After Janus, Cities and Towns Are Poised to Become the New Battleground Over “Right to Work”

Nick Johnson

Union activists and supporters rally against the Supreme Court's ruling in the Janus v. AFSCME case, in Foley Square in Lower Manhattan, June 27, 2018 in New York City. (Photo by Drew Angerer/Getty Images)

In Decem­ber 2015, Lin­colnshire, Illi­nois, a Chica­go sub­urb with a pop­u­la­tion of a lit­tle over 7,000, passed a right-to-work (RTW) ordi­nance. While a slim major­i­ty of states have enact­ed RTW laws over the past sev­er­al decades, RTW mea­sures at the coun­ty or munic­i­pal lev­el are rare in com­par­i­son. A group of unions quick­ly sued to strike down the ordi­nance, and after near­ly three years of lit­i­ga­tion, the next stop for the legal bat­tle might be the Supreme Court.

The unions have been suc­cess­ful so far in their fight against the ordi­nance, win­ning first in the U.S. Dis­trict Court and then again after Lin­colnshire appealed to the Sev­enth Cir­cuit Court of Appeals. But on Feb­ru­ary 14, Lin­colnshire filed a peti­tion with the Supreme Court, which will now decide whether it will hear the village’s appeal. Lin­colnshire is being rep­re­sent­ed in the law­suit by the Lib­er­ty Jus­tice Cen­ter, one of the groups that rep­re­sent­ed plain­tiff Mark Janus in Janus v. AFSCME, the case that abol­ished pub­lic-sec­tor fair-share fees nationwide. 

The legal argu­ments in the case, which is named Vil­lage of Lin­colnshire v. IUOE Local 399, are not par­tic­u­lar­ly com­pli­cat­ed. The Nation­al Labor Rela­tions Act (NLRA) clear­ly allows employ­ers and unions to enter into union secu­ri­ty agree­ments, which require work­ers to pay union dues (or reduced fair-share fees” for non-mem­bers). How­ev­er, a pro­vi­sion in the 1947 Taft-Hart­ley Act allows states to pass RTW laws, which per­mit work­ers to refuse to pay union dues while still enjoy­ing all of the ben­e­fits of union rep­re­sen­ta­tion. The unions argue that the Taft-Hart­ley pro­vi­sion means what it says — that states can pass RTW laws, not coun­ties or cities. Lin­colnshire argues that the law’s ref­er­ence to states” actu­al­ly includes states and their sub­or­di­nate polit­i­cal bodies.

Allow­ing local RTW ordi­nances could lead to what the unions described in their Sev­enth Cir­cuit brief as a crazy-quilt” of over­lap­ping and incon­sis­tent reg­u­la­tions. Illi­nois alone could be home to more than 300 dif­fer­ent RTW ordi­nances among coun­ties and munic­i­pal­i­ties with home rule author­i­ty. And numer­ous dif­fer­ent laws could apply to the same col­lec­tive bar­gain­ing agree­ment, as agree­ments com­mon­ly cov­er mul­ti­ple facil­i­ties or job sites.

There is rea­son to sus­pect that the Supreme Court will decide to hear Lincolnshire’s appeal. The Sev­enth Circuit’s deci­sion in favor of the unions con­flict­ed with a 2016 deci­sion of the Sixth Cir­cuit, UAW Local 3047 v. Hardin Coun­ty, which held that coun­ties and munic­i­pal­i­ties have the legal author­i­ty to enact RTW mea­sures. The Supreme Court will often hear an appeal to resolve this kind of con­flict, which is called a cir­cuit split. Trou­bling­ly, the Supreme Court refused to hear the UAW’s appeal of the Sixth Cir­cuit deci­sion, leav­ing that deci­sion as law of the land in Michi­gan, Ohio, Ken­tucky, and Ten­nessee, and poten­tial­ly tip­ping the jus­tices’ hands on the issue.

In Janus, the right-wing major­i­ty of the Supreme Court over­turned more than 40 years of prece­dent to make the country’s entire pub­lic sec­tor RTW. There is no rea­son to expect Jus­tice Kavanaugh to be any more sym­pa­thet­ic to labor rights than now-retired Jus­tice Kennedy. If the Supreme Court decides to hear the case, it may well be the next step in the steady ero­sion of labor rights that has occurred under the Roberts Court.

Mean­while, local RTW laws have start­ed to spread else­where. Lob­by­ing efforts by the Koch-fund­ed Amer­i­cans for Pros­per­i­ty have made quick progress in New Mex­i­co, with 10 of the state’s 33 coun­ties and one vil­lage pass­ing RTW ordi­nances since Jan­u­ary 2018. The group pre­vi­ous­ly used the same coun­ty-by-coun­ty approach in Ken­tucky, where over a dozen coun­ties passed RTW ordi­nances before statewide RTW leg­is­la­tion passed in 2017.

In Delaware, attacks on unions at the local lev­el have been less suc­cess­ful. In late 2017 and ear­ly 2018, two local gov­ern­ments in the state were con­sid­er­ing RTW mea­sures. While a pro­pos­al in Sus­sex Coun­ty even­tu­al­ly stalled fol­low­ing union protests and warn­ings from the Delaware Attor­ney Gen­er­al and the county’s own attor­ney that the coun­ty lacked the legal author­i­ty to enact the pro­pos­al, the town of Seaford qui­et­ly enact­ed a RTW ordi­nance with­out hold­ing any pub­lic hear­ings. The Seaford ordi­nance was quick­ly quashed in June 2018 when Gov­er­nor John Car­ney signed leg­is­la­tion per­mit­ting pri­vate union secu­ri­ty agree­ments statewide.

Local RTW laws have been slow to spread in part because local gov­ern­ments like Sus­sex Coun­ty fear that they vio­late the NLRA. But with union busters run­ning out of states in which they could real­is­ti­cal­ly seek to pass RTW laws, they have looked to local RTW laws as a way to make inroads into non-RTW states. If the Supreme Court gives local RTW laws their bless­ing, the sig­nif­i­cant legal risks will be removed and right-wing groups will begin push­ing them on coun­ties and towns through­out the country.

What can the labor move­ment do in the mean­time? One strat­e­gy is leg­isla­tive. In states where Democ­rats hold the gov­er­nor­ship and the major­i­ty in both state leg­is­la­tures, we can push politi­cians to fol­low the Delaware approach and enact laws guar­an­tee­ing the right to enter into union secu­ri­ty agree­ments. But even after sig­nif­i­cant Demo­c­ra­t­ic gains in the midterm elec­tions, there are only 13 of these states oth­er than Delaware.

Anoth­er strat­e­gy is for pri­vate-sec­tor unions to con­duct vig­or­ous inter­nal orga­niz­ing cam­paigns as pub­lic sec­tor unions did in prepa­ra­tion for Friedrichs v. CTA and then Janus. Unlike pub­lic-sec­tor unions, pri­vate-sec­tor unions do not have oner­ous restric­tions on the sub­jects over which they can col­lec­tive­ly bar­gain, which many pub­lic sec­tor unions have been forced to deal with in recent years. These cam­paigns to increase work­er par­tic­i­pa­tion in exist­ing unions and to sign up fair-share-fee pay­ers as full mem­bers will pre­pare unions to con­tend with local RTW laws in unex­pect­ed loca­tions, while also build­ing stronger unions if we are for­tu­nate enough to avoid anoth­er attack from the Supreme Court.

Nick John­son is a union lawyer in New York City.
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