Kentucky County Defends Right-to-Work Law in 6th Cir.

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By Lawrence E. Dubé

June 15 — Citing questions of “enormous significance” about state labor law regulations, a Kentucky county is asking the U.S. Court of Appeals for the Sixth Circuit to rule that a local right-to-work ordinance is not preempted by the National Labor Relations Act ( Auto Workers Local 3047 v. Hardin Cty., 6th Cir., No. 16-5246, briefs submitted 6/13/16 ).

Hardin County, Ky., and a group of national and local unions June 13 completed the filing of briefs on the county's appeal of the adverse ruling by the U.S. District Court for the Western District of Kentucky.

The lower court held that the NLRA preempts the county's Ordinance 300 , which banned the use of union-security agreements between employers and unions in the county.

The appeal presents the Sixth Circuit with the question of whether a federal statute protecting the rights of state governments to legislate on an important labor law subject allows political subdivisions of the states to enact their own legislation.

Hardin County argued in its brief to the Sixth Circuit that its ordinance is a “State or Territorial Law” that is permitted by Section 14(b) of the NLRA.

United Auto Workers Local 3047 and other unions contended Section 14(b) “means what it says” and the measure protects only state legislation, not county or city enactments.

Lower Court Sustained Challenge to Ordinance

Nine unions, including locals of the United Auto Workers, the International Brotherhood of Teamsters, the United Food and Commercial Workers, the International Brotherhood of Electrical Workers and the Communications Workers of America, joined in the lawsuit, which was filed shortly after Hardin County adopted its ordinance in January 2015.

The parties filed motions for summary judgment on the issue of federal preemption. Judge David J. Hale of the U.S. District Court for the Western District of Kentucky granted judgment in favor of the unions, and he enjoined county officials from enforcing the measure (2016 BL 29973, 205 LRRM 3390 (W.D. Ky. 2016)).

The county appealed to the Sixth Circuit.

County Argues No Uniform Policy on Right-to-Work

In its brief filed May 13, the county told the appeals court that “right-to-work laws grow out of a fundamental tension between individual freedom and unions' desire for more ‘collective' power.”

Hardin County acknowledged that unions contend compulsory union support is “needed to strengthen union power beyond what the union can achieve through voluntary employer support,” but the county argued that opinions on the subject “vary widely and fiercely.”

Because of the diverse opinions on compulsory union support, the county argued, “the NLRA has never imposed a uniform national policy” on the subject.

NLRA Right of ‘State' Cited as County's Support

Congress expressly decided that the NLRA doesn't preempt individual states from enacting right-to-work laws, Hardin County wrote. The remaining question, the county argued, is whether Congress “nonetheless intended to preempt the States' ability to delegate authority to their political subdivisions to enact such laws.”

The county argued that the U.S. Supreme Court has said federal law doesn't precluded states from enacting their own laws unless Congress has manifested a clear purpose and intent to make federal legislation preemptive. Section 14(b) does not contain any clear statement that Congress intended to preempt the enactment of local right-to-work laws, the county argued in the brief. “In short,” it said, “Section 14(b) preserves Hardin County's right to enact Ordinance 300.”

Stating that “Kentucky delegated to Hardin County sufficient authority to adopt its right-to-work law,” the county urged the Sixth Circuit to reverse the lower court's judgment.

Unions Argue NLRA Language Is Clear

Responding to the county's brief, UAW Local 3047 and the other unions argued that the district court ruled correctly that Ordinance 300 was not a state law protected by Section 14(b) of the NLRA.

By enacting Section 14(b), Congress authorized state governments to adopt right-to-work laws that would otherwise be preempted by the NLRA, the unions said.

However, they wrote, “Congress did not intend to authorize every county, city, town and village to adopt their own conflicting policies regarding union security agreements.”

History of Federal Act, Local Measures Recited

The unions noted that when Section 14(b) was enacted in 1947, there were a dozen states with laws that outlawed compulsory union membership under closed-shop agreements between employers and unions.

The wording of Section 14(b) indicates that Congress intended to authorize only the same kind of statewide measures “that had coexisted with collective bargaining under the NLRA from 1935 to 1947,” the unions said in the brief.

“Given the statutory language and context,” the unions told the Sixth Circuit, “only a handful of local governments have attempted to enact local right-to-work laws in the seventy years that § 14(b) has been part of the NLRA.”

Noting that those measures were struck down because they didn't constitute state or territorial laws protected by Section 14(b), the unions said the lower court properly reached the same conclusion as to Hardin County's ordinance, and they urged the appeals court to affirm the summary judgment against the county.

John T. Lovett and Kyle D. Johnson of Frost Brown Todd LLC in Louisville, Ky., filed the brief for Hardin County. James B. Coppess and Craig Becker in Washington and Irwin H. Cutler and Robert M. Colone in Louisville filed the unions' brief.

To contact the reporter on this story: Lawrence E. Dubé in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

For More Information

Text of the Hardin County brief is available at and the union's brief at