In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1264
JAMES M. SWEENEY, et al.,
Plaintiff‐Appellants,
v.
MICHAEL PENCE,
Governor of the State of Indiana, et al.,
Defendant‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:12‐cv‐00081‐PPS‐PRC — Philip P. Simon, Chief Judge.
____________________
ARGUED SEPTEMBER 12, 2013 — DECIDED SEPTEMBER 2, 2014
____________________
Before WOOD, Chief Judge, and MANION and TINDER, Cir‐
cuit Judges.
TINDER, Circuit Judge. Plaintiff‐Appellants, members and
officers of the International Union of Operating Engineers,
Local 150, AFL‐CIO (“the Union”) appeal the district court’s
dismissal of their suit, arguing that the Indiana Right to
Work Act violates their rights under the United States Con‐
stitution and is preempted by federal labor legislation. Be‐
2 No. 13‐1264
cause the legislation is not preempted by the scheme of fed‐
eral labor law and does not violate any constitutional rights,
we affirm the district court’s dismissal of the suit.
I
After a “rancorous, partisan” month‐long fight during
which “hundreds of union members crowded, day after day,
into the Statehouse halls,”1 the Indiana legislature passed the
Indiana Right to Work Act on February 1, 2012, and Gover‐
nor Mitch Daniels signed the legislation into law. The law’s
relevant provisions for this litigation are the following.
Section 8, which spells out the principal prohibitions of
the Right to Work Act:
A person may not require an individual to:
(1) Become or remain a member of a labor
organization;
(2) Pay dues, fees, assessments, or other
charges of any kind or amount to a labor
organization; or
(3) Pay to a charity or third party an
amount that is equivalent to or a pro‐
rata part of dues, fees, assessments or
other charges required of members of a
labor organization
1 Monica Davey, “Indiana Governor Signs a Law Creating a ‘Right to
Work’ State,” N.Y. TIMES (Feb. 2, 2012) at A12, available at
http://www.nytimes.com/2012/02/02/us/indiana‐becomes‐right‐to‐work‐
state.html (last accessed Aug. 20, 2014).
No. 13‐1264 3
as a condition of employment or continua‐
tion of employment.
IND. CODE § 22‐6‐6‐8.
Section 3, which makes clear what substantive provi‐
sions of the Right to Work Act are to be construed to apply
to the building and construction industry:
Nothing in this chapter is intended, or should
be construed, to change or affect any law con‐
cerning collective bargaining or collective bar‐
gaining agreements in the building and con‐
struction industry other than:
(1) a law that permits agreements that
would require membership in labor or‐
ganization;
(2) a law that permits agreements that
would require the payment of dues,
fees, assessments, or other charges of
any kind of amount to a labor organiza‐
tion; or
(3) a law that permits agreements that
would require the payment to a charity
or a third party of an amount that is
equivalent to or a pro rata part of dues,
fees, assessment, or other charges re‐
quired of members of a labor organiza‐
tion;
as a condition of employment.
IND. CODE § 22‐6‐6‐3.
4 No. 13‐1264
And Section 13, which makes clear that Sections 8‐12 of
the Act apply prospectively:
Sections 8 through 12 of this chapter:
(1) apply to a written or oral contract or
agreement entered into, modified, re‐
newed, or extended after March 14,
2012; and
(2) do not apply to or abrogate a written or
oral contract or agreement in effect on
March 14, 2012.
IND. CODE § 22‐6‐6‐13.
On February 22, 2012, Plaintiff‐Appellants, officers and
members of the International Union of Operating Engineers,
Local 150, AFL‐CIO (“the Union”), brought suit in federal
district court against the Governor of Indiana, the Attorney
General of Indiana, and the Commissioner of the Indiana
Department of Labor in their official capacities, seeking de‐
claratory relief. They alleged that the Indiana Right to Work
Act violates the United States Constitution and the Indiana
Constitution. They further argued that the scheme of federal
labor law, specifically the National Labor Relations Act
(“NLRA”), 29 U.S.C. § 151 et seq., preempts §§ 8(2)–(3) and
3(2)–(3) of the new legislation. On January 17, 2013, the fed‐
eral district court granted Defendant‐Appellees’ Motion to
Dismiss on the preemption claim and the federal constitu‐
tional claims. Plaintiff‐Appellants timely appealed.2
2 We briefly note that there is parallel litigation pending in the Indiana
state courts. Two decisions have been issued by state trial courts in rela‐
Continued on next page
No. 13‐1264 5
II
On appeal, Plaintiff‐Appellants raise two varieties of is‐
sues: whether the law is preempted by the federal scheme of
labor law, and whether the Indiana law violates the United
States Constitution. We answer in the negative to both ques‐
tions.
1. Federal Preemption
Plaintiff‐Appellants’ main argument asserts that the In‐
diana right‐to‐work law is preempted by federal legislation
on the same topic.
The history of the federal legislation in question is im‐
portant here. Congress enacted the Wagner Act in 1935 and
amended it through the Labor Management Relations Act of
1947, better known as the Taft‐Hartley Act. The Taft‐Hartley
Act included several provisions intended to ameliorate per‐
ceived imbalances in the NLRA. In particular, Congress was
concerned about abuses stemming from the “closed shop,” a
union‐security agreement whereby an employer agreed to
tion to the statute: in a case in Lake County Superior Court brought by,
inter alia, the Plaintiff‐Appellants (Order, Sweeney v. Zoeller, No. 45D01‐
1305‐PL‐52 (Lake Cnty. Super. Ct. Sep. 9, 2013), Docket No. 23), and in a
separate case in Lake County Circuit Court brought by members of an‐
other union (Order, United Steel Paper v. Zoeller, No. 45C01‐1207‐PL‐
00071 (Lake Cnty. Cir. Ct. Jul. 17, 2014)). Both decisions have been ap‐
pealed to the Indiana Supreme Court. (Docket Records of Zoeller v.
Sweeney, No. 45 S 00 – 1309 – PL – 00596 (accessed Aug. 20, 2014); Docket
Records of Zoeller v. United Steel Paper, No. 45 S 00 – 1407 – PL – 00492
(accessed Aug. 20, 2014)). The state trial courts’ decisions are far from
final in most respects, and, moreover, have no preclusive effect on our
consideration of federal questions here.
6 No. 13‐1264
hire only union members. Section 8(3) of the Wagner Act
was accordingly amended to ban closed shops. However,
the amended Section 8(3) “shield[ed] from an unfair labor
practice charge less severe forms of union‐security arrange‐
ments than the closed or union shop.” NLRB. v. Gen. Motors
Corp., 373 U.S. 734, 739 (1963). For example, it permitted “an
arrangement … requiring nonunion members to pay to the
union $2 a month ‘for the support of the bargaining unit.’”
Id.
Although Congress permitted less restrictive, post‐hiring
union‐security agreements under federal law, it also left
states free to ban them. Section 14(b) of the Act provided
that Section 8(3) did not protect a union‐security agreement
if it was “prohibited by State or Territorial law.” By the time
Section 14(b) was included in the NLRA, “twelve States had
statutes or constitutional provisions outlawing or restricting
the closed shop and related devices,” laws “about which
Congress seems to have been well informed during the 1947
debates … .” Retail Clerks Int’l Ass’n, Local 1625 v. Schermer‐
horn, 375 U.S. 86, 100 (1963) (“Retail Clerks II”).
In relevant part, Section 8(a)(3) of the NLRA now reads:
It shall be an unfair labor practice for an
employer … by discrimination in regard to hire
or tenure or employment or any term or condi‐
tion of employment to encourage or discourage
membership in any labor organization.
Provided, That nothing in this subchapter, or
in any other statute of the United States, shall
preclude an employer from making an agree‐
ment with a labor organization (not estab‐
No. 13‐1264 7
lished, maintained, or assisted by any action
defined in this subsection as an unfair labor
practice) to require as a condition of employ‐
ment membership therein … .
29 U.S.C. § 158(a)(3).
And Section 14(b) of the NLRA provides:
Nothing in this subchapter shall be con‐
strued as authorizing the execution or applica‐
tion of agreements requiring membership in a
labor organization as a condition of employ‐
ment in any State or Territory in which such
execution or application is prohibited by State
or Territorial law.
29 U.S.C. § 164(b).
The Supreme Court has clarified the relationship be‐
tween these two provisions: § 14(b) was intended to prevent
other sections in the NLRA from “completely extinguishing
state power over certain union‐security arrangements.” Re‐
tail Clerks Intern. Ass’n, Local 1625 v. Schermerhorn, 373 U.S.
746, 751 (1963) (“Retail Clerks I”). Specifically, “[Section 14(b)]
was designed to make certain that § 8(a)(3) could not be said
to authorize arrangements of this sort in States where such
arrangements were contrary to the State policy.” Id. (cita‐
tions and internal quotation marks omitted). Thus, we read
Section 14(b) as protecting states’ authority to enact laws
prohibiting union‐security arrangements that are permissi‐
ble under Section 8(a)(3) and other provisions of the NLRA.
This reading was underscored by the Supreme Court’s deci‐
sion in Retail Clerks II, which declared that the legislative his‐
tory “ma[de] clear and unambiguous the purpose of Con‐
8 No. 13‐1264
gress not to preempt the field.” Retail Clerks II, 375 U.S. at
101. The Court concluded “that Congress in 1947 did not de‐
prive the States of any and all power to enforce their laws
restricting the execution and enforcement of union‐security
agreements” and that “it is plain that Congress left the States
free to legislate” in the field of union‐security agreements. Id.
at 102. The freedom reserved to the states is extensive; “even
if [a] union‐security arrangement clears all federal hurdles,
the States by reason of § 14(b) have the final say and may
outlaw it.” Id. at 102–03. The Supreme Court could not have
been more explicit regarding the broad authority of states to
prohibit union‐security agreements.
It is against this backdrop of states’ extensive authority,
reserved to them by the language of the statute and the Su‐
preme Court’s interpretation, that we consider Plaintiff‐
Appellants’ argument that provisions of the Indiana right‐to‐
work legislation are preempted by federal labor legislation.
Their primary argument is that Section 14(b) permits states
to ban only union‐security agreements “requiring member‐
ship,” or else compelling workers to pay a full membership
fee that serves as the functional equivalent of membership.
The Indiana statute goes further by prohibiting unions from
collecting any fees and dues from unwilling employees. The
Plaintiff‐Appellants assert that this ban is too strict because
employees may still be required to pay a fee equal to their
“fair share” of the collective bargaining costs—something
less than the full membership fee—and not qualify as
“members” of the union under Section 14(b). Section 8(a)(3),
which permits such arrangements, would then, according to
this argument, apply in full force and preempt any state
statute barring the union’s practice.
No. 13‐1264 9
Plaintiff‐Appellants further argue that such a reading is
necessary because unions are required to act on behalf of all
employees in labor disputes, and may not discriminate
against non‐members. To compel the union to represent all
employees equally using dues contributed only by some
workers, they argue, creates a free‐rider problem. Indeed,
the Supreme Court has observed that Section (8)(3) “was de‐
signed to remedy the inequities posed by ‘free riders’ who
would otherwise unfairly profit from the Taft‐Hartley Act’s
abolition of the closed shop.” Commcʹns Workers of Am. v.
Beck, 487 U.S. 735, 753–54 (1988).
