Amicus Curiae Brief — Ray Allen, Secretary, Wisconsin Department of Workforce Development, et al., Petitioners v. International Association of Machinists District Ten, et al.
Supreme Court briefFeb 4, 2019
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No. 18-855
IN THE
Supreme Court of the United States
____________________________________
RAY ALLEN AND JAMES DALEY,
Petitioners,
v.
INTERNATIONAL ASSOCIATION OF MACHINISTS
DISTRICT 10 AND ITS LOCAL LODGE 873,
Respondents.
____________________________________
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit
____________________________________
BRIEF OF INDIANA, GEORGIA, LOUISIANA,
OKLAHOMA, SOUTH CAROLINA, AND TEXAS
AS AMICI CURIAE IN SUPPORT
OF RESPONDENT
____________________________________
Office of the
Attorney General
302 W. Washington St.
Indianapolis, Indiana
46204
(317) 232-6255
Tom.Fisher@atg.in.gov
*Counsel of Record
CURTIS T. HILL, JR.
Attorney General
of Indiana
THOMAS M. FISHER*
Solicitor General
KIAN J. HUDSON
Deputy Solicitor General
JULIA C. PAYNE
Deputy Attorney General
Counsel for Amici States
Additional counsel listed with signature block
i
QUESTION PRESENTED
Whether this Court should overrule its summary
affirmance in Sea Pak v. Industrial, Technical, and
Professional Employees, Division of National Maritime Union, 400 U.S. 985 (1971) (mem.), and hold that
federal law does not prohibit States from giving employees the right to withdraw dues-checkoff authorizations.
ii
TABLE OF CONTENTS
QUESTION PRESENTED ....................................... i
TABLE OF AUTHORITIES ................................... iii
INTEREST OF THE AMICI STATES .................... 1
REASONS FOR GRANTING THE PETITION ...... 2
I.
Practically Irrevocable Dues-Checkoff
Authorizations
Undermine
State
Right-to-Work Protections ............................... 3
II.
States Have Long Regulated Wage
Assignments, Including Dues-Checkoff
Authorizations ................................................ 15
CONCLUSION ....................................................... 20
APPENDIX ............................................................. 1a
Table Listing Percentage of Total
Employed Workers Who Are Union
Members, Right-to-Work States....................... 1a
iii
TABLE OF AUTHORITIES
CASES
Algoma Plywood & Veneer Co. v. Wisconsin
Employment Relations Bd.,
336 U.S. 301 (1949) ........................................4, 5, 7
Am. Fed’n of Labor v. Am. Sash & Door Co,
335 U.S. 538 (1949) ................................................3
Amalgamated Meat Cutters & Allied
Workers of N. Am. v. Shen-Mar Food
Prod., Inc.,
405 F. Supp. 1122 (W.D. Va. 1975) .....................14
Commc’ns Workers of Am. v. Beck,
487 U.S. 735 (1988) ............................................5, 6
Gasaway v. Borderland Coal Corp.,
278 F. 56 (7th Cir. 1921)......................................16
Gen. Cable Indus. v. Chauffeurs, Teamsters,
Warehousemen & Helpers Local Union,
No. 1:15-CV-81, 2016 WL 3365133 (N.D.
Ind. June 17, 2016) ................................................2
Georgia State AFL-CIO v. Olens,
No. 1:13-CV-03745-WCO, 2015 WL
13260393 (N.D. Ga. July 20, 2015) .......................2
Int’l Bd. of Elec. Workers (Lockheed),
302 NLRB 322 (1991) ....................................12, 13
Int’l Bhd. of Teamsters Local 385,
366 NLRB No. 96 (June 20, 2018).......................13
iv
CASES [CONT’D]
Lincoln Fed. Labor Union v. Nw. Iron &
Metal Co.,
335 U.S. 525 (1949) ................................................3
Mason v. SmithKline Beecham Corp.,
596 F.3d 387 (7th Cir. 2010)................................18
NLRB v. Gen. Motors Corp.,
373 U.S. 734 (1963) ................................................4
NLRB v. Shen-Mar Food Products, Inc.,
557 F.2d 396 (4th Cir. 1977)..................................2
Ohlendorf v. United Food & Commercial
Workers Int’l Union,
883 F.3d 636 (6th Cir. 2018)................................13
Retail Clerks Int’l Ass’n v. Schermerhorn,
375 U.S. 96 (1963) ..........................................4, 5, 7
Schwartz v. Associated Musicians of
Greater New York,
340 F.2d 228 (2d Cir. 1964) ...................................6
SeaPak v. Indus., Tech. & Prof’l Emps.,
300 F. Supp. 1197 (S.D. Ga. 1969) ....................1, 2
SeaPak v. Indus., Tech. & Prof’l Emps.,
423 F.2d 1229 (5th Cir. 1970) (per
curiam) ...................................................................1
Sea Pak v. Industrial, Technical &
Professional Employees,
400 U.S. 985 (1971) (mem.) ...............................1, 2
v
CASES [CONT’D]
Shine v. John Hancock Mut. Life Ins. Co.,
68 A.2d 379 (R.I. 1949) ........................................17
Smith’s Food & Drug Centers, Inc.,
366 NLRB No. 138 (July 24, 2018) .....................13
Stewart v. NLRB,
851 F.3d 21 (D.C. Cir. 2017) .................... 12, 13, 14
Sweeney v. Pence,
767 F.3d 654 (7th Cir. 2014)..................................8
Transp. Workers Union of Am. v. Keating,
212 F. Supp. 2d 1319 (E.D. Okla. 2002)......2, 3, 15
United Auto., Aerospace & Agric. Implement
Workers of Am. v. Hardin Cty., Ky.,
842 F.3d 407 (6th Cir. 2016)..................................2
United Elec. Radio & Mach. Workers of Am.
