Lexington Herald-Leader: Several Kentucky counties passing or considering ‘right to work’ laws
By: Greg Kocher | January 17, 2015
For at least 50 years, and probably longer, Kentucky has debated whether it should have a law that allows employees represented by a union to opt out of paying union fees.
Like the ebb and flow of the tide, the “right to work” issue would rise during campaigns for governor or when state lawmakers met in Frankfort, and then quickly subside from public attention.
All that changed in the last month.
Since mid-December, Fulton, Hardin, Simpson, Todd and Warren counties have passed right-to-work ordinances. Cumberland and Pulaski counties have given first readings to similar proposals, according to the Bluegrass Institute, a Kentucky organization that supports “free market” issues.
On Wednesday, the day after Hardin County became the fifth county to pass an ordinance, nine labor unions filed suit in federal court to stop it.
Suddenly, right to work is a hot issue and getting hotter.
Kentucky Chamber of Commerce President David Adkisson said he anticipates that 20 counties “in pretty short order” will adopt right-to-work ordinances in the coming weeks.
“The people who are promoting this are people on the front line who are recruiting new jobs to their communities,” Adkisson said.
Adkisson, a former Owensboro mayor and former chamber of commerce executive there, said he is convinced that Kentucky loses thousands of jobs each year to right-to-work states.
“In my Owensboro days, I worked with prospects who went to other states and … who were telling me that right to work was a significant factor,” Adkisson said.
Bill Londrigan, president of the Kentucky AFL-CIO, scoffs at Adkisson’s assertion and others who make similar claims.
“They have no facts and figures to back up their statements,” Londrigan said. “I’ve asked them and challenged on numerous occasions to provide the facts and figures about how many of these companies have said they were going to Tennessee or to any other state for the particular reason of right to work.”
Senate Republicans said reducing unions’ power would make Kentucky more attractive to employers. Democrats said a right-to-work bill is an attack on unions, which fight for better wages and benefits and also tend to fund Democratic political campaigns.
In the November elections, Republicans vowed to pass a right-to-work law if they took control of the Kentucky House from Democrats. When they failed to get that House majority, “it precluded their No. 1 priority from being accomplished,” Londrigan said.
This month, the Kentucky Senate voted 24-12, with the Republican majority prevailing, to pass a right-to-work bill. The measure is expected to die in the House.
Under federal labor law, a union that bargains a contract for all employees can require employees who choose not to be union members to pay fees to cover the costs of being represented, unless “prohibited by state or territorial law.”
Twenty-four states have enacted such prohibitions and thus become right-to-work states. Tennessee has been a right-to-work state since 1947. Kentucky is the only southern state that does not have a right-to-work law.
Last year, The Heritage Foundation, a conservative think tank, came out with a paper that said federal law does not specifically exclude counties from passing their own right-to-work ordinances.
The foundation and groups like the American Legislative Exchange Council (ALEC) and a new nonprofit called Protect My Check have worked to influence local governments on the right-to-work issue.
At its winter meeting in December, ALEC outlined a plan to focus on local governments. Later that month, the fiscal court in Warren County, home of the General Motors Corvette assembly plant represented by the United Auto Workers, adopted a right-to-work ordinance, the first of its kind in Kentucky. The Bowling Green Daily News reported that Protect My Check pledged to pay the legal bills should the ordinance be challenged.
Within days of the Warren County vote, Fulton, Simpson and Todd counties — all along the Kentucky-Tennessee border — passed their own ordinances.
Simpson County Judge-Executive Jim Henderson said he and the fiscal court were interested in adopting a local ordinance because the state legislature had not passed a bill.
Henderson said site-selection consultants for prospective companies — and sometimes the companies themselves — have told him “we want to go to a right-to-work state.”
“So Kentucky is eliminated before we are even considered in a lot of these projects,” Henderson said. “… If you’re a right-to-work state, they view you as a more business-friendly state.”
In one case, a company considering Simpson County as the site for a new plant asked whether Kentucky was a right-to-work state, Henderson said.
“I’m surprised they didn’t know that in advance,” Henderson said. “But when they got to that issue, they literally stopped and folded up their book and said, ‘I don’t know if we’re going to be able to talk much more because that’s an issue for us.’”
Henderson said he doesn’t see himself as a pawn working at the behest of outside groups.
“Nobody has said to me, ‘Would you all do this so we can build some national coalition for right to work?’” Henderson said. “No outside group asked me to do this. I wanted to do this when I heard there was an opportunity to do it.”
