ALEC Forces the Question: Will Labor Really Go Local?

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Workplace struggles are getting difficult to predict. Conventional organizing isn’t working like it used to. Unions are suffering. One culprit is the success of “Right-to-Work” (RTW) laws, which allow workers at unionized workplaces to opt out of union membership and free ride, without paying union dues.

With twenty-four states now living under this law, which lets non-dues-paying “right to work” employees work through strikes and sabotage the solidarity needed to powerfully bargain, RTW is going local – fueling a fight over what role local governments will play in labor regulation in the 21^st century.

The “right to work” principle has been pervasive in the South for decades, and since December 2014, local RTW laws have been passed in five Kentucky counties. They are the only local governments in the country to pass RTW. Amy Milliken, attorney for the pioneering Warren County, tells Truthout that dozens more in Kentucky and elsewhere are expected to follow.

But the RTW movement is not alone in its use of local governments to make labor-related policy changes. Across the country, activists are wielding local governments to raise the minimum wage, win paid sick leave for workers and protect part time workers.

Though the two movements share an advocacy for local governments, they are – clearly – distinguishable by their conflicting visions of what it means for a local government to improve state and federal labor law. While one views the attraction of business and the cutting of “costs” as an improvement, the other uses workers’ protections as its litmus.

A fierce champion of RTW is the American Legislative Exchange Council (ALEC), a “model legislation”-drafting, neoliberal, corporate lobbying network. Contrary to its support of local RTW law-making, ALEC typically uses state legislatures to diminish the power of local governments; local minimum wage hikes, local GMO bans and local paid sick leave ordinances have all been quashed recently by ALEC-encouraged model state legislation. But, with the launch of ALEC’s locally focused American City County Exchange (ACCE), which has catalyzed the local RTW efforts in Kentucky, these corporate boys now find themselves defending local law-making.

The conflicting approaches to local governance of ACCE and ALEC are “completely hypocritical,” Brendan Fischer of PR Watch and ALEC Exposed told me. It’s “hypocrisy,” says Lynn Rhinehart, co-general council for AFL-CIO. Adds Fischer: they’re “extremely selective about what policies local governments should have power to enact.”

And the legality of the local RTW laws is uncertain, at best.

“The federal government preempts state and local labor relations,” Rhinehart tells me. As she points out, an Illinois law barring employers from hiring replacement workers during strikes was preempted in 2006. And California’s modest effort to stop its own money from directly funding anti-union campaigns was nixed by the Supreme Court in 2008. Rhinehart describes this form of federal preemption as “sweeping.”

But there are notable exceptions to the Feds’ preemption. States can pass RTW, thanks to a clause in the Labor Management Relations (Taft-Hartley) Act of 1947. And forty-nine states have passed “At-Will” legislation that – absent a labor contract that says otherwise – allows employers to lay off workers for no particular reason, to fire “at-will.”

If states can pass RTW, can counties?

For Rhinehart, local RTW is a “legal nonstarter.” Pointing to the Taft-Hartley Act’s exemption that allows states to pass RTW legislation, she says, “state means state.” Paul Sonn, general counsel for the National Employment Law Project adds: “Cities and counties do not have the power to enact ‘right-to-work.'”

But that doesn’t mean localities have no role in law-making – Sonn would be the first to defend local governments. Given federal and state gridlock, he says, “Cities have a bigger role to play in public policy than they ever have before.” However, this role is conditional, he says, and by no means includes efforts like Warren County’s. Sonn argues that, unlike what is happening today, local governments should be able to improve federal and state law, but they “can’t roll back baseline [state or federal] protections.”

What does it mean to “improve”?

It’s helpful to think of federal and state powers in terms of floors and ceilings. The federal minimum wage and other minimum standards like paid sick leave are floors states can raise. But the feds claim complete – ceiling-like – authority over other pro-worker regulations, like those proposed by Illinois and California.

However, when you move to the state level, the story gets more complex. In some states, minimum wages and minimum standards are floors local governments can raise, while in others they are ceilings cities and counties can’t touch. Seattle can raise the minimum wage, New York City cannot; Newark can pass a paid sick leave ordinance, Memphis cannot.

But labor regulations, like the Illinois and California laws, don’t fit as nicely into this metaphor. Rhinehart says: “What is a floor? What does a floor mean? It’s much clearer with minimum wage…but it’s not clear with labor relations.” Improving protections for striking workers is not as straightforward as improving a minimum wage. If local, and state, governments want to engage in improving labor regulations, they’ll need the political will to define what that means while fighting for the authority to do so. Meanwhile, those fighting to raise the minimum wage need only fight for the authority, as what it means to improve a minimum wage is more clear-cut.

Fighting to raise the floor.

However, the minimum wage is not that simple. In states that don’t allow cities to raise the minimum, or don’t say one way or another, efforts to raise it locally confront similar questions faced by local RTW advocates. They bothask: If the state can “improve” a federal law, shouldn’t localities be able to as well?

Chicago and Louisville’s recent wage increases fall in this category, as both were passed amid ambiguity over the cities’ authority to do so – similar to the ambiguity surrounding local RTW laws. Neither Illinois nor Kentucky define their minimum wages as a floor or a ceiling – they’re silent on the subject. Should Chicago or Louisville’s laws be challenged, as looks likely, these cities will be fighting for the authority to weigh in on something the Feds have given states agency over.

