February 2012

The Indianapolis Business Journal is reporting that the International Union of Operating Engineers Local 150 has filed a complaint in federal court challenging Indiana’s new right-to-work law on constitutional grounds. We initially addressed this development in a previous blog post that can be accessed here.

The full story can be found via the IBJ website.

In an effort to improve efficiencies in its regional structure, the National Labor Relations Board (NLRB) is considering a pilot program that would consolidate Regional Offices in St. Louis, Mo. and Kansas City, Kan. The program would also remove the sub-regional office in Peoria, Ill. from the jurisdiction of the St. Louis office and place it in the hands of the regional office in Indianapolis, Ind.

The NLRB's press release can be found here.

Reports are surfacing this afternoon that the International Union of Operating Engineers Local 150 has filed a complaint in federal court challenging Indiana’s new right-to-work law on constitutional grounds, claiming the law violates the Equal Protection Clause of the U.S. Constitution by treating similar classes of workers differently. The Associated Press is reporting that the suit names Indiana Governor Mitch Daniels, Attorney General Greg Zoeller, and Labor Commissioner Lori Torres as defendants.

The U.S. Supreme Court has not been sympathetic to equal protection arguments in previous cases challenging state right-to-work laws, so it is not clear whether the suit will ultimately have any impact in preventing right-to-work from continuing in Indiana. 

IndyStar – Union suing to block Indiana right-to-work law

NWI Times – Union suing to block Indiana right-to-work law

Update: A copy of the complaint can be downloaded here.

The National Labor Relations Board's (NLRB) weekly summary of decisions for last week, February 6-10, 2012, is now available on the Board's website. You can access the report by clicking here.

The question of whether right-to-work may spill over into neighboring states continues to be debated following the passage of Indiana’s right-to-work legislation earlier this month.  We highlighted the status of the issue among Ohio voters last week.  Michigan has also been at the forefront of this debate, with the issue more recently becoming entangled in the contentious upcoming Republican Michigan primary.

Although no legislation has been officially introduced, several Michigan legislators have indicated their support of the issue and it seems only a matter of time before a bill is introduced.  The prospects for passage, however, face a major obstacle in Michigan’s Governor Rick Snyder, who earlier this year indicated he opposes such efforts.

While Snyder recently endorsed Mitt Romney as his choice for the Republican presidential nominee, he appears to differ from Romney on the right-to-work issue.  With the Michigan primary looming, Romney stated his support for right-to-work legislation.  Meanwhile Romney’s chief rival in the Michigan primary, Rick Santorum, has also indicated his support, apparently in an attempt to defend against Romney’s efforts to paint him as in favor of “big labor.”  It remains to be seen whether this issue will have any impact in the upcoming primary.

What is clear is that Michigan’s right-to-work future, if there is to be one, is front and center.

See all of our previous right-to-work coverage here.

Ken Yerkes, chair of Barnes & Thornburg's Labor & Employment Law Department appeared on the Indiana statewide television program, Inside Indiana Business with Gerry Dick, to discuss Right to Work and what employers should consider leading up to implementation. Below is a link to an excerpt from the show. It will appear at various times this weekend throughout the state of Indiana (see second link below). In the coming days a link to the full interview will also appear on the Inside Indiana Business website.

Interview excerpt:
http://www.insideindianabusiness.com/newsitem.asp?ID=52268  

We're hearing reports that many unions are approaching employers in the wake of Indiana's new Right-to-Work Act to see if the employers are willing to sign early before the March 14 deadline. Remember that the Act provides that if employers are in collective bargaining agreements as of March 14, 2012 that have a union security clause, then employees will be stuck paying dues at least until the expiration date of that CBA.   We've already heard reports that the Carpenters and the Sheet Metal Workers are circulating 10-year extension agreements hoping to get employers to sign on before March 14. Have you been approached by your Union for an early signing? Let us know if you have, which Union approached you and how long is the sought-for extension. You can leave a comment below.

Another impact is that the interest in RTW may be spreading. Earlier this week, Quinnipiac University released the results of a poll of Ohio voters and discovered that Ohio voters by a 54-40 percent margin favor the notion that Ohio should become the next Right-to-Work state. Here's a link to the poll results.

That's surprising to some because Ohio voters had soundly rejected the Ohio initiative to strip Ohio public workers of their unions. Given the assumption that the SB 5 referendum was a demonstration of union strength in Ohio, the 54-40 percent support for making Ohio a 'right-to-work' state does make one take notice," said Peter A. Brown, assistant director of the Quinnipiac University Polling Institute. "In the SB 5 referendum independent voters, who are generally the key to Ohio elections, voted with the pro-union folks to repeal the law many viewed as an effort to handicap unions. The data indicates that many of those same independents who stood up for unions this past November on SB 5 are standing up to unions by backing 'right-to-work' legislation.

Poll results have made headlines all over the state of Ohio.

Cincinnati.com - "Poll: Ohioans support 'Right to Work'" 

Dayton Daily News - "Ohio voters support right-to-work, poll says" 

Columbus Dispatch - "Ohioans like 'right-to-work' idea, poll says"

Less than two weeks ago, Indiana became the first state in the Rust Belt to pass a Right-to-Work law intended to solidify employee choice for union dues and make the state more economically attractive to outside business. However, certain questions regarding the payment of union dues remain unanswered.

For example, when an employee separates his employment and/or resigns from the union, is that employee still required to pay union dues?  Under the current state of the law, the answer is maybe. While employees are not ordinarily required to continue paying dues upon separation of employment/resignation from the union, the Board has held that an employee will be required to pay those dues if the check-off authorization specifically permits it (even in a Right-to-Work state). In fact, the National Right to Work Organization acknowledges this possibility: “The dues check-off authorization form which you signed may contain a restriction on the period during which it can be revoked; whether that restriction is effective after you resign depends upon the exact language of the form. Even if you resign your membership in a Right-to-Work state, it is possible that you will have to wait until a designated "window period" arrives in order to revoke the dues check-off authorization.”

By way of example, here is a standard Steel Workers check-off provision in a RTW state:

Pursuant to this authorization and assignment, please deduct from my pay each month, while I am in employment with the collective bargaining unit in the Employer, and irrespective of my membership status in the Union, monthly dues…

This assignment and authorization shall be effective and cannot be cancelled for a period of one (1) year from the date appearing above or until the termination of the date of the current collective bargaining agreement between the Employer and the Union, whichever occurs sooner.

This tension underlines the importance of the language in the check-off authorization as well as the need for the employee to diligently monitor the revocation period provided by the authorization.  As the week goes on, we will identify and discuss additional issues/implications arising from the RTW legislation including preemption of wage laws and reopening contract negotiations.

On February 8, 2012, the House of Representatives' Committee on Oversight and Government Reform, led by Chairman Darrell Issa of California, held a hearing entitled, “The Right to Choose: Protecting Union Workers from Forced Political Contributions.” The hearing's purpose was to “examine the process by which union dues are collected and how transparent unions are about this process. . . [was] not an examination of the validity of unions or their right to exist, but rather an effort to ensure that the political activity of unions does not infringe the freedoms of workers.” During the hearing, multiple union workers discussed the negative effects of union-security clauses on their lives and employment. The video of the hearing can be found here. 

This hearing is independent of the various state led initiatives such as the Ohio ballot measure and a bill percolating in the Michigan legislature.