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Judge Axes Indiana “Right to Work” Law; Reversing Imperils Corporate Personhood

I've never joined a union. In the various South Dakota schools in which I've taught, I've never felt the dues were worth the investment, largely because local teachers' organizations are largely powerless. Teachers by law cannot strike in South Dakota. The local union can negotiate, but school boards can impose whatever working conditions the law will allow.

To the extent that South Dakota teachers can organize and win good contract provisions (the Sioux Falls Education Association offers an example), South Dakota's right-to-work laws, which say union membership can not be a condition of employment, allow teachers like me to be moochers. We don't pay dues, but we still enjoy the benefits of the collective bargaining the local education association does on our behalf of all certified staff.

Such mooching gave an Indiana judge the basis for declaring Indiana's relatively new right-to-work statute unconstitutional. Lake Superior Court Judge John Sedia said that Indiana's 2012 law violates a provision of the Indiana constitution that prohibits demanding services without compensation. If a union bargains collectively, employees who benefit from the resulting agreement should pay for such bargaining.

Worth noting: Judge Sedia also declined to use the "right to work" title of the law in his ruling, signaling his recognition of the argument that "right to work" is not at all about the rights of workers but about strengthening the hand of employers to exploit workers.

Many observers expect Judge Sedia's ruling will fall based on the wording of that "just compensation" 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 [Indiana Constitution, Article 1, Section 21].

No person's services—if you buy into corporate personhood, a union is a person, just like a corporation. Judge Sedia's ruling rests on that assumption. But another part of the Indiana Constitution (Article 11, Section 12) refers to "person, association or corporation," suggesting Indiana's Constitution may distinguish persons from organizations.

But I'm seeing a fork in the argument here: the same folks who want to overturn Judge Sedia's ruling and keep busting unions are the same folks (Sam Kephart calls them corporate fascists) who want to protect corporations' and unions' status as persons with free speech rights under Citizens United. So beating back this legal challenge to Indiana's "right to work" statute could require ceding ground on corporate personhood. That's a trade I might take!

Back in South Dakota, I've often wondered why we allow non-union members to benefit from collective bargaining without paying for the bargainers. To the extent that my local education associations have won better language in our contracts, I've been grateful for our unions' generosity. But maybe the unions should say to moochers like me, "We're negotiating for our members. You negotiate your own terms. Good luck."

Unions might have trouble making Judge Sedia's "just compensation" stick under South Dakota's constitution; our constitution's property clauses (Article 6, Sections 2 and 13) don't speak directly of services and seem a little more focused on the state taking property. But the moral point in Judge Sedia's ruling deserves consideration in South Dakota: if we can't require individuals to join unions, we can't require unions to provide services to individuals.


  1. Owen Reitzel 2013.09.10

    My wife has been teaching for more than 30 years and she's been a member of SDEA from day 1.
    I've always felt how unfair it was that she paid dues and the teachers that didn't pay got the same benefits that she did. The one advantage she has is that they are somewhat protected from being unfairly fired. A lawyer is provided. But even with this SDEA has to provide a lawyer for a teacher who is might be unfairly fired.
    I feel, as you said Cory, that if a teacher doesn't want to belong to SDEA then they should have to negotiate their own contract.
    But the teachers still do a great job in this state.

  2. Owen Reitzel 2013.09.10

    Monty I think we're talking about "The Right to Work" laws. This is wrong. Unions shouldn't have to defend these "free riders" or as Cory calls them "moochers."
    If a person doesn't belong to a union that's fine but they shouldn't get the benefits that union members enjoy.

  3. caheidelberger Post author | 2013.09.10

    Monty, it's higher than that in some South Dakota school districts. Perhaps we should axe that provision. Why require unions to work for people who don't pay for their service? (And do you know off hand which statute that is?)

  4. twuecker 2013.09.10

    "I've often wondered why we allow non-union members to benefit from collective bargaining without paying for the bargainers."

    It's a good question ... and one whose answer I could see changing generationally. Perhaps it's not too big a deal when the number of non-union members benefiting from collective bargaining, etc., is relatively small compared to those who are dues-paying unionists. But the idea of collective anything seems increasingly foreign to an incoming generation of millennial workers who see the world through a more individualized lens. I'd make the case that this plays a not-insignificant role in the decrease in union membership.

