Pierson v. Nat'l Inst. for Labor Relations Research, 2:16 CV 449

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: JUDGE JAMES T. MOODY
• Citation: 319 F.Supp.3d 1100
• Parties: Dale PIERSON, Plaintiff, v. NATIONAL INSTITUTE FOR LABOR RELATIONS RESEARCH, et al., Defendants.
• Docket Number: No. 2:16 CV 449,2:16 CV 449
• Decision Date: 25 March 2018

319 F.Supp.3d 1100

Dale PIERSON, Plaintiff,
v.
NATIONAL INSTITUTE FOR LABOR RELATIONS RESEARCH, et al., Defendants.

No. 2:16 CV 449

United States District Court, N.D. Indiana, Hammond Division.

Signed March 25, 2018

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Kenneth B. Elwood, Christopher D. Stidham, Rhame Elwood & McClure, Portage, IN, for Plaintiff.

Dale D. Pierson, Countryside, IL, pro se.

Paul Bozych, PHV, John J. Murphy, Nielsen Zehe & Antas PC, Chicago, IL, for Defendants.

OPINION and ORDER

JUDGE JAMES T. MOODY

This matter is before the court on the motion to dismiss filed by defendants, the National Institute for Labor Relations Research and Stan Greer. For the reasons identified below, defendants' motion to dismiss (DE # 6) will be denied.

I. INTRODUCTION

Plaintiff Dale Pierson ("Pierson"), General Counsel to Local 150 of the International Union of Operating Engineers, AFL–CIO ("the Union"), filed the present defamation claim against defendant National Institute for Labor Relations Research ("NILRR") and defendant Stan Greer ("Greer"), a senior research associate for NILRR. (DE # 1.) NILRR identifies itself as a "non-profit research facility analyzing and exposing the inequities of compulsory unionism." (DE # 7 at 2.) NILRR maintains a website, on which it publishes articles in furtherance of this stated purpose. (DE # 1 at 2.) Pierson's complaint alleges that statements made in an article authored by Greer and published by NILRR constituted defamation per se. (Id. )

The State of Indiana's passage of "Right-to-Work" legislation in 2012 is at the center of the parties' present dispute. The passage of this law spurred litigation from union-plaintiffs, who argued that the law was fundamentally unfair because it allowed non-member employees to unfairly benefit from the union's representation without paying for their share of that representation. (Id. at 3.) Proponents of the legislation, however, argued that unions are not obliged to represent non-member employees. They argued that a union voluntarily assumes the obligation to represent all employees once it obtains majority status—but that it could, in the alternative, choose to represent only those employees who wanted union representation and membership—i.e. "minority representation" or "members-only representation." (Id. ) It is this disagreement which gives rise to the present litigation.

Pierson argued that minority representation is a legal fallacy during his oral argument before the Supreme Court of

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Indiana in Zoeller v. Sweeney , 19 N.E.3d 749, 750 (Ind. 2014). Pierson, on behalf of the Union, argued that such representation is impossible because (i) the National Labor Relations Board would not process a representation petition by a union that sought to create a "members-only" or "minority" bargaining unit; and (ii) a union that purported to represent only a minority of the bargaining unit would have no recourse if the employer refused to bargain with it. Id. For example, during oral argument Pierson had the following exchange with the Justices of the Supreme Court of Indiana:¹

JUSTICE MASSA: Isn't it the union's choice to seek exclusive representation of all the workers?

MR. PIERSON: It is the union's choice and mission to seek representation of workers generally, yes, your Honor, but to the extent that the State suggests that it's a choice between seeking exclusive representation and minority or members-only units, that is a fallacy, there is no choice there, because there is no such thing as a members-only union, not under the Federal scheme. The structure of the Labor Act, consistent case law, the Labor Board's determinations, that system just does not exist.

JUSTICE RUCKER: I'd like to take that a little further because that seems to be synonymous, the debate between your side and the State side. The State says, yes, there can be members only, you say no, there cannot be members only. How crucial is it that there can or cannot be, to your constitution—your facial constitutional challenge?

