Right to work pitch: Public comments; introduction stuck on deck

 

GEORGETOWN –Sussex County Councilman Rob Arlett’s attempt to precipitate public dialogue on the controversial “right to work” statute hit an introductory roadblock Tuesday.

And, the ordinance proposal faces an authoritative hurdle in the opinion of J. Everett Moore Jr., the county attorney.

“It is my recommendation and my legal opinion that Sussex County does not have the right under a home rule statute to enact this,” said Mr. Moore at Tuesday’s county council meeting. “And secondly if it were attempted to be introduced today in its current format that it would be improper and could be challenged as well.”

Council discussion and input from Mr. Moore and Sussex County Administrator Todd Lawson followed a parade to the public commentary podium.

It was a packed house in county council chambers as speakers that included union and non-union members voiced support and opposition to right to work laws, which ban labor unions from requiring employees to join them.

“I just want to say the top 10 unemployment states in the United States, seven of them are right to work states,” said William Glass, state legislative director for the state of Delaware Brotherhood of Maintenance of Way Employees Division/International Brotherhood of Teamsters. “Right to work does not create jobs. We had a fellow here at the last meeting that stated his biggest problem with drawing business into Sussex county had to do with infrastructure, tax rates, affordable housing and good schools. These are all things that right to work doesn’t have. It doesn’t help by paying people less, your tax base is less.”

“We support the right to work ordinance being discussed today,” said Charlie Timmons, representing the Delaware Chapter of Associated Builders and Contractors. “Our organization represents 450 commercial and industrial contractors in Delaware. Our support for this ordinance originates with the belief that all individuals have the right to work without the requirement to join a union or pay union dues or fees as a condition of employment. The purpose of right to work laws is not to eliminate unions but rather to guarantee basic fairness for workers. Right to work laws ensure workers have an opportunity to choose where the union representation makes sense to them.”

Mr. Arlett, R-Frankord, had attempted to introduce the ordinance issue at county council’s previous meeting on Oct. 10. It was not on the Oct. 10 agenda.

Mr. Arlett’s proposed ordinance was on council’s Oct. 24 meeting agenda for discussion and possible introduction. The ordinance pitch stated “an ordinance relating to the promotion of economic development and commerce by regulation of certain involuntary payments required of employees in Sussex County.”

It was not introduced.

Mr. Moore said the proposal as presented was unacceptable because it does not meet state code requirements.

Several union representatives voiced opposition to the proposed right to work statute.

“When this was proposed to be introduced last week I went on vacation. I just got back. I had not seen the ordinance before. Our office had not drafted this. So, I have looked at the format of the ordinance itself. It is not in proper form to be introduced today,” said Mr. Moore. “Under Delaware Code it sets forth certain requirements for introduction. First, it specifically states how the short title needs to be formatted. Also, it indicates the new ordinance needs a new chapter number in the body. It is not in the body. And also, the body needs certain underscoring and italics as far as the body itself for the introduction. But it has to be introduced in format that can be enacted immediately.”

“The format that the document is in that you reviewed is not in the correct format for Delaware Code to be actually introduced as an ordinance?” asked county council president Michael Vincent, R-Seaford.

“That is correct,” said Mr. Moore.

“And I guess the second question is …. that in your opinion we do not have the legal authority to adopt an ordinance about right to work under our home rule? Mr. Vincent asked.

Charlie Timmons of Delaware Chapter of Associated Builders and Contractors speaks in support of right to work laws.

“That is correct,” Mr. Moore replied. “It’s my opinion that this is not something that has been granted to Sussex County; that we do not have the authority to enact a home rule ordinance.”

Mr. Moore points to Delaware Code for his legal opinion.

“Early on our office picked up part of our home rule statute, a clause that states “this grant of power does include the power to enact private or civil law concerning civil relationships except as an incident to exercise and express their grant in power. I read that as prohibiting, that this does not give Sussex County the grant of authority under our Home Rule to pass such an ordinance.”

Earlier in public commentary, attorney Ted Kittila of the Caesar Rodney Institute said CRI supports the right to work statute.

