Right-to-work: Right or Wrong?

Recently there has been a lot of talk in Delaware regarding right-to-work laws.

When a private-sector company is organized, the union will try to negotiate a requirement that all employees either join the union and pay union dues or pay a so-called agency fee for the services provided by the union like negotiations and grievance processing. The National Labor Relations Act (NLRA) authorizes individual states to outlaw this practice.  Any state who passes such a law is called a “right-to-work state.”

Delaware, like 21 other states, is not a right-to-work state. Delaware Governor Carney wants Delaware to stay that way.

There have recently been several attempts in Delaware to enact right-to-work laws. In mid-December the City of Seaford in Sussex County locally passed a right-to-work ordinance. Seaford’s Mayor has been enthusiastic about the effect such an ordinance could have for the community. “Seaford has been devastated by job loss, and the impact of this ordinance in the future of Seaford is tremendous,” Mayor David Genshaw said in an interview with the Cape Gazette.

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

However, on January 9, the Sussex County Council voted 4-1 against enacting a county right-to-work ordinance.

On January 17, the Delaware House of Representatives’ Housing & Community Affairs Committee voted along party lines to block a new right to work bill from going to debate. The new bill, House Bill 266, would have allowed counties the ability to create zones within the county where union membership would not be required.

The efforts to enact right-to-work laws at the local level can be traced to the case of UAW v. Hardin County, Kentucky. In that case, the Sixth Circuit Court of Appeals reversed a previous decision that said the county could not pass its own right-to-work law. The decision said:

“[T]o the extent § 4(B) of Ordinance 300 prohibits employers from requiring membership in a labor organization as a condition of employment, it is not preempted and invalidated by the NLRA.”

This ruling has been a touchstone in the argument for those supporting locally enacted right-to-work laws, and avoiding an all-encompassing state law.

In a formal legal analysis submitted to Sussex County Theodore A. Kittila, a lawyer who represents the Caesar Rodney Institute, a Wilmington-based free-market think tank, said, “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.”

But even before House Bill 266 failed, right-to-work laws had little support. In a statement to Delmarva Now, a representative for Governor John Carney expressed the Governor’s unfavorable opinion towards such laws. “As a general matter, the governor doesn’t believe that right-to-work laws would move Delaware’s economy forward, or help the working men and women of our state continue to earn a decent living,” the representative said.

The Attorney General’s office, too, has argued that Sussex County Council cannot legally enact its own right-to-work law. Delaware Online reported that State Solicitor Aaron R. Goldstein wrote to the Sussex County Council:

“Under current state law, we believe that only the Delaware General Assembly has the authority [or] power to enact private or civil law concerning civil relationships in this context…”

Goldstein feels that the law that created the Council does not give them the authority to regulate the relationship between unions and employers. Delaware Online also reported that, “the General Assembly has expressly forbidden authority over labor regulations from being delegated to counties, cities and towns.”

For now, it appears that Delaware will remain one of the 22 states without right-to-work laws.