November 3, 2017

Lawsuit promised as Sandoval County right-to-work effort moves forward

Matthew Reichbach

Sandoval County Commissioners at a meeting on Oct. 5, 2017

The Sandoval County Commission’s effort to impose a right-to-work ordinance at the county level may have run into a roadblock: the pile of cash it would cost the county to defend itself against promised lawsuits..

But in a late-night vote,  the commission voted 4-1 to publish the proposed ordinance’s legislation, putting in motion the process for passage of the ordinance.

When enacted, right-to-work laws stop employers from entering into agreements with workers that require they be a member of a labor union or that non-union members pay union dues, known as “fair share” as a condition of employment.

County Commission Chairman Don Chapman said he supported right-to-work, but was concerned about the cost of litigation.

During the meeting he read aloud  an email from the county attorney explaining that the county would be sued—and that it is “very likely we will lose the lawsuit” at both the federal district court and circuit court of appeals level.

A big reason is that Sandoval County is not a “home rule” county. Counties with home rule designations, like Bernalillo County, have more power over the ordinances they are able to pass, as long as they stay within the scope of state and federal law.

The county that prevailed at the district court and circuit court of appeals level in Kentucky was a home-rule county, according to the attorney. Kentucky later passed a statewide right-to-work law.

Only one commissioner opposed the proposal, F. Kenneth Eichwald. He said the county was not the correct venue for such a change.

“This shouldn’t be a county issue,” the lone Democrat on the commission said. “The state should make this decision, not the county.”

The New Mexico State Legislature has been unable to send any right-to-work legislation to the governor’s office in decades. A Republican-controlled House in 2015 and 2016 successfully passed the law, but it stalled in the Democratic-controlled Senate.

Eichwald also balked at the cost of potential litigation.

“This is not going to be a $5 case,” Eichwald said. “We’re looking at probably $200,000 to $300,000 litigation on both sides.”

Burly Cain, the state director of the conservative group Americans for Prosperity, vowed to support the effort and said there are attorneys ready to defend the county pro bono. The organization, based out of Virginia, was founded by David and Charles Koch.

“I have money set aside and dedicated to this, just like when we were in Kentucky and other states across the country as we’ve helped to make sure it’s successful,” Cain told NM Political Report before the meeting.

During public comment, Cain said that the county would win any litigation, citing Kentucky’s success.

Jon Hendry, the president of the New Mexico Federation of Labor, AFL-CIO, said the national AFL-CIO promised to foot the bill for any legal challenge if Americans for Prosperity paid for the county’s legal fees.

He has cited the New Mexico Federation of Labor v. City of Clovis decision from 1989 as evidence why the unions would win. In that case, federal courts said the City of Clovis could not impose a right-to-work ordinance on its own.

New training, new costs?

Another possible roadblock came later in the meeting.

A captain in the Sandoval County Sheriff’s Department and an assistant district attorney said the language of the proposal would require more training for enforcement.

This prompted a lengthy and testy back-and-forth between Commissioner Jay Block, a sponsor of the proposal, and Assistant District Attorney Barbara Romo.
She said it would require new training for county attorneys to be able to prosecute.

Block said that the first right-to-work laws we enacted 70 years ago and that this should have been figured out already.

“To bring this up and say we’re not trained, there is plenty of opportunity over 70 years to get training,” he said. He also suggested calling attorneys in other states who have dealt with these types of cases.

Romo explained to Block that civil and criminal law are very different.

“There’s civil law, there’s criminal law,” Romo said. “They’re completely different. If you would ask a career civil attorney to prosecute a case, they would not be able to do so.”

After cutting off the exchange, Chapman said the disagreements showed the proposal may need changes.

“I still think it’s pretty clear if we’re going to have the provision in the ordinance to enforce the ordinance, we have to figure out how to get it done,” he said.

Captain Mike Traxler with the Bernalillo County Sheriff’s Office said it would require new training for officers to investigate as well.

“This training has a monetary cost attached and is currently not budgeted for,” he said.

Public comment

Union members said the ordinance would decimate union membership in the county and result in lower wages for workers. Supporters say they have the money for any legal challenge and say the proposal will result in additional jobs and even aid unions.

Unlike at a previous meeting, Chapman allowed for each speaker to use up to three minutes of public comment.

And dozens used the opportunity to do so.

Stephanie Ly, president of the the american Federation of Teachers-New MExico, told commissioners that if the county allowed AFP to pay for the lawsuit it would be “pay to play.”

“Don’t fall into the trap,” she said. “Think about New Mexicans, the workers who have signed onto a collective bargaining agreement, who have said they want a voice.”

Right-to-work supporter Stephen Despin said unions oppose right-to-work because they don’t want to lose control.

“They don’t want to release their death grip on employees across the state,” he said.

Another supporter, New Mexico Business Council President Carla Sonntag, said unions would not be able to sue.

She said the bill exempts unions with current collective bargaining agreements, so it “leaves unions with no damages”—which would mean they would not have standing for a lawsuit.

Only those who can prove they would be harmed can file a suit.

Marg Elliston of Corrales said if the county really wanted to discuss something to help the economy, they should consider something else.

“If we really wanted to talk about economic development why don’t we talk about increasing the minimum wage in Sandoval County?” she asked.

Correction: This story originally said Burly Cain vowed to fund any legal challenge to the ordinance. He said he vows to support the effort and that there are attorneys who have offered to defend the county pro bono.