We are not convinced that Section 8(3) preempts the In‐
diana statute, for several reasons.
a. Interpretations of the Term “Membership” in the
NLRA Context
Plaintiff‐Appellants and the dissent admit that the Su‐
preme Court has construed the term “membership” to have
the same meaning in Sections 8(a)(3) and 14(b). Indeed, there
is no reason to think that the term “membership” in Section
14(b) would mean something different from the term “mem‐
bership” in Section 8(a)(3) of the same act. See Sorenson v.
Secʹy of Treasury of U.S., 475 U.S. 851, 860 (1986) (“The nor‐
mal rule of statutory construction assumes that identical
words used in different parts of the same act are intended to
have the same meaning.”) (citation and quotation marks
omitted). As a result, “the agreements requiring ‘member‐
ship’ in a labor union which are expressly permitted by the
proviso are the same ‘membership’ agreements expressly
placed within the reach of state law by § 14(b).” Retail Clerks
I, 373 U.S. at 751. If membership for purposes of Section
8(a)(3) encompasses “an arrangement … requiring nonunion
10 No. 13‐1264
members to pay to the union $2 a month ‘for the support of
the bargaining unit,’” Gen. Motors, 373 U.S. at 739, then
membership under Section 14(b) should likewise extend to
such fees.
The Supreme Court has described union membership as
synonymous with paying the portion of dues germane to the
union’s collective bargaining. It has held that the term
“membership” in Section 8(a)(3) has been “whittled down to
its financial core.” Gen. Motors, 373 U.S. at 742. And the Su‐
preme Court has also made clear that this “financial core” of
union membership extends to “only those fees and dues
necessary to performing the duties of an exclusive repre‐
sentative of the employees in dealing with the employer on
labor‐management issues.”3 Beck, 487 U.S. at 763 (citation
and internal quotation marks omitted); see also id. at 745
(“The statutory question presented in this case … is whether
this ‘financial core’ includes the obligation to support union
activities beyond those germane to collective bargaining,
contract administration, and grievance adjustment. We think
it does not.”). In other words, Representation Fees—those
3 The dissent states that Beck should be read for the proposition that the
term “membership” does not extend to those who pay only Representa‐
tion Fees. (We define Representation Fees to be those fees germane to
collective bargaining, contract administration, and grievance adjust‐
ment.) That contradicts Beck’s substantive holding. The Court held that §
8(a)(3) “authorizes the exaction of only” Representation Fees, an inter‐
pretation that necessarily requires that the term “membership” in that
clause be read to mean Representation Fees. 487 U.S. at 762‐63. It is true
that in its statement of facts, Beck distinguishes between dues‐paying
employees “who choose not to be union members” and full dues‐paying
union members. Id. at 739. But that quirk is not substantive.
No. 13‐1264 11
fees germane to collective bargaining, contract administra‐
tion, and grievance adjustment—constitute the “financial
core” of membership for the purposes of Section 8(a)(3) and
for Section 14(b). Therefore, Section 14(b)’s express allow‐
ance of state laws prohibiting “agreements requiring mem‐
bership in a labor organization as a condition of employ‐
ment” necessarily permits state laws prohibiting agreements
that require employees to pay Representation Fees (empha‐
sis added).4
In the alternative, we find compelling the fact that the
position advanced by the Union and adopted in the dissent
necessarily entails reading § 8(a)(3) as making § 14(b) super‐
fluous. As noted above, in Beck the Supreme Court stated
that “§ 8(a)(3) … authorizes the exaction of only those fees
and dues necessary to performing the duties of an exclusive
representative of the employees in dealing with the employ‐
er on labor‐management issues.” 487 U.S. at 762–63 (citation
and internal quotation marks omitted); see Marquez v. Screen
Actors Guild, Inc., 525 U.S. 33, 38 (1998) (Ҥ 8(a)(3) does not
permit unions to exact dues or fees from employees for ac‐
tivities that are not germane to collective bargaining, griev‐
ance adjustment, or contract administration.”). In arguing
that Representation Fees are permissible in all jurisdictions,
4 As this analysis makes clear, our conclusion is compelled in part by
Beck’s holding that the term “membership” extends to those who only
pay Representation Fees, not simply by the Retail Clerks decisions. And
we are bound by that precedent, even if the rule that the term “member‐
ship” has been “whittled down to its financial core” to include those who
pay only Representation Fees does not fit with the ordinary meaning of
the term “membership,” as the dissent states.
12 No. 13‐1264
including states that have promulgated right‐to‐work laws
in accordance with § 14(b), the Union is asserting that all
states must allow unions to negotiate the broadest, largest
possible union‐security arrangement permitted under §
8(a)(3). That can’t be right.
Both of these points are more compelling than the alter‐
native readings of “membership” presented to us by the
Plaintiff‐Appellants, who hang their interpretation on sever‐
al slender branches: two contemporaneous dictionary defini‐
tions, and a federal statutory definition found in a different
statute passed twelve years after the Taft‐Hartley Act. See
The Labor Management Reporting and Disclosure Act of
1959, 29 U.S.C. § 401 et seq. Not only are both of these
sources extraneous to the statute we are charged to interpret
in this case, but they also cannot alter the Supreme Court’s
later construction of the term “membership” in the Retail
Clerks cases and Beck.
b. State Statutory Schemes Concurrent with Taft‐
Hartley
Also compelling are the state right‐to‐work laws in effect
at the time of the Taft‐Hartley Act’s passage in 1947. As the
Supreme Court stated in Retail Clerks II, twelve states had
right‐to‐work laws in effect when Taft‐Hartley was enacted:
Arizona, Arkansas, Georgia, Iowa, Nebraska, Nevada, North
Carolina, North Dakota, South Dakota, Tennessee, Texas and
Virginia.5 These laws fell into two different categories. The
5 State Laws Regulating Union‐Security Contracts,” 21 L.R.R.M. 66
(1948). Of these states, ten states retain the same right‐to‐work statutory
language to the present day. The two exceptions are Nevada and Texas.
Continued on next page
No. 13‐1264 13
first broadly disallowed compulsory union membership. The
second included specific provisions outlawing compulsory
payment of dues or fees to labor organizations. An example
of a statute from the second group is Iowa’s right‐to‐work
law, which was enacted on April 28, 1947, two months be‐
fore the passage of the Taft‐Hartley Act:
Sec. 1. It is declared to be the policy of the State
of Iowa that no person within its boundaries
shall be deprived of the right to work at his
chosen occupation for any employer because of
membership in, affiliation with, withdrawal or
expulsion from, or refusal to join, any labor un‐
ion, organization, or association, and any con‐
tract which contravenes this policy is illegal
and void.
[…]
Sec. 4. It shall be unlawful for any person, firm,
association, labor organization or corporation,
or political subdivision, either directly or indi‐
rectly, or in any manner or by means as a pre‐
In the case of Nevada, there was a right‐to‐work provision in effect from
1911 to 1951 in the Crimes and Punishment Act of 1911, which remained
in effect until 1951. After a two‐year hiatus, a formal, standalone right‐to‐
work law was added in 1953 through initiative petition. Nevada Legisla‐
tive Counsel Bureau Office of Research Background Paper No. 75‐08
(1975). In Texas, a right‐to‐work law was passed in 1947 and styled Texas
Civ. Code § 5207a. It seems to have been updated and re‐numbered to
appear at Texas Lab. Code § 101 in 1993. The 1993 amendment gave rise
to Texas’s specific language that restricted compelled payment of dues
and fees to unions.
14 No. 13‐1264
requisite to or condition of employment to re‐
quire any person to pay dues, charges, fees,
contributions, fines or assessments to any labor
union, labor association or labor organization.
IOWA CODE § 736A.1, 4 (1947), renumbered as IOWA CODE
§ 731.1, 4 (1977).
All told, of the twelve state right‐to‐work statutes in ef‐
fect in 1947, more than half –seven – included language simi‐
lar to Indiana’s and Iowa’s statutes. ARK. CODE ANN. § 11‐3‐
303 (1947); GA. CODE ANN. § 34‐6‐22 (1947); IOWA CODE
§ 731.4 (enacted 1947, renumbered 1977); NEB. REV. STAT.
§ 48‐217 (1947); N.C. GEN. STAT. § 95‐82 (1947); TENN. CODE
ANN. § 50‐1‐203 (1947); VA. CODE ANN. § 40.1‐62 (enacted
1947, renumbered 1970). Congress was well aware of these
statutes when it drafted Section 14(b). See H.R. Rep. No.245,
80th Cong., 1st Sess. 34, reprinted in I Legislative History of the
Labor Management Relations Act of 1947 324 (1948) (listing
states with such statutes). As discussed above, the stated
purpose of Section 14(b) was to preserve the efficacy of laws
like these – statutes that allowed states to place restrictions
of their choosing on union‐security agreements, including
restrictions on whether employees could be compelled to
pay dues or fees of any kind to a union.6
6 The legislative history demonstrates that Congress drafted Section
14(b) to preserve the right‐to‐work statutes already in effect in 1947. See
Int’l Union of the United Ass’n of Journeymen & Apprentices of the Plumbing
& Pipefitting Indus., Local Unions Nos. 141, 229, 681, & 706 v. NLRB, 675
F.2d 1257, 1273 (D.C. Cir. 1982) (Mikva, J., dissenting) (“The best evi‐
dence of congressional intent may therefore lie in the kinds of ‘compul‐
sory unionism’ that members of Congress understood had been banned
Continued on next page
No. 13‐1264 15
Presently, twenty‐four states have some form of a right‐
to‐work law.7 The overwhelming majority of jurisdictions—
eighteen, by our count, including Guam—have adopted lan‐
guage substantially identical to the prohibition in Ind. Code
§ 22‐6‐8(2). See ALA. CODE § 25‐7‐34 (1953); ARK. CODE ANN.
§ 11‐3‐303 (1947); GA. CODE ANN. § 34‐6‐22 (1947); IDAHO
CODE ANN. § 44‐2003(3) (1985); 22 GUAM CODE ANN. §
4103(3) (2000); IOWA CODE § 731.4 (transferred 1977); LA.
REV. STAT. ANN. § 23:983 (1976); MICH. COMP. LAWS § 423.17
(2013); MISS. CONST. art. 7, § 198‐A (1960); NEB. REV. STAT. §
48‐217 (1947); N.C. GEN. STAT. § 95‐82 (1947); OKLA. CONST.
art. 23, § 1A (2001); S.C. CODE ANN. § 41‐7‐30 (1954); TENN.
CODE ANN. § 50‐1‐203 (1947); TEX. LAB. CODE ANN. § 101.004
(1993); UTAH CODE ANN. § 34‐34‐10 (1955); VA. CODE ANN. §
40.1‐62 (1947); WYO. STAT. ANN. § 27‐7‐111 (1963); see also
N.D. CENT. CODE § 34‐01‐14.1 (1987), repealed by NLRB v.
North Dakota, 504 F. Supp. 2d 750 (D.N.D. 2007). The longevi‐
ty of many of these statutes, coupled with the lack of disap‐
proval expressed by the Supreme Court, suggests to us that
Indiana’s right‐to‐work law falls squarely within the realm
of acceptable law.
We also find persuasive a decision by the D.C. Circuit,
the only decision from a sister circuit to squarely address the
by the state right‐to‐work laws.”). Yet the dissent’s position necessarily
entails concluding that Congress did not intend § 14(b)’s protections to
extend to the majority of right‐to‐work statutes then in effect. That is not
a reasonable interpretation of legislative history.
7 National Conference of State Legislatures, “Right‐to‐Work Resources,”
available at http://www.ncsl.org/research/labor‐and‐employment/right‐
to‐work‐laws‐and‐bills.aspx (last accessed Aug. 20, 2014).
