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Hearing on New Union Challenge of Indiana’s “Right-to-Work” Law Scheduled for April 26

Using Citizens United vs. FEC as the basis of their defense, the International Union of Operating Engineers (IUOE) Local 150 is challenging Indiana’s “Right-to-Work” (RTW) law in court. Their claim is that by depriving unions of dues, free speech is being limited.

Lawyers for Local 150 said that RTW “impinges on this fundamental right of union membership”:

Along with other arguments based on state and federal constitutions and federal labor law, the union cites the 2010 Citizens United decision, which struck down on free-speech grounds restrictions on corporations’ and union spending on advertising endorsing or opposing certain candidates.

The Indiana union’s lawyers contend that the right-to-work law interferes with the union’s free speech rights by stifling the collection of money that helps pay for its political speech.

“In this case, the state of Indiana restricted a channel of speech-supporting finance,” the union brief maintains. “The union legitimately utilizes dues money collected through the agency shop provisions in its collective bargaining agreements, in part, to finance political speech. The Indiana Right to Work law prohibits agency shop agreements, and that prohibition restricts a channel through which speech-supporting finance might flow.”

A hearing on the motion is scheduled for April 26 in U.S. District Court in Hammond. Some suggest a ruling in the union’s favor could begin to change the way Citizens United is interpreted by courts. Experts say such a ruling is unlikely, however:

Adam Skaggs, a lawyer with the Brennan Center for Justice at New York University School of Law, said it would be a “stretch” to read the Supreme Court decision in such a way because the ruling is about spending money, not collecting it.

Jim Bopp, the Terre Haute, Ind., lawyer and Republican activist who crafted the argument that resulted in Citizens United, said a ruling accepting the union’s argument would “turn Citizens United on its head.”

“The free speech is for you to speak … it’s not that you have the authority to have others pay for it,” he said.

Bopp also was involved in organizing funding for ads advocating passage of the Indiana right-to-work law.

Union supporters point out that both the type of spending described by Republicans is optional and that “Right-to-Work” is unconstitutional under the state’s charter.

Dale Pierson, one of the attorneys representing Local 150, said workers don’t have to pay for union speech with which they don’t agree. Federal courts settled that issue decades ago, he said, holding that workers could only be required to pay the union the cost of representing them.

“They don’t have to and they haven’t been. They have a right to opt out and pay just their fair share of collective bargaining,” Pierson said.

Under right to work, he said, workers don’t have to pay even that. That violates a provision of Indiana’s constitution that says no one has to provide services without just compensation, he said, since federal law requires the union to represent all the workers.


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