Rand Paul’s Favorite Union-Buster
Last year, the Democrats who control the Kentucky House of Representatives killed a Republican proposal that would have made it illegal for unions to charge workers at private companies mandatory fees—in other words, to run union shops. One of the bill’s sponsors, Representative Jim DeCesare, assumed his option was to try again in the next General Assembly session. Then, at an October fundraiser for Senator Rand Paul in Bowling Green, DeCesare heard about a Tampa lawyer named Brent Yessin. He argues that counties and cities have the right to make labor policy, too. “Obviously,” DeCesare says, “we were extremely interested.”
In 1965, Kentucky’s highest court ruled that the town of Shelbyville couldn’t outlaw union shop contracts because the 1935 National Labor Relations Act preempts local labor laws. In 1990 a similar law passed by a New Mexico city was overturned by a federal district court for much the same reason. Letting local governments diverge on labor policy, says University of Toledo law professor Joseph Slater, “would certainly be a change in the way the law has always been interpreted.”
Yessin, who’s represented companies in more than 200 conflicts with unions, says those interpretations have been wrong all along. In his view, the NLRA—which was intended to standardize labor laws across the country—doesn’t block states from letting local officials regulate some union activities. Even if it did, he argues, Congress doesn’t have the power to take that authority away from cities and counties. “States never lost the ability to pass their own regulatory schemes regarding forced union dues,” he says. “It’s not up to Congress to tell them how to utilize it.”
Yessin’s ideas offer conservatives a path forward on anti-union legislation known as “right-to-work” laws. In March, Wisconsin became the 25th state to outlaw compulsory union fees. Ohio, where voters defeated curbs on public-sector unions in a 2011 referendum, is the only Republican-controlled state that hasn’t banned union shops. In the other 24 states, including Kentucky, Democrats have stalled the spread of right-to-work legislation. “Local jurisdictions throughout the commonwealth are fed up with waiting for a state or federal law that will provide them with the safety net from big labor they need,” Paul and his fellow Kentucky senator, Majority Leader Mitch McConnell, wrote in a Feb. 8 op-ed for the Bowling Green Daily News.
In November, after Republicans failed to win a majority in the state house, DeCesare and Mike Buchanon, the elected administrator of Warren County, invited Yessin to Bowling Green. At a meeting at Buchanon’s office, Yessin offered to represent the county for free. (He’s established a nonprofit, Protect My Check, to solicit donations to cover his costs.) “He was experienced and knew what he was doing,” Buchanon says. “The fact that he offered to provide the legal assistance, totally limiting the risk for the county, made it a much easier decision.” Since December, Warren and 11 other Kentucky counties have passed right-to-work measures. In January, the United Auto Workers and other unions sued in a Louisville federal court. Yessin is “basically putting his nefarious talents to work that he’s employed in busting unions to promote this,” says Kentucky AFL-CIO President Bill Londrigan.
Yessin, 51, grew up in Kentucky. He says his father worked one summer at a mine before going to college and didn’t like having dues deducted from his pay to cover such expenses as sending flowers to workers’ funerals. His mother crossed picket lines during a teachers’ strike. “I always tell my clients, ‘Yeah, my mother was a scab,’ ” he says. As a teenager he worked in Washington for the Democratic Senatorial Campaign Committee, where a fellow staffer made fun of him for being too conservative. “So I went to work for Reagan,” he says, serving as a precinct captain in the 1980 election. In 1988, after graduating from Vanderbilt Law School, he joined a firm in Louisville. Two years later he took a leave to work on a congressional campaign for Al Brown, a Republican lawyer who specialized in battling unions. After Brown lost, he asked Yessin to join him. “He came by and asked, ‘How much do they pay you at this fancy law firm?’ ” Yessin says. “ ‘You can make that in three months with me.’ ”
Yessin, who moved to Florida in 1995, specializes in representing hospitals in labor disputes but has also represented trucking companies and kitty-litter manufacturers, he says. In 2007 nurses involved in a New Jersey union-organizing campaign testified that Yessin followed them through a hospital hallway asking questions. According to one, he said, “I think I will go on a hospital tour with you girls and see what you are doing tonight.” A National Labor Relations Board judge found the nurses’ testimony credible. Another NLRB judge sided with nurses who said Yessin was “following, monitoring, escorting, berating, yelling at, and questioning” them during a 2006 California labor dispute. Yessin denies wrongdoing. “The general rule at the NLRB is that the union witnesses are credible,” he says. Jane McAlevey, a former executive director of Nevada’s Service Employees International Union chapter, dealt with Yessin during a 2006 campaign against her union at a Las Vegas hospital. “I’ve never had an experience like Brent Yessin in my life,” she says. “It was relentless, it was daily, it was full-time, and it was profoundly intimidating.” Yessin responds, “I don’t mind running the tough press.”
Yessin says he came up with the idea of pushing counties to pass anti-union legislation in 2013. He circulated it among fellow attorneys before approaching James Sherk, a research fellow at the Heritage Foundation, the conservative think tank, last year. “At first, I was like, ‘Well, come on, if this was doable, surely other people would have done it by now,’ ” Sherk says. “But he piqued my interest.” In August, Heritage released a paper, co-authored by Sherk, arguing that local governments could and should pass laws limiting union power. “Brent really is an innovator in this realm,” says Jon Russell, who directs the American City County Exchange, an arm of the American Legislative Exchange Council that focuses on local policy. According to Yessin, officials in Illinois, Missouri, Montana, Ohio, Pennsylvania, Washington, and West Virginia are considering measures limiting unions.
Union leaders say they’re not concerned. “Anyone who makes a fair and objective evaluation of the state of the law and what the statute actually says is going to conclude that these ordinances are ultimately going to be preempted,” says Craig Becker, a former member of the NLRB who is now general counsel for the AFL-CIO.
Some anti-union activists have come out in opposition to Yessin’s strategy, too. In February, Mark Mix, president of the National Right to Work Committee, said in a speech at the Leadership Institute, which trains conservative activists, that focusing on local government would take the heat off state legislators. “In Kentucky, it is now being used as a reason not to vote on a state right-to-work law,” Mix said. Yessin says he’s “mystified” by that criticism. “The Right to Work Committee has one play, and they run that play all the time,” Yessin says. “We believe there are a lot of paths to the goal line, and it doesn’t have to all be one play.”