Why Other Lawyers Fault Legal Opinion That Scuttled Local Right-to-Work Law

GEORGETOWN, Delaware—County officials who rejected a right-to-work ordinance were poorly served by the county attorney’s flawed legal opinion, other lawyers argue.

The five-member Sussex County Council, all Republicans, voted down the bill 4-1 on Jan. 9 after listening to County Attorney J. Everett Moore express concerns about its legality.

Moore read from an 11-page opinion, explaining why in his view the council doesn’t have the authority to pass a right-to-work law and would expose the county to legal action by labor unions.

But one labor lawyer called Moore’s legal basis “pure mythology.”

And another Delaware attorney told The Daily Signal that he “could not disagree more” with the county attorney.

Generally, right-to-work laws prohibit employers in the private sector from entering into agreements that make union membership and payment of union dues a condition of employment for their workers.

A total of 28 states and the territory of Guam ban forced unionization as right-to-work jurisdictions, with Kentucky, Indiana, Michigan, Wisconsin, and West Virginia all making the move since 2012. Sussex County is one of three counties in Delaware.

While acknowledging the actions of counties in other parts of the country, Moore told Sussex County Council members he was not convinced, based on his reading of the law and case history, that the proposed ordinance could pass legal muster. He warned that the county would incur substantial legal fees defending the law in court at both the federal and state levels.

“Just because some other county has done that [pass a right-to-work law], does not give Sussex County the automatic right to do that,” he said during a Jan. 9 council meeting. “We have to look at their underlying legislation.”

Moore’s argument hinges on what he terms the “private law exception” in Delaware’s home rule statute. That provision prevents counties from enacting what the statute calls “private or civil law governing civil relationships” unless it is incidental to exercising “an independent municipal power,” Moore explains in his opinion.

Sussex County Attorney’s Right-to-Work Opinion by The Heritage Foundation on Scribd

While Delaware’s courts have not ruled on right-to-work legislation and ramifications for employment contracts, Moore points out, the courts have addressed the private law exception as it relates to authority delegated by the state to  local governments.

The county attorney cites a 1976 case, Weldin Farms Inc. v. Glassman, in which the Delaware Supreme Court eventually ruled that counties “cannot foreclose an existing private action.” He also points to a 2002 court decision in Delaware, NVF Inc. v. Garrett Snuff Mills, which favorably cites that state Supreme Court ruling.

Moore, raising the specter of lawsuits, writes:

Without question, this right-to-work ordinance, if adopted, creates the basis for a private civil action between citizens for any violations of this ordinance, and with Delaware cases expressly stating that the county may not create a private cause of action, it is my opinion that under current Delaware law, a court will find that the private law exception to the county’s home rule authority prohibits the county from enacting this ordinance.

Delaware State Solicitor Aaron Goldstein went on record Nov. 17 backing up Moore’s view that the language of the state’s home rule statute precludes counties from passing right-to-work laws. Goldstein is an appointee of Attorney General Matt Denn, a Democrat.

Other Legal Opinions

The mayor of Seaford, a small city in Sussex County that passed its own right-to-work law just weeks ago, held a press conference Tuesday at City Hall to promote it.

“Seaford is strategically located close to several major markets and ports with great infrastructure and great people,” Mayor David Genshaw said later in an email to The Daily Signal.

“We are open for business and would like to invite those companies looking to expand or relocate to come check us out.  Seaford is a perfect place to start.”

Other lawyers sharply disagree with the Sussex County attorney, saying they like Genshaw are convinced state law is firmly on the side of local right-to-work initiatives.

“The creation of a ‘private law exception’ is pure mythology,” Brent Yessin, a labor attorney who assisted Kentucky counties in their right-to-work efforts, said in an email to The Daily Signal.

“Weldin Farms is a riparian rights case,” Yessin said of the water rights at issue. “It merely holds that a developer can’t get away with flooding his neighbor’s land merely because the county approved his building permit.”

Theodore A. Kittila, a lawyer who represents the Caesar Rodney Institute, a Wilmington-based free-market think tank, submitted to Sussex County a formal legal analysis of the right-to-work proposal as it relates to home rule. In it, Kittila finds that a Delaware Supreme Court case from 1982, Hickman v. Workman, is more applicable.

“Hickman is more on point in light of the fact that it pertains to the county government acting, not a private citizen seeking to advance his or her argument in litigation,” Kittila writes.

The state Supreme Court took a “much broader view of the grant of authority under the Sussex Home Rule Act” than it did in the Weldin Farms case, he says.

