County could introduce ‘right-to-work’ ordinance next week

Date Published: 
Oct. 27, 2017

At the urging of Councilman Rob Arlett, the Sussex County Council may introduce an ordinance related to “right-to-work” legislation at its Oct. 31 meeting.

The draft ordinance, “relating to the promotion of economic development and commerce by regulation of certain voluntary payments required of employees in Sussex County,” would be intended, he said, to” provide that no employee covered by the National Labor Relations Act be required to join or pay dues to a union, or refrain from joining a union, as a condition of employment.”

At the Oct. 24 council meeting, the council chambers were packed to standing room only.

More than a dozen people spoke on the “right to work,” both for and against the idea.

Attorney G. Kevin Fasic, whose firm is a member of the Association of Builders & Contractors, Delaware Chapter, was asked to speak on legal issues surrounding the proposed ordinance.

“Prior to last year, the conventional wisdom was that a political subdivision of the State did not have the authority to pass a right-to-work ordinance… That conventional wisdom has changed.”

Fasic stated that a decision in the Sixth Circuit Court of Appeals in November 2016 grants a political subdivision (such as Sussex County) the ability to pass right-to-work legislation under the National Labor Relations Act.

“That decision was appealed to the United States Supreme Court… The Supreme Court declined to hear that case. What that means is the Sixth Circuit decision stands.”

Fasic said that, if the legislation were to pass in Sussex County, there would likely be a legal challenge.

“The District Court here in Delaware would hear that case, and, more than likely, that case would go up to Third Circuit Court of Appeals… If the Third Circuit were to take a contrary stance, you would have a split among the circuits. What that means is the U.S. Supreme Court would undoubtedly take this case up, and my assessment … is that they declined to hear the Sixth Circuit Case — more than likely they would uphold this case.”

Carol Bodine, the secretary for the state Republican Party, as well as an Ocean View Town Council member, spoke in support of the proposed ordinance.

“I’m tired of legislators being afraid to stand up to their opposition, as we have seen on the federal level. Sussex County is the third largest county east of the Mississippi. Let’s stand on the right side of this issue and put Sussex County on the national map.”

Ted Kittila, attorney for the conservative think-tank the Caesar Rodney Institute, said his clients support the proposed ordinance, believing it to be a “necessary and proper exercise of the County’s power.”

Kittila told the council that in 1970 the General Assembly of Delaware enacted the Sussex County Home Rule Act, which he said grants the County the ability to pass the proposed ordinance.

“You have the ability to do this. You have the right to do this.”

State Sen. Bryant Richardson presented council with letters signed by four of the five Sussex County Republican state senators, in support of the proposed legislation, as well as a letter of support from Kent County state Sen. Colin Bonini.

“We want to bring jobs back to our area,” he said. “The poverty rate is very high in Seaford, Laurel and other areas. We need to bring jobs to this area.

“Delaware is the only state where workers’ salaries have declined over the past 10 years. We’re concerned about the prosperity of the working families… I believe this will help us quite a bit.”

Opponents cite lack of need, negative impacts

Opposing the legislation, Charlie Timmons of the Delaware Chapter of the Association of Builders & Contractors said all individuals have the right to work without paying union dues for fees.

“Of the top 10 unemployment states, seven are right-to-work states,” pointed out William Glass, state legislative director for the Brotherhood of Maintenance of Way Employees. “It does not create jobs.”

Milton resident Bette McGrath said she has deep concerns regarding the proposed ordinance, stating it “undermines the rights of working people.”

“‘Right-to-work’ provisions reduce or destroy representation for workers on the job. Without representation, workers are at the mercy of management without a unified voice,” she said. “I hope council members consider carefully the true meaning of right-to-work and oppose passage of this proposal.”

The Rev. Jermain Johnson of the United Commercial Workers said the proposed ordinance “directly threatens every hard-working family in our community” and silences voices in the workplace. He referred to the concept as not “right-to-work” but “work-for-less.”

