January 6, 2015 | Commentary on Economy, Labor, Jobs and Labor Policy

And Then There Were Three: Kentucky Counties May Have Found the Secret to Right-to-Work Success

A major economics story for conservatives slipped under the radar screen as Americans celebrated the New Year: Two more Kentucky counties passed local right-to-work laws. On December 30, Fulton and Simpson counties approved right-to-work ordinances; several more counties appear set to follow suit in the coming days.

Right-to-work laws make union dues voluntary. Absent such laws, union contracts require workers to pay dues or get fired, forcing workers to financially support unions no matter how effectively they represent them. Chad Poynor, a UAW committeeman at the Corvette plant in Bowling Green, Ky., recently admitted, “You hear people all the time say, ‘If I were in a right-to-work state, I’d withdraw’.” 

Now a total of three Kentucky counties — Fulton, Simpson, and Warren — have enacted local right-to-work ordinances to give workers that choice, and another three counties have announced such plans. Collectively these six counties encompass more than a quarter million Kentuckians, including Bowling Green and the dissatisfied workers in that Corvette plant.

Unions are predictably unenthused about having to earn their members’ voluntary support. They have vowed to challenge the local ordinances in court, which will make for an interesting legal fight. (Protect My Check, a new conservative 501(c)(4), will cover the counties’ legal defense costs.)

Section 14(b) of the National Labor Relations Act expressly allows “state” right-to-work laws. To date the Supreme Court has never ruled on the validity of local right-to-work ordinances. However, as my colleague Andrew Kloster and I explained in a recent Heritage Backgrounder, these counties have a strong legal case.

The congressional record makes clear that Congress included 14(b) to expressly disavow any federal preemption of right-to-work laws. The Supreme Court held exactly that when unions challenged state laws. If federal law does not prohibit right-to-work, local governments can act.

Further, these local ordinances probably also qualify as “state” law. The Kentucky legislature expressly delegated to counties the authority regulate commerce and pass economic-development measures. All three counties passed their right-to-work ordinances pursuant to this state “home rule” statute. It may ultimately take a Supreme Court decision, but these counties have good legal arguments on their side.

These local right-to-work laws, and the forthcoming legal battles, merit national attention. Several Kentucky counties may have just figured out how to bypass the legislative gridlock that often stymies right-to-work.

 - James Sherk is the senior policy analyst in labor economics at the Heritage Foundation’s Center for Data Analysis.

About the Author

James Sherk Research Fellow, Labor Economics
Center for Data Analysis

Originally appeared in NRO's "The Corner"