MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 29 2016, 10:10 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Vassil M. Marinov Todd M. Nierman
West Lafayette, Indiana Bonnie L. Martin
Ogletree, Deakins, Nash, Smoak &
Stewart
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vassil M. Marinov, December 29, 2016
Appellant-Plaintiff, Court of Appeals Case No.
79A04-1604-SC-881
v. Appeal from the Tippecanoe
Superior Court
Fiat Chrysler Automotive, The Honorable Laura Zeman,
Appellee-Defendant. Judge
The Honorable Jeffrey R. Smith,
Senior Judge
Trial Court Cause No.
79D04-1508-SC-2922
Bailey, Judge.
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Case Summary
[1] Vassil Marinov (“Marinov”) appeals the denial of his motion to correct error,
which challenged the dismissal of his pro-se small claims complaint against his
employer, Fiat Chrysler Automotive (“Fiat”) whereby Marinov denied the
validity of an assignment of wages for the payment of union dues. The small
claims court, ruling upon a paper record, concluded that the claim was
preempted by federal law and dismissed it on jurisdictional grounds. Marinov
raises the sole issue of whether the dismissal was in error. We reverse and
remand for a hearing for the development of jurisdictional facts.
Facts and Procedural History
[2] On August 4, 2015, Marinov filed a complaint against Fiat concerning an
assignment of wages for the payment of union dues.1 Fiat filed a motion to
dismiss pursuant to Indiana Trial Rule 12(B)(6), for failure to state a claim upon
which relief can be granted, and filed an accompanying brief and exhibits.
[3] Marinov appeared at a non-evidentiary hearing conducted on February 25,
2016. Speaking through a Bulgarian-French translator, Marinov denied that he
was a union member and indicated that his claim arose from employer wage
assignment “without consent.” (Tr. at 15.) Fiat referenced exhibits related to
1
Indiana Code Section 22-2-6-2(b)(5) provides: “A wage assignment under this section may be made for the
purpose of paying any of the following: Dues to become owing by the employee to a labor organization of
which the employee is a member.”
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dealings between Marinov and Fiat and argued that Marinov’s claim belonged
before the National Labor Relations Board (“the NLRB”).2 At the conclusion
of the hearing, the trial court entered an order of dismissal on grounds that it
lacked subject matter jurisdiction.
[4] On March 21, 2016, Marinov filed a motion to correct error. The trial court
denied the motion to correct error that same day. This appeal ensued.
Discussion and Decision
[5] Generally, we review a trial court’s ruling on a motion to correct error for an
abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct.
App. 2010), trans. denied. However, to the extent the issues raised on appeal are
purely questions of law, our review is de novo. Id.
[6] Fiat described its motion as a Trial Rule 12(B)(6) motion to dismiss for failure
to state a claim upon which relief can be granted but instead presented
jurisdictional argument. The lack of subject matter jurisdiction may be raised
as an affirmative defense either in an answer to the complaint 3 or in a motion to
dismiss. GKN Co. v. Magness, 744 N.E.2d 397, 403-04 (Ind. 2001). Generally,
2
Fiat’s counsel argued: “The problem is that the state wage deduction statute and federal labor law define
consent differently.” (Tr. at 21.)
3
Here, in small claims proceedings, there was no answer to the complaint.
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the party challenging subject matter jurisdiction carries the burden of
establishing that jurisdiction does not exist. Id.
[7] Here, the small claims court treated Fiat’s motion as one having been made
pursuant to Trial Rule 12(B)(1). In ruling upon a motion to dismiss for lack of
subject matter jurisdiction, the trial court may consider not only the complaint
and motion, but may also consider affidavits or supporting evidence. GKN, 744
N.E.2d at 400. Additionally, the trial court may weigh the evidence to
determine the existence of the requisite jurisdictional facts. Id.
[8] The standard of appellate review is a function of what occurred in the trial
court. Id. at 401. The standard of review is dependent upon whether the trial
court resolved disputed facts and, if so, whether it conducted an evidentiary
hearing or ruled on a paper record. Id. If the facts before the trial court are
undisputed, the question of subject matter jurisdiction is purely one of law. Id.