16 No. 13‐1264
question before us.8 Faced with the question of whether a
union could assess non‐union employees for Representation
Fees in four right‐to‐work states, the D.C. Circuit found, on
the basis of the legislative history of the Taft‐Hartley Act,
that the assessment of such fees constituted an unfair labor
practice. Journeymen & Apprentices, 675 F.2d at 1260–62. The
D.C. Circuit held that “Congress knew precisely what state
laws it was validating when it passed § 14(b)” as “[t]he
House Report listed each state which had passed a right‐to‐
work law or constitutional provision.” Id. at 1260. Specifical‐
ly, the D.C. Circuit was persuaded that “Congress also knew
about the free rider problem posed by such laws when it
sanctioned such laws by passing § 14(b),” as shown by a
comment in the Senate Committee report on the bill reflect‐
8 The dissent cites two circuit decisions that stand for the principle that
§ 14(b) does not authorize states to prohibit the use of exclusive hiring
halls that do not discriminate between union members and non‐
members. See Laborers’ Int’l Union of N. Am., Local No. 107 v. Kunco, Inc.,
472 F.2d 456 (8th Cir. 1973); NLRB v. Houston Chapter, Associated Gen.
Contractors of Am., Inc., 349 F.2d 449 (5th Cir. 1965). Both decisions pre‐
cede Beck and did not have the benefit of the Court’s interpretation of
“membership” in that case. And the D.C. Circuit, in Journeymen & Ap‐
prentices, found both cases “clearly distinguishable” from the matter at
hand on the basis that these concern pre‐hiring practices, whereas § 14(b)
applies to post‐hiring union security arrangements. Journeymen & Ap‐
prentices, 675 F.3d at 1262, 1267 (“Use of a union hiring hall precedes hir‐
ing and therefore does not constitute ‘membership’ under § 14(b).”). We
agree that these cases are distinguishable because hiring halls do not re‐
quire prospective employees to do anything more than temporarily visit
union facilities during the hiring process. Such temporary affiliation does
not amount to “membership” as that term has been interpreted by the
Supreme Court.
No. 13‐1264 17
ing unions’ concerns about free riders,9 as well as Senator
Taft’s rebuttal on that point that “[m]any states have enacted
laws or adopted constitutional provisions to make all forms
of compulsory unionism in such states illegal. As stated in
the report accompanying the Senate committee bill, it was
not the intent to deprive the States of such power.” Id. at
1260–61 (citation omitted). And the D.C. Circuit noted that
this problem was so well known that President Truman crit‐
icized it in his veto message. Id. at 1261.
Plaintiff‐Appellants are right that Congress was con‐
cerned that banning the closed shop would create a free‐
rider problem, but only in those states that had no additional
restriction on union‐security agreements. Id. at 1260
(“[L]eaders of organized labor have stressed the fact that in
9 “A controversial issue to which the committee has devoted the most
mature deliberation has been the problem posed by compulsory union
membership … . [A]buses of compulsory membership have become so
numerous there has been great public feeling against such arrangements.
This has been reflected by the fact that in 12 States such agreements have
been made illegal either by legislative act or constitutional amendment,
and in 14 other States proposals for abolishing such contracts are now
pending. Although these regulatory measures have not received authori‐
tative interpretation by the Supreme Court (citation omitted) it is obvi‐
ous that they pose important questions of accommodating Federal and
State legislation touching labor relations in industries affecting com‐
merce (citations omitted). In testifying before this committee, however,
leaders of organized labor have stressed the fact that in the absence of
such provisions many employees sharing the benefits of what unions are
able to accomplish by collective bargaining will refuse to pay their share
of the cost.” Journeymen & Apprentices, 675 F.2d at 1260 (citing Report of
the Senate Committee on Labor and Public Welfare presented by Senator
Taft, 80th Cong., 1st Sess. 6, April 17, 1947).
18 No. 13‐1264
the absence of [anti‐union‐security] provisions many em‐
ployees sharing the benefits of what unions are able to ac‐
complish by collective bargaining will refuse to pay their
share of the cost.”) (quoting the Report of the Senate Com‐
mittee on Labor and Public Welfare presented by Senator
Taft, 80th Cong., 1st Sess. 6, April 17, 1947). On the other
hand, Congress explicitly permitted states that did restrict
those agreements to find their own solution to the free‐rider
problem, if it was a problem in those states. Indeed, unions
continue to thrive and assert significant influence in several
right‐to‐work states, including Iowa,10 where provisions
equivalent to Indiana’s have been in effect for more than six‐
ty‐five years. If the Plaintiff‐Appellants believe that Indi‐
ana’s law will create a new or unexpectedly severe free‐rider
problem, they may address those concerns to Congress.
In sum, in reviewing this substantial body of empirical
evidence, we are not persuaded by Plaintiff‐Appellants’
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 frame‐
work. Nor are we persuaded by their assertions that Indi‐
ana’s law represents a mortal threat to the continuing exist‐
ence of unions as provided under federal law. Section 8(2) of
10 See, e.g., Kris Maher, “Iowa’s House of Labor is Split,” WALL ST. J.
(Nov. 20, 2007) at A6 (examining the importance of “big, politically ac‐
tive unions” in the Iowa caucus vote); Steven Greenhouse, “Secret
Weapon in Gore Camp: Unions in Iowa,” N.Y. TIMES (Jan. 17, 2000) at
A14, available at http://www.nytimes.com/2000/01/17/us/the‐2000‐
campaign‐the‐unions‐secret‐weapon‐in‐gore‐camp‐unions‐in‐iowa.html
(calling Iowa’s 150,000‐member union force a major “weapon” in the
Iowa caucuses) (last accessed Aug. 20, 2014).
No. 13‐1264 19
the Indiana right‐to‐work statute is thus not preempted by
the NLRA.
c. Plaintiff‐Appellants’ Miscellaneous Preemption Ar‐
guments
Plaintiff‐Appellants assert two other preemption argu‐
ments. Both deserve only quick consideration.
The first assertion, that federal labor law preempts the
Indiana law’s criminal penalties, clashes squarely with lan‐
guage in Retail Clerks II, where the Supreme Court stated
that
In light of the wording of § 14(b) and this legis‐
lative history, we conclude that Congress in
1947 did not deprive the States of any and all
power to enforce their laws restricting the exe‐
cution and enforcement of union‐security
agreements. Since it is plain that Congress left
the States free to legislate in that field, we can
only assume that it intended to leave unaffect‐
ed the power to enforce those laws.
Retail Clerks II, 375 U.S. at 102.
The Union’s second argument is that the NLRA preempts
§ 8(3) of the statute, which bars mandatory payments of an
amount equivalent to union dues to a charity. They rely on
§ 19 of the NLRA, which allows conscientious objectors to
pay dues to a charity rather than to a union. But the applica‐
bility of that section naturally presupposes the existence of a
union‐security agreement that requires the payment of dues.
And as we have demonstrated, states are permitted to re‐
strict or prohibit such agreements. We agree with the district
court’s assessment that “[n]othing in the language of § 19
20 No. 13‐1264
suggests or supports interpreting it as an exemption to
§ 14(b) that would preempt any state attempt to outlaw the
kind of provision that § 19 permits.” Sweeney v. Daniels, 2013
WL 209047, *11 (N.D. Ind. Jan. 17, 2013).
2. Federal Constitutional Claims
The dissent claims that our interpretation of the federal
statutory schema works an unconstitutional taking on Hoos‐
ier unions. We consider this argument first. Plaintiff‐
Appellants also allege violations of the Contracts, Ex Post
Facto, and Equal Protection Clauses of the United States
Constitution. Because both their Contracts and Ex Post Facto
Clause arguments have force only if the statute applies ret‐
roactively, we consider them together.
a. Indiana’s Law Does Not Work an Unconstitutional
Taking
The dissent asserts that, should we hold that the federal
statutory scheme does not preempt Indiana’s right‐to‐work
statute, that holding likely violates the Takings Clause of the
Fifth Amendment, as applied to the states under the Four‐
teenth Amendment. Dissent at 17–18. We observe that no
argument based on the Takings Clause was advanced by the
Union, and so any such argument was forfeited. See Jackson
v. Parker, 627 F.3d 634, 640 (7th Cir. 2010) (noting that argu‐
ments not raised before the district court are forfeited); Trs.
of Chi. Painters & Decorators Pension, Health & Welfare, & De‐
ferred Sav. Plan Trust Funds v. Royal Int’l Drywall & Decorat‐
ing, Inc., 493 F.3d 782, 790 (7th Cir. 2007) (noting that argu‐
ments not raised in the opening brief are forfeited). And
there is the problem of whether the Union has sued the
proper defendants for the purposes of advancing a claim
No. 13‐1264 21
under the Takings Clause. The Union’s alleged deprivation
is the product of federal law and the Indiana statute operat‐
ing in tandem. 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 – it merely precludes the
Union from collecting fees designed to cover the costs of per‐
forming the duty. Even supposing the Union could justify its
suit by invoking something like the tort doctrine of “concur‐
rent actual causes,”11 the dissent has not explained why the
proper remedy would be to strike down Indiana’s right‐to‐
work statute rather than striking down or modifying the
federal law imposing on all unions the duty of fair represen‐
tation, in right‐to‐work states and non‐right‐to‐work states
alike.
Even so, we engage with the dissent’s position because
we believe it overlooks the fundamental fact that distin‐
guishes the union’s duty of representation from the other
hypotheticals it presents. That is to say: we believe the union
is justly compensated by federal law’s grant to the Union the
right to bargain exclusively with the employer. The reason
the Union must represent all employees is that the Union
alone gets a seat at the negotiation table. See Int’l Ass’n of
Machinists v. Street, 367 U.S. 740, 761 (1961) (A “union’s sta‐
tus as exclusive bargaining representative carries with it the
duty fairly and equitably to represent all employees of the
11 See Hill v. Edmonds, 26 A.D.2d 554, 554–55 (N.Y. App. Div. 1966)
(“Where separate acts of negligence combine to produce directly a single
injury each tort‐feasor is responsible for the entire result, even though his
act alone might not have caused it … .”).
22 No. 13‐1264
craft or class, union and nonunion.”); Hughes Tool Co., 104
N.L.R.B. 318, 324–25 (1943) (“[A] union could not assess
nonmembers for costs arising from contract negotiations for
the latter are the exclusive duty and prerogative of the certi‐
fied representative which the nonmember minority is both
entitled to and bound under.”). The powers of the bargain‐
ing representative are “comparable to those possessed by a
legislative body both to create and restrict the rights of those
whom it represents.” Steele v. Louisville & N.R. Co., 65 S. Ct.
226, 232 (1944). The duty of fair representation is therefore a
“corresponding duty” imposed in exchange for the powers
granted to the Union as an exclusive representative. Id. It
seems disingenuous not to recognize that the Union’s posi‐
tion as a sole representative comes with a set of powers and
benefits as well as responsibilities and duties. And no infor‐
mation before us persuades us that the Union is not fully
and adequately compensated by its rights as the sole and ex‐
clusive member at the negotiating table.
b. Contracts and Ex Post Facto Clause Arguments
The Contracts Clause provides that “[n]o State shall …
pass any … law impairing the Obligation of Contracts.” U.S.
