Indiana Supreme Court Upholds the Right to Work: Rebuffs an Involuntary Servitude Challenge

Spring 2015

By Luke A. Wake

In the past few years, four rust-belt states—Ohio, Michigan, Indiana and Wisconsin—have enacted “Right to Work” legislation.1 In each case, organized labor fought back, mounting intense political and legal challenges to the legislation. In Ohio, the unions succeeded in generating enough public opposition to prompt a referendum—undoing Right to Work legislation in the Buckeye State.2 But, with Michigan, Indiana and now Wisconsin joining the ranks of Right to Work states, it looks like the political tides may be turning against compulsory union dues—even in the Midwest, which had long been the center of union power.3 Yet, as demonstrated in the Indiana Supreme Court’s recent decision in Zoeller v. Sweeney,4 union efforts to overturn Right to Work legislation are still best fought on the political front. Indeed, legal challenges have universally failed.5

As with the other rust-belt states, Right to Work legislation was controversial in Indiana. It was passed at the hands of a Republican controlled legislature, and—as in other states—the Indiana Right to Work Law made it illegal for employers to require the payment of union dues as a condition of employment.6 Soon thereafter organized labor responded with three separate lawsuits—two in state court, and one in federal court. In each case, the unions crafted their legal theories around the same argument: it is unfair to allow employees to opt out of union dues while maintaining the benefits of union representation.

The federal lawsuit alleged Indiana’s Right to Work Law was preempted by federal law, and further alleged a violation of the Equal Protection Clause under the Fourteenth Amendment.7 The Federal District Court for the Northern District of Indiana dismissed those arguments, and the Seventh Circuit affirmed.8 Meanwhile United Steel, the International Union of Operating Engineers, AFL-CIO and union employees advanced similar Equal Protection arguments in their concurrent state court cases—insisting that the Right to Work statute unfairly compelled dues-paying union members to bear the entire cost of representation for non-paying individual employees. Those arguments fared no better in state court, where they were dismissed as invoking “a now-discredited view … of the scope of the government’s police power to regulate [economic liberties].”9

But in their state court filings the unions advanced a handful of other novel theories—from the allegation that the statute was an illegal ex post facto law, to the assertion that Right to Work unconstitutionally impedes upon the free speech rights of unions and their members, to the creative argument that the Right to Work statute violated Indiana’s constitutional prohibition on involuntary servitude. Only the latter argument gained traction.10

The trial court rejected the ex post facto argument, holding that—based on “a plain reading”—it was clear that “the statute was intended to have only prospective, and not retroactive effect.”11 And with the same analytical ease the Court rejected the argument that the Right to Work statute “infringes on the free speech rights of [the union] and its members by diverting resources to represent non-paying individual employees…”12 That argument, framed to raise a claim under the compelled speech doctrine, was squarely rebuffed. The Court recognized that the Supreme Court’s 2012 decision in Knox v. Serv. Employees Int’l Union Local 1000, held that unions have “no constitutional right to receive any payment from [non-union] employees.”13

Throughout the proceedings, National Right to Work (NRW) and National Federation of Independent Business (NFIB) argued in amicus briefs that these results were consistent with numerous Supreme Court decisions affirming that—if anything—compelled union dues raise serious First Amendment problems.14 Yet the Court went on to accept an equally novel theory in holding that Indiana’s Right to Work Law violated Article I, Section 21 of the State Constitution, which provides that “[n]o person’s particular service shall be demanded, without just compensation.”15

In structure, this provision mirrors the language of Takings Clause of the Federal Constitution, which is also incorporated in a separate provision of the Indiana Constitution.16 But whereas the Takings Clauses plainly requires government to pay “just compensation” when it takes private property, this provision may arguably have application against private actors, in some cases, because the requirement for the payment of “just compensation” is triggered whenever a person’s particular services are demanded. Indeed, this prohibition is seemingly more akin to the Thirteenth Amendment’s emphatic prohibition on involuntary servitude than the contingent requirement entailed in the Takings Clause that government must provide just compensation if it chooses to exercise its eminent domain powers.17

