Right-to-Work proponents were dealt a setback when the U.S. Supreme Court virtually punted in its 4-4 order in Friedrichs v. California Teachers Association that concerned the issue of whether public employees who do not join a union can be required to pay an “agency” or “fair share” fee to cover costs that the union incurs, for example, for collective bargaining. But efforts to pass Right-to-Work legislation are far from dead. And as we previously discussed, the U.S. Sixth Circuit Court of Appeals unanimously ruled last month in United Auto Workers v. Hardin County that Kentucky’s home rule local governments constitute a political subdivision of their state and, therefore, may implement right-to-work laws, which prohibit employers from requiring union membership or the payment of monies as a condition of employment, and are not preempted from doing so by the National Labor Relations Act. The import of Hardin is that even if the state legislature chooses not to enact right-to-work legislation, the Sixth Circuit Court of Appeals’ decision now makes clear that the National Labor Relations Act allows political subdivisions of the state, including counties and cities, to enact right-to-work ordinances.
However, on January 7, 2016, right-to-work proponents suffered another setback when a federal judge in Illinois found that a local right-to-work ordinance is preempted by the National Labor Relations Act, and that only states and territories have the authority to enact such laws. The dispute arose in late 2015 when an Illinois home rule municipality passed a “right-to-work” ordinance establishing worker freedom. Under the “right-to-work” ordinance, individuals can work for a private company in union-protected positions without having to join the union or pay the full share of union dues. In a zone designated right-to-work, non-union employees also get benefits negotiated by a labor union with company management. The ordinance approved late last year only applied to private companies within the village and not to public-sector employees, such as police officers.
The plaintiffs challenging the ordinance alleged that it is invalid under the Supremacy Clause and preempted by the National Labor Relations Act. In finding for the plaintiffs, the court held that local governments are preempted from passing right-to-work legislation because they do not qualify as a “State” under the National Labor Relations Act. The court also found that because the ordinance “imposes more stringent requirements than federal law” it further conflicts with the National Labor Relations Act.
The case will certainly be appealed to the U.S. Court of Appeals for the Seventh Circuit, which previously upheld the legality of Indiana’s right-to-work but on different grounds and did not address the issue of whether local governments constitute a political subdivision of their state that have authority enact right-to-work laws. Notwithstanding, the issue here is similar to the Sixth Circuit’s decision in Hardin that found counties and cities are political subdivisions of the state that can enact right-to-work ordinances. If the Seventh Circuit reaches the same conclusion the Sixth Circuit did, then Illinois cities will be able to pass right-to-work laws themselves. But, if the Seventh Circuit disagrees, this dispute is likely headed to the U.S. Supreme Court so that the circuit split concerning whether local governments have authority to enact right-to-work legislation can be fully resolved.
We will keep you apprised of any developments in this matter. Please contact us with any questions that you may have regarding this case.
