Kentucky Supreme Court upholds GOP-passed “right-to-work” law
A right to work (for less) protest. | Darron Cummings/AP

FRANKFORT, Kent.—By a 4-3 vote, the Kentucky Supreme Court handed another win to the right-wing and GOP partisan forces’ crusade to destroy unions and workers’ rights, upholding the Commonwealth’s GOP-enacted so-called “right to work” law.

Acting for their unions, Kentucky AFL-CIO President Bill Londrigan and Louisville-based Teamsters Local 89 President Fred Zuckerman challenged the law on state constitutional grounds. They said it violated equal protection of the laws and three other provisions. The Kentucky High Court majority, upholding a lower court ruling, rejected the unions’ case.

Kentucky’s GOP legislative majority approved HB1, the right-to-work law, and GOP Gov. Matt Bevin signed it in 2017. Bevin had run on a pro-RTW platform, the judges noted.

That let Kentucky join a raft of GOP-ruled states – including Michigan, Wisconsin, Indiana, and Missouri – that turned themselves into RTW states since the 2010 nationwide Republican electoral sweep. Missouri voters, however, threw out its RTW law earlier this year, by a 2-to-1 ratio. Like other RTW laws, Kentucky’s law passed on party-line votes.

Unions and their allies oppose “right to work” laws, pushed by big business, the radical right and their political puppets. Those same interests, led by the venal and vicious National Right to Work Committee, intervened in the case on Kentucky’s side and for RTW.

The unions cited studies showing RTW states have lower wages for workers, fewer safety and health protections on the job and higher injury rates.

But the practical impact of the RTW laws, which RTW supporters acknowledge, is to deprive unions of money they need to defend workers by making union membership completely optional while forcing unions to defend workers – union and non-union – in shops the unions represent. Non-unionists don’t have to pay one red cent for using union services. The right calls its aim “de-funding the left.”

The unions told the justices there was “no substantial or justifiable basis” for singling them out for such discrimination via RTW, and that doing so would violate the state constitution. What RTW really does, the state fed and the Teamsters said, is “reduce wages for union and non-union employees, have mixed impact on employment outcomes, and have no statistically significant impact on overall state employment.”

“The true motivation is ‘to starve labor organizations and their members based on perceived political bent,’” the unions added.

“Right-to-work laws don’t give workers the right to refuse to join a union. They have always had that right,” Zuckerman said before the case hit Kentucky’s High Court.

“By outlawing union security clauses, right-to-work laws prohibit agreements that require all workers who benefit from union representation to share in the costs of the union.”

“Even under right-to-work, unions have to represent all workers covered by a collective bargaining agreement. Right-to-work laws simply allow workers to refuse to pay dues for that representation and to get a free ride. This means workers who enjoy the benefits of a union contract can force their co-workers to subsidize the costs of their representation, which ultimately weakens the union’s ability to represent its members.”

“We are unable to say the legislature did not have a reasonable basis for” subjecting unions and workers to RTW, the court majority retorted. Citing a previous Kentucky Supreme Court ruling, the judges added a “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”

Besides, the court majority claimed, the RTW supporters presented positive evidence for it anyway, even though they didn’t have to do so.

The day before he won on RTW in the state’s High Court, Bevin said destroying teachers’ unions would benefit Kentucky, the Lexington Herald Leader reported.

“Breaking the backs of the teachers’ union in this state as the controlling interest in Frankfort is going to be one of the best things that ever happened for Kentucky,” he told the Kentucky Association of County Officials on Nov. 14.

He also charged the Kentucky Education Association and other unions “use teachers’ dues to undermine what’s best for this state so they can maintain power for a handful at the expense of the students and their parents.”

Earlier this year, the KEA was forced to strike school districts around the state to get the legislature to back down from GOP schemes to destroy teachers’ pay and benefits.

“Once again, the governor’s comments show his disdain and lack of respect for educators in Kentucky,” said KEA President Stephanie Winkler.

“To attack and vow to ‘break the backs’ of teachers and their advocacy organization by a governor who was elected to serve all the people of Kentucky, is imprudent and irresponsible to the needs of the commonwealth’s educators, students, and the public school system.”

“It seems Governor Bevin believes, or wants Kentuckians to believe, that its educators are roving mobs of revolutionaries aimed at controlling the levers of power in the state purely for our own financial and personal gain,” Winkler said. “In reality, we are hardworking teachers and support professionals who answer the school bell every morning to provide a quality education to the children of Kentucky.”

After reviewing Kentucky constitutional and labor law history and the 1947 GOP-passed federal Taft-Hartley Act, which permitted state-by-state RTW laws, the court majority spent a good section of their opinion rejecting the unions’ equal protection argument.

“A statute that ‘merely affects social or economic policy is subject’ to a less searching form of judicial scrutiny, i.e. the ‘rational basis’ test,” under the constitution’s equal protection section, the majority said.

“Rational basis review is appropriate for evaluating” RTW since the 1947 federal Taft-Hartley Act – passed by a GOP majority, though the Kentucky justices did not admit it — “expressly permitted” state RTW laws, they said.

And “The (U.S.) Supreme Court long ago held that, under federal law, union membership is not a suspect classification triggering strict scrutiny” under the U.S. Constitution. “A statute complies with Kentucky equal protection requirements if a ‘rational basis’ supports the classifications that it creates,” the majority declared.

“Wall Street and right-wing politicians see right to work as the most effective way to shrink the middle class by starving the unions,” said Teamsters President Jim Hoffa. “They have been taking advantage of the bad economy and using a crisis created on Wall Street to go after workers and permanently lower workers’ living standards.”


CONTRIBUTOR

Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.

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