Indiana

We rarely see reported decisions on the common construction wage, so William Wressell v. R.L. Turner Corporation caught our eye. In this case, the Indiana Court of Appeals this month ruled that summary judgment was inappropriately entered for an employer on an employee’s claim that he was paid under the wrong job classification.

Two items are of some note in the opinion. First, the trial court had struck from the summary judgment record eight paragraphs from the affidavit of a field auditor with the Indiana Department of Labor finding those paragraphs to be irrelevant and full of legal conclusions. In those paragraphs, the field auditor set forth the audit guidelines used by Indiana’s DOL as well as items which cannot be included in the fringe benefit calculation under the Indiana common construction wage.

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Indiana union membership is at its lowest level since the 1980's. According to the Bureau of Labor Statistics, union members made up 9.1 percent of Indiana's workforce in 2012, down from 22 percent in 1983. The full story from the Indiana Business Journal can be found by clicking on the link below.

Indiana Business Journal – “Indiana Union Membership at Lowest Level in 24 Years”

Early statistics indicate that Indiana’s passage of Right to Work legislation is already showing benefits to the state, according to the Indiana Economic Development Corporation (IEDC).

The IDEC has reported that 91 companies have told the agency that Right to Work has been a factor in their decision-making process on the location of new projects. Out of that group, the IEDC says that 64 are well along in the development process and are projected to have the potential of more than 8,390 new jobs and more than $2.7 billion in investments if they come to fruition.

The IEDC report also indicates that 39 companies have committed to new projects in the state since RTW which should produce more than 4,500 new jobs and an investment of more than $1.6 billion. Information from the IDEC can be found in the latest issue of BizVoice published by the Indiana Chamber of Commerce which is available here.

In addition, statistics recently released by the United States Bureau of Labor Statistics (BLS) indicate that the percentage of Indiana workers who are members of unions dropped from 11.3% in 2011 to 9.1% in 2012. In actual numbers, the number of union members dropped from 302,000 to 246,000.  The percentage of workers represented by unions dropped from 12.4% to 10.0%. Those numbers cover both private and public sector employees. The BLS statistics can be reviewed here. 

Nationally, the BLS annual report found that 11.3 percent of wage and salary workers were members of a union in 2012, down from 11.8 percent in 2011. The total number of workers belonging to a union also declined, down to 14.4 million from 14.8 million.

Operators Local 150 has been soundly tossed out of federal court in its effort to overturn Indiana's Right to Work Act. In a decisive 24-page opinion, Judge Philip Simon of the Northern District of Indiana examined and dismissed every challenge to the Act raised by the Operating Engineers.

The Union challenged the statute under the Contracts Clause, the Ex Post Facto Clause and the Equal Protection Clause of the U.S. Constitution. They further challenged the Act as being pre-empted by the National Labor Relations Act and finally raised issues with it under the Indiana Constitution. Simon dismissed all of the federal constitutional challenges as failing to state a claim. He dismissed the state constitutional claims without prejudice on federalism grounds under the 11th Amendment noting clear authority from the United States Supreme Court that claims against state officials under state law cannot be considered in federal court.

Simon concluded that “For better or worse, the political branches of government make policy judgments. The electorate can ultimately decide whether those judgments are sound, wise and constitute good governance, and then can express their opinions at the polls and by other means. But those are questions beyond the reach of the federal court, which instead is limited to analysis of particular legal arguments that the challenged legislation runs afoul of preemptive federal labor law or the U.S. Constitution.”

A copy of the opinion is available here.

The Associated Press has quoted Union Spokesman Ed Maher as saying that they are considering an appeal of Simon's decision.

Though the Operators’ Local 150 challenge has been dismissed, a challenge brought under the state constitution by the Steelworkers Union continues in state court in Lake County, Indiana. That case contends, among other things, that the statute violates an Indiana constitutional protection that bars demands for services from someone “without just compensation.” Judge George Parras denied the state's motion to dismiss that action last October. (You can see our discussion of that decision here.)

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

The case brought by the United States Steelworkers attempting to overturn Indiana’s Right to Work Act cleared its first hurdle last week. Counsel for the State of Indiana had filed a motion to dismiss the USW case on the grounds that it failed to state a claim and on the grounds that it improperly included Governor Mitch Daniels as a defendant.

