Justices hear constitutional challenge to right-to-work law

September 4, 2014

Indiana’s right-to-work statute is clearly anti-union, one state Supreme Court justice said Thursday, but all five justices seemed dubious of arguments that it violated the state constitution.

The 2012 statute forbids unions from demanding dues from non-members, but federal labor law requires unions to represent those in bargaining units regardless of membership or whether they pay dues. In July, Lake Circuit Judge George Paras ruled in the second of two cases that the law violated Article 1, Section 21 of the Indiana Constitution.

That ruling came 10 months after the instant case, in which Lake Superior Judge John Sedia ruled two provisions of the statute – I.C. sections 22-6-6-8 and -10 – violated the constitution. Justices on Friday denied the plaintiffs’ motion to consolidate the two cases.

Right-to-work is “certainly anti-union legislation,” Justice Steven David said during oral arguments, but he grilled labor attorney Dale D. Pierson about how the law violated Section 21’s prohibition on demands for particular services without just compensation.

“It seems to me what the issue is about is the reallocation” of union resources to pay for representation of workers no longer required to pay dues, David said. “Tell me where the constitutional violation is.”

Pierson argued that Paras’ rulings should be affirmed, and he pointed to 7th Circuit Court of Appeals Chief Judge Diane Wood’s dissent this week in a divided order that upheld the statute’s federal constitutionality.

“The right-to-work law itself is a state demand,” Pierson said.

“It is a taking by the state of a right the union previously had” to apportion dues to all workers represented by a bargaining unit, he said.

Justice Brent Dickson challenged the assertion that the law created a state demand. He said everything in the state constitution’s Bill of Rights is a safeguard against the power of the state rather than the federal government, which requires the union’s representation.

Justice Mark Massa suggested that to affirm the trial court ruling that the law was unconstitutional would require the court to overturn prior precedent, a position that Solicitor General Thomas Fisher agreed with in defending the statute.

Fisher argued the right-to-work law “is not a demand for any services, much less particular services.” He said the statute “protects the voluntary aspect of what union organizations are supposed to be about.

“There is a need to protect the rights of the individual,” he said.

Fisher and Pierson disagreed over whether federal law allows unions to represent workers on a members-only basis. Pierson said that the Labor Management Relations Act clearly requires unions to provide grievance representation to bargaining unit workers regardless of membership or due-paying status.

But when asked by Justice Robert Rucker, Pierson could not cite United States Supreme Court authority on the question of whether federal law permits members-only representation. He said the lack of caselaw is because the question is widely regarded as settled.

“What we have here is a facial challenge,” Rucker said. “You can’t show that … then your facial challenge must fail.”

After the argument, International Union of Operating Engineers Local 150’s financial secretary, David Fagan, said it was refreshing to see David acknowledge what union members have been saying for years.

“It’s not a public policy, it’s a political policy,” Fagan said.

The case is Gregory Zoeller, et al. v. James Sweeney, et al., 45S00-1309-PL-596. Thursday’s oral argument may be viewed here. It also marks the first oral argument at which Loretta Rush presided as chief justice.


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