CONST. art. I, § 10, cl. 1. A state violates the Contracts Clause
when a “change in state law has operated as a substantial
impairment of a contractual relationship.” Gen. Motors Corp.
v. Romein, 503 U.S. 181, 186 (1992) (citation and internal quo‐
tation marks omitted). The relevant inquiry has three com‐
ponents: 1) whether there is a contractual relationship;
2) whether a change in law impairs that contractual relation‐
ship; and 3) whether the impairment is substantial. Council
31 of the Am. Fed’n of State, Cnty., & Mun. Emps. v. Quinn, 680
F.3d 875, 885 (7th Cir. 2012) (citing Khan v. Gallitano, 180 F.3d
No. 13‐1264 23
829, 832 (7th Cir. 1999)). The Ex Post Facto Clause is violated
by state or federal legislation that “makes an act done before
the passing of the law, and which was innocent when done,
criminal, and punishes such action.” Peugh v. United States,
133 S. Ct. 2072, 2081 (2013) (citation and internal quotation
marks omitted). The parties agree that for the Indiana law to
violate these clauses of the Constitution, the law must have
some retroactive application: it must either impair an al‐
ready existing contract or else punish past conduct. We find
that the law does not apply retroactively.
This conclusion is relatively easy to reach because Section
13 of the Indiana statute provides that the substantive provi‐
sions of the legislation—Sections 8 through 12—apply only
to contracts entered into after March 14, 2012, and “do not
apply to or abrogate a written or oral contract or agreement
in effect on March 14, 2012.” IND. CODE § 22‐6‐6‐13. The main
objection Plaintiff‐Appellants make here is to Section 3 of the
statute. They argue that Section 3 is a substantive provision
not mentioned in Section 13, and that it thus has retroactive
application.
In interpreting the language of a statute, we “must exam‐
ine the language and design of the statute as a whole.” Wells
Fargo Bank, Nat’l Ass’n v. Lake of Torches Econ. Dev. Corp., 658
F.3d 684, 694 (7th Cir. 2011) (citations and internal quotation
marks omitted). And we must also keep in mind “[t]he pre‐
sumption against retroactive legislation,” which “embodies
a legal doctrine centuries older than our Republic.” Vartelas
v. Holder, 132 S. Ct. 1479, 1486 (2012) (citation and internal
quotation marks omitted). We are inclined to agree that Sec‐
tion 3 is an oddly drafted provision. It resides in a neighbor‐
hood of prefatory clauses, nestled amid definitions of key
24 No. 13‐1264
terms and exceptions, but its sub‐sections appear surprising‐
ly substantive: indeed, Section 3’s sub‐provisions are identi‐
cal in content to the sub‐sections of Section 8. However, Sec‐
tion 3’s main clause is drafted in the language of exception.
It explains that the statute should not be read to change the
laws of the building and construction industry, an industry
that has its own set of elaborate labor laws, except to prohib‐
it agreements of the type banned by Section 8. It is a double
negative—no change except the following changes—that
would be more comprehensible if drafted in the positive, but
the placement of the clause makes sense among the other
prefatory, exclusionary clauses like Sections 1 (“This chapter
does not apply to the following: … .”) and 2 (“This chapter
does not apply to the extent that … .”). IND. CODE §§ 22‐6‐6‐1,
2. In light of the design of the statute as a whole, we are sat‐
isfied that the provision in question is prefatory, not sub‐
stantive. It simply explains the domains to which the sub‐
stantive portions of the statute apply. To the extent that Sec‐
tion 3 contains substantive language, it is language that
simply points to the later substantive sections outlawing un‐
ion‐security clauses. This reading best harmonizes the struc‐
ture of the statute and the presumption against retroactive
legislation.12
12 In support of our reading, Defendant‐Appellees assert the fact that the
Indiana Commissioner of Labor has disclaimed any retroactive interpre‐
tation of Section 3, but this is not persuasive. While the district court was
satisfied by the Commissioner’s declaration, terming it binding under
the principles of judicial estoppel, it is difficult to determine what effect
such declarations would have on future executive administrations or
office‐holders. But our reading of the statute convinces us that Section 3
is not retroactive, so we need not rely on the concept of estoppel.
No. 13‐1264 25
c. Equal Protection Clause Arguments
The Equal Protection Clause of the Fourteenth Amend‐
ment states that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST.
amend. XIV. Equal protection scrutiny is triggered “when a
regulation draws distinctions among people based on a per‐
son’s membership in a ‘suspect’ class” or based on “a denial
of a fundamental right.” Srail v. Vill. of Lisle, Ill., 588 F.3d 940,
943 (7th Cir. 2009) (citations omitted). If either a suspect class
or fundamental right is implicated, “the government’s justi‐
fication for the regulation must satisfy the strict scrutiny test
to pass muster under the Equal Protection Clause.” Id. But if
neither condition is present, the proper standard of review is
rational basis. Id.
Plaintiff‐Appellants argue that the Indiana Right to Work
Act violates the Equal Protection Clause in two ways: (1) be‐
cause it allows free riders to infringe on union members’
First Amendment free speech rights, and (2) because it al‐
lows free riders to infringe on the right of union member‐
ship, which is a fundamental right because it involves the
exercise of First Amendment association and assembly
rights. We hold that the law does not violate the equal pro‐
tection clause because it does not implicate a fundamental
right, and it passes the low bar of rational basis review with
ease.
i. First Amendment Free Speech Rights
The stronger of Plaintiff‐Appellants’ two equal protection
arguments is the assertion that non‐payors of Representation
Fees will be free‐riders who siphon valuable Union re‐
sources away from the Union’s political activities. In dimin‐
26 No. 13‐1264
ishing the financial resources available to the Union for po‐
litical speech, Plaintiff‐Appellants argue, the Indiana law in‐
fringes on the Union’s First Amendment free speech rights.
We agree that unions have “the right under the First
Amendment to express their views on political and social
issues without government interference.” Knox v. Serv.
Empls. Int’l Union, Local 1000, 132 S. Ct. 2277, 2295 (2012).
However, Plaintiff‐Appellants’ argument is undercut by
three long‐standing principles. First, the Supreme Court has
stated that “unions have no constitutional entitlement to the
fees of non‐member employees.” Davenport v. Wash. Educ.
Ass’n, 551 U.S. 177, 185 (2007). And more relevantly, the First
Amendment “protects the right to be free from government
abridgement of speech,” but it does not “require[]” the gov‐
ernment “to assist others in funding the expression of par‐
ticular ideas, including political ones.” Ysursa v. Pocatello
Educ. Ass’n, 555 U.S. 353, 358 (2009). Stated another way,
“although government may not place obstacles in the path of
a person’s exercise of freedom of speech, it need not remove
those not of its own creation.” Regan v. Taxation With Repre‐
sentation of Wash., 461 U.S. 540, 549–50 (1983) (internal quota‐
tion marks and citations omitted). It may be true that the Un‐
ion “does not have money as it wants, and thus cannot exer‐
cise its freedom as it would like,” but “the Constitution does
not confer an entitlement to such funds as may be necessary
to realize all the advantages of that freedom.” Id. at 550 (in‐
ternal quotation marks and citations omitted). “A legisla‐
ture’s decision not to subsidize the exercise of a fundamental
right does not infringe the right, and is thus not subject to
strict scrutiny.” Ysursa, 555 U.S. at 358 (internal quotation
marks and citations omitted).
No. 13‐1264 27
The Union does not assert that the Indiana state legisla‐
ture has taken away an asset to which the Union was consti‐
tutionally entitled. Viewed in the best possible light, its ar‐
gument is that Indiana has made it more difficult for the Un‐
ion to collect as many funds as it is used to collecting. But
Indiana, like the state of Idaho in Ysursa, is “under no obliga‐
tion to aid the unions in their political activities. And the
State’s decision not to do so is not an abridgement of the un‐
ions’ speech; they are free to engage in such speech as they
see fit.” Id. at 359.
Lastly, as underscored a recent case concerning whether
non‐union public employees could be compelled to pay
agency fees to a state‐designated union, the Supreme Court
has held that there is a competing First Amendment interest
at play with free‐rider arguments of this variety: “the First
Amendment interests of those … who do not wish to sup‐
port the union.” Harris v. Quinn, 134 S. Ct. 2618, 2643 (2014).
It reaffirmed that “[a]gency‐fee provisions unquestionably
impose a heavy burden on the First Amendment interests of
objecting employees.” Id. And “free‐rider arguments … are
generally insufficient to overcome First Amendment objec‐
tions.” Id. at 2657.
In passing its right‐to‐work legislation, Indiana did not
abridge the Union’s speech, and thus did not violate its First
Amendment right to free speech. Rational basis review is
proper for this equal protection claim.
ii. Fundamental Right of Union Membership
Appellants’ weaker argument is the assertion that there
exists a fundamental right of union membership. “Collective
bargaining is not a fundamental right,” and a union and its
28 No. 13‐1264
members “are not suspect classes.” Univ. Prof’ls of Ill., Local
4100 v. Edgar, 114 F.3d 665, 667 (7th Cir. 1997); see also City of
Charlotte v. Local 660, Int’l Ass’n of Firefighters, 426 U.S. 283,
286 (1976) (“[T]his court would reject such a contention if it
were made that respondents’ status as union members … is
such as to entitle them to special treatment under the Equal
Protection Clause … .”). Since we agree with the Tenth Cir‐
cuit’s assertion that “neither union nor non‐union status im‐
plicates a fundamental right or constitutes a protected class,”
Local 514 v. Keating, 358 F.3d 743, 754 (10th Cir. 2004), we opt
for rational basis review unless Plaintiff‐Appellants can as‐
sert a cognizable fundamental right that has been violated
by the Indiana statute.
Plaintiff‐Appellants claim that they never asserted that
union members are a suspect class. Instead, they try to cob‐
ble a brand new fundamental right to union membership out
of the fact that union membership implicates the First
Amendment rights of freedom of assembly and freedom of
association. But besides being intellectually threadbare—
consider, for example, that these same facts could be mar‐
shalled to support a fundamental right to Civil War reen‐
actment—this line of reasoning was rejected by the Supreme
Court long ago. Union members in North Carolina and Ne‐
braska made the same argument when they challenged the
two states’ right‐to‐work laws in the late 1940s. They assert‐
ed, inter alia, that their freedom of association and assembly
was infringed. In Lincoln Federal Labor Union No. 19129, v.
Northwestern Iron & Metal Co., the Supreme Court stated:
There cannot be wrung from a constitutional
right of workers to assemble to discuss im‐
provement of their own working standards, a
No. 13‐1264 29
further constitutional right to drive from re‐
munerative employment all other persons who
will not or can not, participate in union assem‐
blies. The constitutional right of workers to as‐
semble, to discuss and formulate plans for fur‐
thering their own self interest in jobs cannot be
construed as a constitutional guarantee that
none shall get and hold jobs except those who
will join in the assembly or will agree to abide
by the assembly’s plans. For where conduct af‐
fects the interests of other individuals and the
general public, the legality of that conduct
must be measured by whether the conduct
conforms to valid law, even though the con‐
duct is engaged in pursuant to plans of an as‐
sembly.