But such pro-local advocacy takes on a different flavor when pushing RTW. In a letter to a Warren County judge defending Warren’s RTW law, a local law firm points out Kentucky counties’ “Home Rule,” state-sanctioned, powers to promote “economic development.” As the ordinance “would promote economic development within Warren County,” it argues, RTW falls within the county’s Home Rule powers. Milliken adds, in her own letter, that “because the Ordinance is being enacted to attract business to Warren County, it falls squarely” within the county’s authority. This argument is backed by a detailed Heritage Foundation report and a national non-profit offering pro bono legal counsel to any US locality that passes RTW.

Is attracting business the purpose of regulating employer-employee relations? Is that the role of local governments? Sonn doesn’t think so. He says, that among the pro-labor lawyers keeping track of events, “The expectation is that [local RTW ordinances] will be quickly litigated and blocked by federal courts.” Others, however, think the issue could make it to the Supreme Court.

Regardless, with the tactic, ALEC/ACCE and company find themselves on the opposite side of a familiar argument.

Confronting state power.

ALEC/ACCE and the Heritage Foundation support and actively promote the local RTW tactic, and yet hedge this local support. They admit that local RTW can be preempted if a state so chooses, just as they believe states can preempt localities on minimum wage and paid sick leave. They’d never question this authority.

A hesitancy to challenge these forms of preemption also pervades swaths of the labor movement. But in states where local pro-worker laws have been preempted, the issue of preemption is not as easily avoided. In these instances, or when labor wants to pass novel protections, workers necessarily push the very boundaries of local governance.

For cities to be the influential policymakers that Sonn envisions, they’ll need the power to improve federal and state protections. This historical moment is well explained in a 2005 paper by Darin Dalmat titled “Bringing Economic Justice Closer to Home: The Legal Viability of Local Minimum Wage Laws Under Home Rule” from the Columbia Journal of Law and Social Problems:

“The history of minimum wage regulation has come full circle. States led the charge early in the twentieth century. The federal government protected workers across the country during the middle of the century, but abandoned this role as the century reached its closing decades. Today, at the beginning of the twenty-first century, progressive economic reform must come from states and local governments…[But] local governments often face the additional burden of demonstrating that they enjoy sufficient authority.” [My emphasis]

In a way, the powers of local governments have not yet caught up with their importance.

The community organization Envision Spokane recognizes this. Based in Spokane, Washington and with the support of multiple union locals and the Community Environmental Legal Defense Fund, the group has taken to the initiative process to push a “Community Bill of Rights” to establish constitutional rights for workers in the workplace. (As the US Constitution only protects citizens from government intrusion – not other private actors, like an employer – employees in the United States surrender the Constitution when they go to work.) After losing at the ballot by some 1,000 votes in 2011, Envision Spokane’s third attempt to pass the initiative was removed from the ballot in 2013 after local realty corporations filed a pre-election challenge. The group is now taking steps to introduce a “Worker Bill of Rights” that would nullify “At-Will,” establish rights to a “Family Wage” and “Equal Pay for Equal Work,” and protect workers’ constitutional rights.

Similarly, Cliff Willmeng of the Colorado Community Right Network (CCRN) and Community Environmental Legal Defense Fund says, “In Colorado, local communities are preempted from enacting local living wages in the same way that municipalities are prevented from banning harmful industrial projects like fracking. The result is that billion-dollar businesses are sheltered by the state, and working people are made to do more with less. With nearly one in five Colorado children living under the poverty level, creation of a living wage is paramount to our fundamental rights and well-being.”

The CCRN is now looking to pass a Worker Bills of Rights to challenge the State’s wage preemption and establish constitutional rights in the workplace.

As the federal and state governments stagnate, the structure of law that stops local governments from protecting workers – as Dalmat’s paper alludes – has to be questioned.

With this in mind, the Bills of Rights in Spokane and Colorado include clauses that elevate a “right to local self-government” above state preemption that blocks localities from improving state and federal worker protections, as well as corporate “rights” that pose a direct challenge to workers’ rights.

By fighting for the power to pass pro-worker legislation, such localities not only demand state and federal laws be defined as floors, they also weigh in on what that floor is and what it means to raise it. This is the conversation raised by the local RTW tactic.

But ALEC and ACCE’s commitment to this end of the debate might be brief. They’ve only gone local in Kentucky because they can’t get RTW at the state level. They’re hoping the county-level efforts scale up – and indications suggest that might be happening soon. They have not abandoned their preemptive ways.

Though pro-worker organizers, too, want their local laws to scale up (who wouldn’t), if Dalmat and Sonn are right about the importance of local governments for the 21^st century, workers should be coupling their efforts to a long-term debate over how to ethically and consciously devolve some power to localities. And at a time when workers increasingly turn to local law-making to make gains and the Supreme Court makes moves to nationalize RTW, this doesn’t seem so far-fetched.

On the plus side, maybe innovative ideas like establishing union organizing as a civil right will start locally. Maybe they’ll have to.