Judge John Sedia, of the Lake County Superior Court, has held that Indiana’s new right-to-work law violates the state constitution. Article I, Section 21 of that constitution states that “No person’s particular services shall be demanded, without just compensation.” As the judge explained, the constitutional problem comes from the intersection of the state right-to-work law and federal labor law. In brief, federal labor law requires that unions represent all workers in a bargaining unit equally. But the Indiana law – like all right-to-work laws – allows workers to refuse to pay dues to the union for that representation. Hence, federal law requires unions to provide services for which state law enables employees to refuse to pay. (Or, as the judge put it, the Indiana law makes it “a criminal offense for a union to receive just compensation for particular services federal law demands it provide to employees.”)
Of course, the problem here is not unique to Indiana. As Catherine Fisk and I discuss in a forthcoming paper, the intersection of federal labor law and all state right-to-work laws results in a requirement that unions provide services to employees for free. That’s a dynamic that should not be allowed to stand anywhere.