Unless the Delaware General Assembly decides to act on the right-to-work front, officials in the state’s three counties are permitted to pass their own ordinances, Kittila concludes.

‘Solid Basis for Support’

In an email, Kittila told The Daily Signal that he “could not disagree more” with Moore:

Much of the county attorney’s opinion turns on language (referred to as ‘dicta’ by courts) in two decisions (Glassman and Garrett) which did not involve action by the county, but the attempt by private litigants to infer a new private cause of action (or a defense against a private cause of action) from the county’s authority.

The courts there were unpersuaded that such private rights could be inferred–and correctly so: There was no county action making clear that it was engaging in a policy choice to provide parties such as those in Glassman and Garrett with the ability to act. Home rule, by definition, concerns the county’s ability to make a policy decision and pass ordinances to deal with that policy choice.

The General Assembly granted the county all authority that it had to pass such ordinances. Therefore, Hickman is the most persuasive of any of the cases. And Hickman supports the policy choice: Where there was no restriction by the state and a clear connection to the goals of county home rule (economic development of the county), there was a solid basis for support.

Moore did not respond to The Daily Signal’s requests for comment on the criticism.

In his opinion, Moore also took issue with right-to-work proponents who cite a ruling from the 6th Circuit Court of Appeals upholding a local right-to-work law in Hardin County, Kentucky. In October, the U.S. Supreme Court rejected a petition to hear an appeal of that case, which means the 6th Circuit ruling stands.

Lawyers who differ with Moore’s reading of the law suggested to Sussex council members that in doing so, the nation’s highest court signaled to other federal courts that it ultimately would uphold local right-to-work laws.

But Moore is not convinced. The Hardin County case “may influence, but will not control” any ruling from the 3rd Circuit Court of Appeals, which covers Delaware, the Sussex County attorney said.

The idea that Delaware can take inspiration from the Kentucky case is “patently false,” Moore argues, because the Hardin County ordinance “did not cite to a home rule statute for its authority and home rule analysis had no part in that opinion.”

‘Patently False’ 

In a rejoinder emailed to The Daily Signal, Yessin said it was the county attorney who made a “patently false” assertion related to right-to-work laws in Kentucky’s Hardin and Warren counties:

He [Moore] says ‘Hardin County did not cite to a home rule statute for its authority …,’ which is patently false. The Kentucky ordinances specifically say (in Section 1, so he wouldn’t have had to read far): ‘This ordinance is enacted pursuant to the authority granted to the Fiscal Court of Warren County as a political subdivision of the Commonwealth in accordance with the laws set forth in the Kentucky Revised Statutes and the laws of the United States of America.’

Moore also said the Kentucky case that led to the 6th Circuit ruling “is not the last word,” since the U.S. District Court for the Northern District of Illinois “considered the same precedent as the Hardin County case, but respectfully disagreed with the 6th Circuit’s conclusion.”

Moore was referring to a case out of Lincolnshire, Illinois, and currently on appeal to the 7th Circuit. Again, Yessin, the labor lawyer, also disputed his analysis:

He [Moore] says the 6th Circuit is principally concerned with whether the states were preempted from delegating power to their subdivisions, and the Illinois case was about whether they were preempted from delegating power to regulate union security.

In fact, that is EXACTLY what the 6th Circuit examined. It wasn’t an advisory lecture on federalism, it was about whether the states were preempted from delegating their power to prohibit union security clauses. It was in fact the only issue.

That’s obvious because of course no one has ever suggested that states are preempted from delegating powers to their subdivision as a general matter because of course that would be unconstitutional, as presumably any first-year law student not named Everett Moore must know.

Despite the ruling out of the 6th Circuit, Moore maintains that the National Labor Relations Act, the federal law governing private sector employment, “likely preempts” any county effort to pass right to work. (That law is also known as the Taft-Hartley Act.)

If the 7th Circuit were to uphold the ruling by a lower federal court in Illinois, the action would conflict with the 6th Circuit ruling and the U.S. Supreme Court almost certainly would enter the fray.

Scare Tactics

Mike Buchanon, the elected administrator of Warren County, Kentucky, who was instrumental in pushing local right-to-work laws in his state, told The Daily Signal in an email that it was a mistake for Delaware officials to be cowed by legal threats from unions and others.

“I understand the pressure that union attorneys can put on an elected body, but I am a bit surprised that they were as effective in their scare tactic in Delaware after they saw the results of the unions’ failed legal action in the federal court system,” said Buchanon, a Republican who serves as Warren County’s judge executive.

