Under the National Labor Relations Act, states may pass right-to-work (RTW) laws. In jurisdictions without these laws, unions can force workers to pay dues (although they cannot force them to actually join the union). Almost half of all states have passed worker-friendly RTW laws to protect workers from union coercion.
What about the employees in the 26 states with no right-to-work law? Are they out of luck? Not quite.
In a new Heritage paper we conclude that cities and counties in non-right-to-work states have the authority to pass their own RTW ordinances. Many local city councils could protect the freedom of their workers by passing RTW ordinances. This would also attract employers since many businesses will not consider locating in places without a RTW law.
Unfortunately, many local government officials have simply assumed they cannot pass RTW laws. Labor law is complex, and many local officials instinctively avoid rocking the boat. Federal law overrides or “preempts” conflicting state or local laws, so local officials are often unduly afraid of lawsuit. And Section 14(b) of the National Labor Relations Act expressly authorizes states and territories to pass RTW while saying nothing about local governments. So many local government leaders assume Congress has prevented them from passing Right-to-Work.
But a closer look at the Congressional record shows Congress passed § 14(b) simply to make it clear the National Labor Relations Act does not override RTW laws. Back then only states had passed RTW laws so Congress only expressly authorized them. But §14(b) does not mean Congress prohibited local RTW laws. It might mean Congress decided not to regulate them at all. And it seems the U.S. Supreme Court has taken this view:
“[A] section, which later became 14 (b), appeared in the House bill – a provision described in the House Report as making clear and unambiguous the purpose of Congress not to preempt the field. That purpose was restated by the House Conference Report in explaining 14(b). Senator Taft in the Senate debates stated that 14 (b) was to continue the policy of the Wagner Act and avoid federal interference with state laws in this field.”
In our federal system, courts interpreting federal law apply a presumption against preemption “unless that was the clear and manifest purpose of Congress.” And, in context, it would seem strange to interpret a provision meant to support state RTW laws as clearly prohibiting local ones.
Of course many cities and counties have no authority to regulate unions, no matter what federal law allows. Local governments have only the powers the state gives them. If a state does not permit its counties to pass labor regulations then they can’t pass right-to-work laws.
However, many non-RTW states—like Ohio, Pennsylvania, and Kentucky—have “charter” or “home rule” localities. Such cities and counties can pass any law the state legislature has not said they cannot, including right-to-work laws. Further, regular counties can usually vote to become charter counties.
If you’re a local activist and you think you can’t influence national politics, and you even think you can’t influence state politics, one thing you can do is read up on RTW. Your local government might be able to improve your community in this area of the law, and you might be able to help out.