“We wanted to build a better life for ourselves, and we continue to do that,” he said. “If ‘work-for-less’ passes, it will make our economic challenges worse… The hardworking families of Sussex County, where I was born, raised and live, deserve better than work-for-less.”

Retired carpenter John Brown said no one can be forced to join a union.

“If you really believe it’s about freedom, Mr. Arlett,” he said. “I would think you would also support a bill for my right as a citizen of Sussex County to choose whether I want to be a member of Sussex County and pay property taxes. Really, it’s the same thing. You either have the right to choose or you don’t have the right to choose.”

Brown also said that putting right-to-work laws into place will not solve any economic issues, as Sussex County has one of the lowest amounts of unionism in the state.

“When businesses come to Delaware, where is right-to-work on that list of things? It’s infrastructure, education, workforce development, etc.… It’s not even the No. 5, 7 or 8 issue.”

Seaford resident Bianca Rodrigues said she and her husband moved to Sussex County five years ago because of the values they believed Sussex County held.

“As a Realtor, the majority of my clients are the working class,” she said, noting that owning a home is part of the “American dream.” “The majority of my clients are working for us, and if this right-to-work legislation were to be introduced and possibly passed in our county, the economic devastation it could have on those people, and therefore in our economy — we’re talking about our neighbors, family — we would lower their purchasing power. It would impact that dream that people work all their lives for.”

County Solicitor J. Everett Moore was asked to give a legal opinion related to the draft ordinance by Council President Michael H. Vincent, as well as Councilman George Cole.

Moore said that Fasic was right in that one county in Kentucky decided to pass a right-to-work ordinance, which, prior to that, was perceived to be a state-level issue.

Moore said that he reviewed Delaware’s Home Rule Statute, which includes a clause stating, “This grant of power does not 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.”

If it was passed, Moore said, the County would face “very, very expensive litigation.”

“I also believe there would be litigation on multiple fronts, including federal and state,” he said, adding that opposing parties would most likely file for injunctive relief, which would put a hold on the right-to-work legislation going into effect. “That would mean that, during the entire litigation, you would not have this ordinance.”

He added that those opposed to the legislation could also review the County’s record, playing tape of Moore publically advising against the ordinance.

Cole asked what, if the County did pass the ordinance, the financial impact would be on the County.

County Administrator Todd Lawson said, aiming to be clear, that the County was already incurring legal fees related to the proposed ordinance. Lawson said that, in speaking with the County’s insurance company, the deductible would be $250,000.

“However, the insurance company did say they would reserve the right to review the situation, and it doesn’t mean our policy would cover this litigation.”

Arlett said he wanted to introduce the ordinance to get the public’s input on the topic.

“All I ever wanted was the public hearings, so we could hear from the community,” he said. “We’re not here to be the judge and jury today.”

Moore also said that the ordinance, which was not drafted by the County’s legal counsel, could not be introduced on Tuesday, as it was not drafted in the proper format.

“It has to be introduced in a format that could be enacted immediately,” explained Moore. “If it were attempted to be introduced today, it would be improper and could be challenged as well.”

Despite Moore’s stance that the draft ordinance could not be introduced, Arlett motioned to do so anyway.

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

“You can go on record, but it cannot be introduced,” said Vincent.

He requested the item be added to next week’s council agenda for introduction.

“Ultimately, we’re having these conversations before we’re getting a full public hearing, versus the real dialogue with the community. To me, it’s just important to have the public dialogue… I think, ultimately, everyone in this room and everyone in this community desires the same thing: good paying jobs...”

Vincent stated that the proposed ordinance could have been introduced if it was drafted properly.

“For the record, had Councilman Arlett chosen to go to our legal counsel and had the thing drawn up and drafted, there wouldn’t have been mistakes, and it would’ve been right the first time. And that’s a lesson for all of us.”