Buchanon added:

Unions always file suits. That’s what they do. They file suits against all the states who pass right-to-work [laws] as well. They sued Kentucky [and] Wisconsin, and I suspect every other state who has passed right-to-work and protected their citizens’ rights.

But in the end, the people of the counties and states who’ve protected their workers’ rights have stimulated their economies, strengthened their business climate, and brightened the futures of all their citizens.

The post Why Other Lawyers Fault Legal Opinion That Scuttled Local Right-to-Work Law appeared first on The Daily Signal.

Delaware County Could Miss Right-to-Work Boom, Chief of Kentucky County Predicts

GEORGETOWN, Delaware—Despite one county’s decision to reject a right-to-work law, Delaware will remain the only state in the Northeast and Mid-Atlantic with a local statute prohibiting imposition of union mandates on private sector employees.

The town of Seaford intends to move ahead with its right-to-work law even though surrounding Sussex County backed down in the face of pressure from labor unions whose leaders argued that the change would drive down wages.

“Right to work is one tool that will help to improve our competitive posture so we can lure in new businesses,” Seaford Mayor David Genshaw told The Daily Signal in an interview.

And in Kentucky, where local action to pass right-to-work laws has galvanized the movement, one county official says Seaford did the right thing for its residents last month even as Sussex County backed down this week.

“People are noticing that Warren County, Kentucky, is a great business-friendly place to live, to work, or to start a business,” Mike Buchanon, the county’s judge-executive, told The Daily Signal.

Right-to-work laws prohibit private sector employers from entering into agreements that make union membership and payment of union dues a condition of employment.

Since Warren County’s right-to-work ordinance went into effect, Buchanon said, the county seat of Bowling Green has seen downtown development “skyrocket” with about $300 million in new capital improvements.

Commercial and residential development is booming, he said, as is the hotel business.

‘Big Gains’ Forfeited?

The Sussex County Council rejected its own right-to-work ordinance in a 4-1 vote Tuesday after County Attorney J. Everett Moore told members that the law would not prevail against inevitable legal challenges from unions.

Councilman Rob Arlett, an early proponent, was the only member of the all-Republican council to vote for the measure one week after union members packed the council chambers during a public hearing.

>>> Right-to-Work Advocate Blames Unions’ Legal Threats for Loss 

Elected officials in Seaford, however, took the unexpected step of passing their own ordinance Dec. 12 in a unanimous vote. The city of about 7,000 in southwestern Sussex County was once home to a 35-acre DuPont plant that created thousands of local jobs by producing nylon used in military parachutes.

Sussex is one of three counties in Delaware.

As mayor of Seaford, Genshaw said he wasn’t content to wait for the county to act and anticipated that the city’s own right-to-work law could attract businesses and opportunities to the site of the former DuPont factory as well as other parts of Seaford.

“When you compare right-to-work states with non-right-to-work states, it’s clear to me that this could mean big gains for Delaware,” Genshaw said in an October interview. “I talk to a lot of families who want their kids to stay in the area, but we need to create opportunities that have gone missing in recent years.”

Signs of Boom in Kentucky County

The capital investment and job growth flowing into Warren County, Kentucky, where the local right-to-work movement first took root, appears to bolster Genshaw’s argument.

As judge-executive, Buchanon, a Republican, is Warren County’s elected chief administrator, similar to a mayor. In previous interviews with The Daily Signal, he described how a broad cross-section of Kentucky residents came together to support right-to-work legislation in Warren County that passed in 2014.

For years, Warren County had been losing out to neighboring parts of Tennessee, Buchanon explained, because experts recruited by companies and other employers to identify potential work sites viewed right-to-work status as a critical factor in making a final determination.

At the time, Tennessee was a right-to-work state and Kentucky was not. Times have changed.

>>> Local Leaders Try New Tactic to Bring Right-to-Work Laws to Kentucky

Since passage of the ordinance in December 2014, Warren County has attracted 174 prospective new businesses, representing about $2.5 billion in potential investment, and 16,618 jobs have materialized, according to the Bowling Green Area Chamber of Commerce.

Buchanon estimates that Warren County now has more than 6,000 openings for blue-collar and white-collar jobs in a wide range of fields that include manufacturing, education, health care, retail, hospitality, construction, and engineering positions.

“We are growing our workforce as well, with inward migration, attracting workers from across the nation and from around the globe,” Buchanon told The Daily Signal in an email Tuesday.

