GEORGETOWN, Delaware—Local residents who have a personal stake in the economic future of Sussex County “shall not be silenced” and ought to “have their voices heard” on the merits of a proposed right-to-work ordinance, the sponsor of the measure told The Daily Signal.

Open debate of the right-to-work proposal was expected to move a step closer to reality Tuesday during a Sussex County Council meeting. Council member Rob Arlett planned to reintroduce the ordinance with modified language inserted to satisfy legal concerns.

“All along, my desire has been to have a public hearing, with a public discussion, so we can hear from our constituents and from the general public,” Arlett said in an interview with The Daily Signal.

“As elected council members, we serve the members of the public and they have every right to chime in and to have their voices heard and to be educated on this matter. Not everyone is familiar with right to work and what it means, and so this is an opportunity for everyone to learn more.”

Right-to-work laws prohibit private sector employers from entering into agreements that make union membership and payment of union dues a condition of employment.

A total of 28 states are right-to-work states, with Kentucky, Indiana, Michigan, Wisconsin, and West Virginia making the move since 2012. The U.S. territory of Guam also is a right-to-work jurisdiction.

Sussex County residents are permitted to offer comments on the proposal, as during an Oct. 24 council meeting, but will be limited to three minutes and may not engage council members in a discussion. Residents will be permitted to ask questions during a forum that will be scheduled in November.

Arlett said he anticipates that a vote on the proposal could take place before the end of the year. That vote cannot be scheduled until after a public discussion.

For the measure to pass, three out of the five members of the all-Republican council would need to vote yes.

After objecting to parts of the legislative language and expressing skepticism about its prospects against inevitable litigation Oct. 24, J. Everett Moore, the council’s attorney, came under criticism from inside and outside Delaware.

As the Sussex County attorney, Moore, active in Republican political circles, is a contract employee who advises the council.

Arlett told The Daily Signal that “all necessary edits have been done” to satisfy Moore’s concerns, and said “there is nothing preventing” reintroduction of the ordinance Tuesday.

“Unless there is some kind of October surprise, I expect the legal process to go forward that will allow for public discussion at a date in the near future,” Arlett said.

“The meeting is taking place on Halloween, so there could be some kind of trick or treat,” he quipped. “But I have been told by the county attorney that there is nothing preventing the reintroduction of the ordinance. Why the delays, why the stonewalling? Those are good questions.”

On his infrequently used Twitter account, Arlett identifies himself with these words: “Delaware State Chairman for Trump Campaign, Business owner, & Sussex County Councilman is what I do. Faith, Family, & Freedom is who I am.”

Moore and Todd Lawson, the county administrator, had copies of the proposed language for at least two weeks and didn’t raise objections, Arlett said. He initially circulated a copy of the proposal during an Oct. 10 meeting.

“The county attorney and the county administrator work at the will of the council and as elected council members we report to the people,” Arlett said. “That’s where my focus is, on the people who elected us, and I repeat, the public shall not be silenced.”

Moore told council members Oct. 24 that they don’t have the authority under Delaware’s home rule statute to enact a right-to-work law. He warned that labor unions that are opposed to the proposal would file litigation that could be costly.

>>> Amid Union Opposition, Right to Work Advances in Delaware County

Other Delaware-based attorneys, however, said during the meeting that Moore is off the mark.

Theodore A. Kittila, who represents the Caesar Rodney Institute, a Wilmington-based free market think tank that is part of the State Policy Network, said the home rule statute may be “liberally construed”—meaning the council has “the strength to say yes” to the right-to-work ordinance.

“The right-to-work statute fits within the general welfare promotion that the county is attempting to do here,” Kittila said. “You have the ability to do this, you have the right to do this.”

Game-Changer?

Even so, Moore warned, legal challenges at the state and federal levels could doom the ordinance.

Kevin Fasic, a Wilmington-based lawyer specializing in construction law, disagreed.

“The conventional wisdom on the ability of a political subdivision of a state was changed by a decision out of the 6th Circuit Court of Appeals,” Fasic told council members.

