Summary: In Kentucky and elsewhere, advocates for the rights of working men and women—including the right not to join a union or pay dues to a union if you don’t want to—are trying a new strategy: Laws that secure this right for a city or county, rather than an entire state. The courts have not yet ruled definitively on this strategy, which is not favored by the National Right to Work Committee, one of the most prominent champions of Right to Work efforts. This issue of Labor Watch examines the progress that has been made on the ground, as well as the legal and strategic disputes this approach raises.

“I hope to have God on my side, but I must have Kentucky.” – Abraham Lincoln

Bowling Green seems like an unlikely spot for the beginning of a revolution. Yet Bowling Green, seat of Warren County, Kentucky, is where a revolution has been sparked against the forced collection of union dues.

With the recent additions of Michigan and Wisconsin to the roster, 25 states now have Right to Work laws—laws that protect workers from being forced to join a union or pay union dues as a condition of employment. All those states have laws that apply statewide. The significance of what’s happening in Bowling Green, and across Kentucky, and perhaps soon in other states is that Right to Work protections are being extended at the local level, county by county.

Kentucky has often held a strategic position in U.S. politics. The birthplace of both U.S. President Abraham Lincoln and Confederate President Jefferson Davis, it was neutral at the beginning of the Civil War but quickly came over to the Union side. (The Confederacy, meanwhile, recognized a provisional government and counted Kentucky as a Confederate state.) As of the 1880 Census, the population center of the United States was in Kentucky.

20150625-UW_LocalRTWWith states split evenly on Right-to-Work, Kentucky is in play.

Through most of the 20th Century, the state’s U.S. Senate seats flipped between the parties, while Democrats usually controlled the state government. Currently the home of the Senate Majority Leader, Mitch McConnell (R), and of a major presidential candidate, Senator Rand Paul (R), the state government is split, with Democrats controlling the governorship and the state House (54-46) and Republicans controlling the state Senate (23-14 with one independent).

Today, the 50 states are split dead even between Right to Work and non-RTW status. Local Right to Work in Kentucky could be a game-changer in the struggle to establish a worker’s right not to join or pay dues to a union.

At this writing, Local Right to Work has been passed in 12 Kentucky counties. It started in Bowling Green.

Where are the site selectors?

Bowling Green, Kentucky’s third largest city, is a comfortable Southern-style town with an antebellum courthouse of red brick and soaring columns, just by the historic town square. The city sits comfortably at the intersection of the Old South and Industrial Midwest. It straddles that concrete ribbon of I-65, known here as the “automotive corridor” running from the Great Lakes to the Gulf of Mexico—a stretch of territory that includes most of the country’s manufacturing of automobiles and accessories.

Closer to Nashville than Louisville, Bowling Green is the commercial center of Southern Kentucky. It’s home to Fruit of the Loom and to Western Kentucky University, and it’s where some 800 workers at a General Motors plant assemble the Chevrolet Corvette.

The city offers many advantages for businesses, but it had one huge disadvantage—a disadvantage that competing cities were quick to point out to site selectors: it’s not a Right to Work jurisdiction.

Since 2012, when Indiana and Michigan went Right to Work, the area has suffered the odd anomaly of being the only stretch of I-65 from the Great Lakes to the Gulf where workers could be fired for not paying union dues. That has little appeal to employers looking to enter the U.S. market with a modern plant and a flexible, union-free workforce, nor does it appeal to an employer fleeing a unionized facility tied in knots by irrational work rules and unproductive habits.

The list of suitors who decided to go elsewhere included Beretta, the iconic American gun manufacturer that liked Bowling Green but chose nearby Gallatin, in Tennessee, which has a Right to Work law. Kyoto Tires wanted to come to the area, but its wary international owners changed their minds late in the process, picking Georgia, a Right to Work state.

