Right to Work: Now What?

After months of intense lobbying and protests, Indiana's General Assembly has passed and Governor Daniels has signed into law a "right to work" statute. In this bulletin we are not debating the merits of the bill, we are simply trying to answer the question that many Indiana employers are asking: What does "right to work" mean for me, right now?

The simple answer is that Right to Work (RTW) makes it unlawful to require someone to join or remain a member of a union or to pay dues, fees or other assessments as a condition of employment or continued employment. That's it in a nutshell. Below are some FAQs designed to answer some of the questions we have heard from Indiana employers that are uncertain about how this legislation might impact their workforces and labor relations.

Am I somehow exempt from the statute? Does it apply to private employers, public employers or both?

The statute applies to most private employers. It does not apply to private employers covered by the Railway Labor Act – this would be those in the airline or rail industries, mostly. If you have a question about coverage, you should ask your labor lawyer.

The statute does not apply to federal, state or local governments – which are not covered by the National Labor Relations Act – or on property over which the U.S. government has exclusive jurisdiction for the purpose of labor relations.

I'm a non-union employer, do I have new rights or obligations?

No. The statute has no effect on your legal obligations today. If you are organized by a union in the future, you will be prohibited by state law from negotiating language in your collective bargaining agreement that would require your employees to join a union or pay union dues as a condition of employment.

I'm a unionized employer. Can I decertify the union in my shop now?

No. The law does not change the legal process of decertification nor does it allow an employer any more involvement in what must generally be an employee-driven process. In order to decertify an existing union, 30 percent of the employees in the bargaining unit must file a petition with the National Labor Relations Board during certain open periods asking for a decertification election. Whether the union stays then will depend on whether a majority of employees who show up to vote cast votes in favor of continued representation by the union. There is also a process for employees to deauthorize the union, which is basically the same as enacting a plant-specific right to work law. Employees in deauthorized plants do not have to join or pay the union to keep their jobs.

Do I have to renegotiate or change my current collective bargaining agreement?

No. The law applies only to agreements made, modified, renewed or extended after March 14, 2012. It does not apply to or void contacts in effect as of March 14, 2012, until those contracts expire. If your collective bargaining agreement has provisions contrary to the law, you will be obligated to continue to apply those provisions, but you will need to eliminate them when you renegotiate or extend your contract.

Does RTW change seniority provisions or job bidding procedures for people who decide not to pay dues? Do non-members still get to vote to ratify agreements?

No and Probably Not. The only provisions the law affects will be those often titled "Union Security" and the termination procedures that follow. Employees who make the personal decision not to pay dues or join the union must be treated the same by you under the terms of the agreement as they were before. The difference for them is that they will not be able to participate in internal union matters and may not be able to vote on whether to ratify or accept a new collective bargaining agreement – depending on the particular union's internal organizational rules and constitution.

Do I still have to deduct dues/assessments from employees' pay if it's in the existing collective bargaining agreement?

Yes. The law does not change any "dues check-off" agreement requiring you to deduct dues or other amounts from employees' paychecks and submit it to the union. This is true for all employees while your current agreement remains in effect. Under any new agreement, you will be required to deduct dues only for those employees who choose to remain in the union and authorize you to do so in the future.

Does RTW affect employee participation in union-sponsored benefit plans?

No. RTW affects only the union security and related termination provisions of your agreement. RTW does not change eligibility for benefit plan participation, even for bargaining unit employees who drop their union membership.

For assistance in determining the impact of RTW on your workforce, feel free to contact a member of Ice Miller's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.