Opponents of right to work laws recently suffered setbacks in Indiana. The International Union of Operating Engineers Local 150 brought a lawsuit in February of this year, claiming that Indiana’s right-to-work law violated the state constitution. Lake County judge George Paras agreed, holding on July 17 that the legislation violated Indiana’s constitutional provision that prohibits the state from demanding services without just compensation.

The Indiana Supreme Court overturned the lower court’s decision on November 6. In Zoeller v. Sweeney, the court held that the law did not constitute a state demand for services: “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.” The union argued that right to work legislation imposed an indirect state demand for union services without compensation. Because the federal National Labor Relations Act requires unions to represent all employees equally, regardless of whether they choose to join and contribute to the union, and because the state was aware of these federal requirements when it passed the law, the effect of the state statute is that unions must provide their services to non-member employees for free.

The court responded that federal law does not obligate unions to represent all employees equally. “The Union’s federal obligation to represent all employees in a bargaining unit is optional; it occurs only when the union elects to be the exclusive bargaining agent, for which it is justly compensated by the right to bargain exclusively with the employer.” The union is considering appealing to the United States Supreme Court. James Sweeney, the union’s president, said, “the Court’s decision centered on its ruling that unions can form ‘members only’ bargaining units, which we know through decades of legal precedent to be unlawful…this decision is based on what we firmly believe to be a misrepresentation of federal law.” In its case before the Indiana Supreme Court, the union pointed out that the National Labor Relations Board does not process election petitions for non-majority bargaining units and that the NLRA provides no remedy if an employer refuses to bargain with a minority of its employees.

In a separate concurrence, Justice Rucker emphasized that the union brought a facial, rather than an “as-applied,” challenge to Indiana’s right to work law. His concurrence suggests that unions may have an opportunity to challenge the law under the less stringent as-applied standard: “…there may very well exist a set of facts and circumstances that if properly presented and proven could demonstrate that a union has actually been deprived of compensation for particular services by application of the Right to Work Law. And thus as to that union the statute would be unconstitutional as applied.”

Local 150 also brought Constitutional and preemption challenges to Indiana’s right to work law in federal court. On Labor has covered Sweeney v. Pence in detail. Professor Sachs and Professor Fisk filed an amicus brief in that case and Chief Justice Woods cited Professor Sachs’ article, Despite Preemption: Making Labor Law in Cities and States, in his dissent. The union’s attorneys are considering appealing the 7^th Circuit decision to the Supreme Court.

Right to work legislation remains a major challenge for unions. Indiana was the first Rust Belt state to pass a right to work law, despite protests and Democrat walkouts. Right to work legislation will increasingly be on states’ agendas after Republican gains in the midterm elections, as On Labor has reported.