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Supreme Court Appears Skeptical In Right To Work Lawsuit

Protesters hold up signs in the statehouse on Feb. 1, 2014 when the Senate passed the right to work bill.

Indiana’s Supreme Court justices suggested in oral arguments Thursday that unions’ problem with the state’s right to work law isn’t with the state. It’s with the federal government.

The court heard arguments today in a lawsuit the International Operating Engineers union brought against the state, challenging the controversial state statute.

Indiana’s right to work law bars union contracts that require non-members pay fees for representation.

Unions argue the statute violates a section of the state constitution that says a person can’t be forced to provide services without just compensation.

Indiana Solicitor General Thomas Fisher says the unions’ exclusive collective bargaining rights are that fair compensation.

“That’s why they seek exclusive representation status, because there is that ability to have the leverage of being the sole negotiator with the employer,” he says. “So that is worth a tremendous amount.”

Justice Mark Massa suggested it’s not the state demanding services without compensation; it’s a federal labor law that requires unions to represent even non-members.

“The remedy here then is write your congressman,” Massa said during arguments. “If you don’t like having to carry free riders, take it up with Congress; it’s not a state constitutional issue.”

But union attorney Dale Pierson says the federal requirement to represent non-members existed before Indiana’s passage of right to work, which puts the burden on the state not to create conflicting laws.

“The state of Indiana is presumed to know that that’s the existing landscape and that those obligations are imposed upon unions by federal law,” he says.

A federal appeals court earlier this week, though, upheld Indiana’s law in a separate lawsuit.

Defense attorneys also argued that unions can choose not to represent non-union members by negotiating different contracts and, in turn, eliminate any burden caused by the state’s right to work law.

“I think what the plaintiffs are saying is that, ‘Well, you can’t go get any kind of enforcement for an unfair labor practice if an employer doesn’t want to negotiate on a members-only basis and you can’t get a certificate of exclusive agency status on a members-only basis,’ both of which, I think, are true,” he says. “But that doesn’t mean that members-only unions can’t negotiate with employers and come to agreements.”

Union attorneys countered by saying they tried to set up a members-only bargaining unit while right to work was debated in the General Assembly and was dismissed by the Indianapolis region of the National Labor Relations Board.

“The structure of the labor act, consistent case law, the labor board’s determinations–that system just does not exist,” attorney Dale Pierson said.

The Supreme Court justices also pointed out that just because the law hurts unions doesn’t necessarily mean it’s unconstitutional.

“This is certainly anti-union legislation, okay, or certainly not pro-union legislation,” Justice Stephen David said. “But they’re going to be compensated, it’s just it’s nor. The burden is additional burden shouldered upon those members of the union. So as before it would be spread, now I’m a union dues paying member, I’m going to be paying for that person and that person’s grievance that doesn’t choose to belong to the union.”

Union financial secretary David Fagan says he’s happy someone in the public arena acknowledged Right to Work is an anti-union policy.

“This is not a public policy; it is a political policy, and any time government pursues political policy, it’s not in the best interests of people that they represent,” he said.

The Supreme Court did not announce a timetable for its ruling.

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