A new University of Kentucky Medical School is under construction on the Bowling Green campus, and multi-unit residential apartments and townhouses are being built throughout downtown Bowling Green and on campus.

“The economy is growing to an historic level, and new people are moving into Bowling Green in Warren County every single day,” Buchanon said.

Some of the union members who turned out Jan. 2 outside Sussex County’s government office building to oppose a right-to-work measure, from left: Michael Burns of AFSCME, Jeff Taschner of the Delaware State Education Association, Michael Begatto of AFSCME, James Maravelias, president of Delaware AFL-CIO, and Kat Caudle of AFSCME. (Photo: Kevin Mooney/The Daily Signal)

Union Opposition in Delaware

In response to the action in Warren County, 11 other Kentucky counties quickly followed suit with their own ordinances, and the whole state went right to work in January 2017.

>>> Kentucky’s Right-to-Work Earthquake Reverberates Across State Lines 

A total of 28 states and the territory of Guam now have right-to-work laws. In addition to Kentucky, since 2012, Indiana, Michigan, Wisconsin, and West Virginia have become right-to-work states.

Despite the transformative influence of right to work in Kentucky, union leaders and activists who gathered to protest the proposed Sussex County ordinance in Delaware insisted that it would harm average workers.

That’s what James Maravelias, president of the AFL-CIO in Delaware, said in a Jan. 2 interview with The Daily Signal during a protest by labor unions at the Georgetown Circle outside the Sussex County administration building.

If passed, a countywide right-to-work law would lower wages for workers, Maravelias said.

Standing next to him, Michael Begatto, executive director of AFSCME Council 81, echoed that argument.

The state AFL-CIO president was joined by dozens of union members from the American Federation of State, County and Municipal Employees, the United Food and Commercial Workers, the Communications Workers of America, the International Brotherhood of Electrical Workers, and the Delaware State Education Association, among others.

During the Jan. 2 hearing, Sussex County Council members heard from county residents on both sides of the debate.

To Jermaine Johnson, a member of United Brotherhood of Carpenters Local 173 who said he also is a pastor with Prophetic Kingdom Ministries, right to work is “about defunding and dividing the ability of unions to negotiate on behalf of the worker.”

‘There Is No Pie’

But other residents spoke out ardently in favor of the bill.

Lyle Humpton, of Bridgeville, represented Master Interiors, a Delaware-based acoustical contractor that he described as an “open shop company” with 43 employees.

“There is a bigger issue here than just union versus nonunion,” Humpton told council members. “This is about freedom and liberty versus government intrusion.”

Kevin Burdette, a Milton resident who heads the KNB Associates business consulting company, told council members that a right-to-work law would create a “bigger pie for everyone,” including union and nonunion companies.

Burdette added: “Unless we get other jobs coming to Sussex County, there is no pie. Economic growth has occurred at higher rates in right-to-work states.”

David Stevenson, an economist with the Caesar Rodney Institute, a Wilmington-based free-market think tank, picked up on this point during his testimony.

In contrast to states that have right-to-work laws, Delaware has experienced anemic economic growth, diminished job opportunities, and falling household incomes, Stevenson told council members.

Over the past decade, Delaware’s economy has grown by 0.4 percent a year, he said, and in 2017, the state was one of only four that logged a rise in unemployment.

Contrary to what union leaders and members said in public statements, incomes rise just as fast in right-to-work states as in other states when the cost of living is properly considered, Stevenson argued:

You can’t compare wages in right-to-work states like Alabama or Georgia, where houses sell for a quarter of the price of [those in] California, without adjusting for cost of living. My own analysis shows real household incomes have grown just as fast in right-to-work states since 2000—2.1 percent—as in non-right-to-work states—2.2 percent.

‘Clear Legal Path’

Stevenson cited a 2015 report from The Heritage Foundation that shows right-to-work laws do not lower pay in the private sector.

Right-to-work states have equal rates of health insurance coverage subsidized by private employers, Stevenson told council members, adding:

In summary, worker pay, benefits, and safety are the same with or without right-to-work [laws]. However, faster economic growth will raise incomes through higher-paying occupations and a tighter labor force, putting upward pressure on wages.

It is certainly true that unions likely would challenge a right-to-work law in court, Buchanon told The Daily Signal, but the Kentuckian said that Sussex County officials, in his opinion, should have pressed ahead.

“Although I am not familiar with Delaware’s constitution or their laws, the federal courts were clear in their decision about the legal rights of counties as political subdivisions of the state,” the Warren County official said.