v. Westinghouse Elec. Corp.,
345 F. Supp. 274 (W.D. Pa. 1972) .........................3
United Steelworkers v. United States
Gypsum Co.,
492 F.2d 713 (5th Cir. 1974)..................................6
Warner v. Chauffeurs, Teamsters, & Helpers
Local Union,
73 N.E.3d 190 (Ind. Ct. App. 2017) .......................3
Williams v. NLRB,
105 F.3d 787 (2d Cir. 1996) ...........................13, 14
vi
CASES [CONT’D]
Wyeth v. Levine,
555 U.S. 555 (2009) ........................................17, 18
STATUTES
28 R.I. Gen. Laws § 28-14-3 ......................................14
29 U.S.C. § 158(a)(3) ...................................................5
29 U.S.C. § 164(b)..................................................7, 13
29 U.S.C. § 186 ................................................ 6, 10, 11
43 Pa. Cons. Stat. Ann. § 211.6 ................................14
2015 Wis. Act 1 ............................................................7
2016 W. Va. Acts, c. 142 ..............................................7
2017 Ky. Acts Chapter 1 .............................................7
Ariz. Rev. Stat. § 23-361.02(F) ...........................14, 15
Ga. Code § 34-6-21 et seq. .....................................7, 14
Ind. Code § 22-6-6-1 et seq. ...............................7, 8, 14
Iowa Code § 731.5 .....................................................14
La. Rev. Stat. Ann. § 23:981 et seq. ........................7, 8
N.C. Gen. Stat. § 95-25.8(a) ......................................14
Okla. Const. Article XXIII, § 1A .................................7
vii
STATUTES [CONT’D]
S.C. Code Ann. § 41-7-10 et seq. .................................7
Tex. Lab. Code Ann. § 101.051 et seq. ........................7
OTHER AUTHORITIES
Brian A. Powers & Andrew Kelser, DuesCheckoff Dreams Do Come True, They
Do, They Do, 29 ABA J. Lab. & Emp. L.
299 (2014) .............................................................13
E.B. McNatt, Check-Off, 4 Lab. L.J. 123
(1953) ................................................................9, 16
Matthew Dimick, Productive Unionism, 4
UC Irvine L. Rev. 679 (2014).................................8
Millis and Katz, A Decade of State Labor
Legislation, 1937–1947, 15 U. Chi. L.
Rev. 282 (1948) ....................................................16
National Conference of State Legislatures,
Right-To-Work Resources,
http://www.ncsl.org/research/labor-andemployment/right-to-work-laws-andbills.aspx ................................................................7
Note, Check-off of Union Dues under the
NLRA – A Federally Protected
Bargaining Issue, 26 Ind. L. J. 443
(1951) .......................................................... 9, 15, 16
viii
OTHER AUTHORITIES [CONT’D]
Note, Efforts to Eliminate Some Evils of
Unrestricted Credit for Wage Earners, 45
Harv. L. Rev. 1102 (1932) ....................................17
Note, Employer’s Liability under Checkoff
Contract for Non-Union Employee’s
Dues, 47 Colum. L. Rev. 143 (1947) ....................10
Note, Labor – Statutes and Interpretation –
Checkoff of Union Dues Invalid Under
State Wage Assignment and “Weekly
Payment” Statutes, 63 Harv. L. Rev. 902
(1950) ....................................................................16
Note, The Check-Off in Collective
Agreements, 30 Monthly Lab. Rev. 1
(1930) ................................................................9, 15
Richard G. McCracken, Techniques to
Increase Union Membership (2017
Oregon Labor Law Conference),
http://laborlawconference.com/wpcontent/uploads/2017/01/OLLC-Right-toWork-2017.pdf. .....................................................10
Thomas R. Haggard, Union Checkoff
Arrangements under the National Labor
Relations Act, 39 DePaul L. Rev. 568
(1990) .................................................... 8, 11, 16, 17
1
INTEREST OF THE AMICI STATES1
The States of Indiana, Georgia, Louisiana, Oklahoma, South Carolina, and Texas respectfully submit
this brief as amici curiae in support of the petitioners.
