(This column appeared in the December 10, 2014 issue of the Louisville Courier-Journal.)
By: Scott Jennings
Republicans failed to capture control of Kentucky’s state House of Representatives in November’s election, putting the conservative goal of passing a statewide right-to-work law out of reach for at least another two years.
There are good reasons to pass a right-to-work law in Kentucky, as 24 other states have done. Since 1990, most of the states showing the fastest household income growth are right-to-work. 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.
These local ordinances will be challenged in court by unions desperately seeking to preserve their ability to force workers to pay up. One argument likely to be made in this legal challenge is that it costs unions too much money to represent “free riders,” or employees who choose not to join.
These free riders pay no dues, the unions say, but still benefit from union representation in salary negotiations and disciplinary disputes. The unions correctly state that they are bound by the National Labor Relations Act to provide services to all employees in a company, whether they are union members or not.
But the unions leave out an important fact about that federal requirement – it only exists if the union chooses to organize as the exclusive union in that particular company. In fact, a union can choose under federal law to be a “members only” organization, obligating it to provide services only to those employees who choose to join and pay dues.
Of course, unions rarely choose the “members only” option because they don’t want the headache of another union showing up to compete for members, and because they want to force each and every employee to pay dues exclusively to them.
The AFL-CIO made this “free rider” argument when it challenged Indiana’s right-to-work law. On November 6, the Indiana Supreme Court rendered an opinion blowing it up: “The Union’s federal obligation to represent all employees in a bargaining unit is optional; it occurs only when the union elects to be the exclusive bargaining agent, for which it is justly compensated by the right to bargain exclusively with the employer.”
In other words, the unions’ “free rider” problems are of their own making, a result of choices they freely made. Ironically, union organizers actually have a choice even as they seek to strip from workers the choice of whether to pay dues. The problem isn’t free riders, it is unadulterated greed.
Scott Jennings is a former advisor to President George W. Bush and U.S. Senator Mitch McConnell. He is a partner at RunSwitch Public Relations, and can be reached at firstname.lastname@example.org or on Twitter @ScottJenningsKY.