“The courts recognized counties’ rights and responsibilities to govern and make laws in the interest of protecting individual workers’ rights and freedoms, and for economic development and commerce,” Buchanon said, adding:

I believe that the unanimous decision of the federal appeals court in the Hardin County, Kentucky, decision established a clear legal path forward for counties in most every U.S. state.

This doesn’t mean that a union can’t file a suit. Certainly they have the right to file legal action, as everyone does. However, that doesn’t mean they can win, and in light of the federal appeals court’s decision, their suit would appear to me to be a waste of their time and of their members’ money.

The post Delaware County Could Miss Right-to-Work Boom, Chief of Kentucky County Predicts appeared first on The Daily Signal.

County Votes Down Right to Work as Attorney Warns of Union Lawsuits

GEORGETOWN, Delaware—Officials in one of Delaware’s three counties rejected right-to-work legislation Tuesday, shortly after the county attorney detailed his legal opinion and predicted a thicket of costly court challenges to the law from labor unions.

Councilman Rob Arlett, who has spearheaded the proposal, was the only one of the five Sussex County Council members, all Republicans, to vote yes on the measure.

“What we want regardless of the color of our shirts is we all want jobs, and we all want the best for our families,” Arlett said before casting his lone vote in favor of the right-to-work ordinance.

“We have to do something as a community and as a council to attract new industries, I think all sides agree to that,” he said. “The question before us today is, is this a tool in that toolbox as a community that we should consider?”

Right-to-work laws prohibit private sector employers from entering into agreements that make union membership and payment of union dues a condition of employment.

A total of 28 states and the territory of Guam now have right-to-work laws, with Kentucky, Indiana, Michigan, Wisconsin, and West Virginia making the move since 2012.

Delaware last month became the only state in the Northeast and mid-Atlantic with a local right-to-work law on the books. The city council of Seaford, not content to wait on the Sussex County Council to act, passed its own ordinance Dec. 12.

Sussex County officials had put off action Tuesday after dozens of union members turned out in force at government offices to oppose the legislation during a public hearing. The Sussex council then asked for a formal opinion from the county attorney, J. Everett Moore, pending this week’s formal vote.

Representatives of local union affiliates gathered before the hearing at a traffic circle outside the Sussex County Administrative Office Building. Members also packed the council chambers and watched the action from overflow rooms.

“My No. 1 concern is that right to work lowers wages,” Kat Caudle, a member of the American Federation of State, County and Municipal Employees, told The Daily Signal before the hearing.

“Workers should have the right to bargain for wages,” Caudle said, “and unions bring equality to this process.”

Voting no Tuesday were council President Michael Vincent, Vice President George Cole, and Councilmen Samuel Wilson and Irwin Burton.

Arlett at first moved to delay action but the other council members also rejected that.

Based on testimony and the public record, Arlett said, it is evident to him that “people want this.” He also recognized that “quite a few others [are] in opposition.”

“I believe in the power of choice and to me, if it’s worthy for six school districts in this county, why isn’t it worthy in the private sector?”

Six of the eight school districts in Sussex County are right-to-work entities in the public sector, with no requirement for teachers to pay fees to the union.

“That’s just a commonsense analogy,” Arlett said.

He also acknowledged differing legal opinions.

“That’s why there is a court system, to determine what is lawful and not lawful,” Arlett said. “On the merits of economic development … if it has the ability to attract jobs, then we should consider it and let the courts make their decision as they see fit. So, for that reason alone, based on the testimony and the record, I will vote in favor of this.”

But the testimony and opinion of Moore, the council’s attorney, carried the day.

Moore repeated his concern that Delaware’s home rule statute did not delegate authority to the council to adopt a right-to-work law. Sussex County would be drawn into legal challenges at both the state and federal level that could prove costly,  he said.

“My opinion is that a Delaware court is unlikely to uphold the ordinance in its current form,” Moore said.

The county attorney also warned council members that if they did go forward with the ordinance and accept pro-bono legal coverage from outside the state, they would need to confer with the State Public Integrity Commission, whose rules cover payment to government employees.

 Burton also spoke at length, saying he voted no because he was convinced by Moore that the county would incur legal costs that would detract from the council’s ability to perform its primary functions.

“If we adopt this ordinance, we will be in expensive, time-consuming litigation,” the council member said.

Burton credited Moore with providing a “thorough, extensive opinion.”

Given the need to attract new jobs, Burton said, his vote was “one of the hardest decisions” of his career.

