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Aug
2015
6

Opening Arguments Begin in KY’s Precedent-Setting, County-Level “Right-to-Work” Fight

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In Kentucky, a federal judge will decide the fate of county-level “Right-to-Work” laws, a move necessary following the decision by 12 counties to pass local versions of what has traditionally been a state-level law.  On Tuesday in Louisville, Judge David Hale heard opening arguments from labor lawyers and one county’s attorney.  

In December, Warren County became the first to enact local “Right-to-Work” and was soon followed by 11 others.  The fate of the concept is now in the hands of a judge with almost no precedent in his corner.  As Jenny Oldham, elected attorney for Hardin County, told the Times-Union: “There is no legal answer right now. Whichever legal argument prevails will be making new law.”

“I feel like the other side came up with a twisted legal argument to try undermine to 67 years worth of law precedent and the intent of Congress,” Bill Londrigan, Kentucky State AFL-CIO President, said Tuesday.

The backbone of the union argument is that county-by-county “Right-to-Work” laws would create a patchwork of regulatory chaos.  Labor lawyers also suggest that the legal grounds for local “Right-to-Work” were sufficiently buried in 1965 when the Kentucky Court of Appeals overturned Shelbyville’s “Right-to-Work” ordinance.  Irwin Cutler, a lawyer representing the unions, told the Times-Union:

“I just cannot believe … that in 1947 Congress intended to allow every county in the country … to enact their own right-to-work law.”

Lawyers for Hardin County argue that the 1965 case was decided before the Kentucky Legislature enacted home rule law, which delegates powers once reserved for the state government to local governments.  Whether home rule law includes “Right-to-Work” will likely be at the center of the judge’s decision.  John Lovett, lead counsel for Hardin county, further argued that local law is actually state law being that “local governments derive their authority from the state government.”  

“Local governments are included in the word ‘state,’ even though they are not expressly mentioned,” Lovett asserted:

Londrigan cites the National Labor Relations Act in defending the state-only position regarding “Right-to-Work::

“Section 14b specifically names states and territories as the only political subdivisions that are allowed to pass right to work laws. There is no mention of counties or any other political subdivisions.”

The issue has become central to the governor’s race in Kentucky, where Democrat Jack Conway opposes local “Right-to-Work” and Republican Matt Bevin supports it. Bevin takes the big business position that “Right-to-Work” laws “are the only way to keep the state competitive.”  

Conway is currently the Attorney General of Kentucky. When the issue arose at the end of last year his office issued an opinion that local governments did not have the authority to pass such laws.  

The latest Bluegrass Poll from The Courier-Journal shows Conway with a 45 to 42 advantage. 13 percent of the electorate remains undecided.  Conway’s lead increases to 5 percent when independent candidate Drew Curtis is included in the polling.  Curtis has announced his run and has collected enough signatures but has yet to fill out the required paperwork with the Kentucky Secretary of State’s office.  

The issue of local “Right-to-Work” is especially explosive in counties that neighbor Tennessee.  As the state fights to land manufacturing jobs from companies seeking to open factories in the South, special interests have used their influence to position “Right-to-Work” as the only way for the jobs to wind up in Kentucky.  Opponents argue that supporters have been hoodwinked into supporting legislation that will lower their incomes.  Federal statistics show that on average Kentucky workers earn $20 more each week than their neighbors in “Right-to-Work” Tennessee.

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