An Indiana judge Sept. 5 ruled that the state's right-to-work law is unconstitutional, as it compels unions to provide services to workers who do not pay for those services (Sweeney v. Zoeller, Ind. Super. Ct., No. 45D01-1305-PL-52, order 9/5/13).

Attorney General Greg Zoeller (R) plans to appeal the ruling to the Indiana Supreme Court, a spokesman said.

Lake County Superior Court Judge John Sedia found that the 2012 law violates Article I, Section 21, of the Indiana Constitution, which forbids a “person's particular service” from being “demanded without just compensation.” He dismissed other counts in the lawsuit, brought by Local 150 of the International Union of Operating Engineers.

“The services provided by a union in representing employees include negotiating and enforcing collective bargaining agreements,” which are paid for “by the payment of dues, and are not something required generally of all citizens,” Sedia wrote. “In fact, federal law ensures that nonmembers who obtain the benefits of union representation can be made to pay for them.” The right-to-work law, he added, makes it “a criminal offense for a union to receive just compensation for particular services federal law demands it provide to employees.”

“The Indiana Attorney General's Office will aggressively defend the authority of the people's elected representatives in the Legislature as we successfully defended this same statute from the same plaintiff who challenged it in federal court,” Bryan Corbin, a spokesman for Zoeller, said in a statement Sept. 10.

A federal judge in January dismissed a separate lawsuit brought by IUOE, saying the legislature was within its rights to make the policy judgment to pass the law.

Sedia dismissed the union's claims that the law deprives members of equal protection rights, that it infringes on free speech rights by diverting resources to representation of nonpaying individuals, and that it is an ex post facto law.

Ruling Called Victory for Middle Class

“This is a huge victory for the middle class,” James Sweeney, president and business manager of Local 150, said in a Sept. 8 statement. “These laws are nothing but thinly veiled tools to weaken unions, and this is a big win for workers who rely on unions to provide decent wages and benefits.”

“Considering who wanted ‘right-to-work’ enacted, it is no surprise that their top lawyer wants to go straight to the Supreme Court,” House Minority Leader Scott Pelath (D) said in a Sept. 10 statement. “The powers who bullied Indiana into this law are not going to give back the lunch money just because the playground supervisor said so.”

“Right to work has not worked,” Pelath said, adding that Indiana's unemployment rate remains high, wages lag those of other states, and the state has not become the “haven for job creation” promised when the law was signed. “We should use this ruling to dump the law for the second time in our state's history,” he said. “I have no faith in what our highest court will do here, but I will never stop reminding the people of Indiana what ‘right-to-work’ has done and who wanted it.”

Senate President Pro Tempore David Long said called the ruling “troubling on several fronts,” and said he is “confident” the state's law will be upheld by the Supreme Court.

For one thing, “the court appears to have based its ruling upon the argument that unions must represent all workers within a workplace even if some of those workers aren't union members,” Long said in a Sept. 10 statement. “However, federal law controls in this area, and clearly states that a union is not required to be the sole bargaining representative for a group of workers, and that the union can freely choose, and limit, who it represents.” He also noted that federal courts have upheld the law.

The ruling “shows there are good arguments against” right-to-work laws, David Orentlicher, a professor at Indiana University's Robert H. McKinney School of Law, told Bloomberg BNA Sept. 10. It remains to be seen whether the challenge holds up in the state supreme court, which will have to decide whether a union can invoke the constitutional protection afforded a “person,” as well as whether Indiana's protection applies to the federal law that requires the union to provide services to nonunion employees, he said.

Indiana's right-to-work law prohibits parties to a collective bargaining agreement from requiring workers to become or remain union members or to pay union dues or fees. The law remains in effect while the case is being appealed.