For seven decades, union bosses across the nation have tried again and again to get federal and state courts to overturn state Right to Work statutes and constitutional amendments protecting employees from termination for refusal to pay dues or fees to an unwanted union.
Union officials’ legal crusade has been extraordinarily, if not completely, unsuccessful.
But on May 25, AFL-CIO and Teamster union kingpins launched yet another judicial attack on Right to Work. A Big Labor lawsuit filed that day in the Franklin Circuit Court in Frankfort, Kentucky, is based on the outrageous premise that part of a worker’s paycheck is actually the property of union officials. Union lawyers are brazenly claiming that the Bluegrass State Right to Work law adopted in January violates the Kentucky Constitution!
Lawyers for the state AFL-CIO and Louisville-based Teamsters Local 89 are contending the Kentucky Constitution mandates that Big Labor have what amounts to taxation power over employees who are subject to government-imposed "exclusive" union representation.
Their argument pointedly ignores a key function of union monopoly bargaining examined by U.S. Supreme Court Justice Robert Jackson in his 1944 J.I. Case decision. Jackson explained that "exclusivity" as authorized by the National Labor Relations Act empowers union bosses to prevent the individual employee from negotiating directly with the employer in order to get "better terms than those obtainable by the group."
From the perspective of the J.I. Case court, this is acceptable, because, as the Jackson majority opinion put it, "The practice and philosophy of collective bargaining look with suspicion on individual advantages." In other words, union monopoly bargaining powers inherently empower union officials to impose a contract to the detriment of some workers.
Instead of acknowledging the uncontested findings of J.I. Case, however, Kentucky AFL-CIO and Teamster union lawyers are opting to pretend that stripping workers of the freedom to represent themselves somehow "benefits" all of them. In Big Labor’s alternative universe, finding a rationalization for killing the country’s 27th state Right to Work law through judicial activism becomes much less difficult.
Unfortunately, long and bitter experience indicates that far-fetched and factually challenged arguments sometimes do prevail in court.
But do the Kentucky judges who will hear the anti-Right to Work case in the Franklin Circuit and, almost inevitably, on appeal really want to be responsible not just for reinstating forced union dues and fees, but also for potentially ending one of the most remarkable economic booms in the state’s history?
At a May 26 press conference, Gov. Matt Bevin, who had aggressively and successfully campaigned on ending forced unionism in Kentucky in 2015 and signed the state’s Right to Work law this January 7, laid out the economic stakes of the case brought by AFL-CIO and Teamster union kingpins.
Not quite five months into the year, reported the governor, the state had already attracted a total of $5.8 billion in announced private capital investments. That far surpasses Kentucky’s previous annual record of $5.1 billion, achieved in the entirety of 2015. Bevin said he wouldn’t be surprised if the state reaches $10 billion in capital investments by the end of the year, roughly doubling its previous record.
"This is going to be a year that shatters anything that preceded it," he vowed. And he didn’t harbor any doubts about why, "It’s happening because our Legislature passed pro-business legislation — right-to-work legislation."
As the prime example of how Right to Work Kentucky is now "competing for industries that we would never have gotten," Bevin mentioned the late April announcement by Braidy Industries that it would build a $1.3 billion aluminum rolling mill in Greenup County.
Construction will begin next year. When the plant is finished, it will hire roughly 550 workers for jobs paying $70,000 a year, plus benefits. And according to Braidy CEO Craig Bouchard, without Right to Work, Kentucky "wouldn’t have been on the list" of possible sites.
The Big Labor litigation, charged the governor, puts such good-paying job opportunities at risk. "I say shame on the AFL-CIO for bringing this suit . . . ," which "will hurt working-class people," he declared.
Bevin is committed to fighting to defend Kentucky’s Right to Work law to the hilt, and his legal team is gratefully accepting the assistance of National Right to Work Legal Defense Foundation attorneys as it prepares for the battle. There is ample reason to believe Big Labor’s cynical scheme to bring back forced unionism will not, in the end, succeed, but the consequences of this wind-mill tilting exercise might include reduced job opportunities for Kentucky workers.
At the conclusion of his May 26 press conference, with this concern in mind, the governor urged the union brass to "get out of the way" and allow rank-and-file employees to benefit from the Right to Work law. Unfortunately, this plea will almost certainly go unheeded.
Mark Mix is president of the National Right to Work Legal Defense Foundation and the National Right to Work Committee. Mix began working for the National Right to Work Committee in 1990, becoming Executive Vice President before being named President of both the Committee and the Foundation in 2003. To read more of his reports — Click Here Now.
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