Burton expressed concern that enforcement of a controversial ordinance would burden the county with additional costs.

“I’m a proponent of limited government and of keeping costs low,” Burton said. “This will cause an expansion of government and new costs.”

Despite voting no,  Cole said he favored the concept of right to work but was not convinced the council had the legislative authority to move forward.

“I wish there was a way I could vote yes,” Cole told fellow council members.

At least two lawyers in Delaware have disagreed publicly with Moore’s opinion that the state’s home rule statute doesn’t allow local right-to-work laws.

Theodore Kittila, a lawyer speaking for the Caesar Rodney Institute, a free-market think tank based in Wilmington, told council members last Tuesday that Sussex County has the authority to pass such a law under authority delegated by the 1970 statute. Kittila expanded on this point, citing several cases, in a written legal opinion that is part of the public record.

Kevin Fasic, a Wilmington-based lawyer who specializes in construction law, said during the council’s Oct. 24 meeting that a 6th Circuit Court of Appeals ruling opened the door for local right-to-work laws in Delaware and other parts of the country.

As The Daily Signal has previously reported, the U.S. Supreme Court turned away a legal challenge to the local right-to-work ordinance in Hardin County, Kentucky, permitting the 6th Circuit ruling to stand.

The 6th Circuit covers Kentucky, Michigan, Tennessee, and Ohio; Delaware falls within the 3rd Circuit, which has not ruled on the merits of local right-to-work laws.

If the 3rd Circuit were to rule in conflict with the 6th Circuit, the case likely would move up to the U.S. Supreme Court. But Fasic noted during the October meeting that the high court may have signaled its intention to uphold local right-to-work laws last year when it rejected a petition from labor unions challenging the Kentucky law.

But on Tuesday, Moore insisted the legal questions are not entirely the same.

“Because some other county has done this, doesn’t mean that we can,” Moore said. “We have to look at the underlying legislation.”

While the ruling out of the 6th Circuit “may influence” the 3rd Circuit, it doesn’t “control” either the 3rd Circuit or the U.S. Supreme Court, Moore told council members.

In New Mexico, Sandoval County has pursued its own right-to-work legislation amid intense union opposition. The County Commission is set to vote Jan. 14 on the bill.

Although union leaders also threaten to file lawsuits to block the Sandoval County measure, Forbes columnist Matt Patterson has noted that unions “almost always lose” such challenges.

Ken McIntyre contributed to this report.

The post County Votes Down Right to Work as Attorney Warns of Union Lawsuits appeared first on The Daily Signal.

Delaware County Stalls Right-to-Work Vote as Unions Protest

GEORGETOWN, Delaware—County officials put off action Tuesday on a right-to-work ordinance after dozens of union members turned out in force at government offices to oppose the legislation during a public hearing.

Members of the Sussex County Council asked for a formal opinion from the county attorney pending a vote that could come as early as Jan. 9.

Representatives of local unions affiliates gathered beforehand at a traffic circle outside the Sussex County Administrative Office Building.

“My number one concern is that right to work lowers wages,” Kat Caudle, a member of the American Federation of State, County and Municipal Employees, told The Daily Signal.

“Workers should have the right to bargain for wages,” Caudle said, “and unions bring equality to this process.”

Inside, union members helped fill the council chamber to capacity during the first formal hearing on the proposed ordinance and watched the action with others from overflow rooms. Council members questioned speakers over the course of nearly six hours.

Union members and supporters gather at Georgetown Circle just outside the Sussex County Administrative Office Building. (Photos: Kevin Mooney/The Daily Signal)

Besides AFSCME, unions represented included the AFL-CIO, the United Food and Commercial Workers, the Communications Workers of America,  and the International Brotherhood of Electrical Workers.

More than 30 speakers in a crowd of about 120 addressed the County Council, composed of five Republicans, both in support and opposition of the right-to-work measure.

Councilman Rob Arlett, who has spearheaded the proposal, asked the county’s legal counsel, J. Everett Moore, to provide a written opinion before the next meeting. Moore previously had cast doubt, in spoken remarks at an Oct. 24 meeting, on the council’s power to adopt a right-to-work law.

The Daily Signal later asked Moore whether he expected to deviate from his verbal opinion based on the state’s home rule statute. Moore declined comment.

‘We Want to Hear From Residents’

At the request of council members because not everyone would be able to speak, those in attendance raised their hands to indicate whether they backed or opposed the bill. The official count: 34 supported, 64 opposed.