In its decision below the Seventh Circuit held that
federal law preempts States from regulating duescheckoff authorizations, forms by which employees
authorize employers to deduct union dues from their
wages. The Seventh Circuit, like every other court to
consider the question, concluded that this result was
required by a summary affirmance this Court issued
nearly fifty years ago. See Sea Pak v. Indus., Tech. &
Prof’l Emps., Div. of Nat’l Mar. Union, 300 F. Supp.
1197 (S.D. Ga. 1969), aff’d per curiam, 423 F.2d 1229
(5th Cir. 1970), aff’d mem., 400 U.S. 985 (1971).
Amici States have an interest in maintaining their
authority to protect workers from being compelled to
pay union dues, including by regulating dues-checkoff
authorizations. They submit this brief to explain why
the Court should grant the petition and hold that federal law permits States to regulate dues-checkoff authorizations.
1 Pursuant to Supreme Court Rule 37.2(a), counsel of record for
all parties received notice of Amici States’ intention to file this
brief at least 10 days prior to the due date of this brief.
2
REASONS FOR GRANTING THE PETITION
Both Congress and the Court have consistently
recognized States’ authority to protect workers by
passing right-to-work legislation that prevents employers and labor organizations from coercing workers into joining unions. But a district court decision
the Court summarily affirmed nearly fifty years ago
has created an anomalous gap in States’ ability to enforce their right-to-work laws: This decision, SeaPak
v. Industrial, Technical & Professional Employees,
held that a statutory exception to a federal anti-bribery law preempts state regulation of dues-checkoff authorizations—forms executed by employees that authorize employers to deduct union dues from employees’ paychecks. 300 F. Supp. 1197 (S.D. Ga. 1969),
aff’d 400 U.S. 985 (1971) (mem.). Even as the Court
has become less amenable to implied preemption over
the last five decades, other doctrinal developments
have exacerbated problems with SeaPak’s implied
preemption of state regulation of dues-checkoff authorizations. Nevertheless, lower courts continue to
consider themselves bound by SeaPak.2 The time has
come for the Court to revisit it.
2 See, e.g., United Auto., Aerospace & Agric. Implement Workers
of Am. v. Hardin Cty., Ky., 842 F.3d 407, 421 (6th Cir. 2016);
NLRB v. Shen-Mar Food Products, Inc., 557 F.2d 396, 399 (4th
Cir. 1977); Gen. Cable Indus. v. Chauffeurs, Teamsters, Warehousemen & Helpers Local Union, No. 1:15-CV-81, 2016 WL
3365133, at *3 (N.D. Ind. June 17, 2016); Georgia State AFL-CIO
v. Olens, No. 1:13-CV-03745-WCO, 2015 WL 13260393, at *13
(N.D. Ga. July 20, 2015); Transp. Workers Union of Am. v. Keating, 212 F. Supp. 2d 1319, 1327 (E.D. Okla. 2002), aff’d, 358 F.3d
3
I.
Practically Irrevocable Dues-Checkoff
Authorizations
Undermine
State
Right-to-Work Protections
1. Just over seventy years ago, the Court held that
the U.S. Constitution permits States to protect workers’ rights by adopting laws that “forbid employers
acting alone or in concert with labor organizations deliberately to restrict employment to none but union
members,” such as by entering into “union security
agreements” that “obligate an employer to employ”
only union members. Lincoln Fed. Labor Union v. Nw.
Iron & Metal Co., 335 U.S. 525, 528–30 & n.2 (1949).
Justice Frankfurter’s concurring opinion explained
that when it comes to the rights of employees, employers, and labor organizations, “a compromise must be
struck” and where that compromise “should fall . . . is
plainly a question within the special province of the
legislature.” Am. Fed’n of Labor v. Am. Sash & Door
Co, 335 U.S. 538, 546 & n.2 (1949) (Frankfurter, J.,
concurring). He observed that the Court had “given
effect to such a compromise in sustaining a legislative
purpose to protect individual employees against the
exclusionary practices of unions,” and that States’
“legislation prohibiting union-security agreements is
founded on a similar resolution of conflicting interests.” Id. at 546 & n.2 (collecting authorities).
743 (10th Cir. 2004); United Elec. Radio & Mach. Workers of Am.
v. Westinghouse Elec. Corp., 345 F. Supp. 274, 276 (W.D. Pa.
1972), aff’d, 478 F.2d 1399 (3d Cir. 1973); Warner v. Chauffeurs,
Teamsters, & Helpers Local Union, 73 N.E.3d 190, 197 (Ind. Ct.
App. 2017).
4
Similarly, Congress has consistently and expressly endorsed States’ authority to adopt right-towork laws prohibiting union-security agreements.
