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.




Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016         Page 1 of 9
                                           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.”

      Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016       Page 2 of 9
      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.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016           Page 3 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016   Page 4 of 9
       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.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016                         Page 5 of 9
[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.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016   Page 6 of 9
[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.”

       Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016             Page 7 of 9
               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


       Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016   Page 8 of 9
       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.



       Court of Appeals of Indiana | Memorandum Decision 79A04-1604-SC-881 | December 29, 2016   Page 9 of 9