335 U.S. 525, 531 (1949).
There is no doubt that union workers enjoy valuable
rights of association and assembly that are protected by the
First Amendment. See, e.g., Thomas v. Collins, 323 U.S. 516
(1945). But as in Lincoln Federal, that right alone cannot oper‐
ate as an offensive weapon to wrest rights from others: here,
the Hoosier workers whose rights not to associate with the
union are protected by the new legislation. See, e.g., Harris,
134 S. Ct. at 2643 (noting the “First Amendment interests of
those … who do not wish to support the union”); Knox, 132
S. Ct. at 2289 (holding that compelled membership in a pub‐
lic‐sector union, which takes positions during collective bar‐
gaining that can have powerful civic and political conse‐
quences, can “constitute a form of compelled speech and as‐
sociation that imposes a significant impingement on First
30 No. 13‐1264
Amendment rights” (citation and internal quotation marks
omitted)). Plaintiff‐Appellants must thus make a greater
showing: a clear basis for how the laws will “expressly for‐
bid the full exercise of those rights by union or union mem‐
bers,” Lincoln Federal, 335 U.S. at 530, or even a plausible
demonstration of how allowing non‐union workers to not
pay Representation Fees will somehow weaken the bonds of
the union’s own association and assembly. They have failed
to do so here. Rational basis review is appropriate for this
equal protection claim as well.
iii. The Statute Passes Rational Basis Review
Statutes that do not encroach on a fundamental right are
reviewed with “considerable deference.” See United States v.
Moore, 644 F.3d 533, 555 (7th Cir. 2011). The pertinent in‐
quiry is whether the statute in question “bears a reasonable
relation to any proper legislative purpose.” Id. at 555–56. It is
not our task to discern the specific intent of the legislature,
but to determine if any proper legislative purpose is served
by Indiana’s law.
The district court’s analysis on this point is apt. As the
court stated, “[a] belief that the passage of Right to Work
legislation contributes to a business‐friendly environment
that can attract companies and encourage job growth pro‐
vides a legitimate governmental objective that may have
been (and was in fact claimed to be) a reason for the passage
of Indiana’s Right to Work legislation.” Sweeney, 2013 WL
209047 at *8. We need look no further for a rational basis.
The Indiana law does not violate the Plaintiff‐Appellants’
right to equal protection.
No. 13‐1264 31
III
We noted at the outset that this legislation prompted
vigorous debate, both in the general public and the Indiana
Statehouse. But the legislative history and context of the
Taft‐Hartley Act make clear that the controversy is one that
ought to be addressed and resolved at the level of legislative
politics, not in the courts. The statutory question posed is
whether Indiana’s new law is preempted by federal labor
law, or threatens the Union’s First Amendment rights. The
answer is an emphatic no. Right‐to‐Work laws like Indiana’s
have existed since before the passage of the Taft‐Hartley Act
and the inclusion of Section 14(b) of the NLRA. Congress
specifically reserved to the states the power to write and en‐
force laws of this nature, in accordance with individual
states’ needs and wisdom. It is not our province to wrest this
authority, which has been intact and undisturbed for over
sixty‐five years, from the states and erase the distinction be‐
tween right‐to‐work states and non‐right‐to‐work states.
For the foregoing reasons, we AFFIRM the district court’s
judgment.
32 No. 13‐1264
WOOD, Chief Judge, dissenting. Today’s decision is either
incorrect or it lays bare an unconstitutional confiscation per‐
petuated by our current system of labor law. In my view, the
better view is the former: the majority has simply misunder‐
stood the federal statutory scheme, taken as a whole. The
plain language of section 14(b) of the National Labor Rela‐
tions Act (NLRA) does not support such sweeping force for
Indiana’s Right to Work law. IND. CODE § 22‐6‐6. No ruling
of the Supreme Court has gone this far, and the legislative
history of section 14(b) (for those who consider it relevant at
all) is inconclusive. Even if, however, one thought that there
were some ambiguity in the NLRA, the principle of constitu‐
tional avoidance provides a powerful reason to reject the
majority’s holding. I would find sections 8(2) and 8(3) of In‐
diana’s statute, Ind. Code § 22‐6‐6‐8(2), (3), preempted by
federal statute. I therefore respectfully dissent.
I
It is impossible to understand what is at stake and why
the majority’s resolution is in error without a brief review of
the labor law regime in the United States. Inaugurated in
1935 with the passage of the Wagner Act, 49 Stat. 452, the
NLRA relies on a system of exclusive representation of bar‐
gaining‐unit employees. See 29 U.S.C. § 159(a). That is, if a
majority of the employees in a defined section of a workforce
vote in favor of a particular union to represent them, that
union is required by law to represent all the workers in the
bargaining unit—supporters and nonsupporters, members
and nonmembers, alike. Id.; see Int’l Ass’n of Machinists v.
Street, 367 U.S. 740, 760–61 (1961) (“a union’s status as exclu‐
sive bargaining representative carries with it the duty fairly
and equitably to represent all employees of the craft or class,
No. 13‐1264 33
union and nonunion”). (This is hardly an unfamiliar ar‐
rangement in a democracy. Even after the most hotly con‐
tested presidential election, the person who is declared the
winner becomes the President for all citizens, not just those
who voted for him or her.) There is nothing inevitable about
our system of labor law; it can be contrasted with a hypo‐
thetical regime that is more protective of minority or mem‐
bers‐only unions, under which employees who want to bar‐
gain collectively might be free to form a members‐only un‐
ion and interact with their employer on that basis. But, to
repeat, that is not the system that the United States has
adopted.
Consequences flow from the union’s status as the exclu‐
sive representative of all members of the bargaining unit.
The most significant is what is known as the duty of fair rep‐
resentation. See Steele v. Louisville & N.R. Co., 323 U.S. 192
(1944) (recognizing the duty of fair representation under the
Railway Labor Act); Ford Motor Co. v. Huffman, 345 U.S. 330,
337–38 (1953) (extending duty of fair representation to the
National Labor Relations Act). The duty of fair representa‐
tion requires the exclusive bargaining representative (i.e., the
union) to “serve the interests of all members [of the bargain‐
ing unit] without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty,
and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171,
177 (1967). This duty is not limited to the negotiation pro‐
cess; it covers all union representational activity. See id. at
190–91 (duty of fair representation extends to grievance and
arbitration); Air Line Pilots Ass’n, Int’l. v. O’Neil, 499 U.S. 65,
67 (1991) (“We hold that the rule announced in Vaca … ap‐
plies to all union activity … .”). The Supreme Court’s opin‐
34 No. 13‐1264
ion in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), sum‐
marized the scope of those duties well:
The designation of a union as exclusive representative
carries with it great responsibilities. The tasks of ne‐
gotiating and administering a collective‐bargaining
agreement and representing the interests of employ‐
ees in settling disputes and processing grievances are
continuing and difficult ones. They often entail ex‐
penditure of much time and money. … The services
of lawyers, expert negotiators, economists, and a re‐
search staff, as well as general administrative person‐
nel, may be required. Moreover, in carrying out these
duties, the union is obliged fairly and equitably to
represent all employees …, union and nonunion,
within the relevant unit.
Id. at 221 (internal citation and quotation marks omitted).
As this passage acknowledges, a major part of the work
assigned to most unions under collective bargaining agree‐
ments relates to the administration of the grievance proce‐
dure. Grieving and arbitrating claims is not cheap. The web‐
site of the Teamsters union informs its members that 78% of
their dues “stay with your local union” for a variety of pur‐
poses, including the retention of “[a]ttorneys to assist in ne‐
gotiations, grievances, and arbitration.” See
http://teamster.org/about/frequently‐asked‐questions‐
faq#faq06 (this and all other websites cited in this opinion
were last visited August 29, 2014). The Labor Arbitration
Rules of the American Arbitration Association, available by
following the links in the Rules & Procedures tab at
http://www.adr.org, outline a comprehensive process that
obviously costs real money. It is no stretch to estimate that
No. 13‐1264 35
the cost of pursuing many grievances from initial investiga‐
tion through arbitration can reach into the thousands of dol‐
lars, representing the time of the affected employee and his
union representative, witness and travel costs, arbitrator
fees, and the cost of outside legal counsel. The duty of fair
representation requires the union to absorb these costs
whether or not the aggrieved employee is a union member.
Note the significant asymmetry embedded in this system.
While the union is required to represent all persons in the
bargaining unit fairly and equally, each one of these people
is entitled to decide whether to become a member of the un‐
ion. Those who opt to become members will pay their union
dues, which cover both activities such as collective bargain‐
ing, contract administration, and grievances (to which I refer
as representational activities) and a variety of ancillary polit‐
ical or ideological activities (to which I refer as ancillary ac‐
tivities). But what of those who choose not to become mem‐
bers? It has been established for years that they may not be
compelled to pay for the ancillary activities, no matter what
the label placed on that payment. See Commc’ns Workers of
Am. v. Beck, 487 U.S. 735, 738 (1988). So any question of com‐
pelling support for speech with which the nonmember disa‐
grees is off the table.
Until now, however, reimbursement for the benefits that
the union must confer on the nonmember has been a differ‐
ent matter, and for good reason. If there is no way to compel
the nonmember employee to pay the actual cost of the ser‐
vices the union is obligated to provide for him, a classic
“free‐rider” problem arises. Free‐riding is a potential prob‐
lem whenever a collective good (such as the union services
here) is involved. If the good (or service) can be priced indi‐
36 No. 13‐1264
vidually (that is, the seller can ensure that only the buyer ob‐
tains the benefit), free‐riding will not be a problem. But if
each person in the group obtains the benefit of the collective
good whether or not she pays for it, then there is a risk that
the supply of the good will diminish, or in the limiting case
will disappear altogether. See generally Earl R. Burbaker,
Free Ride, Free Revelation, or Golden Rule? 18 J.L. & ECON. 147,
149–150 (1975); Russell B. Korobkin & Thomas S. Ulen, Law
and Behavioral Science: Removing the Rationality Exception from
Law and Economics, 88 CALIF. L. REV. 1051, 1139 (2000). Thus,
for example, the realization of the risk of free‐riding by dis‐
tributors who did not want to provide services that manu‐
facturers valued led antitrust law to change from a per se
prohibition of vertical restraints to a rule‐of‐reason ap‐
proach. See Cont’l T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36
(1977); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551
U.S. 877 (2007). In our situation, the nonmember of the union
will reap the benefits of being represented by the union dur‐
ing a grievance, for instance, but he will pay nothing for
those benefits, which might include a lay representative,
maybe even a lawyer, investigative services, and so on—all
things that cost the union real dollars to provide. In short, he
will take a “free ride” on the dues that the union members
make to the union.
The same problem arises in a unionized workplace (that
is, a workplace in which a majority of the employees have
voted to have a union represent them, in an election super‐
vised by the National Labor Relations Board, or NLRB). Be‐
cause all members of the bargaining unit benefit as a matter
of right from the union’s representational activities regard‐
less of whether they join the union, there is an incentive for
employees in the bargaining unit “to refuse to contribute to
No. 13‐1264 37
the union while obtaining benefits of union representation
that necessarily accrue to all employees.” Abood, 431 U.S. at
222. The benefits in this case, as in most, extend well beyond
the boost from union speech that the Supreme Court found
inadequate to support a rule requiring nonmember fair
share contributions in Harris v. Quinn, 134 S. Ct. 2618, 2636–
37 (2014). I discuss Harris in more detail below.
The question is therefore whether the law as it stands to‐
day includes a solution to the potential free‐rider problem. If
it does, by creating a way to require nonmembers to pay for
actual benefits received, then all is well. If it does not, then
issues of constitutional magnitude arise. As the Supreme
Court has recognized, “[t]o compel employees financially to
support their collective‐bargaining representative has an
impact upon their First Amendment interests.” Id. But to ex‐
empt employees from reimbursing a service provider for
work performed creates a different constitutional issue—one
that the Supreme Court has had little to no occasion to dis‐
cuss. But we can glean something from Phillips v. Washington
Legal Foundation, 524 U.S. 156 (1998), which addressed the
question whether interest income generated by funds in
lawyers’ trust accounts (IOLTA) was the private property of
the client. The Court held that it was. That holding raised the
question whether clients could be compelled to donate their
property to a foundation that provided legal services to the
indigent. In Brown v. Legal Foundation of Washington, 538 U.S.