“Prior to enactment of the Wagner Act in 1935, the
States had unquestioned power to regulate or prohibit
the closed shop and other forms of union-security
agreements.” Retail Clerks Int’l Ass’n v. Schermerhorn, 375 U.S. 96, 100 n.2 (1963). “At the time when
the [Wagner Act] was adopted, the courts of many
States, at least under some circumstances, denied validity to union-security agreements.” Algoma Plywood
& Veneer Co. v. Wisconsin Employment Relations Bd.,
336 U.S. 301, 306 (1949).
Section 8(3) of the Wagner Act “forbade employers
to discriminate against employees to compel them to
join a union.” NLRB v. Gen. Motors Corp., 373 U.S.
734, 738 (1963). To prevent this provision from being
construed to “outlaw union-security arrangements
such as the closed shop,” Congress added a proviso
“expressly declaring . . . ‘That nothing in this Act . . .
shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a).’” Id. at 738–39 (last
ellipsis in original) (quoting 49 Stat. 452 § 8(3)). This
proviso “disclaim[ed] a national policy hostile to the
closed shop or other forms of union-security agreement,” Algoma Plywood, 336 U.S. 307 (emphasis
added), but did “nothing to facilitate closed-shop
agreements or to make them legal in any State where
they may be illegal,” id. at 308 (quoting S. Rep. No.
573, 74th Cong., 1st Sess. 11–12). The Wagner Act
5
thus left in place state right-to-work laws, including
laws regulating contracts requiring workers to maintain union membership as a condition of employment.
Id. at 305.
By the time Congress enacted the Taft-Hartley Act
(the statute at issue in this case) in 1947, “twelve
States had statutes or constitutional provisions outlawing or restricting the closed shop and related devices”—state laws “about which Congress seems to
have been well informed during the 1947 debates.” Id.
Three provisions of Taft-Hartley are of particular relevance here.
Section 8(a)(3) of the Act (codified at 29 U.S.C.
§ 158(a)(3)) changed the text of Section 8(3) of the
Wagner Act to “forbid[] the closed shop and strictly
regulate[] the conditions under which a union-shop
agreement may be entered.” Id. at 314. Section
8(a)(3), for example, “require[s] that there be a 30-day
waiting period before any employee is forced into a
union . . . and that an employer not discriminate
against an employee if he has reasonable grounds for
believing that membership in the union was not available to the employee on a nondiscriminatory basis.”
Retail Clerks, 375 U.S. at 100. Notably, while Section
8(a)(3) permits union-security agreements, “it prohibits the mandatory discharge of an employee who is expelled from the union for any reason other than . . .
failure to pay . . . dues.” Commc’ns Workers of Am. v.
Beck, 487 U.S. 735, 749 (1988). Under Taft-Hartley,
the “membership” that a collective bargaining agreement may require has thus “been ‘whittled down to its
financial core’” to include only payment of dues that
6
support the union’s “collective bargaining, contract
administration, and grievance adjustment” activities.
Id. at 745 (quoting Gen. Motors Corp., 373 U.S. at
742).
Much later in the Act, Section 302 (codified at 29
U.S.C. § 186) makes it generally unlawful for employers to give anything of value to union representatives,
excepting “money deducted from the wages of employees in payment of membership dues in a labor organization” if that money is deducted pursuant to “a written assignment which shall not be irrevocable for a
period of more than one year, or beyond the termination date of the applicable collective agreement,
whichever occurs sooner.” Section 302 is essentially
an anti-bribery provision, and it was meant to: “(1)
protect welfare funds . . . (2) prevent corruption in the
collective bargaining process . . . [and] (3) protect
against the possible abuse by union officers of the
power they might wield if welfare funds were left to
their sole control.” Schwartz v. Associated Musicians
of Greater New York, 340 F.2d 228, 233–34 (2d Cir.
1964) (collecting cases); see also United Steelworkers
v. United States Gypsum Co., 492 F.2d 713, 734 (5th
Cir. 1974) (noting that Section 302’s purpose was “to
protect employers from extortion and to insure honest, uninfluenced representation of employees”). It
provides for enforcement via criminal penalties—
chargeable as a felony if the violation is intentional
and the amount at issue exceeds $1,000. See 29 U.S.C.
§ 186(d).
7
Finally, “to forestall the inference that federal policy [allowing union-shop agreements] was to be exclusive,” Algoma Plywood, 336 U.S. 314, Taft-Hartley included Section 14(b) (codified at 29 U.S.C. § 164(b)),
which provides that “[n]othing in this Act shall be construed as authorizing the execution or application of
agreements requiring membership in a labor organization as a condition of employment in any State . . .
in which such execution or application is prohibited
by State . . . law.” Section 14(b) “ma[de] clear and unambiguous the purpose of Congress not to preempt
the field.” Retail Clerks, 375 U.S. at 101–02. In this
respect, the Taft-Hartley Act “continue[d] the policy
of the Wagner Act and avoid[ed] federal interference
with state laws in this field.” Id.
