Right-to-Work and Preemption: Amicus in Sweeney v. Pence

Published October 13th, 2014 -  - 10.13.144


Catherine Fisk and I have filed an amicus in Sweeney v. Pence urging the seventh circuit to grant the petition for rehearing en banc.  We argue (based on our forthcoming article) that Indiana’s right-to-work law is preempted by the National Labor Relations Act.  Here’s the summary:

In February 2012, Indiana enacted so-called right-to-work legislation invalidating any employer requirement that union-represented employees “pay dues, fees, or other charges of any kind or amount to a labor organization … or to a charity or third party.” Indiana Code § 22-6-6-8. A three-judge panel of this Court, in an opinion by Judge Tinder joined by Judge Manion, over a dissent by Judge Wood, rejected the petitioner/appellants’ argument that the National Labor Relations Act preempts the Indiana law. For reasons explain below, the majority erred.

In a forthcoming article, we conclude that right-to-work laws like Indiana’s are preempted by federal law to the extent they prohibit collective bargaining agreements that require nonmembers to pay less than union dues and fees. See Catherine Fisk & Benjamin Sachs, Restoring Equity in Right to Work Laws, 4 U.C. Irvine L. Rev. 859, 862-68 (2014).  The National Labor Relations Act broadly preempts state laws regulating union-management relations and provides the exclusive source of law governing the interpretation and validity of collective bargaining agreements. See Teamsters Local 174 v. Lucas Flour, 369 U.S. 95 (1962); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). With the limited exception to preemption of section 14(b), 29 U.S.C. § 164(b), the validity of fair share fee provisions of collective bargaining agreements is governed exclusively by federal law. Section 14(b) saves from preemption only state laws invalidating agreements requiring nonmembers to pay the same as is required of members. To the extent that Indiana Code § 22-6-6-8 invalidates collective agreements requiring nonmembers to pay less than is required of members, it is not within the section 14(b) savings provision. Accordingly, this Court should grant the petition for rehearing en banc and hold that federal labor law preempts the Indiana right-to-work law.

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