Mistakes on the Lake in Indiana
Crossposted from the Workforce Freedom Initiative.
The battle over Indiana's right-to-work law has been long and intense. The legislature there first considered it in 2010 and passed it in 2012, but a state judge who entered the fray last month has ensured the fight will be extended again. Ruling that the statute violated the state constitution, Lake County Circuit Judge George Paras declared the law "null and void" and permanently enjoined the state from enforcing it. For good measure, he also elected not to stay his decision, which has increased the stakes, as well as the uncertainty, for the law's proponents.
Right-to-work laws have been Enemy Number 1 of organized labor since Congress permitted states to adopt them in the 1947 Taft-Hartley amendments to the National Labor Relations Act. Such laws prohibit collective bargaining agreements that require workers to join a union or pay representation fees in order to keep their jobs at a unionized employer. Moreover, they permit employees to decide for themselves whether to join a union, a freedom that unions spend huge amounts of money to prevent.
In the last few years, several states have considered right-to-work laws, including Michigan, which became the 24th state to adopt one, and Missouri and New Hampshire, which chose not to. Indiana preceded Michigan in 2012 when then-Governor Mitch Daniels signed a right-to-work law on Feb. 1 that year, making it the first of the Great Lakes states to do so.
As they have in every instance elsewhere, unions vowed to fight Indiana's law, which inevitably meant a protracted legal battle. While legal tugs-of-war over right-to-work typically have not borne much success for unions, particularly in federal courts, that fact has not kept them from concocting various theories as to why right-to-work laws should be invalid.
In Indiana, labor's principal argument drew on the state's constitution, Article 1, Section 21 of which includes this provision: "No person's particular services shall be demanded, without just compensation. No person's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered."
Unions argued in court that this section proscribes a right-to-work law because it forces them to represent workers who choose not to pay union dues or so-called agency fees. Of course, unions are not required to provide their "particular services" in the first place, and to say non-members demand said "services" defies logic and reality, given their obvious desire not to participate in a union.
Notwithstanding valid arguments against the Application of Article 1, Section 21, in September 2013, Superior Judge John Sedia (once again from Lake County) reluctantly ruled in a separate case that Indiana's right-to-work law ran afoul of the state constitution, but he stayed his decision pending an automatic appeal to the state Supreme Court. That court already has scheduled arguments in the case for September 4, so it appears poised to decide the issue.
Meanwhile, Judge Para heard a similar challenge brought by the United Steelworkers and ruled against the state law in July. However, his decision to enjoin the state from enforcing it raised eyebrows given the judicial restraint of one judge compared to the other.
Shortly after the adverse ruling, Indiana Attorney General Greg Zoeller asked Judge Para to stay his decision, but whether the judge will accede to the request remains the subject of conjecture. While he decides, Indiana's right-to-work tug-of-war will not be over until the state Supreme Court can settle the issue once and for all.