An Indiana county judge has held that the Hoosier state's right-to-work law is unconstitutional based on an Indiana constitutional provision that originated in 1816 and was meant to limit slavery.

Lake County Judge John Sedia, however, delayed implementation of the ruling until it could be appealed. The decision is almost certain to be overturned.

The suit was brought by the International Union of Operating Engineers Local 150, AFL-CIO and some individuals. In essence, they argue that the duty of fair representation is the same thing as slavery. This is not the first time the plaintiffs have made such an outlandish claim, having earlier lost a similar case in federal court.

To understand this claim, a little labor law history is helpful.

Labor unions in both the federal Railway Labor Act and the National Labor Relations Act sought mandatory collective bargaining. Thus, the unions wanted control over every employee's wages and benefits, even if an individual employee wanted nothing to do with the union and wanted to negotiate their own deals.

Having been granted monopoly bargaining status by Congress, some unions then discriminated against black employees (who had been banned from union membership due to racism) during negotiations. In 1944, in the case of Steele v. Louisville & N.R. Co., a black railroad employee challenged a collective bargaining agreement that gave preference to white union employees over black nonunion employees. The United States Supreme Court recognized the "duty of fair representation" and held that "Once a craft or class has designated its representative, such representative is responsible under the law to act for all employees within the craft or class, those who are not members of the represented organizations, as well as those who are members."

Thus, unions cannot discriminate against anyone in the bargaining class, even those who choose to exercise their worker freedom rights.

In 1947, as part of the Taft-Hartley Act amendments to the National Labor Relations Act, right-to-work laws were permitted (they are still not allowed under the Railway Labor Act). Generally, right-to-work laws prohibit union security clauses that require a payment of dues or fees to the union as a condition of employment.

Indiana became a right-to-work state (for the second time) in 2012. Michigan became one in 2013. There are 22 other states that have enacted right-to-work laws.

One effect of a right-to-work law is that where unions have a monopoly on bargaining, individual members do not have to financially support the union unless they choose to. The unions call that "free riding" and have been opposed to the concept as long as right-to-work laws have existed.

Turning now to the claim presented in Indiana, the union is arguing that its duty of fair representation violates Article 1 section 21 of Indiana's constitution, the anti-slavery provision.

Indiana has had two constitutions: one in 1816 and the second in 1851. The 1816 anti-slavery provision (Article I, section 7) read: "That no man's particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives or without a just compensation being made therefor." Indiana enacted a second constitution in 1851 and the anti-slavery language (Article I, section 21) was changed to read: "No man's particular services shall be demanded, without just compensation." The language remains that way today.

The U.S. Constitution also contains an anti-slavery clause, the 13th Amendment, which was ratified in 1865 and reads: "Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States."

Right-to-work laws have been allowed since 1947, and the 13th Amendment was enacted in 1865. Yet, no court has held that the 13th Amendment excuses unions — which have been granted exclusive bargaining status — from having to provide the duty of fair representation. It is quite unlikely that Indiana's anti-slavery provision is any more potent than the 13th Amendment or that Indiana's Supreme Court will interpret it to be so. A reversal is almost certain.

This ruling may tempt unions to make a similar claim in Michigan. Michigan's constitution has its own anti-slavery provision, Article I section 9, which states, "Neither slavery, nor involuntary servitude unless for the punishment of a crime, shall ever be tolerated in this state."

The involuntary government action that set up the conflict in the first place was the granting of monopoly bargaining status to unions. The racism of some unions is what triggered the creation of the duty of fair representation. It is quite unlikely that anti-slavery provisions will successfully be used to challenge right-to-work.

Patrick J. Wright is senior legal analyst at the Mackinac Center for Public Policy and director of the Mackinac Center Legal Foundation.

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