Five counties in Kentucky have moved to adopt local right-to-work laws, an action that has put them at odds with the state attorney general over the legality of their measures. The counties’ efforts were prompted by conservative activists pushing a novel legal theory regarding the laws, which limit union power.
The counties — Fulton, Hardin, Simpson, Todd and Warren — have passed laws within the last two months. Three others, Barren, Cumberland and Pulaski — have initiated the process.
Right-to-work laws prohibit labor-management contracts that force workers to join or support unions as a condition of employment. Supporters say they are key to attracting business to a state.
Barren County was set to adopt a version, but Judge Executive Michael Hale postponed the move Wednesday after local magistrates postponed a meeting on the proposed ordinance. Hale told the Washington Examiner he had little choice because the only other legal analysis he had told him the county did not have the authority. A judge executive is the equivalent of a county executive.
“The state attorney general’s opinion says counties cannot legally adopt right-to-work,” Hale said. “Until the state adopts it as a law, that’s what I have to go on.”
Right-to-work laws were authorized by Congress in 1947 under the Taft-Hartley Act. The conventional understanding is that Taft-Hartley allowed states to adopt the laws, but not other government entities.
Last year, conservative activists began arguing that there was no restriction on counties and cities from adopting the laws as well. The case law on the subject is scant for the simple reason that few people have thought to try.
That means Kentucky could be a significant test case. “Right now the momentum is in Kentucky, but I would not be surprised if by the end of the year we see this in counties across the country,” said James Sherk, labor policy analyst at the conservative Heritage Foundation and supporter of the theory.
The Bluegrass State effort has been largely backed by a group called Protect my Paycheck, which is headed by Brent Yessin, a business-side labor lawyer and Kentucky native. Yessin has vowed to defend the laws in court if the counties are challenged. The expense of defending the laws from legal challenges has been a key reason why even supporters have been reluctant to take up the issue. Yessin’s pledge emboldened the supporters.
“We are not growing as fast as Tennessee. We’re not growing as fast as Indiana, Michigan,” Warren County Judge Executive Mike Buchanon told Fox News Friday. “This actually puts us on a level playing field. It enables us to compete with other states.”
Nine labor unions filed suit in Kentucky federal court on Jan. 14 to stop Hardin County from adopting the law. The eventual ruling is expected to cover the other counties as well.
Kentucky business groups back right-to-work. They argue that businesses are choosing to locate in neighboring states such as Tennessee that have the law instead of the Bluegrass State.
“I am convinced the lack of a right-to-work law is causing Kentucky to lose thousands of jobs per year,” Kentucky Chamber of Commerce President Dave Adkisson told a state senate committee on Jan. 8.
Unions, who fear that the laws will cause them to lose members, argue that they cause weak unions, which would result in depressed wages across the board. The Kentucky AFL-CIO could not be reached for comment.
Opponents of the law were given a boost by Attorney General Jack Conway’s opinion, released last month. Supporters point out that Conway is a Democrat making a bid for governor.
Opponents also were given a surprise boost when the National Right to Work Committee, one of the leading proponents of the issue nationally, issued a statement in late December agreeing that counties cannot adopt the laws.
“There is zero reason to believe that any local right-to-work ordinances adopted in Kentucky or any other state will be upheld in court,” said Stan Greer, senior research associate at the National Institute for Labor Relations Research, an affiliate of the committee.