So far, 46 local elected officials in Kentucky have cast votes on right-to-work ordinances, said Jason Nemes, a Louisville lawyer supportive of local initiatives.
“Forty-four have been in favor of it, and 22 of those 44 are Democrats,” Nemes said. “So we don’t see this as a partisan issue at all.”
Nemes said he has been contacted by five counties in Central Kentucky’s 6th Congressional District that are interested in learning more about the issue.
But most judge-executives in the counties surrounding Lexington told the Herald-Leader they are not considering right-to-work.
George Lusby, the judge-executive in Scott County, where Toyota has a non-unionized plant, said he doesn’t “see it becoming an issue for fiscal court” there.
“We have a majority of Republicans on fiscal court, but none of them has mentioned it to me,” said Lusby, a Democrat.
Lusby said he personally believes that local right-to-work ordinances are “illegal.”
“From what I read, I don’t think it’s a county issue. It’s a state issue,” he said.
Reagan Taylor, the newly elected Republican judge-executive of Madison County, said he wants to know the pros and cons of the issue. Taylor said he has mentioned to his staff that he would like to set up a meeting to learn more.
“I am not willing to make any kind of next step until I know more about it,” Taylor said.
Garrard County Judge-Executive John Wilson is waiting to see what happens with litigation against right-to-work ordinances.
“We’ve not had anybody contact us to try to get us to take a look at it here,” Wilson said. “It’s probably more prudent to watch as those lawsuits make their way through the system.”
What about those claims that Kentucky is losing jobs to other states?
Because negotiations with prospective employers are confidential, and companies generally don’t wish to be identified, it’s difficult to provide specifics, Adkisson said.
But some examples can be found. In August, gunmaker Beretta USA broke ground on a $45 million plant in Gallatin, Tenn. Ron Bunch, president and CEO of the Bowling Green Area Chamber of Commerce, told the Bowling Green Daily News in December that Beretta had considered Kentucky but ultimately decided to go to a right-to-work state.
Tennessee’s right-to-work law was also cited in 1987, when Fruehauf, a maker of big truck trailers, decided to put a plant in Huntsville, Tenn., rather than Pulaski County, Ky.
In 2004, automaker Hyundai initially wouldn’t consider Kentucky because it was not a right-to-work state. But the company later changed its mind and Kentucky was one of two finalists for the plant; Hyundai eventually chose Alabama.
Kentucky landed Toyota in the 1980s and many other plants and jobs before and since.
For the moment, the legal basis for the local ordinances is up for scrutiny. Hardin County’s ordinance is the subject of a federal lawsuit, and sources said more litigation is possible.
In an opinion last year, Kentucky Attorney General Jack Conway cited a 1965 case in which the Kentucky Court of Appeals ruled that the city of Shelbyville does not have the authority to enact a right-to-work ordinance.
That case doesn’t apply to counties for two reasons, Nemes said. First, cities don’t have the same powers as counties.
Second, even if the Court of Appeals ruling had applied to counties at the time, the Kentucky legislature passed a “home rule” act in the 1970s.
“The home rule act has delegated state authority to counties to do various things — three things in particular to this question,” Nemes said.
Specifically, counties have the power to control their fiscal affairs, to regulate commerce, and to promote economic development, he said.
Nemes argues that the home rule act supersedes the previous ruling in the Shelbyville case.
The unions counter that the federal law preempts or prohibits any political subdivision of the state from enacting a right-to-work law.
“Every court that’s looked at this issue has ruled that local right-to-work ordinances are illegal,” said Lynn Rhinehart, a lawyer for the AFL-CIO in Washington, D.C. “The law allows states to pass right to work, but it doesn’t allow counties to pass right to work.
“It strikes us as a waste of taxpayers’ time and money to have their county commissioners spending time debating and adopting ordinances that are going to be struck down as illegal,” Rhinehart said.
As for the argument that a “home rule” act allows counties to pass right-to-work ordinances, Rhinehart said: “Nice try.”
“That doesn’t supersede the National Labor Relations Act, the federal statute that is the genesis of all of this. The National Labor Relations Act says it is permissible for unions and employers to enter into agreements to require workers to pay fair-share fees as part of the representation of the union in the workplace. There’s a limited exception to that national policy, and that limited exception says states and territories can adopt right-to-work laws. It doesn’t say states and counties.”
In the meantime, even if legal battles continue, Adkisson said “the benefits to individual counties could be immediate. Passing right to work is like putting a sign in your store window that you are open for business.”