Ever since then-Gov. Mitch Daniels signed a bill making Indiana America’s 23rd Right to Work state a little more than two years ago, top bosses of suburban Chicago-based Local 150 of the International Union of Operating Engineers (IUOE) have been making outrageous legal arguments to try to get the freedom-protecting statute overturned in court.
For example, in a brief submitted in February 2012, lawyers working for IUOE Local 150 actually claimed that, by revoking their privilege to collect forced fees from nonmembers, the Indiana Right to Work law had consigned them to “involuntary servitude” and thus violated the 13th Amendment to the U.S. Constitution.
This particular outrageous argument was dismissed unceremoniously by a federal judge in January 2013.
However, Local 15o bosses continue today to pursue in state court a separate lawsuit based on the premise that Big Labor “serves” workers who don’t want a union by forcing them to accept one as their monopoly-bargaining agent. Building on this premise, union lawyers claim that the Right to Work law violates Article 1, Section 21 of the Indiana Constitution, which holds that the state government may not require any person to furnish his or her “particular services,” without providing “just compensation.”
As Indiana Attorney General Greg Zoeller, Solicitor General Thomas Fisher, and Deputy Attorneys General Heather Hagan McVeigh and Ashley Tatman Harwel explained in a brief submitted to the state Supreme Court last week, the claims made in Local 150’s anti-Right to Work lawsuit are invalid for an array of reasons. (The office of the attorney general consulted with National Right to Work Legal Defense Foundation attorneys representing Indiana employees who do not wish to be forced to pay union dues as it worked on this brief to the state Supreme Court.)
First of all, it is federal labor law, not the Indiana Right to Work law or any other Indiana policy, that grants IUOE Local 150 and other private-sector union bosses nationwide the power to act as monopoly-bargaining agents over all the employees in a federally -delineated bargaining unit, and simultaneously imposes on union bosses the attendant duty to “represent fairly” all the employees who are under their control.
As a result of federally imposed monopoly bargaining, employees who personally never voted for a union, don’t want one, and never asked for one may nevertheless be compelled to allow that union to bargain with their employer on their behalf over matters concerning their pay, benefits, and other working conditions. Even if the employer would be happy to bargain individually with those workers who don’t want a union and independent-minded workers have good reason to believe that, based on their individual talents and efforts, they could secure better working terms than the union could negotiate for front-line employees lumped together as a collective, federal law prohibits individual negotiations unless union officials acquiesce to them. Of course, that rarely happens.
Partially in recognition of the fact that a significant share of employees may be economically harmed by exclusive union representation, the U.S. Supreme Court has for 70 years interpreted the federal labor law provisions authorizing this type of monopoly to prohibit arbitrary discrimination by union officials against particular employees or groups of employees who are subject to the monopoly.
This so-called “duty of fair representation” does not by any means inhibit union officials from negotiating contracts that benefit some workers at the expense of others. Rather, it bars only the most egregious varieties of Big Labor favoritism. That modest limit on Big Labor monopoly bargaining hardly transforms the extraordinary legal power union officials wield over workers into a “burden” — but that is the assumption of the IUOE Local 150 case now before the Indiana Supreme Court. Fortunately, the state of Indiana’s latest brief exposes the absurdity of this assumption.
Yet another critical point emphasized by Zoeller and his partners is that monopoly bargaining is a choice granted to private-sector union officials by federal labor law, not their sole option:[Union officials] are free under the NLRA [National Labor Relations Act] to engage in . . . bargaining whereby they represent a minority [or a majority] of the employees on a “members-only” basis. See . . . Consol. Edison Co. of New York v. NLRB, 305 U.S. 197, 236-37 (1938) (“[I]n the absence of . . . an exclusive agency[,] the employees represented by [a union], even if they [are] a minority, clearly ha[ve] the right to make their own choice.”).
. . .
[U]nions are not forced by federal law to be exclusive bargaining representatives; they seek this power of their own volition. That federal law imposes a duty of fair representation on unions that do seek exclusive-agency status does not mean that the federal goverment “demands” that the unions provide exclusive representation services in the first place.
Given that it is the federal government, rather than the state of Indiana, that authorizes union monopoly bargaining, given that union officials may forego this privilege and instead seek and obtain recognition by an employer as the bargaining agent for their members only, and given that monopoly bargaining is in itself beneficial to union officials, lawyers for IUOE Local 150 will have their work cut out for them if they hope to prevail at the Indiana state Supreme Court.