“CRI believes this to be a necessary and power exercise of county council. This right to work statute fits within the general welfare promotion that the county is attempting to here,” said Mr. Kittila. “You have the ability to do this. You have the right to do this.”’

In America, 28 states have right to work statutes. Virginia is among the 28; Delaware and Maryland are not. Most non-right to work states are in the Northeast and Mid-Atlantic regions and far west, including California.

in 2014, Warren County, Kentucky – home to a General Motors plant – became the first county in the United States to pass a local right-to-work ordinance. Eleven other counties in Kentucky followed.

County passage sparked legal challenges in the Bluegrass State.

Ultimately, Kentucky became a right to work state in January 2017.

“Prior to last year the conventional wisdom was that a political subdivision of a state did not have the authority to pass a right to work ordinance such as this ordinance,” said G. Kevin Fasic, an attorney whose Wilmington firm is a member of the Associated Builders and Contractors Delaware Chapter.  “That conventional wisdom has changed by a decision on 6th Circuit Court of Appeals in November of last year which held that a political subdivision such as a county municipality does have the ability under the National Labor Relations Act to pass right to work legislation.”

In Sussex County, Mr. Arlett’s attempt to introduce a right to work ordinance is on hold for at least one week.

“We cannot have the ordinance introduced today,” said Mr. Moore.

Sussex County Attorney J. Everett Moore Jr. addresses an issue regarding the proposed right to work ordinance.

“Thank you, Mr. Moore. I think your comments are duly-noted,” said Mr. Arlett.  “All along for me personally, all I ever wanted is to have a public hearing, so we can hear from the community, the truth be told. So, it is your opinion here now that we are not able to do so? So, can you spell out very specifically here at this moment what exactly has to be changed in the current ordinance that you have seen … to allow for introduction.”

“State code requires that the title of the ordinance contain one subject which is clearly expressed in the title. The title does not clearly describe the contents of the ordinance,” Mr. Moore said. “The body itself, anything new that is being added to the code has to be set forth specially in italics or underlined. And third, the actual section number must be included in the body of the ordinance itself and it is not. The one that I was given did not have these items that I mentioned. That can be done and placed back on the agenda for possible introduction.”

“That is not a big issue,” said Mr. Moore. “The big issue from my standpoint goes back to my legal opinion as to what Delaware Code and statute has been granted to Sussex County.”

“On the legal front I think it is obviously very valid … the input and thoughts that have been portrayed today. And at the same time, we have heard from legal scholars who have a differing opinion. So, to me we’re not here to be the judge and jury today,” Mr. Arlett said. “My goal is to get the public’s input, get to a public hearing so we can ultimately hear from the public from all sides; a little bit more detail than what we heard today.”

County councilman George Cole, R-Ocean View, solicited Mr. Moore’s knowledge on the litigation related to right to work statutes.

“The Kentucky case, that was done by a county and it was challenged based upon the federal act,” said Mr. Moore. “It ended up in federal court. It went through the District Court first. They rejected the county’s claim, then it went to the Circuit Court; Circuit Court upheld it and it was then looking to go to the Supreme Court. The Supreme Court did not hear it. That is not binding on any other circuits in the country.”

“Prior to that it was thought that only states had that authority,” said Mr. Moore , who all but guaranteed there would be litigation if right to work is passed in Sussex County.

“Absolutely there would be challenges. During discussions I have had with parties that are proponents of this often times they keep referring to the NLRA – the National Labor Relations Act – and that any cases would possibly be litigated under that at a federal level. It is concerning the definition of what does the term ‘state’ mean and does the county have rights to bring this?” said Mr. Moore. “If this is enacted you can guarantee there is going to be litigation. I don’t buy into the argument that there is only going to be one group bringing litigation. I also believe that there would be litigation on multi-fronts including federal and state.”

“There is a whole host of issues that would be litigated. In addition to that, besides the litigation I see in multiple courts … obviously anyone litigating this would want to see that it stops in its tracks,” said Mr. Moore. “So, they would obviously file for injunctive relief. That would mean during the entire litigation you would not have what the hope of the ordinance is … we would not be able to adopt it during that time. There would be a hold placed on that during that period of time. We would see very, very expensive litigation possibly on multiple fronts including injunctive relief during this lengthy period of time.”