To determine that speakers were county residents, something Arlett expressed concern about, they were asked to provide their addresses as well as names.

“We want to hear from our residents, and yes, we want to hear from others, but we need to hear from the people in this community,” Arnett said.

Right-to-work laws prohibit private sector employers from entering into agreements that make union membership and payment of union dues a condition of employment.

A total of 28 states and the territory of Guam now have right-to-work laws, with Kentucky, Indiana, Michigan, Wisconsin, and West Virginia making the move since 2012.

Delaware last month became the only state in the Northeast and mid-Atlantic with a local right-to-work law on the books. The city council of Seaford, not content to wait on the Sussex County Council to act, passed its own ordinance Dec. 12. Sussex is one of three Delaware counties.

>>> Delaware Town OKs Right-to-Work Law in Advance of County Action

Throughout the hearing Tuesday, union members disrupted other speakers and shouted out comments. Several times, council President Michael Vincent threatened to have individuals removed if they continued to act out.

In opening remarks, Arlett emphasized the need for a robust public hearing:

We are here today because the people in this county expect and desire jobs and to provide for their families, and as elected officials we have a responsibility. I don’t care what color shirt you are wearing, we all desire the same thing: to provide for our families. We all have dreams and aspirations. We are here to foster this.

Afterward, Arlett told The Daily Signal he wasn’t convinced the hand count was representative of his constituency, but said that with “one or two possible exceptions,” those who addressed the council were residents.

Unions Fear Lower Wages

Three of the four other members of the councilPresident Michael Vincent, Vice President George Cole, and Councilman Samuel Wilsondeclined to reveal their position in interviews afterward. Councilman Irwin Burton was not available.

Several union members and other right-to-work critics cited Moore’s previously expressed misgivings and rested their arguments on that verbal opinion.

Throughout the meeting union members who were present would sometimes disrupt other speakers and shout out comments. Vincent told those audience members several times that if they continued to act out they would be removed from the chamber.

That opinion is not part of the official record, Arlett told audience members.

“People are making reference to something that doesn’t exist,”  he said,

Arlett agreed to defer action as Vincent joined him in calling for Moore to submit the written opinion.

>>> Amid Union Opposition, Right to Work Advances in Delaware County

Nakeesha Armstrong, of Wilmington, belongs to Laborers Local 199, a union of construction workers based in Newark, Delaware.

Union members who spoke with The Daily Signal at the demonstration before the hearing warned that implementing right to work in Delaware would decrease wages, diminish the quality of health care coverage, and undermine the ability of unions to help workers negotiate fair compensation and benefit packages with employers.

James Maravelias, president of the AFL-CIO in Delaware, said in an interview that a right-to-work law would “lower wages” in the state.

Right-to-work states tend to have higher poverty rates and worse health care, Maravelias argued.

“If right-to-work is such a good idea, why aren’t these states more prosperous?” he said.

Union-Busting?

While Arlett and other supporters of the proposal tout right to work as a tool to produce more choice and opportunity, the demonstrators maintained it is anti-union.

Bill Prinsket, a retired physician who lives in the Sussex County town of Bridgeville, said the proposed ordinance is “just union-busting.” He challenged supporters to “name just two companies that didn’t come here because we don’t have right to work.”

Prinsket, who is active with the Sussex County Progressive Democrats, carried a homemade sign that read “Right-to-work is wrong.”

With him was Joe Campbell, also from Bridgeville, a retired member of United Food and Commercial Workers Local 27. Campbell said the proposed ordinance would “destroy unions and make wages go down.”

Kentucky stands out in the right-to-work cause because its counties established the legal right to move forward with their own ordinances in the absence of state-level action. The 6th U.S. Circuit Court of Appeals upheld a law passed in the state’s Hardin County in a unanimous ruling in November 2016.

At least two other lawyers in Delaware have disagreed publicly with the statement by the county attorney, Moore, that the state’s home rule statute doesn’t allow local right-to-work laws and that costly litigation would follow.

Theodore Kittila, a lawyer speaking for the Caesar Rodney Institute, a free-market think tank based in Wilmington, told council members Tuesday that Sussex County has the authority to pass such a law under authority delegated by the 1970 statute.

Kittila expanded on this point, citing several cases, in a written legal opinion that is now part of the public record.

Kevin Fasic, a Wilmington-based lawyer who specializes in construction law, said during the council’s Oct. 24 meeting that the 6th Circuit Court of Appeals ruling opened the door for local right-to-work laws in Delaware and other parts of the country.

