yet to be seen. Workers cannot opt to stop paying dues until contracts that currently cover them expire. And state agencies are still drawing rules governing how workers may go about removing themselves from union membership.

Kenneth Dau-Schmidt, the Willard and Margaret Carr Professor of Labor and Employment Law at Indiana University Maurer School of Law, said Knox won’t have much impact on Indiana because it deals with special assessments on a class of workers covered by union security clauses, which are being phased out under right to work.

But, he said, Knox is the latest in a line of labor rulings that endangers the right to organize because it prevents unions from collecting money for political speech. In contrast, he said the U.S. Supreme Court’s Citizens United ruling holds that any restrictions on individual and corporate political spending would violate the First Amendment guarantee of free speech.

“You can argue that this is the biggest power grab by the upper class since the Gilded Age of the 1890s,” Dau-Schmidt said of the disparate rulings in Knox and Citizens United. “It will have an effect on our democracy.”

Right to work rules

The divisive battle in the General Assembly over right to work ended with its passage and Gov. Mitch Daniels’ signature on the bill in February. Months later, how to enforce the law is still being worked out.

“It’s not complete,” Indiana Department of Labor spokesman Bob Dittmer said of the rulemaking process for enforcing the law. He said the Department of Labor will finish promulgating its rules in about the middle of this month, after which the rules will be reviewed by the attorney general and governor. They then will be published and finalized, probably by Oct. 1, he said.

As of late July, Dittmer said the labor department received no formal right-to-work complaints.

“We did hold a public hearing and had input from a number of different elements,” he said, noting representatives from labor, business and legal interests were among those who overflowed a state office meeting room on July 10. Comments on proposed rules were taken through July 16.

Under the statute, a right-to-work complaint may be filed with the Department of Labor, the attorney general’s office or a local prosecutor. Right-to-work actions also may be filed in court. Dittmer said that complaints filed in other state offices will be handled by the Department of Labor.

Under emergency rules that were passed when the right-to-work law was enacted, workers may not exercise the ability to forgo union representation or stop paying dues until a contract expires. The law does not cover public employees or those subject to the Railway Labor Act.

According to the Bureau of Labor statistics, 333,000 Hoosiers – about 12.4 percent of the workforce – were represented by unions in 2011. That’s a slight increase over the past two years, but about half the percentage of those represented by unions in 1989.

Who pays dues?

Under the right-to-work law, no one may be compelled to be a member of a union or pay dues for political activity or for general membership representation.

That’s a violation of the state constitution, argues Jim Robinson, director for United Steelworkers Region 7, which represents members in Indiana and Illinois. The steelworkers union is plaintiff in a lawsuit in Lake Superior Court that alleges right to work violates a section of the state constitution that says “No person’s particular services shall be demanded, without just compensation.”

Robinson and others said the argument is that unions still are legally required to provide services to workers they represent, whether or not those workers are dues-paying members.

“The right to freeload has been around since the ’50s” as a matter of federal labor law, Robinson said. “But the Indiana constitutional issue is unique to Indiana, and we think it’s a good case.”

Robinson said the state has filed a motion to dismiss in the case, United Steelworkers, et al. v. Mitch Daniels, et al., 45D01-1203-PL-19, and a ruling is expected at any time.

The National Right to Work Legal Defense Foundation also intervened in that case, filing an amicus brief on behalf of two steelworkers who said forced payment of dues violates their First Amendment right of freedom of speech. The foundation says claims in the Lake County case are spurious.

Another case in the U.S. District Court for the Northern District of Indiana in Hammond – James L. Sweeney, et al. v. Mitch Daniels, et al., 2:12-CV-81– is awaiting ruling on the state’s motion to dismiss. That right-to-work challenge involves the International Union of Operating Engineers Local 150.

Ann DeLaney, former Indiana Democratic Party chair and co-founder of the law firm DeLaney & DeLaney LLC, said right to work means “there’s going to be fewer members who want to contribute.”

“It’s human nature – if you can get a free ride, you’re going to take it,” she said.

She sees a pattern in recent Supreme Court decisions and the push for right to work. “They want to restrict the power of the union to get their message out,” she said.

Nancy Guyott, president of Indiana’s AFL-CIO chapter that represents about 800 union locals, said the Knox case represents a double-standard for unions compared with unlimited corporate political spending allowed in Citizens United.

“The court went out of its way to make statements that were not at issue” in Knox, said Guyott, who is an attorney but does not practice currently. “Those statements encouraged limitations on the right of workers to collectively speak in politics.”•

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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