Labor leaders fighting laws to let workers skip paying union fees took their argument to the Kentucky Supreme Court on Friday, days after voters rejected a similar law in Missouri.
Federal law requires most labor unions to represent all workers in a bargaining unit, even those workers who don't join the union. Most union contracts require all workers to pay a fee to the union to help cover its costs in enforcing the contract. But at least 28 states have passed laws exempting workers from these fees.
Kentucky's Republican-controlled legislature passed its law, known as right-to-work, in January 2017, saying it was necessary to attract new businesses to the state. But union leaders said it would weaken them by choking a significant source of their revenue, money they need to enforce labor contracts with big businesses.
Friday, the seven elected justices of the state Supreme Court heard arguments about whether Kentucky's law violates the state's Constitution. Of the 27 other states that have right-to-work laws, appellate courts have struck done none of them. But Irwin Cutler, an attorney representing labor unions, says Kentucky's Constitution is different from all other states in the way it bans lawmakers from passing "special legislation," or laws that unfairly target a specific group or class.
"What we see is an attempt to destroy unions," Cutler said.
Chad Meredith, an attorney for Republican Gov. Matt Bevin, says the ban on special legislation dates to the 19th century when the state legislature was known to pass laws granting divorces to specific couples. The right-to-work is different, he said, because it covers all workers and all labor unions. It does not single out a specific union.
"If this right-to-work statute is unconstitutional, then frankly we might as well not even have a General Assembly," Meredith said.
The justices seemed to wrestle with the question. As Cutler was giving an overview of the history of labor unions, saying they provided a "pathway to the middle class," Justice Laurance VanMeter interrupted him.
"We appreciate the weekends. We really do. But isn't this a legislative issue," he asked.
Other justices had trouble finding a connection between the law and the legislature's stated reasons for passing it. Meredith said lawmakers passed the law to bring new businesses to the state. He cited Braidy Industries, an announced aluminum plant in eastern Kentucky that has promised to hire 600 people. CEO Craig Bouchard has said the company would not be in Kentucky if the legislature had not passed a right-to-work law.
"Businesses want to come to a state where they pay workers less," Kentucky Supreme Court Justice Bill Cunningham said.
Meredith disagreed, saying the law would increase wages by attracting more businesses to the state, thus increasing the competition for workers. Cutler disputed that, saying "reliable studies" have shown states with right-to-work laws have lower wages than states that don't.
The argument in Kentucky's Supreme Court comes a few months after the U.S. Supreme Court ruled workers in the public sector can't be forced to pay union dues or fees. Meredith said that decision supported the state's case. But Cutler said the decision wasn't relevant because it only applied to public sector unions. Kentucky's right-to-work law mostly deals with the private sector, of which about 9 percent is unionized.