NLRB Files Brief Supporting Unions' Lawsuit, Calling County Right-to-Work Laws Preempted

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Lawrence E. Dubé

April 21 -  The National Labor Relations Board April 17 urged a federal district court in Kentucky to invalidate a county ordinance that prohibits the use of union-security provisions in collective bargaining agreements and regulates other practices that are either permitted or prohibited by federal law.

Hardin County's Ordinance 300 is preempted by the National Labor Relations Act, the board argued in a proposed amicus brief it submitted to the U.S. District Court for the Western District of Kentucky. The court is considering a lawsuit the United Auto Workers and other unions filed in January to challenge the ordinance.

The brief contended that while Section 14(b) of the NLRA allows states or territories to prohibit union-security agreements, it does not authorize counties or political subdivisions to adopt similar measures, which the board said are preempted by federal labor law.

The NLRB also argued that Ordinance 300 is preempted to the extent it outlaws union hiring halls, regulates dues-checkoff agreements, and prohibits coercion and discrimination related to support or nonsupport for a labor organization. Regulation of those matters falls under Sections 7 and 8 of the NLRA and is unaffected by Section 14(b), the board argued.

Lawsuit Challenges County 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. The county was one of five in Kentucky to adopt similar measures.

Section 14(b) of the NLRA, 29 U.S.C. § 164(b), allows a “State or Territory” to prohibit the use of union-security clauses in collective bargaining agreements, but the unions argue that a county is neither a state nor a territory, and county measures are not sanctioned by the NLRA provision.

On the other hand, the county argues that the NLRA makes no specific reference to county laws. The authority of states under Section 14(b) to prohibit union-security agreements extends to the political subdivisions of the state, Hardin County contends.

The plaintiffs and defendants have filed motions for summary judgment and Judge David J. Hale has set May 8 for the final submission of briefs.

NLRB Calls Union-Security Measure Preempted

The NLRB told the court it has a significant interest in the litigation because permitting counties and other political subdivisions to prohibit union security agreements “displaces the Board's primary authority to regulate such clauses as well as its authority to regulate unfair labor practices falling outside of the authority delegated to states under Section 14 (b).”

The NLRB brief said Section 8(a)(3) of the NLRA permits employers and unions to negotiate agreements requiring employees to maintain union membership or pay union dues. Calling Ordinance 300 an effort to regulate conduct governed by the NLRA, the board said the enactment is invalid.

Section 14(b), the NLRB said, “is recognized as a clearly-worded and limited exception to the nationwide application of the NLRA, empowering only States and Territories to prohibit union security.” The board argued that if Congress intended to apply Section 14(b) to local governments, it would have done so explicitly.

The NLRB noted that a Kentucky appellate court found a similar city ordinance on union security agreement invalid in Kentucky State AFL-CIO v. Puckett, 391 S.W.2d 360, 59 LRRM 2337 (Ky. App. 1965). 

A federal court also invalidated a New Mexico city ordinance that prohibited agreements requiring union dues or fees as conditions of employment in New Mexico Federation of Labor v. City of Clovis, 735 F. Supp. 999, 136 LRRM 2265 (D.N.M. 1990), the NLRB argued.

In both cases, the board wrote, courts expressed their concern that permitting local governments to set their own labor policies would create a multitude of different rules that Congress did not envision.

Board Argues Invalidity of Other Provisions

The board also argued that Ordinance 300 included provisions that were not authorized by Section 14(b) or the NLRA. “[T]he ordinance regulates dues check-off, hiring halls, coercion, intimidation, and discharge or refusal to hire based on support or nonsupport of a labor organization” and sets penalties for violations, the board observed.

“Not even states and territories are permitted to regulate in the manner prescribed … and accordingly, the ordinance is preempted for this reason as well,” the NLRB argued.

NLRB Assistant General Counsel Barbara A. O'Neill, Deputy Assistant General Counsel Nancy E. Kessler Platt, and attorney Kevin J. Hobson, submitted the NLRB amicus 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

Text of the NLRB amicus brief is available at