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By Brenna Goth
New Mexico right-to-work activists watched state lawmakers repeatedly reject a ban on mandatory union membership, so they raised the fight locally.
The debate took months, but in January Sandoval County became the first in New Mexico to pass a right-to-work ordinance. Seven others have since followed—nearly a quarter of the state’s counties.
New Mexico is the next testing ground for local right-to-work rules that affect private employers in places without statewide laws. Similar efforts in Kentucky and Illinois raised legal questions with national implications about the power cities and counties have under federal labor law.
Some right-to-work activists say local ordinances can boost business appeal and give workers more freedom, while opponents argue they weaken the benefits of unions. Sandoval County is facing a lawsuit alleging the county commission exceeded its authority in approving the rules sponsored by Republican Commissioner Jay Block.
A handful of groups behind right-to-work efforts in New Mexico, including the Koch brothers’ Americans for Prosperity, say additional counties could pass ordinances before the end of the year.
The Democrat-led state Legislature may try to stop others from moving forward when it meets again in January, but the support sends a message to lawmakers, said Burly Cain, Americans for Prosperity New Mexico state director.
“They should consider that carefully and they should respect that,” Cain told Bloomberg Law.
Right-to-work activists in New Mexico are pushing the local rules in more than a dozen other counties, Cain said. Their efforts include a radio, mailer, and door-knocking campaign as well as offering pro bono defense against potential lawsuits.
The ordinances say employees covered by the National Labor Relations Act can’t be forced to join a union or pay dues within unincorporated areas of the counties. They don’t affect current contracts but apply to renegotiations and extensions.
New Mexico is following a model Americans for Prosperity supported in Kentucky. Counties there passed local right-to-work ordinances before Gov. Matt Bevin (R) signed a law that made Kentucky the 28th right-to-work state.
Right-to-work activists are bolstered by a 2016 federal appeals court ruling on Kentucky’s local ordinances that was “kind of a stunner,” said Martin Malin, law professor and co-director of the Institute for Law and the Workplace at Chicago-Kent College of Law. The NLRA clearly allows states and territories to pass the laws, but the decision extended that authority to include cities and counties, Malin told Bloomberg Law.
A pending decision in the U.S. Court of Appeals for the Seventh Circuit will give states the next guidance on the issue. The court will look at whether the village of Lincolnshire, Ill., had the power to pass right-to-work rules.
Upholding the ordinance could give subdivisions in other states more confidence in passing their own rules, said Jeffrey Schwab, senior attorney at the Liberty Justice Center that’s representing Lincolnshire in the lawsuit brought by unions. If the court strikes it down, the U.S. Supreme Court may want to weigh in on local right-to-work ordinances, he told Bloomberg Law.
In New Mexico, the lawsuit against Sandoval County alleges violations of state law, said Shane Youtz, an attorney representing the unions that brought the case. Unions are also working to keep the ordinances from passing in other places.
The lawsuit argues that the New Mexico Legislature hasn’t expressly given the county permission to approve such ordinances. The office of Attorney General Hector Balderas, a Democrat up for re-election in November, also raised legal concerns about the ordinance in a January letter to a state legislator.
The letter said the rules exceed the county’s authority and create concerns about uniformity in the law. The ordinance could be confusing and inefficient for businesses to follow, it said.
The New Mexico right-to-work ordinances are “largely ceremonial” so far, Youtz said. They affect few bargaining units, though they will apply to future contracts for coal mine workers in the northwest part of the state, he said.
“We’re talking about primarily rural counties,” Youtz said.
Whether the state takes aim at local ordinances next year could depend on who becomes governor in the race between U.S. Reps. Steve Pearce (R) and Michelle Lujan Grisham (D). Neither candidate answered questions from Bloomberg Law but indicated opposing views on right-to-work laws at a recent debate.
Sandoval County is already seeing more interest from business site selectors since passing its ordinance, Block said. The change is part of an economic development strategy that includes adding infrastructure and urging cities in the area to pass their own right-to-work rules, he said.
“We’re on the map now,” he said.
Youtz said a tiny percentage of New Mexico’s population is affected so far. Claims of right-to-work’s role in growth have to be weighed against a depression in wages and benefits, he said.
“It strikes me as counterproductive,” Youtz said.
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