In November, the 6th Circuit, a federal appeals court that covers Kentucky, Michigan, Tennessee, and Ohio, upheld the right of counties to pass their own right-to-work laws under the National Labor Relations Act, the federal law covering employers, employees, and labor unions.

That ruling was unanimous, but since Delaware falls under the 3rd Circuit Court of Appeals, Moore expressed reservations, which Fasic addressed.

If a conflict were to emerge between the two federal appeals courts, Fasic said, the U.S. Supreme Court would “undoubtedly” take up the case. And since the highest court in the land already has rejected a union challenge against the federal court ruling upholding right to work, Fasic said, he  suspects it ultimately would uphold a right-to-work ordinance out of Sussex County.

Brent Yessin, a labor attorney who assisted Kentucky counties in their right-to-work fights, told The Daily Signal in an email that Moore, the Sussex County attorney, is on the wrong side of the legal argument:

Barack Obama and Everett Moore agree that counties lack the power to pass right to work, but the U.S. Supreme Court disagrees, since they just rejected the union’s appeal of a Kentucky’s county’s nearly identical ordinance.

The Daily Signal sought comment from Moore and Lawson, the county administrator, but did not receive a response before publication deadline.

Divergent Statistics  

Arlett published an opinion piece at DelawareOnline.com that highlights the influx of jobs and capital investment that took place in Kentucky after right-to-work laws went into effect.

But union members who turned out in force during the Oct. 24 meeting in Sussex County offered up statistics to bolster their case against Arlett’s proposal.

Unemployment typically is worse in right-to-work states, argued William Glass, state legislative director for the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters.

Seven out of the “top 10 unemployment states” are right to work, Glass said.

Steven Bea, legislative director for the same union in Maryland, told the council that average pay for workers is $5,000 less in right-to-work states than in other states. Bea said uninsurance rates and poverty rates also are higher in right-to-work states, and employer-sponsored retirement plans are less available.

Bea said “the rate of workplace deaths is 52 percent higher in states that have right-to-work laws,” and these same states spend less on elementary and secondary education.

However, several right-to-work proponents took to the microphones and presented an alternative set of figures.

Charles Timmons, a membership director with the Delaware chapter of Associated Builders and Contractors, said his organization’s support for the ordinance “originates from a belief that all individuals have the right to work without the requirement to join a union or pay union dues or fees as a condition of employment.”

Timmons said economic growth in right-to-work states “often outpaces growth” in other states. He cited figures from the U.S. Bureau of Labor Statistics showing private sector employment grew 5.2 percent faster in right-to-work states than in those with union mandates.

“While some suggest that these economic gains come at the expense of worker wages,” he said, “Department of Commerce data shows per capita disposable income was higher in right-to-work states than the national average as well as non-right-to-work states.”

The Delaware chapter of Associated Builders and Contractors, which represents 450 commercial industrial contractors, is part of a national organization with 70 chapters and more than 22,000 member companies.

‘Right to Work for Less’

David T. Stevenson, an economist with the Caesar Rodney Institute, cited a report from The Heritage Foundation that shows incomes rise just as fast in right-to-work states as in other states when the cost of living is considered.

“You can’t compare wages in right-to-work states like Alabama or Georgia, where houses sell for a quarter of the price of California, without adjusting for cost of living,” Stevenson told council members.

But union members who spoke last week insisted that a right-to-work ordinance in Sussex County would harm average workers.

It’s “right to work for less,” argued Jermaine Johnson, who belongs to the United Brotherhood of Carpenters Local 173 and  is also a pastor with Prophetic Kingdom Ministries.

“This law isn’t about creating better jobs,” Johnson said, adding:

It’s about cutting wages and benefits so that everyone must work more for less money, as well as silencing our voices in the workplace. Too many people in our community are already feeling financially squeezed and struggling to save anything and provide for their families. It will also weaken the ability of my co-workers and I, who have chosen to join the UFCW union to improve our work conditions and negotiate with our employer for better wages, better benefits, equal pay … and protection from exploitation or harassment. The people who are pushing this law are doing so for a simple reason, to destroy unions.

The earliest the Sussex council could vote on the right-to-work measure is late November.

Ken McIntyre contributed to this report.

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