    If that decrease reaches a tipping point where unions can no longer 'write off' the costs of bringing along non-members when they negotiate for members, that's when we might really start talking about ending the "free ride." Would today's free riders then become tomorrow's union members (convinced by a new inability to have one's cake and eat it, too) would today's power broker unions become tomorrow's overpowered social clubs?

  5. caheidelberger Post author | 2013.09.11

    Millennials not digging collective action—too much Fox News in the background while growing up?

    I wonder: do unions accept the free riders because the alternative would actually weaken their bargaining power? Suppose we did repeal the required representation clause. Suppose the school board now has to negotiate with the union and then ten non-union teachers separately. One of those non-union teachers is bound to take a lower salary or benefit level than the union wants. The board then turns to the union and says, "If contract X is good enough for Joe Loner, it's good enough for the rest of you." Is that the current SDEA's conundrum: can't live with the moochers, can't live without them?

  6. Monty 2013.09.11

    South Dakota adopted right-to-work status in 1946 and 1947. Here's a quick reference on how free-riders are protected:

    Business interests in SD and their shills in Pierre love free-riders. They drive up costs for unions, and make it harder to organize. Oddly, there was a discussion about amending free-rider protections in SD after union representatives successfully represented 2 municipal free-rider employees in wrongful termination cases, but the Chamber and other business lobbyists quickly pointed out that paying out court costs and damages with tax dollars is better than making unionization more attractive to SD workers. Having the lowest wages in the nation is a selling point in the Capitol, not something to be corrected.

  7. Steve O'Brien 2013.09.11


    I disagree with your scenario of the district giving lower benefits to non-union workers then using that as leverage to lower the benefits for union workers. The strength of collective bargaining is the strength of numbers. Non-union workers would have to individually negotiate -- a true pain for everyone involved. I know that if left to fend for themselves, many would choose not to negotiate and that would be a formula for wage stagnation and rights to be lost for those individuals. However, those individual failures would not sink the group success.

    Also, if allowed to, unions could negotiate ONLY for the interests of the association -- not "the competition"; Unions could focus district money to distribution to only those who choose to be represented; unions would dedicate their efforts for the betterment of the class they represent -- by their membership, the class that chooses to be represented. Allowing unions to bargain exclusively for their members would create a clearly better option that would draw new members in. Workers would choose to have better contracts so would choose to join the union. In SD it is all too easy to be anti-union when you get to enjoy the success of union efforts for free. If forced out of the benefits of the union, people would change their tone. At the first sign of trouble -- grievances, wrongful termination, harassment -- the absence of "free" help from unions would have more teachers running with checkbook in hand to join -- to not have to fight every fight alone.

    It is ironic that we are never given the opportunity to test the free market in this arena in states with GOP leadership -- the party of the "free market.". It is ironic that I am required to give services without compensation for those provided services in states with GOP leadership - the party of "freedom (this was the heart of how Rand defined slavery)."

    Let us set up union and non-union groups and then let us see if unions can offer services and benefits that workers would choose to pay for if the unions were relieved of the burden of providing those services for free to the "moochers."

    Often you have called SD out for the hypocrisy of being a moocher state when it comes to benefiting from a disproportionate taking of federal revenue. How many on this blog are doing the exact same thing in their employment: refusing to pay but expecting the services?

    I say this with the highest respect for you, but Cory, if you (or others) can so casually dismiss being a moocher, why should we be shocked that so many of our state's leaders can do the same?

  8. caheidelberger Post author | 2013.09.11

    True, Steve, my moocherdom on the job is a black mark on my moral authority. I have no defense.

    I'm intrigued by the counter-analysis: indeed, negotitations are a pain, and making moocher-teachers like me negotiate their own contracts, one-on-one, against the school district and Rodney Freeman or whatever other outside lawyer they hire to come in and turn the screws, could drive a lot of folks to recognize the value of those local/SDEA dues. The fact that the Legislature refuses to repeal the free-rider protections, as Monty points out, seems to support your argument.

    So would SDEA support repealing that free-rider protection?

  9. Steve O'Brien 2013.09.11

    "So would SDEA support repealing that free-rider protection?"

    I would never presume to speak for SDEA or NEA. That certainly is an interesting question to discuss. Conversely, is there anyone interested in listening?

Comments are closed.