  • Warren County Judge Executive Mike Buchanon (R), head of the local government, can list the projects and count the jobs that almost came to Bowling Green and Warren County before suitors jilted the area for locations in Right to Work states. Jim Waters, head of the state’s conservative think tank, the Bluegrass institute, can quote economic development experts who told legislators at a hearing last year:“Approximately 40 percent to 50 percent of our clients still prefer making right-to-work a qualifying pass-fail criteria. . . . Kentucky is considered for fewer manufacturing projects than if they were a right-to-work state.” —Mark Sweeney, Senior Principal, McCallum Sweeney Consulting, Greenville, South Carolina
  • “A majority of Atlas Insight’s manufacturing clients, especially those manufacturers from European countries looking to expand in the U.S., express a definite preference for right-to-work states. In fact, unionized states are often filtered out on the first screen and won’t even make the long list of locations.” —Kathy Mussio, Managing Partner, Atlas Insight LLC, New Jersey
  • “One of the first filters that can eliminate a state from site location consideration is its right-to-work status. . . . [W]hen a corporation uses their own process your state will be nearly immediately removed from consideration.” —Josh Bays, Site Selection Group, LLC, Dallas, Texas

Kentucky’s state Senate has passed a Right to Work measure repeatedly, most recently S.B. 1 (Senate Bill 1) passed on a vote of 24-12. But, despite a concerted effort by Republicans to take over the state House in last year’s election, that chamber remains under Democratic control, specifically control by Speaker Greg Stumbo, who has repeatedly sent RTW legislation to committee, never to emerge. (S.B. 1 died in a House committee by a vote of 15-3.)

That meant that, if localities in Kentucky were to protect workers’ rights and create a pro-business climate to attract jobs, they would have to take matters into their own hands.

Overlooked opportunity?

The opportunity to pass Local Right to Work is one that has been available for some 68 years. It’s just that nobody noticed, it seems.

Since the New Deal, the basic law concerning labor unions has been the National Labor Relations Act of 1935, known as the NLRA or as the Wagner Act after its sponsor, Senator Robert Wagner (D-N.Y.). Under the Wagner Act, unions could successfully demand that employers operate a closed shop (all workers must be members of the union), a union shop (non-union employees could have jobs but had a deadline to join the union), or an agency shop (workers could refuse to join the union, but had to pay the equivalent of dues).

In the 1946 campaign, congressional Democrats, except for some in the South, were seen as being in the pocket of labor unions. Republicans picked up 56 House seats and 11 Senate seats and gained control of both chambers. Senator Robert Taft (R-Ohio) and Representative Fred Hartley (R-N.J.) introduced the Labor Management Relations Act of 1947, known as the LMRA or Taft-Hartley, which received the two-thirds vote necessary to overcome a veto by President Harry Truman.

As noted by George C. Leef in his history of the Right to Work movement, Free Choice for Workers, the legislation amended the Wagner Act to, for the first time, protect employers and workers from unfair practices by unions, including coercion, the use of secondary boycotts (pressuring companies to cave in to union demands by hurting the companies they do business with), and prohibiting the closed shop.

Importantly, under the heading “Construction of Provisions,” Taft-Hartley included the language we now know simply as “14(b)”: “Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

The Supreme Court held in 1949 that language didn’t convey to states the right to pass Right to Work laws to states; they retained that right under the Wagner Act, as Justice Felix Frankfurter noted, but “14(b) was included to forestall the inference that federal policy was to be exclusive.” (Algoma Plywood v. Wisconsin Board) That’s an important distinction, and one that local officials point to as evidence that the states, having never lost the authority to regulate union security, are free to delegate that authority to their political subdivisions, including counties and sometimes cities.

As a general rule, federal laws pre-empt—that is, overrule—state laws that run contrarily. But Taft-Hartley explicitly provides for state and territorial governments to prohibit forced unionization. Thus, states and territories can pass Right to Work laws, as have 25 states plus the U.S. territory of Guam.

What about localities? Generally, local governments are treated as the creations of states. As such, they would seem to have the power to pass RTW. That’s especially clear when those localities operate under Home Rule provisions, in which state governments explicitly grant legislative powers to local governments—for example, to pass measures promoting economic development.

