Vice President, Labor Policy, U.S. Chamber of Commerce
January 25, 2018
A Kentucky circuit court on January 23 issued a ruling upholding HB 1, the Kentucky Right to Work Act, which made the Bluegrass State the 27th to adopt a right-to-work law. The decision dealt yet another blow to organized labor’s decades-long effort to overturn such policies.
As this blog reported at the time, the Kentucky legislature enacted HB 1 in January 2017 shortly after the election of a Republican-controlled government for the first time in around 100 years. As a candidate, Governor Matt Bevin had said that he intended to pursue policies more likely to improve the business climate, including right-to-work, and that became the first item on his agenda.
On cue, the Kentucky AFL-CIO attacked the law and promised to challenge it in court, as organized labor has done every time a new right-to-work law passed in recent years. In May 2017, the AFL-CIO filed suit, saying it believed “that HB 1 violates Sections 1, 2, 3, 13, 55, 59, 60 and 242 of the Kentucky Constitution and is bad for Kentuckians.”
In essence, the lawsuit claimed that HB 1 “takes union members’ property without just compensation,” among other things. However, the court rejected that argument, concluding simply, “[HB 1] does not constitute a regulatory taking.”
The court also observed that the fact that unions bear a duty of fair representation does not create a “taking,” opining that “unions have long known that the privilege of exclusive representation comes with the obligation of exclusively representing all members of an organization” and that “it is the federal law, not Kentucky law, that potentially constitutes a taking from the union.”
In the wake of the adverse ruling, the Kentucky AFL-CIO predictably vowed to appeal it, repeating its errant claim that right-to-work somehow “denies union members the equal protection of the law,” despite the fact that similar challenges have failed in every state where they have been tried, both in state courts as well as federal.
The AFL-CIO added that the court “failed to consider the undisputed testimony of nationally-recognized experts in labor economics who uniformly proved that RTW laws lower wages, hurt workers and fail to add new jobs.” However, such testimony is, in fact, disputed, and regardless does not constitute a legal argument.
In reality, despite labor’s supposedly undisputed claims about right-to-work, the fact is that they have a positive economic impact, as this blog has noted before. A 2015 report by NERA Economic Consulting evaluated numerous studies on right-to-work laws and examined the impact of those laws on economic growth, employment, investment, and innovation.
That report presented data about economic performance in both right-to-work and non-right-to-work states and found that the evidence strongly suggests that right-to-work helps a state’s economy. As such, union opposition to right-to-work laws may be motivated more by their own bottom line than what is good for workers.
Although their arguments have never succeeded, unions are unlikely to give up challenging right-to-work in the courts. But there is another approach being considered. As part of the so-called “better deal,” federal legislation has been floated that would flat out ban right to work laws by fiat. For workers who do not wish to pay union dues to stay employed, that would be a concerning development indeed.