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Council to consider right-to-work ordinance Oct. 31

Attorneys debate whether state gives county legal authority
October 27, 2017

Sussex County Councilman Rob Arlett for a second time tried to introduce a right-to-work ordinance, but the county attorney told the him the action would have to wait to a future agenda.

If passed and upheld in court, Sussex could set a precedent as a local governmental body that enacted right-to-work legislation, previously restricted to state government.

Delaware is one of 22 states that do not have right-to-work laws. The issue facing county officials is whether under the home rule law, council can legally enact an ordinance dealing with labor issues. Council received conflicting legal advice, although all attorneys agreed passage of an ordinance would result in costly litigation filed by labor unions in federal court that could possibly end up in U.S. Supreme Court because of its implications in other jurisdictions.

Under home rule, the Delaware General Assembly has granted counties the ability to pass their own laws or ordinances. The question is whether home rule extends to labor issues.

County attorney J. Everett Moore said based on his research, right-to-work legislation is under the jurisdiction of the state and not the county. “My recommendation is that you do not have the right to enact this under the home-rule statute – based on how it's written and case history,” he said.

He said if council approves an ordinance, it would be challenged in court, and possibly in different courts by different challengers.

He said that litigation would probably include injunctive action to stop the ordinance in its tracks. “You would not be able to adopt it when it's in court,” he said. “It will be expensive and take a lot of time, and the opposition would be able to use my recommendation in his arguments.”

However, Ted Kittila, an attorney for the Caesar Rodney Institute, said the state's home rule statute gives the county legal authority to pass an ordinance. “It's a proper exercise of the county's power. Sussex County has home rule and has been granted the ability and right to do this,” he said. “We want jobs back, and the Caesar Rodney Institute believes this is the way to do it.”

Arlett, R-Frankford, said a right-to-work ordinance would be another tool in the toolbox to spur job creation and economic growth. Under the proposed ordinance, no worker in the county would be required to pay union fees or join a union as a condition of employment.

Councilman George Cole, R-Ocean View, asked what the financial impact would be on the county if litigation were to occur. County Administrator Todd Lawson said the insurance deductible for a potential case would be $250,000.

In addition, Moore said, the draft ordinance presented by Arlett contained formatting errors that could be challenged. “It's not in proper form to be introduced today,” he said.

“Your comments are duly noted,” Arlett told Moore. “I still want this on an agenda. We've heard other legal opinions today. My goal is to get public input.”

The ordinance has been rewritten and is on the Tuesday, Oct. 31 meeting agenda.

Arlett appeared frustrated that he couldn't introduce the ordinance to begin the public hearing process. “I want to go on record to introduce it today,” he said. “All I've ever desired is public dialogue so we can make a good decision. We are not there yet, so I guess we'll try a third time.”

For and against the ordinance

Before a standing-room only crowd, several people spoke for and against the proposed ordinance during the public comment period of the meeting. Many of those in the crowd were representing unions.

Sen. Bryant Richardson, R-Seaford, said four of the county's five senators had signed a letter of support for the ordinance.

Jermaine Johnson of Bridgeville, a member of United Food and Commercial Workers Local 27, made an impassioned plea against the ordinance. He said the “work-for-less law” was not about creating new jobs but a ploy to destroy unions. “If this passes, it will make our economic challenges worse and we'll see a flood of low-paying jobs,” he said.

He said union workers make 27 percent higher pay than non-union workers.

Eric Masten of Seaford said he has seen firsthand in his own family what happens in right-to-work states such as Virginia. “In the Shenandoah Valley, businesses are boarded up and people are working at minimum-wage jobs. It breaks my heart,” he said.

He said the county would not see an increase in business and jobs. “It's a bad law and bad for business,” he said.

He said union workers have more expendable income, which is an important factor to drive the Sussex economy.

Charlie Timmons, with the Delaware Association of Builders and Contractors, said the organization supports the ordinance. “We all should have the right to work without joining a union as a condition of employment,” he said. “We are seeing more growth in right-to-work states, and data show per capita income is higher.”

William Glass, representing Local 3095, said infrastructure, tax rates, affordable housing and good schools are what new businesses seek. “Right to work does not create jobs,” he said, adding that education suffers in right-to-work states,  which pay $3,100 less per pupil than non right-to-work states.

An interpretation of home rule

The home rule law reads in part: “This grant of power does not include the power to enact private or civil law, concerning civil relationships, except as incident to the exercise of an expressly granted power.”

Moore said right to work is a private relationship between an employer and employee. “Obviously, there is no direct case on point in Delaware because right to work on the county level has never been tried,” he said, adding that cases elsewhere helped form the county's legal opinion.

“Even the attorneys who spoke in favor of the ordinance admitted that the passage would lead to litigation, and as one stated, all the way to the Supreme Court,” Moore said.

Home rule and its relevance to right-to-work laws gained national attention last November in Kentucky.

Moore said a case in Hardin County, Ky., where officials enacted a right-to-work ordinance, was upheld by the Sixth Circuit Court of Appeals. The U.S. Supreme Court rejected a UAW appeal to hear the case. The ordinance – enacted in 12 counties – applies to private sector and not government employees. The court ruled that a local government can pass right-to-work laws if the state legislature has given them sufficient home-rule power.

Ohio – a non right-to-work state – also falls under the jurisdiction of the Sixth Circuit Court.

Moore said that case only pertains to the Sixth Circuit – Delaware falls under the Third Circuit Court of Appeals. “The ruling is not binding on any other circuit in the country,” he said.