November 12, 2014
By Steven Wishnia
In a 5-0 decision Nov. 6, the Indiana Supreme Court upheld the state’s 2012 law prohibiting union and agency shops, reversing a lower-court ruling that the ban violated the state constitution.
“The ruling centered around the Court's assertion that unions can choose not to represent non-members, which is false,” International Union of Operating Engineers Local 150, responded in a statement. President and business manager James M. Sweeney said the union was considering appealing to the U.S. Supreme Court, because the court’s ruling that unions could form “members only” bargaining units was something “we know through decades of legal precedent to be unlawful.”
Local 150, a Chicago-area union which represents about 4,000 heavy-equipment operators and mechanics in northern Indiana, had challenged the “Right to Work” law on the grounds that the Indiana Bill of Rights states that “no person's particular services shall be demanded, without just compensation.” Because the law prohibited employers from requiring workers to join a union or pay fees to one, while federal labor law mandates that unions must represent all employees who work in the bargaining unit, the IUOE argued that it was being forced to represent freeloaders “without just compensation.”
Indiana Attorney General Gregory F. Zoeller contended that was irrelevant, because it was federal law, not state law, that required unions to represent all workers in a unit, and that the state law did not demand that the union do anything. The IUOE called that illogical, because the state is “charged with the knowledge of the existence of the federal law which requires unions to represent every individual employee fairly,” and has enforced that law.
The court agreed with Zoeller. “On the face of the Indiana Right to Work Law, there is no state demand for services; the law merely prohibits employers from requiring union membership or the payment of monies as a condition of employment,” Justice Brent Dickson wrote. “Because it is federal law that provides a duty of fair representation, Indiana's right-to-work statute does not 'take' property from the Union.” The state constitution, he added, requires just compensation “when the state demands particular services, not when the federal government does so.”
Zoeller also argued that the union could avoid having to provide services for nonmembers without violating federal law, by becoming a members-only union instead of claiming the exclusive right to represent all workers in a bargaining unit. The IUOE countered that doing so would effectively cripple unions, because under federal labor law, a union that represents only part of the workforce has “no remedy if the employer refuses to bargain with it”; it cannot claim that refusing to bargain is an unfair labor practice.
Justice Dickson ruled that unions’ taking on the federal obligation to represent all workers in a bargaining unit was “optional,” that they were “justly compensated by the right to bargain exclusively with the employer,” and that representing nonpaying workers was a “corresponding duty” imposed in exchange for that power.
Local 150 had also challenged the law in federal court, but the 7th Circuit Court of Appeals in Chicago rejected their case in September on similar grounds. The court held that Section 14(b) of the Taft-Hartley Act of 1947, which permits states to outlaw “compulsory unionism,” had long been deemed constitutional.
The Indiana law was one of several anti-union measures enacted over intense protests in the upper Midwest after right-wing governors were elected in Wisconsin, Michigan, and Ohio in 2010. Twenty-two other states had already banned the union shop, but all were in the South, the Plains, or the mountain West. Indiana and Michigan were the first two states to pass “right to work for less” laws in the industrial Midwest, the Northeast, or the West Coast, the regions where organized labor has historically been strongest.