216 (2003), the Court held that if the state wished to require
the client’s property to be transferred from the IOLTA ac‐
count to the foundation, its action had to be judged under
the Takings Clause of the Fifth Amendment. It held that the
clients’ property had been taken for a public use when it was
38 No. 13‐1264
turned over, see 538 U.S. at 235, but that no compensation
was due, because the petitioners’ net loss was zero. Id. at 240.
The lesson from the IOLTA cases for us is that a state law
compelling one private party to give property to another
private party must be assessed under the Takings Clause.
The fact that those two cases involved money, while our case
involves the compulsory provision of services, is of no mo‐
ment. (This, incidentally, shows why the plaintiffs have sued
the correct party: it is the Indiana law that is compelling
them to donate valuable services to the nonmembers of the
unions, just as it was state law in Phillips and Brown that
compelled clients to donate their money to the legal founda‐
tions. Compare ante at 20.) Services cost money to provide:
union representatives must be paid, union lawyers must be
paid, and collective bargaining is not free. Justice Scalia
flagged this problem in his separate opinion in Lehnert v. Fer‐
ris Faculty Ass’n, 500 U.S. 507 (1991) (concurring in judgment
in part, dissenting in part):
Where the state imposes upon the union a duty to
deliver services, it may permit the union to demand
reimbursement for them; or, looked at from the other
end, where the state creates in the nonmembers a le‐
gal entitlement from the union, it may compel them to
pay the cost. The “compelling state interest” that justi‐
fies this constitutional rule is not simply elimination
of the inequity arising from the fact that some union
activity redounds to the benefit of “free‐riding” non‐
members; private speech often furthers the interests
of nonspeakers, and that does not alone empower the
state to compel the speech to be paid for. What is dis‐
tinctive, however, about the “free riders” who are
No. 13‐1264 39
nonunion members of the union’s own bargaining
unit is that in some respects they are free riders whom
the law requires the union to carry – indeed, requires
the union to go out of its way to benefit, even at the
expense of its other interests. In the context of bar‐
gaining, a union must seek to further the interests of
its nonmembers; it cannot, for example, negotiate par‐
ticularly high wage increases for its members in ex‐
change for accepting no increases for others. Thus, the
free ridership (if it were left to be that) would be not
incidental but calculated, not imposed by circum‐
stances but mandated by government decree.
Id. at 556. Lehnert itself dealt with limitations on the use by
public‐sector unions of dissenters’ contributions. The Court’s
holding that the state constitutionally was not permitted to
compel its employees to subsidize legislative lobbying or
other political activities in no way undermines the force of
Justice Scalia’s observations about the free‐rider problem as
it relates to the representational services that the unions
must provide to nonmembers.
Acting wholly within the boundaries of the governing
legislation, the Supreme Court has reconciled the costly du‐
ties imposed by law on unions with the rights of workers
who do not wish to participate in (or pay for) that union’s
nonrepresentational activities. It has done so by drawing a
line between what non‐union members of a bargaining unit
can and cannot be compelled to pay the union. Pursuant to
section 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3), unions and
employers may require all employees within a bargaining
unit (union members and nonmembers alike) to pay the un‐
ion for the costs associated with the union’s collective bar‐
40 No. 13‐1264
gaining and contract administration functions. See, e.g., Beck,
487 U.S. at 738. Beck held that although section 8(a)(3) of the
Act permits an employer and a union to enter into an
agreement under which all employees must make certain
payments to the union (essentially reimbursing the union for
services promised and rendered), it does not permit the un‐
ion to collect funds from objectors for activities “unrelated to
collective bargaining, contract administration, or grievance
adjustment.” Id.
My colleagues believe that Beck characterizes those objec‐
tors as union “members,” and indeed at one point the Court
says that “the ‘membership’ that may be so required [by sec‐
tion 8(a)(3)] has been ‘whittled down to its financial core.’”
Id. at 745. But all the Court is talking about at that point in
the opinion is what can be compelled of employees. Else‐
where, it makes clear that the Beck objectors were not union
members. How else can one read the statement at the begin‐
ning of the opinion, where the Court says “[i]n June 1976,
respondents, 20 employees who chose not to become union
members, initiated this suit … .” Id. at 739 (emphasis added).
The majority has effectively deleted from the Court’s Beck
opinion its statement of the precise issue it was deciding:
Today we must decide whether this provision also
permits a union, over the objections of dues‐paying
nonmember employees, to expend funds so collected
on activities unrelated to collective bargaining, con‐
tract administration, or grievance adjustment, and, if
so, whether such expenditures violate the union’s du‐
ty of fair representation or the objecting employees’
First Amendment rights.
Id. at 738 (emphasis added).
No. 13‐1264 41
To justify its decision to assign the status of statutory
“members” to nonmembers of the union, the majority seizes
on the comment to which I just referred, to the effect that the
1947 amendments to the NLRA “whittled down” the term
“membership” in the statute to its “financial core.” This lan‐
guage came directly from NLRB v. General Motors Corp., 373
U.S. 734, 742 (1963), and so in order to understand it, we
must look at that decision. When one does so, it is apparent
that the majority’s reading cannot stand. Nothing in either
General Motors or Beck wiped out the concept of nonmember
in the course of defining the term “member.” The passage in
General Motors from which that quote is lifted is prefaced by
the statement that “[u]nder the second proviso to § 8(a)(3),
the burdens of membership upon which employment may
be conditioned are expressly limited to the payment of initia‐
tion fees and monthly dues.” Id. (emphasis added). The Court
did not equate “initiation fees and monthly dues” to the fair‐
share payment that it recognized a quarter century later in
Beck. The only point it was making in General Motors was
that a duty to pay both initiation fees and monthly dues was
enough to make someone a “member,” even if the union dis‐
claimed the idea that membership went along with those
payments. Reality, in other words, is what governs; not la‐
bels. Unsurprisingly, people who are compelled to pay pre‐
cisely the same amount as union members pay should be
considered de facto members. With this background in mind,
the majority’s rationale for disregarding the Court’s own de‐
scription of the issue that it decided in Beck falls apart. Beck
makes clear that objectors are not members, but that they can
be compelled to pay for the services that they consume.
In so doing, Beck fine‐tunes the rules governing a recog‐
nized union, on the one hand, and the nonmembers for
42 No. 13‐1264
whom the union is responsible, on the other. It does so by
holding that while the collection of dues unrelated to collec‐
tive bargaining (and other representational activities such as
the handling of grievances) would violate the First Amend‐
ment rights of the nonmembers, federal law nevertheless en‐
titles the union to collect fees “fixed by their underlying
purpose—defraying the costs of collective bargaining.” Beck,
487 U.S. at 759. Interestingly, the Court alluded to the free‐
rider issue when it recognized that the legislative justifica‐
tion for section 8(a)(3) was to “ensur[e] that nonmembers
who obtain the benefits of union representation can be made
to pay for them … .” Id.
Before turning to the way in which these principles apply
to the case before us, I add a few words about the Supreme
Court’s recent decision in Harris v. Quinn, supra. The ques‐
tion in Harris was “whether the First Amendment permits a
State to compel personal care providers to subsidize speech
on matters of public concern by a union that they do not
wish to join or support.” 134 S. Ct. at 2623. The Court an‐
swered that question in the negative. It held that the person‐
al care workers could not be required to pay even the agency
fee that Abood had authorized, in the unusual circumstances
of their workplace. The Court stressed the fact that the dif‐
ference between core union speech and issues such as wag‐
es, pensions, and benefits for public employees is far more
elusive than it is for private employees. It commented on
“the conceptual difficulty of distinguishing in public‐sector
cases between union expenditures that are made for collec‐
tive‐bargaining purposes and those that are made to achieve
political ends.” Id. at 2632. The Court also found significant
the fact that the personal care assistants were hardly public
employees at all: they were hired, fired, and supervised by
No. 13‐1264 43
the client, and they were not eligible for a host of state bene‐
fits. This unusual status, it wrote, “has important implica‐
tions” for the ability of the union to charge an agency fee. Id.
at 2636. Abood’s rationale “is based on the assumption that
the union possesses the full scope of powers and duties gen‐
erally available under American labor law.” Id.
In Harris, practically the only thing the union was doing
was presenting its views to the state. It could not set wages,
which were established by law, and it had no authority over
grievances. In that setting, all that was left was speech. Well‐
established principles entitled the objectors to refuse to pay a
fee that could only be subsidizing that speech. The Court
uncovered nothing of value that the union was compelled to
furnish to the objectors, and so it had no occasion to worry
about any compelled transfer of property or services.
The case before us does not share those distinguishing
features of Harris. It concerns private employers and private
employees, not state employees. The rights of employees
who are not union members to refrain from subsidizing un‐
ion speech are fully protected by their entitlement to give the
union only a “fair share” that is capped by the costs of repre‐
sentational activity. The Harris Court itself recognized that
the case before it lacked all of the features that have been
understood to justify the agency fee:
What justifies the agency fee, the argument goes, is
the fact that the State compels the union to promote
and protect the interests of nonmembers. Ibid. Specifi‐
cally, the union must not discriminate between mem‐
bers and nonmembers in “negotiating and adminis‐
tering a collective‐bargaining agreement and repre‐
senting the interests of employees in settling disputes
44 No. 13‐1264
and processing grievances.” Ibid. This means that the
union “cannot, for example, negotiate particularly
high wage increases for its members in exchange for
accepting no increases for others.” Ibid. And it has the
duty to provide equal and effective representation for
nonmembers in grievance proceedings, see Ill. Comp.
Stat. Ann., ch. 5, §§ 315/6, 315/8, an undertaking that
can be very involved. See, e.g., SEIU: Member Re‐
sources, available at www.seiu.or/a/members/
disputes‐and‐grievances‐rights‐procedures‐and‐best‐
practices.php (detailing the steps involved in adjust‐
ing grievances).
134 S. Ct. at 2636–37. Every one of the features that was
missing in Harris is present in the case before us. I therefore
conclude that nothing in Harris undermines either Beck or
the analysis I have described thus far.
II
The question before us is how these principles operate
when a state chooses to adopt a so‐called “right‐to‐work”
law (either by statute or in its constitution). Indiana has
passed such a law. See IND. CODE § 22‐6‐6. Federal law
leaves some room for such state laws, pursuant to section
14(b) of the NLRA, 29 U.S.C. § 164(b). But the question is
whether state law can command the union (a private organi‐
zation) to perform uncompensated services for other private
parties (the nonmembers). If the federal labor laws preempt
this kind of state law, then the state law must yield. If the
federal statute either authorizes this kind of taking or is si‐
lent, then we must move to the constitutional issues to
which I have alluded.
No. 13‐1264 45
Bearing in mind that we should always consider statuto‐
ry arguments first, see, e.g., Solid Waste Agency of N. Cook
Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 162 (2001), I
analyze the NLRA before tackling any constitutional issue.
