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.