Well, the State won on one ground – Daniels was dismissed as a defendant, but Lake County Circuit Court Judge George Paras held that he could not “categorically” rule “at this time” that the new statute does not violate the state constitution. The ruling allows the case to go forward to discovery – if necessary – and ultimate determination on the Union’s request for a declaratory judgment that the law violates the state constitution.

The State had argued that the union could not raise its objections to the statute by filing a lawsuit for a declaratory judgment. But Judge Paras concluded that “no other remedy exists for a timely determination of the constitutionality of the legislation in question.”

The union argues that the Act violates Article 1, Section 21, of the Indiana constitution, which provides, “No person's particular services shall be demanded, without just compensation.”

The Judge’s ruling is available here. 

As Lee Corso on ESPN likes to say – not so fast, my friend.  Just because Indiana is now a Right to Work state doesn’t mean that employees can wilily nilly walk away from their dues deductions.  (Well, Corso didn’t say that second thing.)

A recent Advice Memorandum issued by the Office of the General Counsel of the National Labor Relations Board (NLRB) underscores that point.  In an August 14, 2012 Advice Memorandum, the Office of the General Counsel concluded that an SEIU requirement (included on the dues check-off authorization card) that notice of dues revocation must be sent by certified mail was an enforceable condition that does not violate the National Labor Relations Act.  Such a requirement, he concluded, is an internal union matter involving a voluntary agreement between the employee and the union.

Here, the employee signed the union’s dual purpose membership card which also included the authorization to deduct dues.  The card specifically stated: 

This authorization shall remain in effect for one year, irrespective of whether I am a union member, and be automatically renewed for periods of one year from the date signed below, or until the expiration of the union’s contract with my employer, whichever is sooner.  I can revoke this authorization by sending written notice by certified mail to my employer and to the union not more than 20 days and not less than 10 days before the expiration of the yearly period, or before the expiration of the union contract with my employer, whichever is sooner.

The employee gave written notice to the union on two occasions, but neither was by certified mail.  The union denied the revocation because she failed to use certified mail.  The employee then filed the charge with the NLRB.  Because the General Counsel found no violation of the Act, the employee is stuck paying dues for another year.

If a company has been organized by a union, and an employee approaches his/her employer regarding withdrawing their authorization to deduct dues from their paychecks, the employer may want to/should review the authorization cards signed by those employees.  Employers will find that in most cases they contain a window period of 10 to 30 days annually within which an employee may give written notice to the company and the union of their desire to stop paying dues.  As underscored in this General Counsel Advice Memorandum, those types of restrictions are indeed enforceable.  In fact, the Board had previously held in Syscon International Inc., 322 NLRB 93 (1996) that limited periods of revocation are enforceable.

A copy of the General Counsel’s Advice Memorandum is available here.

As we reported here, the International Union of Operating Engineers Local 150 recently filed a complaint in federal court challenging Indiana’s right-to-work law on constitutional and federal preemption grounds. The complaint alleges various claims under the U.S. and Indiana Constitutions. It also alleges that certain sections of the law are preempted by the National Labor Relations Act. The suit names Indiana Governor Mitch Daniels, Attorney General Greg Zoeller, and Labor Commissioner Lori Torres as individual defendants.

On August 14, 2012, Defendants moved to dismiss the lawsuit on various grounds, arguing, among other things, that both Governor Daniels and Attorney General Zoeller are immune from civil liability, and that the law is substantively valid. The Motion to Dismiss can be found here. We will keep you posted.

As we have previously addressed (both here and here), 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.  On March 7, 2012, the State of Indiana filed a motion to dismiss for lack of subject matter jurisdiction. In response, the Union has come forth with its opposition and arguments that the right-to-work law violates the constitutions of the United States and Indiana. Specifically the Union argues that the new controversial law violates the Contracts, Equal Protection, and Ex Post Facto Clauses of the U.S. Constitution. The Union also argues that the law violates Article I Section 21 of the Indiana Constitution which provides:

No person's particular services shall be demanded, without just compensation. No person's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.

Finally, the Union contends that the right-to-work law is preempted by the NLRA. The Union’s brief can be found here as well as recent media coverage by The Indianapolis Star.  A ruling from the Court is expected later this month.

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.