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NLRA Doesn't Preempt Local 'Right to Work' Laws, 6th Says

By Casey C. Sullivan, Esq. on November 25, 2016 | Last updated on March 21, 2019

The National Labor Relations Act, in order to create a nationally uniform corpus of labor law, generally preempts labor regulation on the state and local level. There are exceptions, however, including the ability for states to adopt "right to work" laws. But does that state exemption extend down to the local government as well?

Yes, according to the Sixth Circuit, which last week upheld local "right to work" ordinances, finding that they were not preempted by the NLRA.

NLRA and Right to Work Laws

The NLRA allows businesses and labor to enter into so-called "union security agreements," whereby employees must either be members of the union or pay union dues, so as not to reap the benefits of organized labor without paying their fair share. But the NLRA also allows states to create exceptions to these rules, right to work laws that allow anyone to work regardless of union membership or dues paying.

Where states have not passed such right to work laws, some local governments have sought to step into their shoes. Here, Hardin County, Kentucky, adopted a right to work law that declared union security agreements "unlawful, null and void."

Labor organizations sued, arguing that the County's law was preempted by the NLRA and the Supremacy Clause. Section 14(b) of the NLRA declares that states and territories are not preempted from passing right to work laws, but it grants no such right to states' political subdivisions, the unions argued.

Does State Mean Local Government?

That argument convinced the district court who, in the face of little caselaw on the reach of NLRA preemption, applied the "presumption-of-consistent-usage maxim" to section 14(b). That section reads:

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

It does not make sense to read "State law" to cover local law, the district court found, "in light of the statue's previous reference to 'any State or Territory.'"

The Sixth disagreed, however. As Judge David W. McKeague explained for the unanimous three-judge panel, state law can be treated as the law of the state or any political subdivision, without any inconsistency. That "absolutely is a logical reading," the court said.

Political Subdivisions as Part of the State

Further, surveying the limited caselaw surrounding federal preemption of local ordinances, the Sixth found no reason to assume that the NLRA preempted local right to work laws. The court pointed out the Supreme Court's language in Wisconsin Public Intervenor v. Mortier, for example, which dealt with local regulation of pesticides in the face of a federal regulatory scheme. "The exclusion of political subdivisions cannot be inferred from the express authorization to the 'States,'" the Supreme Court wrote, "because political subdivisions are components of the very entity the statute empowers."

The Supreme Court's subsequent decision in City of Columbus v. Ours Garage and Wrecker Service was even more on point:

Absent a clear statement to the contrary, Congress' references 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. (Emphasis added.)

These cases mean that courts cannot presume that local governments are excluded from powers given to the state, according to the Sixth. Even more, since the NRLA explicitly allows states to interfere in the federal government's "integrated scheme of regulation," as far as right to work laws are considered, there can be no finding of implicit field preemption.

The ruling is a victory for right to work advocates and a blow to labor organizations, opening up the possibility of labor law battles spreading to the municipal level, instead of being fought out in state capitals. The unions have vowed to seek an en banc rehearing, according to Bloomberg.

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