2. Thus, from the time the federal involvement began regulating labor relations to today, States have
had unquestioned authority to pass right-to-work
laws protecting workers from being forced into union
membership. Several States have adopted such rightto-work laws recently, including three in the last four
years. See 2015 Wis. Act 1; 2016 W. Va. Acts, c. 142;
2017 Ky. Acts ch. 1. In all, 27 States, including Amici
Curiae, have adopted right-to-work laws. See, e.g.,
Ind. Code § 22-6-6-1 et seq.; Ga. Code § 34-6-21 et seq.;
La. Rev. Stat. Ann. § 23:981 et seq.; Okla. Const. art.
XXIII, § 1A; S.C. Code Ann. § 41-7-10 et seq.; Tex. Lab.
Code Ann. § 101.051 et seq. See generally National
Conference of State Legislatures, Right-To-Work Resources, http://www.ncsl.org/research/labor-and-employment/right-to-work-laws-and-bills.aspx.
These
laws generally proscribe any requirement that an em-
8
ployee, as a condition of employment, become or remain a union member or pay dues or equivalent
charges to a union or third party. See, e.g., Ind. Code
§ 22-6-6-8. Their purpose is to ensure employees may
join and leave unions without coercion by unions or
employers. See, e.g., La. Rev. Stat. Ann. § 23:981.
Because they prevent employers and unions from
agreeing to compel employees to pay union dues as a
condition of employment, right-to-work laws are often
understood to “make[] unionization more difficult” by
restricting the tools unions may use to convince employees to become members and pay dues. Matthew
Dimick, Productive Unionism, 4 UC Irvine L. Rev.
679, 705 n.147 (2014). After all, “[a]s is true of any
organization, money is the life blood of a labor union.”
Thomas R. Haggard, Union Checkoff Arrangements
under the National Labor Relations Act, 39 DePaul L.
Rev. 568, 574 (1990). Right-to-work laws, do not, however, eliminate union activity. “[U]nions continue to
thrive and assert significant influence in several
right-to-work states, including Iowa, where [right-towork] provisions . . . have been in effect for more than
sixty-five years.” Sweeney v. Pence, 767 F.3d 654, 664–
65 (7th Cir. 2014). Today, union membership rates in
right-to-work States range from 2.7% in North Carolina and South Carolina to 14.5% in Michigan. See Appendix. And “[e]ven unionized workplaces in right-towork states have impressive firm-level union density.” Dimick, supra, at 705.
3. Nevertheless, “[u]nions defend union security
with great intensity,” id. at 705 n.147. And one way
they do so is through the “dues-checkoff.” The dues-
9
checkoff typically involves two discrete arrangements: First, a union employee executes a written authorization for the employer “to deduct from wages
due . . . the amounts that may be due from month to
month from such employee to the union.” Note, The
Check-Off in Collective Agreements, 30 Monthly Lab.
Rev. 1, 1 (1930). Second, the “employer agrees with
[the] union to deduct from his employees’ wages union
dues and other financial obligations and turn this
sum over to appropriate union officials at regular intervals.” E.B. McNatt, Check-Off, 4 Lab. L.J. 123, 123
(1953); see also Note, Check-off of Union Dues under
the NLRA – A Federally Protected Bargaining Issue,
26 Ind. L. J. 443, 443–44 & n.2 (1951) (observing that
dues-checkoff authorizations have long been a “frequent[]” subject of collective bargaining agreements).
Because “the continued existence of the union as
an organization is dependent upon a steady flow of income from its members, it is obvious that the checkoff is more important to the union as an entity than it
is to the employer or even to the individual union
member.” McNatt, supra at 123. The dues-checkoff
has obvious advantages for the union: It ensures a
steady stream of revenue, and when—as is usually
the case—the revocability of the dues-checkoff authorization is limited, it can keep employees paying
dues when they otherwise would not do so. It is thus
“simply another form of union security provision and
is therefore closely related to various union shop provisions in collective bargaining contracts.” Id.
10
Indeed, today labor organizers themselves see
dues-checkoff authorizations as “[b]y far the most important provision” for evading the reach of state rightto-work laws that prohibit union security agreements.
Richard G. McCracken, Techniques to Increase Union
Membership (2017 Oregon Labor Law Conference) at
4, http://laborlawconference.com/wp-content/uploads/
2017/01/OLLC-Right-to-Work-2017.pdf. Abuse of
dues-checkoff authorizations is nothing new: Seventy
years ago the Columbia Law Review remarked that
“where judicial resistance to the closed shop itself is
strong, unions have written in checkoff provisions,
thus securing at least universal financial support.”
Note, Employer’s Liability under Checkoff Contract
for Non-Union Employee’s Dues, 47 Colum. L. Rev.
143, 145 (1947).
In short, while right-to-work laws prohibit compulsory union fees and dues, long-term dues-checkoff
authorizations inhibit dissatisfied union members’
freedom to reject union membership (or to otherwise
cease supporting the union).
4. Aggravating the problem, judicial and administrative interpretations have weakened Taft-Hartley’s
restraints on checkoffs, permitting unions to apply
them to a broader range of fees and to impose narrower and more obscure revocation periods. That dynamic has increased the need for state regulation and,
correspondingly, the need for reexamination of
SeaPak.
