AGARWAL: Right-to-work battle moves to court

Away from the glare of the media and protesters, the battle continues to rage over Indiana’s right-to-work law. Two AFL-CIO affiliates have filed lawsuits seeking to strike the law. A federal lawsuit argues that the law discriminates against unions in violation of the U.S. Constitution. A state lawsuit, in Lake County, argues that the law violates the state’s constitution by forcing unions to represent non-members for free.

In the aftermath of Wisconsin’s recall election, these lawsuits will determine whether Indiana remains a right-to-work state and whether other Midwestern states follow Indiana’s lead.

The federal lawsuit throws the kitchen sink at the law, along with the blender and garbage disposal. The union argues that the law violates the First Amendment, Equal Protection Clause, Ex Post Facto Clause, Contracts Clause, Takings Clause, a federal statute and the state constitution. Among other complaints, the union alleges that the law interferes with existing contracts and restricts its ability to spread its message.

The union’s primary complaint, however, is that the law reduces its revenue by allowing union members to leave. As one union organizer explained in an affidavit, “I believe the ability to cease paying dues completely may prove too attractive for some of our members to resist. If just 10 percent of the Union’s Indiana members resign, the Union will lose at least $600,000 in annual revenues.”

The state lawsuit complains that the law forces it to serve non-members for free. By way of background, the National Labor Relations Act requires a certified union to represent all members of a bargaining unit, including non-members. Indiana’s constitution, in turn, forbids the government from demanding that anyone provide services without just compensation. According to the union, therefore, the right-to-work law improperly demands that unions serve non-members without compensation.

The state’s argument hinges on federal law. In moving to dismiss both lawsuits, the state points out that the right-to-work law does not require unions to do anything. As the state notes, federal law, not state law, requires a union to service non-members. If a union does not wish to service non-members, it can simply pack up and leave.

Several employees, whose rights are protected by the right-to-work law, have filed amicus briefs in support of the state, with the help of the National Right to Work Legal Defense Foundation. These employees point out that Indiana is the nation’s 23rd right-to-work state and that courts have upheld similar laws. The employees also argue that federal law pre-empts the union’s argument—namely, if the state’s constitution actually relieved unions of their duty to represent non-members, the state constitution would conflict with federal law.

Both lawsuits are pending at the trial court level. Their outcomes will help shape the future of the union movement. Several other states, including Ohio and Michigan, are considering right-to-work legislation or ballot initiatives. A union victory could delay or halt these efforts. Moreover, after its defeat in Wisconsin, the union movement is desperate for a victory, whether at the ballot box, legislature or courthouse.

The lawsuits also effect Indiana’s growth prospects. In its first months, the right-to-work law has been an unqualified success. In April, the first full month after the law took effect, Indiana created more than 12 percent of the nation’s jobs, with only 2.2 percent of the nation’s population. According to the state’s development arm, 47 companies—almost a third of all companies considering Indiana—have cited the right-to-work law as one reason to consider Indiana.

These and other prospective employers will pay close attention to the results of the lawsuits.•

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Agarwal is a local attorney with Ogletree Deakins, which has been retained by the National Right to Work Legal Defense Foundation to represent employees supporting the state’s argument. Send comments on this column to ibjedit@ibj.com.