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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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