Last August, James Sherk and Andrew Kloster of the Heritage Foundation kicked off a spirited debate on Local Right to Work with their paper entitled “Local Governments Can Increase Job Growth and Choices by Passing Right-to-Work Laws.” They noted that “The Supreme Court has not ruled on whether federal law pre-empts local RTW ordinances. But since Congress has not clearly pre-empted them, localities are on strong legal footing to pass their own RTW ordinances.”

Sherk and Kloster noted:

Surprisingly, almost no cities or counties have passed local RTW ordinances since Congress modified the [1935 National Labor Relations Act] in 1947 [with the Taft-Hartley Act]. Many local government officials believe, likely erroneously, that federal law prevents them from doing so.

In the United States, federal law is “the supreme law of the land.” In other words, where there is a conflict between a valid federal law and a state, local, tribal, or other law, federal law pre-empts that law.

Determining whether federal law pre-empts another law is difficult, and often leads to court cases, some of which end up in the Supreme Court of the United States. As the Supreme Court has noted, “the purpose of Congress is the ultimate touchstone in every pre-emption case.” And in determining the intent of Congress in any pre-emption case, federal courts look at what Congress expressly said or what Congress clearly implied. Put another way, there is a “presumption against pre-emption”: Where Congress does not clearly pre-empt states in one area of the law, states are presumptively free to legislate in that area. Sometimes, as in the case of the NLRA, certain parts of a federal law are intended as the last word on the subject, while other parts of a law are designed to allow states and locales to set their own rules.

Congress has not clearly pre-empted local RTW laws: With this ambiguity as the legislative background, locales should feel free to experiment with their own RTW ordinances…

As the legislative record clearly shows, one of the reasons for enacting Taft-Hartley — specifically, for including section 14(b) dealing with RTW laws—was to remove any ambiguity as to whether states could pass such laws. Sherk and Kloster:

[Taft-Hartley] expressly renounces pre-emption of RTW laws: “Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.” In other words, clear statutory language in the NLRA as amended allows states and territories to pass RTW laws.

But what about cities, counties, or tribal governments? Would 29 U.S.C. § 164 prevent these entities from passing RTW laws? Does silence on this point indicate that Congress in 1947 sought to make clear that these entities could not pass RTW laws, or did Congress intend no federal preemption of RTW policies at the local level or on tribal territories? Certainly many local government leaders have simply assumed the former…

In fact, a Stanford Law Review article in 1957 raised this very question, which the Supreme Court has not resolved in the intervening 57 years. The article concluded that the NLRA did not prevent local governments from passing RTW ordinances.

Courts have often held the term “state” to mean “state and local” in contexts like this. In Wisconsin Public Intervenor v. Mortier (1991), the Supreme Court, without dissent, followed that reasoning. Writing for the Court, Justice Byron White declared that, “When considering pre-emption, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’” White was quoting Rice v. Santa Fe Elevator Corp. (1947). He added, “The principle is well settled that local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them . . . in [its] absolute discretion. The exclusion of political subdivisions cannot be inferred from the express authorization to the States because political subdivisions are components of the very entity the statute empowers.”

The Court, in City of Columbus v. Ours Garage and Wrecker Service, Inc. (2002), held unanimously that authority belonging to the states includes the states’ political subdivisions like counties, in the absence of Congress setting forth a “clear and manifest purpose to preempt local authority.”

Some commentators, arguing against Local Right to Work, point to a 1990 case, New Mexico Federation of Labor v. City of Clovis, in which a local RTW law in Clovis, New Mexico, was thrown out by a federal court, but the Kentucky counties point out, that case was effectively trumped by a higher court holding “What Congress has not taken away by § 8(a)(3) it need not give back by § 14(b) . . . When Congress enacted Section 14(b), it did not grant new authority to states and territories, but merely recognized and affirmed their existing authority.” (NLRB v. Pueblo of San Juan, 2002) Although Pueblo involved tribal powers, the legal argument was the same: Congress never preempted regulation of union security clauses.

