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So-called "right-to-work" laws prohibit companies and unions to enter security agreements that require all employees to become members of a union or require all members who benefit from the union contract to contribute to the costs of union representation. As it stands, 27 states have right-to-work protections, whether by legislation or constitutional provision. But can cities and municipalities get in on the act as well?
That may depend on in which federal court circuit the municipality is located.
Feds and States and Villages
Last week, the U.S. Seventh Circuit Court of Appeals ruled that the Village of Lincolnshire, Illinois could not enforce laws forbidding the inclusion of union-security or hiring-hall provisions in collective bargaining agreements, and dues checkoff arrangements. The Chicago suburb of 7,000 passed the legislation in 2015, but the court determined that the federal National Labor Relations Act, while allowing states to pass right-to-work legislation, preempted local municipalities from doing the same.
"A local union-security provision would seriously undermine the objectives of the NLRA in any state that has not taken advantage of section 14(b) to forbid agency shops," U.S. Circuit Judge Diane Wood wrote for the unanimous three-judge panel:
Construed the way the village would have it, the ordinance would put employers in and around the village in an impossible position. An employer with offices within the village whose workers' predominant job situs is outside the village in a jurisdiction without a comparable law would risk committing an unfair labor practice if it refused to bargain over an agency-shop provision. The same employer would risk civil or criminal penalties if it misjudged 'predominant' job situs and did bargain over an agency-shop rule, if most of its work was done within the village.
As the Seventh Circuit noted, however, there is some disagreement on this issue. The Sixth Circuit, which covers right-to-work states Kentucky, Michigan, and Tennessee as well as Ohio, recently ruled that municipalities could outlaw union-security clauses. Wisconsin and Indiana, which have already passed statewide right-to-work laws are in the Seventh Circuit, as is Illinois, which has yet to address the issue on the state level.
This circuit split on the interpretation of federal legislation could mean the issue is ripe for the Supreme Court to decide. Until then, you might want to talk to an experienced labor law attorney about how federal, state, and local laws affect your small business and your employees' rights to unionize.