We all agree that the pivotal section of the NLRA is section
14(b), 29 U.S.C. § 164(b). Section 14(b) was added to the
NLRA in 1947 by the Taft‐Hartley Act, 61 Stat. 151, as part of
an effort to rein in certain union practices that Congress re‐
garded as abusive. Entitled “Agreements requiring union
membership in violation of State law,” section 14(b) states
that:
Nothing in this subchapter shall be construed as au‐
thorizing the execution or application of agreements
requiring membership in a labor organization as a con‐
dition of employment in any State or Territory in
which such execution or application is prohibited by
State or Territorial law.
29 U.S.C. § 164(b) (emphasis added). This is the language
that we must construe. The question is what it means to say
that states can prohibit agreements requiring “membership”
in a labor organization as a condition of employment. More
particularly, we must decide whether section 14(b) authoriz‐
es the sweeping prohibitions found in Indiana’s Right to
Work law. Plaintiffs challenge both section 3 and section 8 of
that law, Ind. Code §§ 22‐6‐6‐3 and 22‐6‐6‐8, but I agree with
the majority that section 3 adds nothing to the picture. I
therefore focus on subparts 2 and 3 of section 8, which pro‐
vide as follows in relevant part:
A person may not require an individual to:
…
46 No. 13‐1264
(2) pay dues, fees, assessments, or other charges of
any kind or amount to a labor organization; or
(3) pay to a charity or third party an amount that is
equivalent to or a pro rata part of dues, fees, assess‐
ments, or other charges required of members of a la‐
bor organization;
as a condition of employment or continuation of em‐
ployment.
IND. CODE § 22‐6‐6‐8 (emphasis added).
“Statutory interpretation begins with the plain language
of the statute.” United States v. Berkos, 543 F.3d 392, 396 (7th
Cir. 2008). Courts should assume that “the purpose of the
statute is communicated by the ordinary meaning of the
words Congress used; therefore, absent any clear indication
of a contrary purpose, the plain language is conclusive.”
United States v. Ye, 588 F.3d 411, 414–15 (7th Cir. 2009). My
colleagues read the word “membership” oddly, as a word
that describes both union members and nonmembers of the
union. Nonmembers somehow morph into members, they
say, if the nonmembers are required to pay the union any‐
thing, even a fee limited to reimbursement for the services
that federal law insists they are entitled to receive from the
union. By this logic, I become a member of Chicago’s Uni‐
versity Club the minute I so much as pay for my dinner at an
event hosted there. This would come as a surprise to both
the Club and me. One might even ask if money is significant
at all: I assume that nonmembers who enjoy union services
for free fall outside even the majority’s definition of “mem‐
bership,” though I do not know why that should be the case,
if they are still being represented by the union. The majority
No. 13‐1264 47
believes that its interpretation of section 14(b) is compelled
by the language of the NLRA, as interpreted by the Supreme
Court. In addition, it relies very heavily on the legislative
history of the Taft‐Hartley Act, ante at 13–18. With respect, I
do not agree with its reading of the statutory language, and I
cannot agree that the legislative history has any particular
persuasive value.
The decisions known as Retails Clerks I and II marked the
first time the Supreme Court addressed a state’s power un‐
der section 14(b). See Retail Clerks Int’l Ass’n, Local 1625 v.
Schermerhorn, 373 U.S. 746 (1963) (Retail Clerks I) and Retail
Clerks Int’l Ass’n, Local 1625 v. Schermerhorn, 375 U.S. 96
(1963) (Retail Clerks II). In Retail Clerks I the Court reviewed
an agency‐shop agreement under which all employees at the
company were required to pay full union fees, whether or
not they were union members. The Court had held in General
Motors that an agency shop clause that was not prohibited
by state law was a permissible subject of collective bargain‐
ing. 373 U.S. at 735. But General Motors arose in Indiana,
which at the time permitted agency‐shop agreements; Retail
Clerks I, in contrast, arose in Florida, which has a right‐to‐
work law that forbade these arrangements. Relying on sec‐
tion 14(b) and the right‐to‐work legislation, the plaintiffs
(non‐unionized employees) brought a lawsuit seeking a dec‐
laration that the agency‐shop provision was void. Defend‐
ants argued, inter alia, that section 14(b) gave states only the
power to prohibit agreements that required “membership”
in labor organizations. Agency‐shop agreements, defendants
pointed out, did not require membership; they “merely” re‐
quired nonmembers to pay fees equal to membership fees.
This, defendants urged, was compatible with the statute.
48 No. 13‐1264
The district court found that the state’s right‐to‐work law
outlawed not only union shops (under which union mem‐
bership could be compelled) but also agency shops. The Su‐
preme Court affirmed, finding that “[a]t the very least, the
agreements requiring ‘membership’ in a labor union which
are expressly permitted by the proviso [to 8(a)(3)] are the
same ‘membership’ agreements expressly placed within the
reach of state law by § 14(b).” 373 U.S. at 751. Pointing to
General Motors, the Court found that agency‐shop arrange‐
ments “which impose[] on employees the only membership
obligation enforceable under § 8(a)(3) by discharge, namely,
the obligation to pay initiation fees and regular dues – is the
‘practical equivalent’ of an ‘agreement requiring member‐
ship in a labor organization as a condition of employment.’
Whatever may be the status of less stringent union‐security ar‐
rangements, the agency shop is within § 14(b).” Id. at 751–52
(emphasis added).
As the statement just highlighted demonstrates, the
Court was careful in Retail Clerks I to leave for another day
the status of less comprehensive arrangements. It observed
that the petitioners originally had likened their case to the
General Motors agency shop. 373 U.S. at 752 n.4. Only later,
upon briefing and argument, did they try to distinguish their
situation from the full‐blown agency shop. Id. At that late
hour, they argued that the clause in their agreement provid‐
ed that nonunion employees would contribute to the union
“for the purpose of aiding the Union in defraying costs in
connection with its legal obligations and responsibilities as
the exclusive bargaining agent of the employees in the ap‐
propriate bargaining unit.” Id. at 752. The petitioners assert‐
ed that this language confined payments from nonmembers
“to collective bargaining purposes alone” and prohibited the
No. 13‐1264 49
union from using the payments “for institutional purposes
unrelated to its exclusive agency functions.” Id.
The Supreme Court rejected this last‐minute attempt to
distinguish General Motors. It pointed out that contrary to the
petitioners’ suggestion, the clause at issue imposed “no iron‐
clad restriction” on what the union could do with the pay‐
ments it received from nonmembers, and thus there was no
safeguard against the union’s use of the money for “institu‐
tional items.” Id. at 753. In addition, because the proposed
“service fee” was set at an amount equal to the union’s initi‐
ation fees and dues, which could be used for any number of
purposes, there was no guarantee that a nonmember would
not pay more of the union’s collective bargaining costs “than
his pro rata share.” Id. at 754. The Court explained:
If the union’s total budget is divided between collec‐
tive bargaining and institutional expenses and if
nonmember payments, equal to those of a member,
go entirely for collective bargaining costs, the non‐
member will pay more of these expenses than his pro
rata share. The member will pay less and to that ex‐
tent a portion of his fees and dues is available to pay
institutional expenses. The union’s budget is bal‐
anced. By paying a larger share of collective bargain‐
ing costs the nonmember subsidizes the union’s insti‐
tutional activities.
Id. Accordingly, there was no reason why the clause should,
“in the present posture of the case, be construed against re‐
spondent to raise a substantial difference between this and
the General Motors case.” Id. at 752. It would be anomalous,
the Court said, to let a state ban agency‐shop agreements
under which union members and nonmembers paid equal
50 No. 13‐1264
shares while forbidding it to ban an arrangement in which
nonmembers might pay even more bargaining costs than
members. Id. at 754.
Retail Clerks I thus stands only for the proposition that a
union may not do an end‐run around section 14(b) by im‐
posing financial exactions on nonmembers exactly equal to
the charges borne by members. As I already have noted, Re‐
tails Clerks I reserved the status of more genuine accommo‐
dations to nonmembers for another day. This is that day, for
our court. Indiana’s flat prohibition against agreements be‐
tween employers and unions under which a union non‐
member cannot be charged even for legally required and bo‐
na fide representational activities goes well beyond the de fac‐
to membership the Supreme Court considered in Retail
Clerks I.
Well‐established principles of labor preemption also
stand in the way of the majority’s result. While there is no
express preemption clause in the NLRA, the Supreme Court
has recognized that its preemptive reach is broad. See Ben‐
jamin I. Sachs, Despite Preemption: Making Labor Law in Cities
and States, 124 HARV. L. REV. 1153, 1154 (“It would be diffi‐
cult to find a regime of federal preemption broader than the
one grounded in the … (NLRA)”). In Garmon, the Supreme
Court held that states may not regulate activities even “ar‐
guably” protected or prohibited by federal labor law. San
Diego Bldg. Trades Council, Etc. v. Garmon, 359 U.S. 236, 245
(1959). In Machinists, it went even further, finding that state
regulation of union activity that was neither protected nor
prohibited by federal labor law was preempted, as “Con‐
gress intended that the conduct be … left ‘to be controlled by
the free play of economic forces’” and “not be regulable by
No. 13‐1264 51
States any more than by the NLRB.” Lodge 76, Int’l Ass’n of
Machinists v. Wis. Emp’t Relations Comm., 427 U.S. 132, 149
(1976). Against this backdrop, I believe that we are not free
to read section 14(b) as the majority does. It is instead a nar‐
row exception to an otherwise encompassing preemption
regime.
In other section 14(b) cases courts have struck down simi‐
larly restrictive state laws as outside the scope of section
14(b) and therefore preempted. For example, in N.L.R.B. v.
Houston Chapter, Associated Gen. Contractors of Am., Inc., 349
F.2d 449 (5th Cir. 1965), the Fifth Circuit held that a demand
for a nondiscriminatory hiring‐hall clause by the union did
not fall within the area carved out for state regulation by sec‐
tion 14(b) and thus the state was preempted from banning it.
The court explained its decision as follows:
It is true that the terms of § 14(b) as well as the legisla‐
tive history suggest the intent on the part of Congress
to save to the states the right to prohibit compulsory
unionism. However, the long and the short of this
matter is that § 14(b) contemplates only those forms of
union security which are the practical equivalent of
compulsory unionism. Membership in the union is
not compulsory under the clause here in question. …
No doubt union membership will be encouraged un‐
der the arrangement, indeed it may be a boon to the
union; nevertheless such an arrangement does not
constitute compulsory unionism so long as the ar‐
rangement is not employed in a discriminatory man‐
ner.
Id. at 453 (internal citations omitted). The Eighth Circuit
made the same point in Laborers’ International Union, Local
52 No. 13‐1264
107 v. Kunco, Inc., 472 F.2d 456 (8th Cir. 1973), where it com‐
mented that “[s]ection 14(b) does not empower states to ban
all involuntary relationships between workers and unions. It
merely allows the prohibition of ‘agreements requiring mem‐
bership in a labor organization as a condition of employ‐
ment … .’” Id. at 458. See also Local Union No. 415 of Int’l Bhd.
of Elec. Workers v. Hansen, 400 P.2d 531, 536–37 (Wyo. 1965)
(finding preempted statute providing that “no person is re‐
quired to have any connection with” a labor organization as
a condition of employment or continued employment).
It is true, as my colleagues point out, that the Court of
Appeals for the District of Columbia decided 32 years ago
that the assessment of even representational fees against
nonunion members was an unfair labor practice in a right‐
to‐work state. See Intʹl Union of the United Assʹn of Journey‐
men & Apprentices of the Plumbing & Pipefitting Indus. of the U.
