Can the courts save labor?

As far as state law goes, 2012 was particularly unkind to labor unions. That was the year when not one but two states passed “right-to-work” laws, making it illegal for labor unions in Michigan and Indiana to collect mandatory fees from the workers they represent.

Now, unions in both those states are fighting back through the courts. An Indiana judge has declared that state’s right-to-work law unconstitutional, and the case will now proceed to the state Supreme Court for mandatory review. Meanwhile, a coalition of public sector labor unions is appealing an unfavorable Court of Appeals decision to the Michigan Supreme Court, where they hope to make the case for exempting state civil servants from Michigan’s right-to-work law.

In both cases, organized labor’s case against right-to-work is based on the peculiarities of state law; a coordinated, national strategy against right-to-work is unlikely to emerge out of these lawsuits, because other right-to-work states don’t necessarily have the same laws as Michigan and Indiana. But if unions in those states manage to undo the effects of right-to-work laws, it would be a significant coup for a labor movement which has increasingly found itself stymied by pro-management employment law. Unions are particularly fearful of right-to-work laws because of the “free rider” problem they create: Employees in a unionized workplace can simply decline to pay for union services, even as unions are legally required to expend their resources bargaining for them. For unions with already limited resources, such obligations could be fatal.

The Indiana state court’s ruling is, “symbolically, is a tremendous win,” said Ed Maher, spokesperson for Indiana’s International Union of Operating Engineers (IUOE) Local 150. When state judge John Sedia struck down Indiana’s right-to-work law, the news was received with a “standing ovation” at the AFL-CIO national convention, said Maher. AFL-CIO is the country’s largest labor federation.

But while Indiana’s right-to-work law may be ailing, it is not yet dead. Judge Sedia’s ruling is subject to mandatory review by the Indiana Supreme Court, and the state’s attorney general has announced his intention to continue defending the law.

“We are asking the Indiana Supreme Court to reverse the lower court’s decision and find the statute is constitutional. We don’t begrudge the right of private plaintiffs to challenge a statute, but my office has a duty to defend the policy-making authority of the people’s elected representatives in the Legislature,” said Indiana Attorney General Greg Zoeller in a statement.

How the Court will decide is anyone’s guess. On the merits of the case, organized labor seems to have the upper hand, said Indiana University law professor Ken Dau-Schmidt, but the right-leaning Court may decide differently anyway.

“I think the logic of the case is pretty strong,” Dau-Schmidt told MSNBC. The Indiana State Constitution says that no one’s “particular services shall be demanded, without compensation.” Yet unions are legally required to bargain on behalf of non-members in the work place, and the state’s right-to-work laws criminalize any attempt to negotiate a “union security agreement” which allows them to collect fees from the non-members they represent.

“If you can’t negotiate a union security agreement, the union can’t be compensated for these services under state law, and they’re being compelled under the law to provide these services,” said Dau-Schmidt. Yet it is at least possible that a Court comprised of four Republican-appointed judges and one Democratic appointee might uphold the law’s constitutionality anyway.

“I think you’d have to be naive to say politics probably aren’t going to play a role with this. And with a Republican majority of four to one on the Court, the politics are probably going to break in favor of upholding the law,” said Dau-Schmidt. “But I wouldn’t bet the farm on it.”

Organized labor has fewer reasons to be excited about the court case in Michigan. For one thing, it would not outright invalidate any of the state’s three right-to-work laws; it would only exempt state-classified employees from their effects. Unions are arguing that the state legislature can’t determine the rules for how state workers bargain with the government, because that falls under the jurisdiction of the state’s Civil Service Commission (CSC).

“It was put in place so we could make sure that workers were protected from the political winds of the state legislature,” said United Auto Workers (UAW) vice president Cynthia Estrada. The CSC has outlined rules of its own for state employee collective bargaining.

However, the case is not so cut-and-dry, according to Wayne State University law professor Robert Sedler.

“They have a plausible claim; however, I think the state courts are reluctant to use the specialized provisions of the state constitution to invalidate legislation,” said Sedler. Besides, “the legislature made clear they wanted to enact a right-to-work law across the board.”

But while the Court of Appeals rejected organized labor’s reasoning, it is still possible that the Supreme Court could tilt in favor of the movement.

“The unions are going to have an uphill battle, but they could win it,” said Sedler.