Opponents in Kentucky cite a 1965 case, Kentucky State AFL-CIO v. Puckett, in which the state Court of Appeals invalidated a local RTW law that had taken effect several years earlier in the city of Shelbyville. However, the state passed a Home Rule statute in 1978 delegating to counties the power to regulate commerce “for the protection and convenience of the public” and to promote “economic development” of the county. They say that the Home Rule legislation effectively overruled the Shelbyville decision.

In Kentucky, the office of state Attorney General Jack Conway weighed in that they believe Local RTW is illegal in that state. (Conway, who lost to Rand Paul in the 2010 race for the U.S. Senate, is expected to be the Democratic nominee for governor this year.) Local RTW proponents have support for their legal argument from Chief Justice Joseph Lambert (retired) of the state Supreme Court and Justice Will Graves (retired)—one a Republican, the other a Democrat.

Gathering momentum

The Local Right to Work idea began to attract attention in August at a forum at the Heritage Foundation in Washington, D.C. Tied into the Sherk-Kloster paper, the forum featured Sherk, a research fellow in labor economics at Heritage; Kloster, legal fellow at the Meese Center for Legal and Judicial Studies (named for Edwin Meese III, a board member of the Capital Research Center); Patrick Gleason, director of state affairs for Americans for Tax Reform; William Messenger, staff attorney at the National Right to Work Legal Defense Foundation; and Jon Russell, director of the American City County Exchange, a local-government offshoot of the American Legislative Exchange Council, which is a national organization of conservative state legislators.

Russell said that, “In working with local officials across the country, I have come to realize that many of them don’t fully understand how much leeway they have in decision-making such as” Right to Work.

In his coverage of the Heritage forum, Moshe Z. Marvit of the leftist magazine The Nation wrote of Local RTW proponents that “Their goal seems to be to create beachheads in non-right-to-work states, such as Illinois, Ohio, or even New York, where the practice could spread and flourish. Whether the idea has any legal standing, or whether it’s simply being promoted to halt progressive momentum on the local level, its boosters have racked up enough past success that workers and labor-rights advocates should be concerned.” (Marvit’s attitude toward members of the panel was exemplified by his description of Russell as “a baby-faced partisan of the right.”)

Brian Mahoney of Politico reported from a meeting of the American Legislative Exchange Council that Local RTW proponents were “looking at counties in Washington, Montana, Wisconsin, Ohio, Pennsylvania, and—perhaps most aggressively—Kentucky.”

The Bluegrass Rebellion

Almost immediately after the Heritage forum, on September 8, Robert Stivers, president of the Kentucky Senate, wrote to the state’s attorney general asking about the validity of Local RTW.
By December, the topic was under active discussion throughout Kentucky political circles. Scott Jennings, a former aide to President George W. Bush and Senator Mitch McConnell (R-Ky.), wrote in an op-ed for the December 10 Louisville Courier-Journal:

Companies looking to open a new facility often will not consider states that aren’t right-to-work, meaning Kentucky isn’t in the conversation for countless opportunities.

Contrary to the political rhetoric from labor leaders, unions aren’t outlawed in right-to-work states but workers would have the option of not joining if they don’t want to. In Kentucky, if you work for a union shop, you are compelled to pay union dues whether you like it or not. Polling routinely shows people hate the idea of having their paychecks raided against their will.

At any rate, this is a dead issue in Frankfort for the next two sessions of the General Assembly. But the idea is very much alive elsewhere, as people close to the right-to-work movement tell me that several Kentucky counties are preparing to move forward with local ordinances over the next few weeks. Legal experts say that counties are permitted to do so under a state law known as “home rule,” and that recent rulings in other courts give local right-to-work laws an excellent chance of holding up under challenge.

Under Kentucky law, counties are permitted to pass local laws for a number of purposes including the “regulation of commerce for the protection and convenience of the public,” and for the “promotion of economic development of the county.”

