The conservative push for local right-to-work ordinances has been moving quickly recently. Whereas a few months ago, there was a general understanding that the 1947 Taft-Hartley Act only permitted states and territories to pass these laws — which threaten unions’ solvency by allowing workers to receive the benefits of union representation without paying union dues — now five Kentucky counties are on track to pass local laws. And the coalition of conservative organizations promoting these questionable new measures has also morphed, as a new organization with hidden funding sources has formed to finance any possible litigation.
On Labor Day weekend last year, the conservative Heritage Foundation convened a panel to discuss a newly released paper by two of its scholars to push the idea that cities and counties could pass their own right-to-work laws. Jon Russell, director of the conservative policy organization ALEC’s new American City County Exchange, suggested that model right-to-work laws for localities could be created, and implied that ALEC could take the lead on that front.
Russell explained that many local leaders don’t feel that they can pass such radical laws “because it requires some heavy lifting when it comes to public policy; because political allies, legal and legislative resources are in short supply.” However, he explained, “this is where the organizations that are represented here today can help step up and help advance right to work on the local level.” These organizations were ALEC, Heritage, Americans for Tax Reform and the National Right to Work Legal Defense Foundation.
When the question arose of who would help pay for the costs of defending the local right-to-work laws in court, all the panelists looked (both figuratively and literally) to William Messenger, the representative from National Right to Work Legal Defense Foundation, which bankrolls much of the high-profile anti-union litigation, such as the recent Harris v. Quinn case involving home healthcare workers.
Then, at its winter meeting on December 3-4, 2014, ALEC further outlined its plan to go after cities and counties, saying that it would focus on a few swing states including Washington, Kentucky, Montana, Wisconsin, Ohio and Pennsylvania, with Kentucky set to receive the most attention. Less than two weeks later, Warren County, Kentucky, home of the Corvette assembly plant whose workers are represented by the United Auto Workers (UAW), passed a right-to-work law on a first reading. (Kentucky counties pass ordinances using a two-step process entailing a “first reading” and a “second reading,” each followed by a vote.)
The following week, Simpson and Fulton County followed suit and passed their own right-to-work laws on first readings. Since then, two more Kentucky counties — Todd and Hardin — have pass right-to-work laws on first readings.
Then, on the eve of the second reading in Warren County on December 19, Kentucky’s Democratic Attorney General Jack Conway released an advisory opinion on the question of whether cities and counties are permitted to pass their own right-to-work laws. Various Republican politicians had sent letters to Conway asking for such an opinion for months, and his advisory opinion was perfectly timed to affect the final vote on the first-ever county-level right-to-work law.
Quoting from the National Labor Relations Act, as well as the few state and federal courts that have spoken on the matter, Conway held that “a local government may not enact a right-to-work ordinance.”
Conway reaffirmed that a 1965 Kentucky Court of Appeals decision that held that cities may not pass their own right-to-work ordinances was still good law. He further held that even though that decision “dealt only with cities,” its reasoning was clear that the law “preempts all political subdivisions of the state from enacting right-to-work laws, including counties as well as cities.” (An advisory opinion is a state’s chief lawyer’s legal opinion on a matter intended to advise governmental bodies on interpreting legislation. While judges take them seriously, the opinions have no value as legal precedent.)
Despite this strong advisory opinion by the Commonwealth’s Attorney General (who is also the presumptive Democratic nominee for governor in 2015), Warren County passed a local right-to-work ordinance. Other counties in Kentucky and other states are sure to follow suit.
The National Right to Work Committee Reverses Course
Though these local right-to-work ordinances are likely to damage and distract unions, some initial cracks in the conservative coalition that first pushed the idea can be seen. On December 23, the National Right to Work Committee took the highly unusual step of publicly declaring that they believe cities and counties may not pass their own right-to-work laws.
In an article published on the committee’s website, Stan Greer, a senior research associate at the National Institute for Labor Relations Research, a close affiliate of the NRWC, stated that “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.” The article cited a 1990 District Court decision — which William Messenger, the National Right to Work Legal Defense Foundation staffer, had said was no longer good law when he was a participant in the Heritage panel.
While throwing insults at unions in typical NWRC fashion, Greer concluded that the reasoning in Conway’s advisory opinion was sound. “As a Big Labor-backed politician, Conway is certainly biased, but his position is in fact consistent with legal precedents.”
What brought about this dramatic reversal by a group that has promoted right-to-work in all of its manifestations for decades? It’s hard to say. But the group’s reversal is not likely the result of legal precedent and the advisory opinion of a Democratic politician such as Conway. National Right to Work has pushed cases to the Supreme Court that had far worse odds than this, and nothing cited in Conway’s advisory opinion was unknown to the National Right to Work attorney who promoted this idea several months ago.
Perhaps this approach to right-to-work is a deviation too far for a group that has remained relatively consistent in its pursuit of right-to-work laws. Though they generally support any position that weakens unions, the group may not feel comfortable experimenting with new strategies after decades of sticking to what has proven to be a tried-and-true model. Or it may simply be the result of internal bickering among groups that, though they may share a goal of blocking worker organizing, each have their own agendas.
A New Funder Steps In
The plan to promote local right-to-work ordinances rests in large part on the possibility of a third party picking up the legal fees for counties. The Heritage panel that discussed this approach explained that such laws will serve an economic development function for cash-strapped counties. However, everyone knows that these laws will end up in court. And if counties risk being on the hook for hundreds of thousands or millions in legal fees that the passage of such laws will bring, then pursuing them would be too great a risk for the target counties. (In addition to their own legal fees, counties may also be liable for the legal fees of workers and unions who will inevitably challenge these laws, as cases are likely to be brought using a fee shifting statute, where the loser pays the winner’s legal fees.)
Into the void left by National Right to Work’s decision not to pursue local laws, the notorious union-buster Brent Yessin has stepped in, with his newly formed Florida-based group Protect My Check, Inc.
According to a letter from Yessin to Warren County Judge-Executive Mike Buchanon obtained by In These Times, Yessin confirms that his group will represent Warren County in any legal challenges to their right-to-work laws for a nominal fee of $10.
Kentucky labor attorney David O’Brien Suetholz has been following this matter closely and finds the arrangement between Yessin and these Kentucky counties to be suspect. Because Yessin is donating valuable services to the county, “you’ve basically got an outside group — an out-of-state group — offering money to the government in exchange for passing a law they want. That looks a lot like a quid pro quo, and it potentially has a corrupting influence.”
Furthermore, Protect My Check is a 501(c)(4) “social welfare” organization, meaning that the group does not need to disclose any of its donors, so a list of which individuals or groups, in-state or out, are paying the government’s bills will be hidden from public view.
Craig Holman of Public Citizen, a public interest think tank in D.C., says that it is neither uncommon nor unethical for third parties to provide pro bono legal services. “Providing pro bono legal services is a far cry from actually paying cash for legal services,” he says, pointing out that when the McCain-Feingold campaign reform act was being drafted, a large legal team offered pro-bono legal services in drafting the bill and in defending it in court.
Whether this arrangement is legal or not, and who is behind the funding of the right-to-work’s legal defense, will be one of many aspects of the local right-to-work fights that are sure to play out in the courts in the next few years.
Spencer Woodman contributed reporting to this article.
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Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.