In such circumstances, we review de novo the trial court’s ruling. Id.
[9] If the facts are in dispute, then our standard of review focuses on whether the
trial court conducted an evidentiary hearing. Id. In those circumstances, the
trial court typically engages in a classic fact-finding function, with evaluation of
the character and credibility of witnesses. Id. Thus, where a trial court
conducts an evidentiary hearing, we give its factual findings and judgment
deference. Id. In that review, we will reverse only for clear error. Id.
[10] However, where the facts are disputed but the trial court rules on a paper record
without conducting an evidentiary hearing, no deference is afforded the trial
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court’s factual findings or judgment. Id. In those circumstances, a court of
review is in as good a position as the trial court to determine whether there is
subject matter jurisdiction. Id. Thus, our review is de novo when the facts are
disputed and the trial court has ruled upon a paper record. Id.
[11] Here, the small claims court scheduled a hearing on Fiat’s purported Trial Rule
12(B)(6) motion. A 12(B)(6) motion tests the legal sufficiency of a complaint
and not the sufficiency of the facts alleged. Trail v. Boys and Girls Clubs of
Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006). Thus, a 12(B)(6) hearing is
not for the purpose of admitting evidence.4 Nonetheless, in advance of the
hearing, Fiat filed a brief reciting a series of “relevant facts” for the small claims
court’s consideration. (Ex. Vol. pg. 3.) These included Fiat’s contentions that
Marinov had been hired pursuant to a particular collective bargaining
agreement, he had signed a valid wage assignment, and he had not revoked the
wage assignment.
4
Trial Rule 12(B) provides in relevant part:
If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state
a claim upon which relief can be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56. In such case, all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule 56.
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[12] Fiat attached to the motion a number of “exhibits” including: a “Statement
Concerning Union membership as a Condition of Continued Employment,”
correspondence from Marinov to Chrysler Group LLC, “Relevant Sections of
Collective Bargaining Agreement [between Chrysler Group LLC and the
UAW],” and an authorization for checkoff of dues and initiation fee
(purportedly executed by Marinov). (Ex. Vol. pgs. 1-3, 14-39.) In sum, Fiat
took the position that Marinov had voluntarily executed an assignment of his
wages to pay union dues and any ensuing controversy involving reimbursement
was preempted by federal labor law.
[13] Marinov claimed that his voluntary consent for a wage assignment was lacking.
His unsworn statements included his representation that: “A form that which I
has [sic] not being [sic] filled out does not give any right and if I promise and a
declaration or that document was signed after previous document with
Chrysler.” (Tr. at 16.) Marinov also denied that he was employed by Chrysler
on the date shown on the wage assignment. He also claimed that he had to fill
out some documents and “the employer forced me to sign” but explained that,
upon the employer’s advice, he did not check a box mentioning union dues.
(Tr. at 18.) He expressed his belief that his “recent declaration” to Chrysler
“actually cancelled” any obligation. (Tr. at 18.)
[14] The trial court did not take sworn testimony to develop jurisdictional facts or
assess credibility. Instead, the trial court ruled upon a paper record in the face
of disputed facts. Accordingly, we owe no deference to the factual findings or
judgment. GKN, 744 N.E.2d at 401.
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[15] Indiana is a so-called “right-to-work” state, meaning that employees cannot be
required to join a union as a condition of employment. See Ind. Code § 22-6-6-
8.5 However, Indiana Code Section 22-2-6-2 permits an employee to authorize
a wage assignment as one method of paying union dues. “When it is clear or
may fairly be assumed that the activities which a State purports to regulate are
protected by § 7 of the National Labor Relations Act, or constitute an unfair
labor practice under § 8, due regard for the federal enactment requires that the
state jurisdiction must yield.” San Diego Building Trades Council v. Garmon, 359
U.S. 236, 244 (1959).
