As we noted yesterday, a judge in Indiana has held that the state’s right-to-work law is unconstitutional. The holding is based on Article I, Section 21 of the Indiana constitution, a provision that reads: “No person’s particular services shall be demanded, without just compensation.” It turns out that Tennessee, also a right-to-work state, has an analogous constitutional provision. Article I, Section 21 of the Tennessee constitution states that “no man’s particular services shall be demanded, or property taken . . . without the consent of his representatives, or without just compensation being made thereof.”
The constitutional problem that the judge identified in Indiana comes from the intersection of the state’s right-to-work law and federal labor law. Again, federal law requires that unions represent all workers in a bargaining unit equally. But the Indiana law – like all right-to-work laws – allows workers to refuse to pay dues to the union for that representation. Hence, federal law requires unions to provide services for which state law enables employees to refuse to pay.
At least one judge believes that Indiana’s constitution makes this unconstitutional. On this theory, so does Tennessee’s.