Kentucky State AFL-CIO

Even the NRTWC doubts the legality of local right to work ordinances

EDITOR’S NOTE: Kyle Henderson, business manager of Paducah Plumbers and Steamfitters Local 184, alerted us to this article on the website of the National Right to Work Committee, one of the most anti-union groups in the country.  

Kentucky Court: State ‘Political Subdivisions’ Have ‘No Power’ to Bar Forced Union Dues

By Stan Greer On 12/23/2014 2 comments

Since Right to Work supporters made major gains in Congress and state legislatures in this fall’s elections, state elected officials in West Virginia, New Hampshire, Wisconsin, New Mexico, Pennsylvania, Montana, Missouri, Delaware, Maine, and other states have responded by promising, or at least suggesting, that they will bring up measures prohibiting forced union dues and fees in their capital cities next year.

One other way elected officials have reacted to intensifying public support for the Right to Work is to try to address the evils of compulsory unionism at the local level.

Since the middle of this month, three Kentucky counties (Warren, Simpson and Fulton) have moved towards adoption of local Right to Work ordinances. And on December 19 one of these counties, Warren, gave final approval to a Right to Work measure in a bi-partisan vote.  (See the link below for more information.)

National Right to Work leaders and members commend local Kentucky officials in the three counties for standing up to United Auto Workers (UAW) and other union bosses who have viciously attacked them.

Unfortunately, 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.  Indeed, the very day Warren legislators cast their third and final vote to ban forced union dues, the office of state Attorney General Jack Conway issued an opinion stating that such local ordinances are not legally permissible.  As a Big Labor-backed politician, Conway is certainly biased, but his position is in fact consistent with legal precedents.

In 1990, a federal court ruled in Local 1564 v. City of Clovis that, under the 1947 Taft-Hartley Act, cities and other localities may not protect private-sector employees from being fired for refusal to bankroll a union.  Even if state lawmakers have explicitly authorized them to safeguard the Right to Work, they can’t, the opinion indicated.

And in 1965, the Kentucky Court of Appeals similarly overturned a local Right to Work ordinance.

According to the holding of the Kentucky court, “Congress has pre-empted the field of regulation of [forced union dues and fees] to the extent that local political subdivisions of a state have no power to legislate” in the field.  Moreover, the Clovis court concluded that, even in states that, like Kentucky today, have home rule provisions explicitly granting localities the right to exercise all legislative powers not expressly denied by the general law or the state constitution, the Taft-Hartley Act still prohibits local Right to Work ordinances.

There is no doubt that pro-Right to Work Warren County officials, especially the two Democrats who joined in giving approval to the ordinance passed on Friday, are worthy of praise for brushing aside Big Labor insults and intimidation and voting with the vast majority of their constituents.  But the reality is that the Warren County measure and any other similar measures that are approved in the future are very unlikely to survive when they are challenged in court, as they inevitably will be.

The real way to overcome opposition to Right to Work in the Kentucky Legislature, or any other state legislature, is to mobilize freedom-loving citizens at the grass-roots until a sufficient number of legislators change their minds and stop backing forced unionism, or are replaced by elected officials who will not knuckle under to union special interests.

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