MR. PIERSON: Well, it's one of the only ways that the State can avoid the Federal—the existence of the Federal obligation to represent all members of a bargaining unit fairly and then the Right-to-Work law allowing some people—

JUSTICE RUCKER: I guess my point is—I guess my point is, is it a difference between it makes the union—it makes it more difficult for the union because the employee does not have to—does not have to negotiate with the members only and is not protected by the National Labor Relations Act, but does that prevent—it makes it more difficult, but the question is does it prevent the unions from representing a members only—having a members-only representation?

MR. PIERSON: Yes, your Honor, the law does not allow members-only

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representation, that's the bottom line, that is not an option.

(DE # 7–1 at 7–8.)

The Indiana Supreme Court ultimately rejected this argument. "The Union's federal obligation to represent all employees in a bargaining unit is optional; it occurs only when the union elects to be the exclusive bargaining agent, for which it is justly compensated by the right to bargain exclusively with the employer." Zoeller , 19 N.E.3d at 753.

After Pierson's oral argument, Greer wrote, and NILRR published, an online article characterizing Pierson's argument. The article stated the following:

Operating Engineers Union Lawyer Flat–Out Lies to Indiana Supreme Court

Currently, the top bosses of two unions, the United Steelworkers (USW) and Local 150 of the International Union of Operating Engineers (IUOE), have cases before the Indiana Supreme Court in which they are trying to get Right to Work protections for Hoosier employees approved by state legislators two-and-a-half years ago judicially overturned.

In a petition filed with the National Labor Relations Board seven years ago, lawyers for one of these two unions, the USW, acknowledged without qualification that, under Section 7 of the National Labor Relations Act (NLRA), in any workplace where no union is recognized as employees' "exclusive" bargaining agent, employees' right to bargain with their employer through a union "remain[s] available and protected, though on a nonexclusive basis, thus applicable to union members only."

As anyone who has a good understanding of federal labor statutes and court precedents knows, the union lawyers for the USW brass, along with the officers of six other AFL–CIO-affiliated unions who signed on to the petition ("In the Matter of Rulemaking Regarding Members–Only Minority–Union Collective Bargaining"), were absolutely correct about the permissibility of members-only bargaining in 2007. And they are still correct today.

How can it be, then, that Dale Pierson, the top lawyer for the other union seeking to overturn Indiana's Right to Work law judicially, told the Indiana Supreme Court on September 4 that union officials' representing only those who join and pay dues "is not a legal possibility"? (A video of the oral arguments in which Pierson claimed again and again that "the law does not allow members-only representation" is available at the end of the link below.)

The answer is, quite simply, that Pierson flat-out lied. Evidently, he and the other IUOE bosses for whom he is working agree that, if the Indiana Supreme Court acknowledges the truth about the permissibility of members-only bargaining as an alternative to monopoly bargaining for union officials, their anti–Right to Work case must fail. And therefore last week Pierson simply denied a truth that even his fellow assailants on Indiana's Right to Work law, the USW union hierarchy, have openly acknowledged in public legal documents.

Because Thomas Fisher, the lead attorney representing Indiana as it defends its Right to Work law from the IUOE Local 150 brass, knows full well about the U.S. Supreme Court precedents, such as the 1938 Consolidated Edison v. NLRB ruling, that explicitly affirm that members-only bargaining is legal under the NLRA, and reminded the Indiana Supreme Court justices about them, it is unlikely that Pierson and his paymasters are going to get away with lying about federal labor law. But the fact that Pierson

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was willing to do it, and IUOE Local 150 kingpins were evidently willing to sign off on such a strategy, illustrates just how desperate they are to reinstate forced union dues and fees in Indiana.

(DE # 7–2 at 1.)

Pierson subsequently filed the present lawsuit, alleging that the statements in the article constitute defamation per se. (DE # 1.) According to Pierson, defendants made and published these statements knowing them to be false. (Id. at 4.)

Defendants now move to dismiss Pierson's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (DE # 6.) Defendants argue: (i) the statements were not defamatory per se ; (ii) the statements in the article were substantially true, and are therefore not defamatory; (iii) the statements were opinion or rhetorical hyperbole, and are therefore not defamatory; (iv) Pierson failed to plead special damages; (v) Pierson failed to plead actual malice; (vi) the...