Local Right-to-Work Law Survives Challenge

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By Hassan A. Kanu

Nov. 18 — Counties and other municipalities in Kentucky, Michigan, Ohio and Tennessee can pass local right-to-work laws under a ruling by the U.S. Court of Appeals for the Sixth Circuit ( Auto Workers Local 3047 v. Hardin County , 2016 BL 384398, 6th Cir., No. 16-5246, 11/18/16 ).

The decision marks the first time a federal appeals court has upheld a local right-to-work law, Jim Waters, president of the Bluegrass Institute, told Bloomberg BNA Nov. 18. The ruling has implications “beyond the borders of Kentucky and the borders of the Sixth Circuit,” he said. The Bluegrass Institute is a Kentucky-based public policy organization that has advocated in favor of right-to-work laws.

Congress, through the National Labor Relations Act, has long allowed state governments to enact policies referred to as “right to work” laws. The laws prohibit unions from requiring employees to join or pay dues. Generally, unions must nonetheless represent all the workers in a unit, even those who opt out of joining or paying dues. At least 26 states have passed such laws. Local governments in Kentucky, including Hardin County, were the first ones in the nation to pass local right-to-work ordinances, in 2015.

Unions and other parties who oppose right-to-work “were put back on their heels because no one had ever tried to do this before,” Waters said.

The National Labor Relations Board, which administers and enforces the federal labor law, wrote an amicus brief supporting the unions that challenged the ordinance. A lower federal court ruled in favor of the unions, finding essentially that the federal labor statutes grant the authority to pass right-to-work laws only to “the states.”

The Sixth Circuit overturned that decision, reasoning that local governments are included within the phrase “the states” because they're subdivisions of state government. Additionally, state legislatures can choose to leave regulation of certain matters to local officials, Judge David McKeague wrote.

Appeal Coming

“We’re disappointed because we think the judges misread the two Supreme Court decisions they relied on and attempted to apply decisions that dealt with statutes other than the National Labor Relations Act,” Irwin Cutler Jr., an attorney for the unions, told Bloomberg BNA Nov. 18. “We don’t think this is what Congress intended when it enacted the Taft-Hartley Act” to regulate relationships between labor unions and employers, he said.

“This is such an important issue and it’s contrary to other existing decisions,” Cutler said. “If it's upheld, it would essentially make some counties in Kentucky a right-to-work enclave in the whole state in which employees aren’t required to pay their fair share of the cost of union representation.”

Cutler said there’s been “at least one copycat ordinance” passed in Illinois. “I think what counties and cities need to do is look at what’s really best for their communities and the people who work there—whether or not it’s legal to pass the law, it shouldn’t trump a decision as to what’s best for that particular county and its citizens,” he said.

Warren County was the first county in the nation to pass a right-to-work ordinance, in December 2014. Eleven other Kentucky counties have followed suit, according to the Bluegrass Institute.

The unions are planning to seek a rehearing of the case by the full Sixth Circuit, instead of the three-judge panels that typically hear a case in the first instance, Cutler said.

Group Optimistic Ruling Will Stick After Trump Victory

“The court reaffirmed what our state legislature already rightly decided—that counties are a creation of the state and the legislature can therefore simply delegate its own authority to counties,” Waters of the Bluegrass Institute said. Waters noted that the judge who ruled in favor of the unions was an appointee of President Barack Obama and said he “got it absolutely wrong.”

He said the recent election of Donald Trump as president changes the landscape of the long-running battle over right-to-work.

“At least before the election, the idea was that this would probably go to the Supreme Court because there’s been no precedent in terms of this specific” strategy, Waters said. “We were concerned because obviously things would change depending on who won the presidency and appointed the judge to fill” the late Justice Antonin Scalia’s spot, he said, adding, “But we obviously feel a lot better about that now.”

Priddy Cutler Naake & Meade in Louisville and the AFL-CIO legal department represented the unions. Frost Brown Todd in Louisville represented the county parties.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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