Counties that lie near the Tennessee border feel a particular pinch when competing for economic development projects. Not only does Tennessee have a right-to-work law but it has no state income tax, another idea that would make Kentucky more competitive. Local officials in south central Kentucky compete for new jobs against their Volunteer State counterparts who aren’t running with anvils tied to their ankles. And, with Indiana’s new right-to-work law in effect, businesses along the Ohio River are no doubt looking north at greener pastures.

County governments can’t do anything about Kentucky’s uncompetitive state income tax but they appear to be boldly moving on the right-to-work front, no longer content to wait for Frankfort to get its act together. To be sure, passing a local right-to-work law would “promote economic development” in any county that did it.

Oh, what wonderful free-market chaos would exist if a few Kentucky counties passed these local right-to-work laws? What if Bullitt County, for instance, took the plunge? How many Jefferson County companies, already faced with a local government threatening a minimum- wage increase, would simply decide the business climate was better a few miles down the road

While this local right-to-work effort is in its early stages, Kentucky is apparently about to be a frontier where local governments, faced with state leaders who continue to force economic development constraints upon them, simply decide that enough is enough and take matters into their own hands.

Sure enough, as Jennings predicted, the deluge came, with one county after another passing Right to Work laws. It was Warren County (the Bowling Green area) that got the ball rolling.

Mike Buchanon, Warren County’s judge executive (head of county government), has often complained about the effect of not having RTW in Kentucky. “Site selection experts indicate that anywhere from a third to a half of all manufacturing projects do not consider Kentucky because of our Right to Work status,” he pointed out. He decided to do something about the problem.

Buchanon said that Senator Rand Paul (R), who lives in Bowling Green, put him in touch with the workers’ rights group Protect My Check, and he was promised that the county’s legal bills would be covered by the group in any court battle on the issue. That promise was important in giving the locality the freedom to act, because in today’s political climate, left-wing groups practice “lawfare”—litigation as a form of corrupt, hard-knuckled politics. Reform-minded officials are often the targets of intimidation by well-heeled national organizations and their affiliates, based on threats of lawsuits that could bust the budgets of many local governments.

Finally, on December 19, the Warren County Fiscal Court—the governing body in the county that includes Bowling Green—passed an ordinance making the county the first locality in more than a half century to enact its own Right to Work law.

“We’ll see you in court,” shouted Kentucky AFL-CIO President William J. Londrigan following the vote. Sure enough, a lawsuit against Local RTW was filed in January in Hardin County, the county that includes Elizabethtown in the Fort Knox area, by affiliates of the United Auto Workers, the International Brotherhood of Electrical Workers, the Teamsters, the Communication Workers of America, and the United Food and Commercial Workers.

Not surprisingly, Senator Paul praised the measure, declaring in a press release that “Local leaders will be able to attract and keep good quality jobs in the community while preserving the freedom to contract for employees and employers. I believe that workers should not be forced to pay dues just to keep a job let alone pay them to organizations that spend hundreds of millions of dollars electing candidates that so many of their members oppose.”

As described by Katie Brandenburg of the Bowling Green Daily News:

The ordinance would prevent employees from having to join a union or not join a union as a condition of their employment. It also would prevent employees from being made to pay dues, fees or assessments to a labor organization or to make a payment to a charity or other third party in lieu of such a payment as a condition of employment. It prevents recommendation, approval, referral or clearing through a labor organization from being conditions of employment.

Ron Bunch is president and CEO of the Bowling Green Chamber of Commerce and serves as the area’s economic development czar. Following the approval of the ordinance, he walked out of that historic meeting with his telephone pressed to his ear, calling site selectors who liked the college town’s blend of Southern charm and industrial development but, up to that moment, couldn’t see past the area’s forced-dues status. He would often hear them say something like “Call us when you have Right to Work”—which he did.