[16] Recently, the United States District Court for the Northern District of Indiana
recognized that there is a conflict of law, to some extent, between Indiana Code
Section 22-2-6-2 and federal law regarding dues checkoff authorizations:
[T]o the extent that an Indiana law conflicts with federal law
regarding dues checkoff authorizations, the State law is
preempted, and General Cable has no obligation to comply with
it. See Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (“State
laws that have been preempted by federal laws are ‘without
effect.’”). Indiana’s wage assignment statute requires that all
assignments of wages be “revocable at any time.” See Ind. Code
§ 22-2-6-2. The assignment of wages for union dues, however, is
an area that has long been regulated by federal law. See 29
U.S.C. § 186(c)(4) (allowing written assignment of union dues, so
5
Indiana Code Section 22-6-6-8 provides: “A person may not require an individual to: (1) become or
remain a member of a labor organization; (2) pay dues, fees, assessments, or other charges of any kind or
amount to a labor organization; or (3) pay to a charity or third party an amount that is equivalent to or a pro
rata part of dues, fees, assessments, or other charges required of members of a labor organization; as a
condition of employment or continuation of employment.”
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long as they are not irrevocable for more than a year or beyond
the termination date of the [Collective Bargaining Agreement]).
So regulated, in fact, that there is no room for regulation by the
states, and laws like Indiana’s wage assignment statute are
preempted when it comes to dues checkoffs. See Shen-Mar Food
Prods., Inc., 221 N.L.R.B. 1329, 1330 (1976) (“[M]atters
concerning dues-checkoff authorization and labor agreements
implementing such authorizations are exclusively within the
domain of Federal law.”); Int’l Bhd. Of Oper. Potters v. Tell City
Chair Co., 295 F.Supp. 961, 965 (S.D. Ind. 1968) (“Congressional
regulation of the area of check-offs is sufficiently pervasive and
encompassing to pre-empt” Indiana’s wage assignment statute.);
SeaPAK v. Indus. Tech & Prof. Empls., 300 F. Supp. 1197, 1200
(S.D. Ga 1969) (“The area of checkoff of union dues has been
federally occupied to such an extent … that no room remains for
state regulation in the same field.”), aff’d 423 F.2d 1229 (5th Cir.
1970), aff’d 400 U.S. 985 (1971). As a result, Indiana’s wage-
assignment statute does not govern dues checkoff authorizations
like Shephard’s, and the arbitrator’s award did not require the
company to violate the Indiana statute.
General Cable Indus. v. Chauffeurs, Teamsters, Warehousemen and Helpers Local
Union No. 135, 2016 WL 3365133, slip op. at 3, (N.D. Ind. June 17, 2016).
[17] There, a union member had signed a dues checkoff when he began his
employment. See id. at 1. After a few weeks, he resigned from the union and
asked that his company stop deducting union dues from his pay. Id. Here, the
nature of Marinov’s claim is not entirely clear, due to the informality of small
claims complaints and the lack of an evidentiary hearing. The trial court
compared Marinov’s claim to that in Halsey v. Cessna Aircraft Co., 6 Kan. App.2d
37 (1981), which involved the interpretation or ambiguity of a union dues
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checkoff authorization as it pertained to the time for revocation. Federal pre-
emption was recognized and the matter was dismissed for lack of subject matter
jurisdiction. Id. at 38.
[18] Here, however, it is not clear that Marinov asserts a right to revoke a wage
assignment and obtain reimbursement for withholdings after that revocation.
Rather, his position may be that there is nothing to revoke. The brief unsworn
statements made by Marinov as to lack of consent assert that he did not execute
a wage assignment, or he acted under coercion when signing, or he lacked
knowledge of the contents. In his appellate brief, Marinov points to his earlier
denial that he signed a checkoff document. In short, he denies the existence of
a valid wage assignment provided for by state law. From the limited record, we
are unable to determine whether Marinov’s claim belongs before the NLRB as
asserted by Fiat. Reviewing the paper record reviewed by the trial court, we
cannot conclude that the trial court lacked jurisdiction over Marinov’s claim.
Conclusion
[19] The dismissal of Marinov’s complaint was in error. As such, the trial court
abused its discretion in denying Marinov’s motion to correct error. We remand
for a hearing for the development of jurisdictional facts.
[20] Reversed and remanded.
Najam, J., and May, J., concur.
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