Barb Berggoetz

barb.berggoetz@indystar.com

The battle over Indiana’s controversial right-to-work law is now in the hands of five Indiana Supreme Court justices who heard arguments Thursday to try to convince them to uphold it or to declare it unconstitutional.

The 45-minute hearing over the 2012 law in the court’s packed Statehouse chambers pitted the state attorney general’s office against lawyers representing union members.

The state of Indiana appealed a Lake County judge’s ruling that the law, passed by a Republican-controlled legislature, violates Indiana’s constitutional prohibition against forcing anyone to provide a service — union representation in this case — for free.

Testimony by Solicitor General Thomas Fisher, representing Attorney General Greg Zoeller, and Dale Pierson, representing the International Union of Operating Engineers Local 150, was interrupted frequently by questions from Supreme Court members, as is common. They asked skeptical questions about exactly how the law violates Indiana’s constitution and the impact of the federal requirement for unions to represent all members of bargaining units.

But lawyers afterward declined to read anything into what was asked, other than to say the justices asked pointed questions of both sides. The Supreme Court will make its ruling at a later date, which could be months away. Another similar case from a Lake County court that found the statute unconstitutional also is pending before the Supreme Court.

Indiana’s right-to-work law, supported largely by business groups and Republicans, prohibits unions from mandating that nonmembers pay fees to the unions for representing them. Union supporters, who turned out in the thousands to protest at the Statehouse in 2012, say the law allows workers to gain union benefits without paying for membership.

Pierson argued the essential problem presented by the law is that federal law imposes on the union the duty to fairly represent all the employees in any bargaining unit. Before the law was passed, employees who didn’t want to join a union would have to pay a “fair share” fee for representation.

He argued the law violates a somewhat unusual provision in Indiana’s constitution that prohibits particular services being provided without just compensation. “Because it allows free-riders to be represented and pay nothing, we say the law is a ‘taking of property’ away from the union.”

Justice Steven David recognized that it’s anti-union legislation. But he said the whole issue is about the “re-allocation of expenses” within the union and asked exactly what is unconstitutional about that situation.

Due to the federal law under the National Labor Relations Board, Pierson replied, unions have no choice but to represent everyone because there is no such thing as a members-only union.

Justice Mark Massa implied the real remedy is with Congress. “If you don’t like free riders, take it up with Congress.”

Fisher argued the state law does not preclude unions from collecting dues and it protects the voluntary aspects of what unions are supposed to be about. He also said unions are able to find other ways to finance services to non-union members.

He argued the law safeguards free speech and fosters a good business climate, but in no way should be interpreted as a “demand for services” from the unions.

The constitutional provision relating to providing services without compensation only applies, Fisher said, if the state demanded services without pay. Under this law, he said the state is just regulating a transaction between private entities.

That’s where Pierson disagrees.

He argued the Indiana Constitution can’t ignore federal law, and in fact, it’s presumed to know unions have that obligation. “So, because of that presumption, it becomes a state demand to take the money away from us.”

After the hearing, he said it was interesting to hear Justice David put the law in a way he hadn’t considered — members, not the union itself, are having property taken from them. “You are forcing people who still want to pay dues to subsidize those who don’t,” Pierson said.

David Fagan, representative of the International Union of Operating Engineers Local 150, said after the hearing he was heartened to hear a public figure, citing Justice David, say the law is an anti-union policy.

“It’s good to see someone in the public arena that finally acknowledges what we’ve been saying for several years that this is not a public policy, it’s a political policy,” said Fagan, whose union represents 4,000 Indiana workers and a total of 23,000. “And any time government pursues political policy, it’s not in the best interest of people they represent.”

Thursday’s arguments came just two days after the U.S. 7th Circuit Court of Appeals in Chicago affirmed a district court ruling that upheld Indiana’s right-to-work statute. The appeals court found the law is not preempted by federal law and doesn’t violate the U.S. Constitution.

Call Star reporter Barb Berggoetz at (317) 444-6294. Follow her on Twitter: @barbberg.