An experiment in Kentucky could have major implications for workers’ rights and union organizing: Can counties and other municipalities pass right-to-work laws?
Conservative activists have gotten 12 counties in the Bluegrass State to pass right-to-work ordinances, which prohibit workers from being forced to join or support a union as a condition of employment. Such requirements, which unions call “security clauses,” are common provisions in labor-management contracts.
Previously, it was commonly understood that only states could adopt the rules.
Unions have challenged the local legislation on those grounds, arguing that federal law prohibits the county ordinances. A district court is expected to rule on the case soon, but a key activist says the fight is not likely to end there.
“The only thing the court is going to determine is who is the plaintiff when this goes to appeals courts,” said Brent Yessin, a lawyer who heads the pro-right-to-work group Protect My Paycheck.
If his side wins, the unions are certain to appeal, he notes. They have too much at stake not to, especially if the ruling spurs municipalities in other states to pass similar rules.
If the court rules in the unions’ favor, Yessin vows to appeal it all the way to the top. “Either way, I think this is going to the Supreme Court.”
Unions argue that the clauses are needed to prevent workers from becoming “free riders” who unfairly benefit from their collective bargaining with management. Critics argue that being in a union should be the workers’ decision.
Fans argue the laws help states attract businesses, boosting the economy overall, while critics argue that they result in weaker unions, hurting their ability to advocate for workers.
The laws are associated with sharp declines in union membership since they give dissatisfied members the option to drop out. Twenty-five states have them, with Indiana, Michigan and Wisconsin passing them in the last two years.
Last year, conservative groups such as Yessin’s and Americans for Tax Reform hit upon the idea of trying it at the municipal level, arguing that while federal law does not specifically authorize local legislation, it doesn’t rule it out either. There is virtually no case law on the subject.
Kentucky became the test case. Yessin and other activists got Warren County to adopt the rules in December, and 11 more followed.
Unions and Democratic leaders in the state have fought back, getting a boost from an unusual quarter: The National Right to Work Committee, the main conservative group that advocates for the laws nationally. It argues that the legal case for county-level rules is weak and could undercut efforts to pass laws at the state level.
The national right-to-work group said last year there was “zero reason to believe that any local right-to-work ordinances adopted in Kentucky or any other state will be upheld in court.” Unions have cited the criticism in their efforts to stop them.
The split has created friction among conservatives. National Right to Work President Mark Mix said in February that Sen. Rand Paul, R-Ky., had lectured him for 15 minutes, saying Mix had undermined the cause of right-to-work.
The effort does not appear to have affected statewide efforts to pass a right-to-work bill, though. The Republican-controlled Kentucky Senate passed a version this year, but it stalled in the lower House, where Democrats have a slim majority. GOP gubernatorial candidate Matt Bevin has campaigned on getting it passed.