Accordingly, Article I, Section 21 might have application in a dispute between private parties, if one alleges that he or she has been compelled into service without compensation by another; however, that argument would necessarily challenge the legitimacy of laws purporting to either affirmatively require uncompensated servitude, or to impose civil or criminal penalties on individuals for failing to provide such services. To be sure, one could surely advance a claim under Article I, Section 21 in challenge to a state law requiring farmhands to work without compensation, or a state law imposing criminal sanctions on a farmhand for refusing. Indeed, Indiana courts had previously held that Article I, Section 21 has application whenever the State’s request for the provision of a particular service becomes so “coercive” as to become a “demand.”18 And undoubtedly a law imposing civil or criminal penalties for non-compliance would cross that line, as it would take away any meaningful choice in the matter.19

Invoking this rationale, the unions argued in Sweeney that the Indiana Right to Work law violated Article I, Section 21 when read in conjunction with federal law. Indeed, federal law requires unions to represent all employees once the union is certified as the exclusive bargaining agent for employees in a bargaining unit.20 Thus, the unions maintained that the Indiana Right to Work compelled them into uncompensated servitude because they have an obligation under federal law “…to process grievances for non-members, negotiate contracts on behalf of members and non-members alike, and otherwise provide services to non-members, regardless of non-members’ failure to make any payments to the union for the services that the union provides.”21 And the Lake County Court accepted that argument—reasoning that the Indiana Right to Work law violated Article I, Section 21 because it made it a “criminal offense for a union to [insist upon] receiv[ing] just compensation for [these] particular services…”22 As such, the Court struck down both the substantive Right to Work provisions and the provision imposing misdemeanor criminal penalties on violators.

At that juncture, the Attorney General appealed directly to the Indiana Supreme Court, which reversed—holding that Article I, Section 21 applies only where the state affirmatively demands an individual to render uncompensated services.23 The Supreme Court observed that Indiana had done nothing to affirmatively compel unions to provide any service—much less an uncompensated service.24 Indeed, the union’s theory was entirely predicated upon an understanding that federal law requires unions to provide the services in question. And of course that obligation arises only where a union has elected to seek certification as the exclusive representative of a bargaining unit because—if approved by the employees in an election—the union therein assumes both benefits and burdens.25 Accordingly, the Supreme Court rejected the very premise that federal law thrusts an intolerable obligation upon unions to provide uncompensated services because the “federal obligation to represent all employees in a bargaining unit is optional…”26

But even assuming that federal law imposed an obligation on unions to represent all employees without compensation, the Indiana Supreme Court recognized that an imposition of federal law could not violate the Indiana Constitution. For one, as amicus briefs by NRW and NFIB argued, the trial court’s application of the Indiana Constitution would in itself raise a Supremacy Clause problem because Congress chose to preserve the right of states to enact Right to Work legislation—which would mean that any legal challenge a state enacted Right to Work statute must be advanced in state court, under state constitutional principles.27 And herein was the problem for the unions in Zoeller v. Sweeney; the Indiana Supreme Court ruled that the “[p]rovisions within Article I limit state, not federal power.”28

Since the Indiana Right to Work Law did no more than guarantee the right of employees to choose whether or not to associate with—and pay dues to—a union, the Supreme Court held that the State had demanded nothing of the unions. Perhaps the outcome would have been different if the law had been applied to retroactively to require continued representation of employees who might opt-out of union membership during the pendency of a standing collective bargaining agreement, because in that case the union’s obligation to continue representing those employees would have theoretically been enforceable under state law as a matter of contract. But here the obligation to continue representing non-union members is imposed solely by federal law—and only then in so far as a union chooses, prospectively, to assume the responsibilities that federal law imposes on parties electing to become the exclusive representatives of employees in a given bargaining unit.29

*Luke A. Wake is a staff attorney at the National Federation of Independent Business Small Business Legal Center, where he specializes in constitutional law and land use issues.



