This week, I came across several developments on one of my favorite labor & employment law topics, right to work. With so many great articles and updates, I thought it was appropriate to dedicate this post to that topic.
For those needing a refresher on right to work laws, these laws prohibit "forced" union dues, often called agency fees, which require all employees, whether they belong to a union or not, to contribute fees to pay for collective bargaining costs by a union. Needless to say, attempts to bring right to work to several states has proven difficult so far, somewhat "easier" for others, and an uphill fight for many. And that is not even taking into account ongoing attempts to pass right to work laws on a local level.
As always, below are a couple articles that caught my eye this week.
Sussex County Votes Down Right to Work Ordinance
A few weeks ago, I had pointed readers to a development in Sussex County Delaware in which the County Council was considering a right to work ordinance for for that county. (Delaware is not a right to work state, although its three counties could create right to work zones). The County Council had delayed their vote while they awaited a legal opinion from the County Attorney as to the legality of the proposed ordinance. After holding hearings and reviewing the County Attorney’s opinion on the matter, the County Council voted 4 - 1 against passage of the right to work ordinance earlier this month. The reason? Many County Coucilmembers expressed concern over the litigation costs to defend the ordinance in court. If there is one bright spot for those that supported the ordinance in Sussex County, however, it should be the fact that there appeared to be support among the Council (including from those Councilmembers that voted against the ordinance) to work with the Delaware General Assembly to pass House Bill 266 that would side step the potential legal problems that doomed Sussex County’s ordinance. (Although spoiler alert, the bill failed to make it out of committe last week and is, for all intents and purposes, permanently shelved). However, as with many right to work matters, this one is still likely far from over.
Court Dismisses Union's Lawsuit Challenging Kentucky Right to Work
Recently, a court in Kentucky dismissed a lawsuit brought by the Kentucky State AFL-CIO and Teamsters against Kentucky Governor Matt Bevin's administration that sought to challenge the state's right to work law. The lawsuit alleged that the law improperly took union members' property without just compensation and violated the equal protection and arbitrary action provision of the state's constitution. The court disagreed and held that "unions do not have a cognizable property interest in union services" and the state's right to work law "does not prevent unions from collecting dues from members or employees under existing unions security clauses..." Perhaps unsurprisingly, Kentucky State AFL-CIO President, Bill Londrigan, announced shortly after the court's ruling that the fight was not over and an appeal would likely follow. For the time being, however, Kentucky remains one of twenty eight states with a statewide right to work law in place.
Kentucky Union Membership Decreases In Wake of State's Right to Work Law
This article from WDRB.com dovetails nicely with the above article on a Kentucky court's recent ruling on the legality of state's right to work law. A study has been released which reported that 16,000 fewer workers in the state were members of a union last year, compared to 2016. The percentage of workers in the state that belonged to a union fell from 11.1% in 2016 to 9.6% last year. Given the decreased revenue, minimized political impact, and diminishing clout for unions in right to work states, it is no wonder that so many unions and pro-labor groups have started to dig in and fight these laws.
Missouri's Right to Work Law Headed For 2018 Ballot
Remember a few weeks ago when I pointed readers to a development in Missouri's right to work push? The state had managed to pass right to work legislation earlier last year and was well on its way to becoming the 28th right to work state when the law was set to go into effect on August 28, 2017. However, days before the law was to go into effect, labor activists rallied together and delivered a few hundred thousand signatures to the Missouri Secretary of State's office in an attempt to get the measure on the ballot and allow Missouri voters to decide whether to approve the right to work law. As The National Law Review reports, it turns out that of the 310,567 signatures submitted for approval, the 250,000 signatures that were accepted were well above the threshold to put the measure on the ballot ("only" 108,467 signatures were needed...but as I wrote back in August, it is always good to get extra signatures in case some are not accepted). Expect more money to start flowing into this fight over the coming months...November's vote is still a long ways down the road.
Ohio Considers Other Options to Implement Right to Work After Voters Rejected the Measure
I have to say, these articles are seamlessly flowing together this week. Note the above article about unions and pro-labor groups who have successfully manged to get Missouri's right to work law on the 2018 ballot. The same thing happened in Ohio in 2011. The result? Voters in the state rejected a law that would have limited collective bargaining among public sector employee unions. Undeterred, Republican lawmakers in the state are now turning to another option: putting right to work language in the state's constitution...so long as voters approve the amendments. What makes some Republicans think they stand a chance this time? The intent is to put the proposed amendments on the 2020 ballot (which is an election year when voter turnout is higher...and possibly more Republican/pro-business/anti-union?). Stay tuned.
Have Republicans Found the Cryptonite to Right to Work Opponents?
Sean McElwee at The Nation published an article on Monday which noted a study that found that states with right to work laws saw Democratic presidential vote share decrease by 3.5%. Taking it one step further, this has impacted down ballot races for governors and state legislatures which has led to some states seeing a rise in Republican officeholders. McElwee posits that these right to work states are not only seeing a decrease in union membership and influence (see the first article I pointed readers to this week) but are also shaping the course of the political climate. Take for instance a right to work state like Wisconsin. In 2016, President Donald Trump won the state 47.9% - 46.9%. Or how about Michigan, also a right to work state? President Trump carried the state 47.6% - 47.3%. Florida, which is also right to work? President Trump prevailed by a 49.1% - 47.8% margin. Finally, let us look at North Carolina (you guessed it, a right to work state). President Trump won 50.5% - 46.7%. While I do not necessarily think these victories in the right to work states are entirely attributable to right to work laws, with a 3.5% in Democratic presidential vote share, you can see why some Republicans in Ohio think 2020 might be their best time to put the right to work constitutional amendments on the ballot...
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