Section 302 of the Taft-Hartley Act allows employers to deduct money “from the wages of employees in
11
payment of membership dues in a labor organization,”
only if such deductions are made pursuant to “a written assignment which shall not be irrevocable for a
period of more than one year, or beyond the termination date of the applicable collective agreement,
whichever occurs sooner.” 29 U.S.C. § 186(c) (emphasis added). Thus, as a matter of federal law, any duescheckoff authorization must satisfy two requirements: The money must be “in payment of membership dues in a labor organization,” and the authorization must at least meet Taft-Hartley’s revocability requirements. Federal courts and the National Labor
Relations Board, however, have progressively weakened these requirements, exposing workers to greater
union overreach, notwithstanding state right-to-work
laws.
First, “the courts have tended to construe the
checkoff exception of subsection (c) rather broadly” to
encompass more than just the “membership dues” to
which Section 302 refers. Haggard, supra at 576 &
n.37 (citing NLRB v. Food Fair Stores, Inc., 307 F.2d
3, 11–12 (3d Cir. 1962)). “[T]he courts have allowed
the checkoff of strike assessments, supplemental
dues, ‘emergency dues,’ percentage levies, a performance tax, and agency shop fees.” Id. at 577 & n.39–
44 (collecting cases). Accordingly, a single duescheckoff authorization can permit a union to collect a
wide variety of union exactions from an employee’s
paycheck, all without obtaining any additional consent from the employee.
12
Second, federal courts have accepted NLRB’s extremely limited interpretation of Section 302’s revocability requirements. NLRB claims that Section 302
allows dues-checkoff authorizations to renew automatically without additional employee consent, and it
thus “understands Section 302(c)(4) to establish a
statutory right to two opportunities to revoke a
checkoff authorization: the first tied to the annual anniversary of the authorization, and the second tied to
the expiration of the operative collective bargaining
agreement.” Stewart v. NLRB, 851 F.3d 21, 24 (D.C.
Cir. 2017). NLRB maintains that, “[w]ith respect to
each of those two opportunities,” the ability to revoke
the authorization can be confined “to a reasonable escape period preceding the anniversary and expiration
dates, respectively.” Id.
Third, and most alarmingly, in a landmark 1991
decision, NLRB held that Section 302 permits a duescheckoff authorization to continue to operate even after the employee has resigned membership in the union, so long as the authorization “clearly and explicitly
provide[s] for postresignation dues obligations.” Int’l
Bd. of Elec. Workers (Lockheed), 302 NLRB 322, 331
(1991). This “continuation” doctrine stands in tension
with Section 302’s requirement that the deduction of
wages be “in payment of membership dues in a labor
organization”: In a right-to-work State, when the employee resigns from the union, the employee no longer
owes dues, which means any amounts deducted from
the employee’s wages cannot be “in payment of membership dues.” Nevertheless, both NLRB and the federal courts have continued to reaffirm the continua-
13
tion doctrine. See, e.g., Stewart, 851 F.3d at 31; Williams v. NLRB, 105 F.3d 787, 791 (2d Cir. 1996);
Smith’s Food & Drug Centers, Inc., 366 NLRB No. 138
(July 24, 2018); Int’l Bhd. of Teamsters Local 385, 366
NLRB No. 96 (June 20, 2018).3
The upshot of the automatic renewal and continuation doctrines is that dues-checkoff authorizations
now generally impose irrevocability for the full oneyear period permitted by federal law and automatic
renewal every year, even if the employee has resigned
his union membership. The result is that employees
have only a narrow ten- to twenty-day window to revoke their authorization, and if they fail to do so the
authorization automatically renews for yet another
year. See Brian A. Powers & Andrew Kelser, DuesCheckoff Dreams Do Come True, They Do, They Do, 29
ABA J. Lab. & Emp. L. 299, 303 & n.32 (2014)
(“[A]uthorization is revocable during an ‘escape period,’ which is usually a ten- to twenty-day window
immediately after the irrevocability period expires.”);
see also e.g., Ohlendorf v. United Food & Commercial
Workers Int’l Union, 883 F.3d 636, 639 (6th Cir. 2018)
(15-day window); Stewart v. N.L.R.B., 851 F.3d 21, 25
3 Notably, NLRB’s conclusion in Lockheed that wages deducted
pursuant to the dues-checkoff authorization of a resigned union
member are deducted “in payment of membership,” Int’l Bd. of
Elec. Workers (Lockheed), 302 NLRB 322, 325 (1991) (emphasis
in original), contradicts SeaPak’s conclusion that dues-checkoff
authorizations are not encompassed by Taft-Hartley’s authorization of States to regulate “agreements requiring membership
in a labor organization as a condition of employment.” 29 U.S.C.
§ 164(b). Either the dues-checkoff authorizations of resigned
members relate to union membership or they do not: Unions cannot have it both ways.