The Legal Landscape

The 6th Circuit covers Kentucky, Michigan, Tennessee, and Ohio; Delaware falls within the 3rd Circuit, which has not ruled on the merits of local right-to-work laws.

If the 3rd Circuit were to rule in conflict with the 6th Circuit, the case likely would move up to the U.S. Supreme Court. But Fasic noted during the October meeting that the high court may have signaled its intention to uphold local right-to-work laws last year when it rejected a petition from labor unions challenging the Kentucky law.

Delaware state Sen. Bryant Richardson, a Republican,  recounted conversations with Seaford Mayor David Genshaw in which the mayor said lack of a right-to-work law discourages businesses from locating to Sussex County, and to Seaford in particular.

In an email to The Daily Signal, Genshaw said that regardless of how the Sussex County Council votes, his city will press ahead under its own right-to-work law.

“We are under a 30-day advertisement period that started on Dec. 12 and after that, it goes into effect,” the mayor wrote, adding: “Seaford moves forward looking to win new business for the people of Seaford.”

Meanwhile, the advance of right to work in Kentucky continues to inspire action elsewhere.

In New Mexico, Sandoval County has pursued its own right-to-work legislation amid intense union opposition. The County Commission is set to vote Jan. 14 on the bill.

Although union leaders threaten to file lawsuits to block the Sandoval County measure, Forbes columnist Matt Patterson points out that unions “almost always lose” in such court challenges.

The post Delaware County Stalls Right-to-Work Vote as Unions Protest appeared first on The Daily Signal.

Delaware Town OKs Right-to-Work Law in Advance of County Action

A small city in Delaware quietly has taken the unexpected step of passing its own right-to-work ordinance several weeks before officials in the surrounding county air a similar proposal.

The Seaford City Council voted unanimously for the right-to-work measure at its Dec. 12 meeting.

“We are superexcited about how the vote went,” Seaford Mayor David Genshaw told The Daily Signal in an email. “I have been surprised by the number of people who wish to support us.”

The Sussex County Council is set to hold a public hearing Jan. 2 on its countywide proposal to bar forced union membership. Seaford, a city of 7,000 residents, is in southwestern Sussex County.

“The mayor and the council members in Seaford showed real courage and leadership in pressing ahead with a decision that is in the best interests of their community,” Sussex County Council member Rob Arlett told The Daily Signal in a phone interview Monday.

“Right to work is all about choice and about bringing more economic opportunity,” Arlett said.

Right-to-work laws prohibit private sector employers from entering into agreements that make union membership and payment of union dues a condition of employment.

A total of 28 states are right-to-work states, with Kentucky, Indiana, Michigan, Wisconsin, and West Virginia making the move since 2012. The U.S. territory of Guam also is a right-to-work jurisdiction.

Arlett has championed a right-to-work law for Delaware since at least April 2015, when he raised the subject during a council meeting in response to a bill in the state General Assembly that ultimately died.

In October, Arlett formally introduced a bill to make Sussex a right-to-work county in the absence of statewide action.

The action in Seaford, where the five council members are nonpartisan and the mayor doesn’t vote, adds momentum to that upcoming vote, he told The Daily Signal.

“I have been surprised by the number of people who wish to support us,” Seaford Mayor David Genshaw says. (Photo: Kevin Mooney/The Daily Signal)

Three of his four colleagues on the all-Republican Sussex County Council have roots in Seaford, Arlett said, identifying them as George Cole, Irwin Burton, and council President Michael Vincent.

“They could take inspiration from the unanimous vote in Seaford,” he said. “The City Council is obviously responding to the needs of their constituents.”

After the Jan. 2 public hearing, the County Council may vote its right-to-work ordinance up or down, or defer action to a later date. The council also may amend the language.

“We are in the process of putting a team together and will probably do some sort of rollout [of the right-to-work law] in January,” Genshaw said. “Stay tuned.”

The western part of Sussex County, including Seaford, stands to benefit the most from a right-to-work law since the eastern part already boasts hotels and related businesses located along the beach areas, the mayor noted.

Genshaw expressed enthusiasm for right to work when The Daily Signal visited Seaford earlier in the year. The city was once home to a 35-acre DuPont nylon plant. The facility, which created thousands of local jobs, produced nylon used in military parachutes.

Warren County, Kentucky, started the trend toward local right-to -work measures when officials passed one in fall 2014. Other Kentucky counties quickly followed suit.

The post Delaware Town OKs Right-to-Work Law in Advance of County Action appeared first on The Daily Signal.