Tag Archives: International Union of Operating Engineers

Seventh Circuit Upholds Wisconsin’s Right-to-Work Law

Contributed by Carlos Arévalo, July 21, 2017

On July 12, 2017, a three judge panel in the seventh circuit unanimously affirmed District Judge J.P. Stadtmueller’s ruling dismissing a lawsuit filed by two International Union of Operating Engineers (IUOE) locals that challenged the validity of Wisconsin’s right-to-work law. Judge Stadtmueller’s dismissal in September 2016 was based on the seventh circuit Sweeney v. Pence 2014 decision that upheld Indiana’s “nearly identical” law.

The Wisconsin law provides that “no person may require, as a condition of obtaining or continuing employment, an individual to…become or remain a member of a labor organization [or] pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization.”

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Black and white gavel

In Sweeney, the seventh circuit determined that the National Labor Relations Act did not preempt Indiana’s right–to-work law, even if it prohibited the mandatory payment of any dues or fees to unions, and it did not result in a taking in violation of the Fifth Amendment. The court reasoned that unions are “justly compensated by federal law’s grant to [unions] the right to bargain exclusively with…employer[s].”

On this appeal, the IUOE conceded that Sweeney controlled, but argued that it was wrongly decided and should be overturned. The IUOE relied on a strong dissent in Sweeney and the close en banc vote to rehear it. Writing for the panel, however, Judge Joel Flaum rejected these arguments and noted that they were not “compelling reasons” to overturn a recent decision. Judge Flaum also added that the unions failed to direct the court to any intervening development in statutory, Supreme Court, or other intermediate appellate court decision undermining Sweeney’s validity.

The seventh circuit’s decision affirming the Wisconsin’s 2015 law suggests a continuing trend favoring the right-to-work movement at the judicial and legislative levels of government. In February of this year, Missouri enacted its right-to-work law becoming the 28th state with a right-to-work law on the books, closely following Kentucky’s adoption of its own law in January. Opponents in Missouri have sought a referendum seeking to repeal the law, but their efforts suffered a setback when union-led referendum summaries were ruled “unfair and insufficient.” In Kentucky, labor organizations have sued seeking to block the law.

At the federal level, Republican Congressmen Steve King of Iowa and Joe Wilson of South Carolina re-introduced the National Right to Work Act bill (an effort that went nowhere in 2015) in the hope that a Trump administration would approve such legislation. Within a month, Senator Paul Rand of Kentucky introduced similar legislation in the Senate. These bills would amend the National Labor Relations Act and Railway Labor Act to prohibit the use of union security clauses requiring union membership and payment of dues and fees.

Where all of this leads is unclear, but we can be certain of one thing for the near future – this battle will continue to be fought all across the country.

House Republicans Push Back on Davis-Bacon Prevailing Wage Expansion

Contributed by Jonathon Hoag

On July 11, 2013, House Republican Committee leaders sent a letter to the U.S. Department of Labor (DOL) requesting it explain why it issued guidance to cover land & field surveyors under federal prevailing wage law (i.e. Davis-Bacon Act).  This type of work has historically been excluded from prevailing wage requirements as preconstruction work.  In fact, a wage determination in accordance with the Davis-Bacon Act currently does not exist for this type of work.  However, the DOL, under extreme pressure from the International Union of Operating Engineers (IUOE), changed its position to include this type of work as covered by the Davis-Bacon Act.  The DOL knows that it has not recognized this work under prevailing wage law and does not have a wage determination applicable to this work, but it has requested that contractors pay survey crews the applicable wage for the classification of work that most closely matches the work performed.  The July 11, 2013 letter to the DOL points out that this abrupt change could have significant impact on contractors and it was made with little notice or justification. 

The House Republican Committee leaders have asserted that this type of change should only be made after the DOL goes through a transparent rulemaking procedure.  These House Committee leaders have requested numerous documents from the DOL that purportedly support the change and illustrate the involvement of organized union.  Only time will tell if this push back will have any impact on the DOL’s efforts to expand the prevailing wage law requirements.

Illinois contractors are very accustomed to this type of abrupt change in state prevailing wage law.  The aspect that is undoubtedly transparent is that organized labor is on a mission to widen the net with respect to the type of work covered by prevailing wage laws.  Contractors should be prepared for more arbitrary expansion to prevailing wage laws at the state and federal level.