Union Stumbles in Challenge to Idaho’s Right-to-Work Law

By Elliott T. Dube

Oct. 25 — A union’s court challenge to Idaho’s right-to-work law has hit a wall ( Operating Engineers Local 370 v. Wasden , 2016 BL 353352, D. Idaho, No. 4:15-CV-00500-EJL-CWD, 10/24/16 ).

Right-to-work laws generally prohibit union membership requirements for employees. In this case, International Union of Operating Engineers Local 370 claimed that Idaho’s law goes too far by banning any requirement that a person pay “any dues, fees, assessments, or other charges of any kind or amount” to a union as an employment condition.

The union’s lawsuit against the Idaho attorney general’s enforcement of the law experienced a major setback Oct. 24, as Judge Edward J. Lodge of the U.S. District Court for the District of Idaho dismissed the case. But the union still might seek to bring about a federal circuit court split on whether state right-to-work laws may ban employment requirements of not only actual union membership or the payment of full membership fees, but also the smaller payment of “representation fees.”

Local 370 argued before Lodge that the National Labor Relations Act preempts Idaho’s right-to-work statute and that the state law represents an unlawful taking under the U.S. Constitution’s Fifth Amendment. The judge said the validity of Idaho’s right-to-work law is an “open question” in the Ninth Circuit, which covers his court. But he sided with other circuit courts’ rejection of arguments similar to those raised by Local 370.

Union attorney Zoe Palitz of Altshuler Berzon LLP told Bloomberg BNA Oct. 25 that she expects the union to appeal Lodge’s decision. “We think that the Ninth Circuit and ultimately the Supreme Court will agree with us that it’s both unfair and contrary to Congress’s intent to require unions to represent workers entirely for free,” she said.

The Idaho Office of the Attorney General declined a request to comment on the record.

Company Shut Down Union’s Service Fee Proposal

Boise, Idaho-based locomotive manufacturer MotivePower rejected Local 370’s proposal to require all bargaining unit employees—the majority of whom weren’t paying the union anything—to pay a service fee of less than 50 percent of union dues to cover part of the cost of union representation. MotivePower cited the state’s right-to-work law, which led to the union’s lawsuit.

Local 370 said the NLRA clearly allows for the service fee it sought at MotivePower and therefore preempts the state right-to-work law. But Lodge pointed to NLRA Section 14(b), which states that the federal law doesn’t authorize the use of “agreements requiring membership in a labor organization as a condition of employment in any State or Territory” where the law bans them.

“[D]ecades of consistent Supreme Court, federal court, state court, and agency precedent has held Section 14(b) allows states to ban compulsory union fees,” including representation fees that amount to less than full union dues, Lodge found.

Meanwhile, Local 370 supported its constitutional argument by saying Idaho’s right-to-work law forces it into “providing uncompensated services to anyone who decides to opt out of union membership.”

However, Lodge said the U.S. Court of Appeals for the Seventh Circuit dismissed similar Fifth Amendment-related claims in Sweeney v. Pence , 2014 BL 240711, 767 F.3d 654, 200 LRRM 3465, 7th Cir., 2014 . A right-to-work law in Indiana didn’t “take” property from the union in that case, the Sweeney court determined. It said this was partly because the union’s duty of fair representation was mandatory under the NLRA, not the state law, which merely barred the union from collecting money to cover the costs of performing that duty.

Herzfeld & Piotrowski, Altshuler Berzon LLP and Benjamin Sachs of Harvard Law School represented Local 370. The Idaho Office of the Attorney General represented itself.

To contact the reporter on this story: Elliott T. Dube in Washington at edube@bna.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com

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