An even split among all of the 7th Circuit Court of Appeals judges as to whether to rehear an appeal challenging Indiana’s right-to-work law means that its previous affirmation of the law will stand.
The 5-to-5 vote meant a majority of the judges did not favor rehearing en banc James M. Sweeney, et al. v. Michael R. Pence, et al., 13-1264, and the petition for rehearing was denied.
Chief Judge Diane P. Wood and Judges Richard Posner, Ilana Rovner, Ann Claire Williams and David Hamilton dissented from the denial of the rehearing en banc for the same reasons stated in Wood’s dissent to the panel opinion, according to a Jan. 13 order.
In September, a split panel affirmed a federal judge’s decision to dismiss the lawsuit brought by Sweeney and others challenging the right-to work-law. Judges John Tinder and Daniel Manion held that the law does not violate the union members’ rights under the U.S. Constitution nor is it preempted by federal labor legislation.
Wood wrote a 28-page dissent, saying, “In my view, the better view is the former: the majority has simply misunderstood the federal statutory scheme, taken as a whole. The plain language of section 14(b) of the National Labor Relations Act (NLRA) does not support such sweeping force for Indiana’s Right to Work law,” she wrote. “No ruling of the Supreme Court has gone this far, and the legislative section of 14(b) (for those who consider it relevant at all) is inconclusive.
“Even if, however, one thought that there were some ambiguity in the NLRA, the principle of constitutional avoidance provides a powerful reason to reject the majority’s holding.”
The union could ask the Supreme Court of the United States to take the case.