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Right To Work Lawsuits Face Difficult Battle In Courts

Unions are still trying to convince the courts to strike down Indiana's right to work legislation, but the battle is difficult and, some say, futile.

Statehouse steps

Photo: Christopher Ayers/WFIU-WTIU News

Demonstrators fill the steps of the Indiana statehouse during a protest in February on the day the legislation passed.

The fight over right to work legislation dominated the first half of the Indiana General Assembly’s last session. With the bill now law, the battle has shifted from the Statehouse to the courtroom.

Indiana’s right to work law prevents unions from charging non-members any fees or dues for representation. And in the wake of its passage in February, the International Union of Operating Engineers based in northwest Indiana filed a lawsuit in federal court challenging the controversial measure.

One of the law’s key drafters, Carmel Republican Representative Jerry Torr, says he expected a lawsuit and that the federal challenge does not worry him.

“It looked to me like they had just kind of thrown everything, including the kitchen sink, in just to see if something might stick,” he says.

How Indiana’s Law Differs From Other States

Indiana is the 23rd state to adopt right to work legislation and is written similarly to the measures in other states.  But there are some differences. One of them, Torr says, involves construction unions.

“We’ve got that clause in there that says that that just clarifies that it doesn’t change any federal law that was put in to kind of appease some of the construction folks,” he says. “But it’s not, in my view, substantive.”

That’s not how the operating engineers union sees it.

“The statute is poorly written,” Union general Counsel Dale Pierson says, adding that there is a technical problem with the law. While the bulk of the statute is written so that it only applies to union contracts negotiated after the measure’s March 14 effective date, Pierson says that’s not true in the construction clause.

“We could read and we do read the statute to say that a construction industry contract that’s in place as of March 14, prior to March 14, was not okay,” he says.

While Attorney General Greg Zoeller’s office declined to be interviewed, court documents show the state believes the entire statute is effective March 14 and has asked a judge to dismiss the case entirely.

But the operating engineers aren’t the only ones who brought suit.  In April, the United Steelworkers filed their own challenge, this time in state court.

The Federal Labor Law

There is some overlap between the cases. A key argument in the state challenge concerns a section of the Indiana constitution, which says a person cannot be forced to provide a service without being compensated.

United Steelworkers district director Jim Robinson says federal labor law requires unions to represent all workers within a bargaining unit, even those who are not members. And he says that is where Indiana’s right to work law runs into trouble.

“The effect is to require us to provide services to those non-members who are not helping to pay for the cost of those services,” he says.

Jerry Torr says that does not hold water.

“That’s a silly argument because the lawyer that’s doing the representing isn’t going to be doing it without pay,” he says. “The union’s going to be reimbursing that person.”

Indiana University law professor David Orentlicher agrees. He says if right to work is going to be struck down, the best chance lies in challenging the law’s conflict with federal labor law.

“The state government is interfering with this, the framework that the federal government has established to govern relations between businesses and unions,” he says.

Possible Supreme Court Involvement

Orentlicher says appeals are likely in these cases. If the challenge were to ascend to the U.S. Supreme Court, he says the Court has not weighed in on right to work in a long time. And Orentlicher says the argument of the unions is not much different from the federal health care challenge.

“If you’re going to have a health care system that makes sure anybody in need gets care, we don’t want people to be able to get it for free, that everybody’s got to carry their share of the cost,” he says.

Union attorney Pierson says the primary Supreme Court challenge to right to work came in 1949, in which the Court upheld right to work statutes in several states.

“We think that the legal landscape is really, very different from what it was when the Supreme Court and all these other courts examined the challenges to the right to work laws,” he says.

Still, Pierson admits the Supreme Court – particularly with its current make up – could come down on the state’s side

“It could very well say, Congress said the states can do this and we’re not going to touch it,” he says. “That could very well be the result of litigation, even in a liberal court.”

And while Orentlicher says there is a chance Indiana’s right to work law could be struck down, that chance isn’t a great one.

“I don’t know if it’s five percent or 15 percent but it’s certainly not at the 50 percent or 85 percent,” he says. “It’s definitely in the lower range.”

State leaders are already claiming victory in the right to work battle, touting recent economic development successes as proof the law is working. And since litigation could take years, unions hoping for their own victory might have to wait a while.

Brandon Smith, IPBS

Brandon Smith, IPBS has previously worked as a reporter and anchor for KBIA Radio in Columbia, MO, and at WSPY Radio in Plano, IL as a show host, reporter, producer and anchor. Brandon graduated from the University of Missouri-Columbia with a Bachelor of Journalism in 2010, with minors in political science and history. He was born and raised in Chicago.

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  • Gershon Moshe

    The unions are just wasting their members’ money.  That’s all they are good for!!  They are going the way of the dinosaur, with all the corruption, threats, forced dues and violence.  Bye bye unions!!

  • http://twitter.com/jcgadfly Gadfly

    Bye bye worker and consumer protections! Bye bye health and safety in the work place! Hello slave wages! Hi harassment and bullying!

    Never mind the lies you’re telling about forced dues and union violence (that people paid by the anti-union slugs like to start). 

  • Gershon Moshe

    Oh yeah, unions are “honest and trustworthy”.  I guess I forgot about all the corruption and criminality.  Remeber Jimmy Hoffa???. You should go research  http://www.nrtw.org or http://nlpc.org/union-corruption-update or the U.S. De’t of Labor http://www.dol.gov/olms/regs/compliance/enforcement_1.htm , all of which outline the enormous amount of union boss corruption and criminality.  Most unions are legalized extortion rackets.

  • Jatay

     Funny you should bring up Hoffa.  The AFL/CIO kicked the teamsters out because of corruption.  The teamsters also supported the Republican party for years.  The Union movement is responsible for the 8-hour day, the 40-hour week, a living wage, health care for members, collective bargaining, safety on the job, and pensions.  All this is disappearing and you think this is a good thing?

  • http://twitter.com/jcgadfly Gadfly

    Put the broad brush down and back away. For every corrupt union you list I can list a dozen that are helping their workers. Can you name a single worker that right to work has helped? I mean, besides allowing them to worry less about having to handle more money or being safe in the workplace?

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