County's authority in question

The definition of “right to work” is itself controversial.

According to the National Right to Work Legal Defense Foundation, the “right to work” is the “right of every American to work for a living without being compelled to belong to a union.”

However, according to the American Federation of Labor and Congress of Industrial Organizations, right-to-work policies are attempts to “make it harder for working people to form unions and collectively bargain for better wages, benefits and working conditions.”

Last October, Sussex County Councilman Rob Arlett, R-District 5, introduced a right-to-work ordinance, seeking, he said, to have a public discussion on right-to-work laws and whether they would be beneficial for the county economy.

He was met by an overwhelming response at the Tuesday, Jan. 2 public hearing in Georgetown.

Right to what?

A little more than half of the 50 states have right-to work laws. Delaware is not one of them. Employees of union-represented workplaces in Delaware are required to pay union dues as a condition of employment, regardless of whether they choose to join the union. In the 28 states that do have right-to-work laws, employees that choose not to join a union do not have to pay dues.

On one hand, in states like Delaware, required union dues give the unions power to negotiate for better pay, benefits and working conditions for employees.

On the other hand, in states like Delaware, some jobs never materialize in the first place. In a capitalist system, labor costs factor into the success of a business, and some argue it’s therefore in a business owner’s best interest to set up shop in a right-to-work state.

Who decides?

At an October county council meeting, following a discussion on economic development, Arlett referenced a 2016 Sixth Circuit Court of Appeals case where the justices ruled that not just the state of Kentucky, but Kentucky counties have the authority to enact right-to-work laws. The union appealed to the U.S. Supreme Court, but they declined to hear the case.

“I think [that decision] implores us, for the residents of this county, to further look into that,” Arlett said.

According to the ruling, the case for the counties’ authority rests on the meaning of “state” in the context of the National Labor Relations Act.

“The NLRA permits agreements between employers and unions that require employees to join or pay dues to the union, known as union-security agreements. But the NLRA also permits ‘State or Territorial’ laws that prohibit such agreements, commonly referred to as right-to-work laws,” the Sixth Circuit Court of Appeal’s opinion states. “The primary question presented by this lawsuit is whether a right-to-work law may be enacted solely by a state or territorial government, or whether a local government – in this case a county – may pass a law prohibiting union-security agreements.”

While the decision doesn’t affect Delaware directly, it could create a domino effect by encouraging municipal and county lawmakers to challenge the law. Should a similar case reach a different circuit court and be declined, that decision would be in direct contrast of the Sixth Circuit decision - meaning the Supreme Court will then have to hear the case.

Public response

The Sussex County Council held a public hearing Jan. 2 on a right-to-work ordinance.

Temperatures in Georgetown were below freezing, but a dozen or more union supporters protested on The Circle outside the county building. They brought two enormous inflatables – a “fat cat” with its hand around the neck of a union mouse and a rat draped with Arlett’s photo.

Inside, the seats were full and the line of people wishing to speak wrapped around the room. A handful of people sat or stood in the lobby, watching on a TV.

Charles Timmons, representing the Delaware chapter of the Associated Builders and Contractors, which represents nonunion employees, took his turn at the podium.

“Right-to-work laws ensure workers have an opportunity to choose whether union representation makes sense for them,” he said. “Delaware continues to struggle with financial stability, economic development and job growth. Any ordinance or law that would promote increased opportunity for companies to expand their workforce and put Delawareans to work should be moved forward.”

Brotherhood of Maintenance of Way Employees and the International Brotherhood of Teamsters Delaware Legislative Director William Glass countered, “We had a fellow at the last meeting that stated that his biggest problem with drawing business into Sussex County had to do with infrastructure, tax rates, affordable housing, good schools,” he said. “These are all things that right-to-work doesn’t help. By paying people less, your tax base is less.”

Many of those who spoke at the hearing focused on the fact that, currently, right-to-work is a state issue. Sussex County Attorney Everett Moore said Delaware’s “home rule” statute, which provides certain authority to municipalities, does not give the county the power to enact right-to-work laws.

“It is my opinion that we do not have the authority to enact a home rule ordinance,” he said. “There will be litigation if this is passed, and I think there could be litigation on multiple fronts – state and federal.”

He also indicated that if the county were sued, an injunction against right-to-work laws would likely be in effect until the matter was settled.

After hours of hearing statements from the public, the council deferred a vote. The ordinance has been placed on the agenda for the Jan. 9 meeting.