The result was dramatic. In less than four months, scores of businesses would express interest in Warren County regarding more than 30 new projects with the potential for more than $300 million in capital investment and some 3,000 jobs.

By the end of March—by a combined vote of 97-5 among county officials—Local Right to Work laws covered 12 Kentucky counties with almost 600,000 people.

That’s 150 miles of an almost unbroken stretch of counties along Kentucky’s southern border with Tennessee that have enacted identical right to work ordinances, with Bowling Green at the center of it, and some counties along the Indiana border as well.

Strong support

In a poll of 600 registered voters conducted by the Kentucky affiliate of Americans for Tax Reform, 58 percent backed Local Right to Work and 35 percent opposed.

Respondents were asked whether they agreed with this statement: “While workers should have the right to unionize, they should not be forced to join a union or pay dues to one they don’t support.” The statement was supported by 80 percent; 16 percent disagreed.

Pollster Kristen Soltis Anderson said that, “When we asked voters how they felt about arguments both for and against right-to-work laws, the most powerful message was about worker liberty. Across the political spectrum, voters think that while workers should have a right to unionize, they shouldn’t be required to do so as a condition of employment. Not only did nearly nine out of ten Republicans agree, but so did more than 70 percent of Democrats.”

The opinion of the general public matters. Ultimately, though, as the Local Right to Work rebellion spreads from Kentucky, it’s the opinions of union members and potential union members that count the most. Workers are fed up with being forced into unions.

A union official at Bowling Green’s Corvette plant told the New York Times: “We haven’t had a raise in eight years . . . you hear people say all the time ‘if I were in a right-to-work state, I’d withdraw.” Union Local 2164 President Eldon Renaud predicted in one public meeting that half his membership would drop out, given the option.

A look at that the UAW track record in Bowling Green Gives reveals one reason why members are so dissatisfied. Financial reports filed by the union in 2013 showed that, despite taking in over $500,000 in dues, the local spent less than $12,000 on “representational activities” and nothing “on behalf of individual members.”

As USA Today pointed out in a recent editorial:

Organized labor—suffering from decades of declining membership—is up in arms about the trend [in favor of Right to Work], which significantly reduces unions’ power. But from a standpoint of individual rights, it has to be seen as a positive development. Right-to-work states have stood up for people’s freedom to associate (or not associate) that courts have held is contained in the First Amendment.

Without right-to-work laws, employees can be forced to support an organization with which they disagree.

They might, for instance, be ardent social conservatives miffed by how unions almost always work to elect Democrats. While workers can usually opt out of financing political contributions, they have a harder time extricating themselves from union endorsements and the positions unions take on pending legislation. And workers might also object to union rules they feel hold them back, like those that reward seniority over initiative or protect unproductive co-workers. . . .

With forced membership, unions don’t need to be responsive. Right-to-work states force them to be, and when they are, they thrive.

Sometimes, in private conversations, union officials in Kentucky counties say they disagree with how the union spends their money and whom they endorse. They acknowledge that their members are tired of seeing their dues go to candidates they oppose and causes they abhor. Yet, as the last union miner in Kentucky was laid off last month, the union continued to shill for the Obama Administration in Washington that wages a War on Coal and that vetoed the Keystone XL pipeline.

Samuel Gompers, founder of the American Federation of Labor, observed that “No lasting gain has ever come from compulsion. If we seek to force, we but tear apart that which united, is invincible.” Union bosses seem to prefer the quick and easy fix of compulsion to the long-term challenge of working to stay relevant and to respond to the needs and political sentiments of millions of union members at the grassroots.

In communities across West Virginia, Missouri, Illinois, Ohio, Pennsylvania and Minnesota—all states with an interest in Local Right to Work initiatives—the union’s indifference to the views and concerns of their members may cost them everything.

About the Authors:  Brent Yessin is an attorney and a member of the advisory board of Protect My Check. Dr. Steven J. Allen (JD, PhD) is editor of Labor Watch. This article originally appeared in the April 2015 edition of Labor Watch and is republished here with permission.

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