The term “right to work state” is fairly well known. After all, 25 of the United States are “right to work states,” states which have enacted laws prohibiting compulsory unionism as part of a collective bargaining agreement. In a right to work state, the law prohibits the parties to a collective bargaining agreement from including a “union security clause,” which is a provision requiring bargaining unit employees to become and remain members of the union (and pay dues) as a condition of continued employment. To the extent such provisions exist in right to work states, they are rendered null and void by state law. Although employees working in right to work states are not required to join the union many voluntarily decide to do so (consider this: Nevada is a right to work state and virtually every employee working on the casino strip is a union member).

But, what if the state decides not to enact right to work legislation but one of its counties does? Is a county ordinance that effectively makes it a “right to work county” entitled to the same deference as a state law?

According to one court of appeals, the answer to this question is yes. In a recent decision UAW v. Hardin County, Kentucky et al., No. 16-5246 (6th Cir. November 18, 2016), the Sixth Circuit Court of Appeals ruled that county right to work laws do not conflict with federal labor law and may be enforced.

Kentucky is a non-right to work state. There have been several efforts over the years by the state legislature to enact a right to work law, but those efforts failed. In 2015, Hardin County, Kentucky enacted a right to work ordinance. Shortly thereafter, eleven other Kentucky counties adopted ordinances banning compulsory unionism.

The ordinances, which apply to private sector employees, contain similar provisions:

no person covered by the National Labor Relations Act shall be required as a condition of employment or continuation of employment:

(B) to become or remain a member of a labor organization:
(C) to pay any dues, fees, assessments or other charges of any kind or amount to a labor organization; [or]
(D) to pay to any charity or other third party, in lieu of such payments, any amount equivalent to or a pro-rata portion of dues, fees, assessments, or other charges regularly required of members of a labor organization[.]

[the ordinance states such agreements to be] unlawful, null and void and of no legal effect.

Plaintiff, a coalition of labor organizations, filed suit in federal district court alleging that these ordinances were preempted by federal labor law and could not be enforced. Specifically, the plaintiff cited to Section 14(b) of the National Labor Relations Act [29 U.S.C. §164(b)] which it asserted did not grant authority to counties to enact right to work legislation but only to states. Section 14(b) provides:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition in any State or Territory in which execution or application is prohibited by State or Territorial law.

County Right To Work Ordinances Are Authorized By Section 14(b) And Are Not Preempted

The federal district court struck down Hardin County’s ordinance ruling that the plain language of Section 14(b) did not entitle it to exception because it was not a “State or Territorial law”:

[I]t makes little sense to read ‘State or Territorial law’ as encompassing local law in the light of the statute’s previous reference to ‘any State or Territory’–if ‘State or Territorial law’ includes the laws of political subdivisions then the statute must be read ‘in any State or Territory [or political subdivision thereof]’ to avoid assigning two different meanings to ‘State’ in the same sentence. This is not a logical reading.

On appeal, the Court of Appeals disagreed, holding that the court’s interpretation was too narrow a reading because counties are essentially creatures of each State. The Court held:

[I]f the first reference to ‘State’ in §14(b) (referring to a geographical jurisdiction) includes political subdivisions of the state (which it plainly must, as political subdivisions are components of the State within the State, that exercise governmental power of the State), then the second reference to State must also be read to include political subdivisions, thereby necessarily excepting the law of political subdivisions from preemption as well.

Having concluded that counties would fall within the Section 14(b) exception, the court then reviewed Supreme Court precedent and concluded that when a federal statute allows for “State” action it allows for action by political subdivisions such as counties. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 607-608 (1991) (“The principle is well settled that local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as maybe entrusted to them. . .in its absolute discretion”); City of Columbus v. Ours Garage and Wrecker Service, 536 U.S. 424, 429 (2002) (“Absent a clear statement to the contrary, Congress’ reference to the ‘regulatory authority of a State’ should be read to preserve, not preempt the traditional prerogative of the States to delegate their authority to their constituent parts”).

Finally, the court considered whether the ordinance was preempted by virtue of pervasive federal regulation as set forth in the Supreme Court’s decision in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). The court held that the question of whether the county’s right to work ordinance is preempted is dependent upon the answer to whether Section 14(b)’s “explicit exception of state law from preemption encompasses laws of the political subdivisions of the State.” Because the court concluded counties fell within Section 14(b)’s exception there could be no preemption.

County Ordinance’s Hiring Hall and Checkoff Provisions Preempted By Federal Law

Two other provisions of the county’s ordinance prohibited to other collective bargaining agreement provisions: checkoff clauses (where employers agree to deduct union dues from employee paychecks) and hiring hall provisions (which require employers to hire only from a union hiring hall). The court concluded both of these contractual provisions were heavily regulated by the NLRA and were not subject to an exception (as was the right to work provision). Therefore, the ordinance’s attempt to regulate these matters was preempted by federal law and essentially nullified.

Conclusion

In the last few years it has been quite common for cities and counties to diverge from state labor and employment laws and this is another manifestation of the phenomenon. The Sixth Circuit’s decision surely will not be the last word in this area, although it might encourage other counties (and perhaps some cities as well) to consider adopting right to work laws. This is an area of the law that will be worth watching as it evolves.