1 A full list of Right to Work states is available online at Right to Work States, NRTW.ORG, (last visited Mar. 17, 2015). Note that Ohio is not included on the list because the voters of Ohio passed a referendum repealing the state’s Right to Work Law in November, 2011. See Ohio Senate Bill 5 Veto Referendum, Issue 2 (2011), Ballotpedia,,_Issue_2_(2011) (last visited Mar. 17, 2015).

2 See Ohio Senate Bill, supra note 1.

3 See Monica Davey, Unions Suffer Latest Defeat in Midwest With Signing of Wisconsin Measure, N.Y. Times, Mar. 9, 2015,

4 19 N.E.3d 749 (2014).

5 Brief for David Brubaker et al. as Amici Curiae, Zoeller v. United Steel, No. 45S00-1407-PL-00492 (Ind. Aug. 29, 2014) (observing that “[l]abor interests have attacked the constitutionality of many Right to Work laws… [and that] [i]n each instance the U.S. Supreme Court, or the highest state court, has upheld those Right to Work laws as constitutional.”) (citing American Federation of Labor v. American Sash & Door Co., 335 U.S. 538 (1949); Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); Mascari v. International Brotherhood of Teamsters, 187 Tenn. 345 (1948); Finney v. Hawkins, 189 Va. 878 (1949); Walter v. State, 34 Ala. App. 268 (1949); Local Union No. 519, United Ass’n of Journeymen & Apprentices of Plumbing & Pipefitting Industry v. Robertson, 44 So.2d 899 (1950); Construction & General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434 (1950); UAW v. Green, 302 Mich. App. 246 (2013).

6 See Davey, supra note 3.

7 The federal lawsuit otherwise advanced similar augments as those advanced concurrently in state court. See Sweeny v. Pence, 767 F.3d 654 (7th Cir. 2014).

8 Regarding the preemption argument, the Seventh Circuit concluded that: “[w]e are not persuaded by Plaintiff-Appellant’s claims that Indiana’s law is somehow an extraordinary measure distinct from the numerous state statutes that have harmoniously existed under the federal labor law framework.” Pence, 767 F.3d at 659.

9 Sweeney v. Zoeller, No. 45D01-1305-PL-00052, 3 (Judge John M. Sedia, Sept. 5, 2013) [hereinafter Zoeller Order] (order granting in part and denying in part defendants’ motion to dismiss and entering declaratory judgment on Indiana constitutional claim) (quoting Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005)).

10 Id.

11 Id. at 4.

12 Id. at 3.

13 Id. at 4.

14 See Brief for David Drubaker, supra note 5.

15 Ind. Const. art. I, § 21.

16 Article I, Section 21 of the Indiana Constitution includes both a prohibition on involuntary servitude and a takings clause: “No person’s particular services shall be demanded, without just compensation. No person’s property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.”

17 Compare, Ind. Const. art. I, § 21 (“No person’s particular services shall be demanded, without just compensation.”); with U.S. Const. amend. XIII, § 1 (“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, or any place subject to their jurisdiction.”).

18 See Bayh v. Sonneburg, 573 N.E.2d 398 (Ind. 1991).

19 Id. at 417 (“We have never before considered how coercive the State’s request for service must be to become a ‘demand,’ but the U.S. Supreme Court’s analysis of the type of coercion required to render servitude ‘involuntary’ under the thirteenth amendment is instructive.”).

20 29 U.S.C. § 158(a)(3).

21 Zoeller Order, supra note 9, at 6.

22 Id.

23 Zoeller, 19 N.E.3d at 753.

24 Id. (“Because it is federal law that provides a duty of fair representation, Indiana’s right-to-work statute does not ‘take’ property from the Union…”) (quoting Sweeney, 767 F.3d at 666).

25 Id.

26 Id.

27 Brief for David Drubaker, supra note 5 at 6-7.

28 Zoeller, 19 N.E.3d at 753.

29 Sweeney, 767 F.3d at 667.

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