In this blog on January 25, 2018, I reported on the decision of the Circuit Court for Franklin County, Kentucky, rejecting a union state law challenge to the constitutionality of Kentucky’s Right to Work law, which was enacted in 2017. Like the Right to Work laws in effect in twenty-six other states and the territory of Guam, Kentucky’s Right to Work statute prohibits requirements that workers pay union dues or “representation fees” as a condition of employment.
The Kentucky lawsuit was brought by the Presidents of a Teamsters local and the Kentucky AFL-CIO. Their complaint alleged state constitutional violations of a taking without just compensation, a denial of equal protection, and enactment of impermissible “special legislation.” The theory of the first allegation was that the Right Work law prevents unions from charging nonmembers for services that monopoly bargaining representatives are required to provide to all bargaining unit employees. The theory of the latter two allegations was that unions are the only associations required to represent groups of persons who do not pay dues. The Circuit Court allowed three Kentucky workers represented by National Right to Work Legal Defense Foundation attorneys to intervene in defense of the law.
On January 23, 2018, the Circuit Court granted motions to dismiss filed by the State and the intervening workers, holding that the Right to Work law “does not constitute a taking” or violate equal protection or the prohibition of special legislation. After the plaintiff union officials appealed to the Kentucky Court of Appeals, all parties moved to transfer the appeal to the Kentucky Supreme Court. Those motions were granted on April 18. Briefing was completed by June 28, and oral argument was held on August 10. The Supreme Court affirmed dismissal of the complaint on November 15, 2018. Zuckerman v. Bevin, 2018 WL 5994824.
The Supreme Court rejected the takings clause claim 7-0, the other claims 4-3. Significantly, the majority opinion reasoned that the U.S. “Supreme Court’s analysis of the ‘free-rider problem’ in” Janus v. AFSCME, 138 S. Ct. 2448 (2018), “conclusively refutes . . . the Unions’ claims that they will be compelled to provide services without compensation.” First, “[n]o union is compelled to seek designation as exclusive representative, but such designation is avidly sought.” Second, the “designation results in a tremendous increase in power of the union” and grants it “special privileges,” benefits that “that greatly outweigh any extra burden imposed by the duty of fair representation for nonmembers.” The majority rejected the equal protection and special legislation claims because “union membership is not a suspect classification triggering strict scrutiny,” the statute “applies to all employers and all employees,” and “the legislature clearly established a rational basis”: “to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states.”
Right to Work laws have been upheld by every federal and state appellate court to consider their constitutionality, including the United States Supreme Court in Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 184 (2007), and Lincoln Fed. Labor Union v. Nw. Iron & Metal Co., 335 U.S. 525 (1949). Brief summaries of all of the recent cases unsuccessfully attacking the constitutionality of state Right to Work laws are available from the National Right to Work Legal Defense Foundation here.