14
(D.C. Cir. 2017) (same); Williams v. N.L.R.B., 105
F.3d 787, 789 (2d Cir. 1996) (10-day window); Amalgamated Meat Cutters & Allied Workers of N. Am. v.
Shen-Mar Food Prod., Inc., 405 F. Supp. 1122, 1125
(W.D. Va. 1975) (same).
The automatic renewal and continuation doctrines
leave employees with few opportunities to revoke
dues-checkoff authorizations, opportunities likely to
pass them by when—as is the norm—they do not have
an attorney providing revocation advice. Limited and
obscure revocation periods thereby frustrate the purpose of right-to-work laws since they, in effect, force
employees to continue paying union dues long after
they decide to quit the union.
Take the employee here: She signed a duescheckoff authorization when Wisconsin law still permitted compulsory union dues. She attempted to revoke the authorization shortly after Wisconsin prohibited compulsory dues, but under the continuation
doctrine, because she did not revoke the authorization
during its slim 15-day window, she must continue
paying dues to a union she does not support. See Pet’r.
App. 70a.
5. For precisely these reasons, many States regulate dues-checkoff authorizations, such as by requiring a majority vote of employees, see 43 Pa. Cons.
Stat. Ann. § 211.6; 28 R.I. Gen. Laws § 28-14-3, by
further limiting the period in which authorization is
irrevocable, see Iowa Code § 731.5; N.C. Gen. Stat.
§ 95-25.8(a), or by requiring revocability at will, see
Ind. Code § 22-2-6-2; Ga. Code § 34-6-25(a); Ariz. Rev.
15
Stat. § 23-361.02(F); Local 514, Transp. Workers Union of Am. v. Keating, 212 F. Supp. 2d 1319, 1327
(E.D. Okla. 2002), aff’d, 358 F.3d 743 (10th Cir. 2004).
As demonstrated by the decision below, the
Court’s nearly half-century-old summary affirmance
in SeaPak interferes with such worker protections
and undermines States’ right-to-work laws more
broadly. Only the Court can remove SeaPak as an obstacle to States’ effective exercise of their undisputed
authority to adopt right-to-work legislation. Because
of the stakes this issue presents for States and workers across the country, the Court should do so.
II.
States Have Long Regulated Wage
Assignments, Including Dues-Checkoff
Authorizations
In addition to undermining States’ unquestionably
legitimate authority to adopt right-to-work laws,
SeaPak also disrupts the long historical practice of
state regulation of dues-checkoff authorizations specifically and of wage assignments more generally.
Dues-checkoff authorizations have been a feature
of American labor relations for many years. “Provision for the check-off system of collecting union dues
appeared in the earliest agreements between the bituminous coal operators and the miners’ union,” and
by 1930 “the collective agreements received by the Bureau of Labor Statistics show[ed] that provision for
the check-off is made in many other trades.” Note, The
Check-Off in Collective Agreements, 30 Monthly Lab.
Rev. 1 (1930). And, due to their potential for abuse,
16
dues checkoffs have long been a “subject of a considerable measure of state regulation.” Note, Check-off of
Union Dues under the NLRA – A Federally Protected
Bargaining Issue, 26 Ind. L. J. 443, 443–44 & n.2
(1951).
By 1948, for example, eight States had outlawed
the dues-checkoff in the absence of a signed, written
order. Millis and Katz, A Decade of State Labor Legislation, 1937–1947, 15 U. Chi. L. Rev. 282, 294–95 &
n.83–90 (1948). In addition, Iowa required duescheckoffs to be “countersigned by the spouse . . . [and]
revocable on thirty days’ notice,” while Georgia required dues-checkoffs to be revocable at will. Id. at
295 & n.91–92. Pennsylvania permitted the duescheckoff only if the employees in the bargaining unit
voted to approve it by majority vote. Id. at 295 & n.93.
Dues-checkoff authorizations have also historically been subject to broader state regulations governing wage assignments in general. Because no consideration passes between the employee and employer,
dues-checkoff authorizations are assignments, not
contracts. See Gasaway v. Borderland Coal Corp., 278
F. 56, 65 (7th Cir. 1921) (“[T]he check-off is the voluntary assignment by the employee of so much of his
wages as may be necessary to meet his union dues,
and his direction to his employer to pay the amount
to the treasurer of his union.”); Note, Labor – Statutes
and Interpretation – Checkoff of Union Dues Invalid
Under State Wage Assignment and “Weekly Payment”
Statutes, 63 Harv. L. Rev. 902, 902 (1950); E.B.
McNatt, Check-Off, 4 Lab. L.J. 123, 123 (1953);
Thomas R. Haggard, Union Checkoff Arrangements
17
under the National Labor Relations Act, 39 DePaul L.
Rev. 568, 573 (1990) (collecting authorities).
Accordingly, state laws governing wage assignments traditionally applied to dues-checkoff authorizations unless state law specifically excluded them. In
1949, for example, the Rhode Island Supreme Court
held that dues-checkoff authorizations were invalid
under the State’s wage-assignment law. Shine v. John
Hancock Mut. Life Ins. Co., 68 A.2d 379, 381 (R.I.