Potential litigation

Mr. Cole asked about potential impact of litigation.

“If we did something at county level … the impact on the county, financially how would it impact? Mr. Cole said. “Obviously, we would have to hire outside counsel for expertise, which we typically do when we get into cases like this. The problems last time we went through something of this nature with the prayer and that issue. We had outside counsel and insurance company problems. What is the impact?”

“To be clear we are incurring legal expenses now,” said Mr. Lawson. “Mr. Moore and his staff have already taken time and effort to come up with the recommendations he has presented today. Anticipating this question, we did ask our insurance company regarding our insurance policy. This type of legal case if we were to be sued, if this were to proceed, the deductible on this part of our policy is $250,000 deductible. However, the insurance company did say they reserve the right to review the situation involving the litigation. It doesn’t mean that our policy would cover this litigation. Reminder: we still have to spend $250,000 before insurance kicks in because that is the deductible.”

No introduction

“To be clear, it is on the agenda. I want to go on record to introduce this today,” said Mr. Arlett.

“It cannot be introduced,” said Mr. Vincent.

“At the same time, I’d like to be able to get this back on the agenda for next week with the edits for further discussion,” said Mr. Arlett, emphasizing the importance of having public dialogue. “That is what can lead to … perhaps a vote in favor or perhaps as a community we decide this is not what we need to do.”

“For the record, I would simply comment that had councilman Mr. Arlett chosen to go to our legal counsel and had the thing drawn up and drafted there would have been no mistakes in it the first time,” said Mr. Vincent. “That’s a lesson for all of us.”

Other comments

“I am in favor of this ordinance introduction so that a public meeting can be held, and a full discussion may occur for you gentlemen to be able to make an informed decision,” said Milton resident Kevin Burdette. “I personally see the proposed ordinance as another tool in the toolbox of potentially attracting business to Sussex County.”

“This isn’t a necessary bill,” said John Brown, a retired carpenter from Lewes. “In 1947, Taft-Hartley passed a law says that no one can be forced to join a union. That is the law of the land today. But what this bill will do if you make this the law of the land; first off it will restrict free business owners and non-profit organizations from entering into an agreement which they do today that helps their workers. And it has been proven over the years that it makes working conditions better. You’re going to restrict that free commerce with a bill like this.”

“When businesses come to Delaware … where is right to work on that list of things?” Mr. Brown added. “It’s very far down. Infrastructure, education, workforce development, etc., are way higher on the list. Sussex County has one of the lowest amounts of unionism in the state. If that is the case and this is really going to help why aren’t the businesses flocking here already when there is no fear of being unionized? The truth is it is not the No. 1 issue. It’s not even the number 5, 6, 7 or 8 issue that businesses look at.

“If work for less passes, it will make our economic challenges even worse,” said Jermaine Johnson of Bridgeville. “If work for less passes it will be easier for irresponsible corporations to flood our community with low-paying jobs. If work for less passes it will make it hard for friends, neighbors and family members to earn a better life. Please protect our voice in the work place and stop this bad law from passing.”

David Stevenson, an economist/policy analyst with Caesar Rodney Institute, added this insight.

“We have talked about the need for more union jobs. If we are going to have more union jobs we need more jobs, period,” said Mr. Stevenson. “Most of the non-right to work states are highly urbanized states like California and New York. Most of the right to work states are rural states. Buying a house in Alabama is a quarter of the price of buying a house in California. You have got to adjust those income numbers for cost of living. When you do that, right to work states have identical wage growth to non-right to work states.”

“I look at Delaware was 40th slowest growing state in the country. West Virginia passed right to work in January of 2016. Last year they were the second-fastest growing state in the country. They are growing at 10 times the rate of Delaware,” said Mr. Stevenson. “If we want a fast-growing economy we need right to work.”

News Editor Glenn Rolfe can be reached at grolfe@newszap.com

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