State quashes right-to-work law in Sussex

GEORGETOWN — Sussex County Council cannot enact a right-to-work ordinance proposed last month because it does not have the legal authority to do so, according to the Delaware Department of Justice.

Right-to-work laws prohibit employees from being forced to join unions. They exist in 28 states, but attempts to bring them to Delaware have been soundly rejected by the Democratic-controlled General Assembly.

The Sussex measure was introduced on Oct. 31 after a revision by the county attorney, who had raised concerns over its constitutionality. Until a 2016 ruling by a federal court, it was generally thought local governments were prohibited from enacting right-to-work laws, Sussex County’s attorney Everett Moore told council members at the October meeting.

The state justice department echoed that thought in a letter dated Nov. 15. The department weighed in at the request of Secretary of Labor Patrice Gilliam-Johnson.

“We write to express our respectful view that Sussex County Council is without legal authority to enact the Ordinance. Title 9 of the Delaware Code is devoid of any express or implied grant of authority to Sussex County to regulate labor organizations or otherwise affect the employee/employer relationship with respect to collective bargaining,” wrote state solicitor Aaron R. Goldstein.

The letter cites several legal rulings used in its analysis.

“For more than 50 years, union security agreements requiring compulsory payment of union dues have been legal under federal and state law. Union security agreements exist to ensure that workers who opt not to join a union (yet still reap the benefits of collective bargaining) pay their so-called “fair share.” “Fair share” is a routine feature of collective bargaining across the United States and in the State of Delaware,” Mr. Goldstein wrote. “The Ordinance seeks to legally prohibit these kinds of agreements and create individual legal causes of action designed to set aside these bedrock principles of American collective bargaining.”

“We appreciate that our form of government permits, at every level, the opportunity to test new ideas in the crucibles of the legislative and judicial branches. The Department of Labor did not request, and we have not offered, an opinion about the underlying merits of the proposed ordinance. This letter is for the purpose of indicating our legal opinion that Sussex County Council is without legal authority to enact the Ordinance. Under current state law, we believe that only the Delaware General Assembly has the authority to power to enact private or civil law concerning civil relationships in this context.”

Supporters in Sussex have said right-to-work gives employees “the right to choose” and will draw businesses to Sussex. Others protested it will lead to lower wages and fewer rights for workers.

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