S. & Canada, Local Unions Nos. 141, 229, 681, & 706 v.
N.L.R.B., 675 F.2d 1257, 1267–68 (D.C. Cir. 1982). But the
Plumbing & Pipefitting decision cannot be reconciled with the
Supreme Court’s later Retail Clerks decisions nor with the
distinction that Beck drew between the limited obligations
that nonmembers retain and those voluntarily borne by un‐
ion members. Judge Mikva’s dissenting opinion was, in my
view, prescient; it also provides a useful and comprehensive
review of the legislative history of section 14(b) that sup‐
ports the conclusion he would have reached (and that I reach
here). See Id. at 1268–75. Rather than repeat Judge Mikva’s
account, I mention only a few of the highlights for the bene‐
fit of those who regard legislative history as a useful tool, in
order to illustrate the fact that the pieces of legislative histo‐
ry the majority has found do not represent either the last or
the only way to look at it.
No. 13‐1264 53
As I noted at the outset, modern American labor law be‐
gan with the passage of the Wagner Act in 1935. Enacted
against the backdrop of significant violence between work‐
ers and employers at the beginning of the 20th century, the
Wagner Act gave workers the right to organize in unions
and to bargain collectively with their employers. After
World War II, however, there was a feeling by some in Con‐
gress that the pendulum had swung too far in the direction
of unionization. In particular, closed‐shop agreements, un‐
der which an employer agreed to hire union members only,
were thought by some members of Congress to be a power‐
ful tool that union leaders were abusing. On the other hand,
the very same members of Congress were sympathetic to‐
ward other union security agreements. In response, Con‐
gress passed the Taft‐Hartley Act of 1947, 61 Stat. 151. Taft‐
Hartley introduced many changes to the NLRA, some ad‐
ministrative, some substantive. Like most legislation, it re‐
flected a compromise, in this case between union and man‐
agement interests. Congress “added provisions making it
more difficult for workers to obtain a union shop (i.e., a
workplace in which the employer is free to hire anyone, but
new employees can be required to join the union after hire),
but [] retained the union shop as a mandatory subject of bar‐
gaining in section 8(a).” Plumbing & Pipefitting Indus., 675
F.2d at 1272.
The legislative history of section 14(b) indicates that the
drafters understood it as a reaffirmation of the original
NLRA:
It was never the intention of the National Labor Rela‐
tions Act, as is disclosed by the legislative history of
that act, to preempt the field in this regard so as to
54 No. 13‐1264
deprive the States of their powers to prevent compul‐
sory unionism. Neither the so‐called “closed shop”
proviso in section 8(3) of the existing act nor the un‐
ion shop and maintenance of membership proviso in
section 8(a)(3) of the conference agreement could be
said to authorize arrangements of this sort in States
where such arrangements were contrary to the State
policy. To make certain that there should be no ques‐
tion about this, section 13 was included in the House
bill. The conference agreement, in section 14(b), con‐
tains a provision having the same effect.
Id. at 1272 (citing H.R. Conf. Rep. No. 510, 80th Cong., 1st
Sess. 60 (1947), Leg. Hist. at 564). As Judge Mikva pointed
out, the “predominant if not the only purpose of section
14(b) was to provide yet one more check on the abuses that
could exist under compulsory unionism.” Id. at 1273. But
what did that mean? Congress did not define what it meant
by the key term for our purposes, “compulsory unionism.”
Individual members, however, gave examples indicating
that they were thinking of the closed shop or occasionally
the union shop; no one breathed a word about the legitimacy
of requiring nonmembers of the union to pay for services
that the union was legally compelled to give them.
The majority notes that as of the time Taft‐Hartley was
under consideration, 12 states had right‐to‐work laws in ef‐
fect, and that the laws of seven in that group included lan‐
guage similar to that found in the Indiana law before us.
Ante at 12–13. From this fact, it infers that Congress must
have intended to endorse all 12 of the state laws in effect. But
we have no idea what Congress as a whole thought, and in
the end it is beside the point. We can assume that some
No. 13‐1264 55
members who voted for Taft‐Hartley believed, or hoped,
that each one of the 12 state laws would be free to operate in
the broadest possible way. Others who voted for the bill
might have expected each state statute to be tested in the
courts, which after all are the institution with the final au‐
thority to “say what the law is.” Marbury v. Madison, 1
Cranch (5 U.S.) 137 (1803). Since the language varied from
statute to statute, the latter expectation would have been far
from unreasonable. “Statutes are drafted by multiple per‐
sons, often with conflicting objectives.” Frank H. Easter‐
brook, Judges as Honest Agents, 33 HARV. J.L. & PUB. POL’Y
915, 922 (2010). The safest course is therefore to look at the
language of the statute, in context of course, and to reason
from there.
As the line the Supreme Court drew between the General
Motors decision and the Retail Clerks case demonstrates, sec‐
tion 14(b) allows states to opt out of anything resembling a
union shop or an agency shop. But it does not permit them
to allow any worker who wishes to free‐ride on the union’s
mandatory efforts on the nonmember’s behalf to do so.
Without the protection of section 14(b), sections 8(2) and (3)
of the Indiana statute must fall under normal preemption
analysis.
III
If, contrary to my analysis, one were to conclude that In‐
diana has worked out a way to conscript the union into
providing uncompensated services to anyone who decides
to opt out of union membership, it would become necessary
to decide whether such a rule is permissible under the Tak‐
ings Clause of the Fifth Amendment, as applied to the states
under the Fourteenth Amendment. The majority is suffi‐
56 No. 13‐1264
ciently worried about this possibility that its first response is
to suggest that the plaintiffs have forfeited the point. Ante at
19–20. I disagree with them. First, we are not compelled to
invoke forfeiture rules in civil cases, and given the im‐
portance of this question, I would not duck the issue on that
basis. Second, plaintiffs have argued throughout that the In‐
diana statute is unconstitutional, and at least one Indiana
court has come to the conclusion that it indeed effects a tak‐
ing under the state constitution. See Sweeney v. Zoeller, No.
45D01‐1305‐PL‐52 (Super. Ct. of Lake Cnty. Sept. 5, 2013).
Plaintiffs called that decision to our attention. If the law falls
on state grounds, so be it; our case will be moot. But if the
higher state courts ultimately uphold the law under the state
constitution, however, the federal constitutional issue will
remain. In my view, the issue has been preserved adequately
and even if it has been raised only indirectly, we should
reach it.
Given the IOLTA cases and the confiscatory nature of the
Indiana statute, which requires unions to provide services
for free to the objectors, if there is no preemption, then I
would feel compelled to find a taking. (Principles of federal
preemption do not permit us to use the justification that the
majority raises: they believe that this is all the fault of the
duty of fair representation in federal law. Ante at 20. But it is
not up to the state to override that duty; we must take it as a
given.) The two most basic economic rights enjoyed in the
United States are (1) that the government may not confiscate
private property for public use without just compensation,
and (2) that the takings power must be exercised for a public
purpose, and so the government may not take the property
of one private party for the sole purpose of transferring it to
another private party, regardless of whether “just”
No. 13‐1264 57
compensation is paid. See Kelo v. City of New London, Conn.,
545 U.S. 469, 477 (2005). The majority, unfortunately, has
given a green light to just such an uncompensated private
transfer. It does so by holding that states can categorically
prohibit unions and employers from requiring nonmembers
to reimburse the union for the costs the union is federally
obligated to incur. Even in Kelo, the taking of one person’s
property in order to transfer it to a second private party was
justified by the alleged public purpose of economic
redevelopment. See id. at 494 (O’Connor, J., dissenting).
Here, no public purpose is even alleged.
How this can be anything but an unconstitutional taking
I do not know. I am aware of no precedent in other areas to
support it. We would be shocked by a rule providing that, as
a condition of receiving a business license in a city, a compa‐
ny selling gasoline had to give it away to any customer who
did not want to pay. Or, to take another example, think of the
cooperative buying associations that small businesses often
create so that they can enjoy economies of scale. See, e.g., Nw.
Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472
U.S. 284 (1985). Under the majority’s rule, a state could com‐
pel the association to furnish products even to nonmem‐
bers—perhaps even for free—if that nonmember objected to
an association rule requiring all members to include contra‐
ceptive services in their health insurance plans. The repre‐
sentational services that unions provide cost real money.
That is most apparent when the grievance process is at stake,
but the negotiation of a collective bargaining agreement
cannot be done at zero cost.
The majority makes the surprising assertion that the un‐
ion’s “seat at the bargaining table” somehow compensates it
58 No. 13‐1264
for the myriad real costs it incurs on behalf of nonmembers.
Ante at 20–21. That idea does not hold up under any level of
scrutiny. First, this suggestion fundamentally misunder‐
stands how the union obtains its seat at the bargaining table.
The union does so if and only if it succeeds in winning a rep‐
resentational election sponsored by the NLRB; it does not
win that seat either through the grace of the employer or in
exchange for some kind of quid pro quo from either the em‐
ployer or the bargaining‐unit employees (i.e., “you cover the
expenses of collective bargaining and grievance processing,
and in exchange we’ll let you participate in the process”).
Second, the majority seems to think that the employer re‐
ceives no benefits from collective bargaining, but that is not
true either. Collective bargaining agreements commonly in‐
clude such features as no‐strike clauses, management rights
clauses, and a grievance procedure, all of which are a win‐
win for both labor and management. Third, the majority’s
hypothesis is flatly inconsistent with the Supreme Court’s
reasoning in Beck and Abood, among other cases that recog‐
nized the tangible value of the services that nonmembers
and objectors receive as a result of the duty of fair represen‐
tation. Finally, even if there were anything to the point, it
would apply at most to the collective bargaining portion of
the union’s duties, not to the administration of the contract
and the costly grievance procedures. For all these reasons,
the majority cannot avoid the confiscatory regime it has en‐
dorsed by pointing to a certified union’s right to represent
the workers.
None of this would be a problem if unions were permit‐
ted to deny services to nonmembers, but they are not, and I
am not sure they would want to be. (That, however, is a
question for another institution and another day.) Unless or
No. 13‐1264 59
until that aspect of our labor law is changed by Congress,
the only constitutional path is to permit unions to charge
fees to nonmembers that cover only the limited, mandatory
representational services that the nonmembers receive. The
majority has forbidden this, and has thus sanctioned the con‐
fiscation of one private party’s resources for the benefit of
another private party. I cannot sign on to that result.
IV
As I have explained, I do not agree with the majority’s
decision to define the term “member” for purposes of sec‐
tion 14(b) to include both members and nonmembers. The
Supreme Court’s decisions in Retail Clerks and Beck, as well
as its decisions in Phillips and Brown, point us in the right di‐
rection. Under them, the proper accommodation between
state authority to adopt a “right‐to‐work” approach and the
national labor laws is one under which the states may insist
that no employee be required to become a member of a un‐
ion, but at the same time, nonmembers must pay for the ser‐
vices that the unions are required by law to render to them.
Supreme Court precedent, Board precedent, and the legisla‐
tive history of the statute all support this approach. And if it
is wrong and the majority is correct, we have a constitutional
problem on our hands. In our country, the state is not enti‐
tled to force private organizations or persons to render un‐
compensated services to others. The Takings Clause, which
applies to the states, says as much. Principles of constitu‐
tional avoidance therefore support the ruling that I advocate.
If Congress wants to amend the federal labor laws to permit
unions to serve only those who pay their dues, I assume that
it could do so. But that is not the legal regime we have today.
For all these reasons, I respectfully dissent.