1949).
States have regulated wage assignments for a very
long time, including since well before Congress passed
the Taft-Hartley Act and even the Wagner Act. In
1932 the Harvard Law Review reported that thirtynine states had regulations concerning voluntary assignments. See Note, Efforts to Eliminate Some Evils
of Unrestricted Credit for Wage Earners, 45 Harv. L.
Rev. 1102, 1104 (1932). These regulations imposed a
variety of requirements, including that they be in
writing, indicate the consent of the assignor’s spouse,
and limit the length of time of the assignment. See id.
at 1105 & n.32–38. Regulation of wage assignments
is thus undoubtedly a sphere “traditionally occupied”
by states, and therefore an area of law where the presumption against preemption is at its zenith. See Wyeth v. Levine, 555 U.S. 555, 565 & n.3 (2009).
Under current preemption doctrine, such historical state regulation of checkoffs as wage assignments
would be entitled to great weight via the presumption
against preemption. Nowadays, to preempt “the historic police powers of the States,” the Court requires
18
statutory language evincing “the clear and manifest
purpose of Congress” to do so—not merely the possibility that longstanding state statutes might impede
some broad federal policy. Id. (quoting Medtronic, Inc.
v. Lohr, 518 U.S. 470, 485 (1996)).
Yet the district court decision in SeaPak summarily affirmed by this Court proceeded from a very different understanding of preemption doctrine. Illustrating just how much the Court’s preemption doctrine has changed in the last five decades, the SeaPak
district court did not so much as mention the presumption against preemption—a principle the Court
recently characterized as a “cornerstone[] of [its] preemption jurisprudence.” Id. (internal quotation
marks and citations omitted). Indeed, not until 2009
did the Court declare in Wyeth that the presumption
against preemption applies even in areas with a history of federal regulation and even in conflict preemption cases. Id. at 565 n.3 (rejecting petitioner’s and
dissent’s arguments that the presumption is inapplicable in these contexts).
Wyeth was “a sea change in the way courts are to
consider issues of federal preemption.” Mason v.
SmithKline Beecham Corp., 596 F.3d 387, 389 (7th
Cir. 2010). As the dissent below observed, the Court
“is now much more sensitive to federalism concerns
and far less likely to imply preemption from ambiguous statutes or legislative history.” Pet’r. App. 65a.
The SeaPak “district court’s analysis perhaps made
some sense in 1969, but it cannot stand alongside
modern preemption doctrine.” Id.
19
In short, Wyeth’s “sea change” means it is now
time to review SeaPak. The Court should grant the
petition, correct the preemption anomaly SeaPak represents, and restore States’ long-recognized authority
over union-security agreements and wage assignments.
20
CONCLUSION
For these reasons, the petition for a writ of certiorari should be granted.
Respectfully submitted,
Office of the
Attorney General
302 W. Washington St.
Indianapolis, IN 46204
(317) 232-6255
Tom.Fisher@atg.in.gov
*Counsel of Record
CURTIS T. HILL, JR.
Attorney General of
Indiana
THOMAS M. FISHER*
Solicitor General
KIAN J. HUDSON
Deputy Solicitor General
JULIA C. PAYNE
Deputy Attorney General
Counsel for Amici States
Dated: February 4, 2018
21
ADDITIONAL COUNSEL
Counsel for Amici States
CHRISTOPHER M. CARR
Attorney General of
Georgia
40 Capitol Square, SW
Atlanta, GA 30334
JEFF LANDRY
Attorney General of
Louisiana
1885 N. Third Street
Baton Rouge, LA 70802
MIKE HUNTER
Attorney General of
Oklahoma
313 N.E. 21 Street
Oklahoma City, OK 73105
ALAN WILSON
Attorney General of
South Carolina
P.O. Box 11549
Columbia, SC 29211
KEN PAXTON
Attorney General of
Texas
P.O. Box 12548 (MC 059)
Austin, TX 78711
APPENDIX
1a
Appendix
Percentage of Total Employed Workers
Who Are Union Members, Right-to-Work States
State
Alabama
Arizona
Arkansas
Florida
Georgia
Idaho
Indiana
Iowa
Kansas
Kentucky
Louisiana
Michigan
Mississippi
Nebraska
Nevada
North Carolina
North Dakota
Oklahoma
South Carolina
South Dakota
Tennessee
Texas
Utah
Percentage of total
employed workers who
are union members
9.2
5.3
4.8
5.6
4.5
4.7
8.8
7.7
7
8.9
5
14.5
5.1
6.6
13.9
2.7
5.2
5.7
2.7
5.6
5.5
4.3
4.1
2a
State
Virginia
West Virginia
Wisconsin
Wyoming
Percentage of total
employed workers who
are union members
4.3
10
8.1
6.5
Source: Bureau of Labor Statistics,
https://www.bls.gov/news.release/union2.t05.htm
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.