On November 18, 2016, the U.S. Sixth Circuit Court of Appeals, which presides over Ohio, Kentucky, Tennessee and Michigan, issued a decision in UAW v. Hardin County, a case regarding whether or not local government may pass a law prohibiting union-security agreements under the National Labor Relations Act (NLRA) where that state has not passed a right-to-work law.

The NLRA is a broad federal law that regulates the relationships between private employers and unions. The NLRA applies to most private sector employers, including manufacturers, retailers, private universities, and health care facilities. The NLRA does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act (interstate railroads and airlines).

The NLRA permits agreements between employers and unions that require employees to join or pay dues to the union, known as union-security agreements. But the NLRA also permits “State or Territorial” laws that prohibit such agreements, commonly referred to as right-to-work laws.

In its recent decision of UAW v. Hardin County, the Sixth Circuit Court held that forms of local government with home rule authority, such as Hardin County, Kentucky, as political subdivisions of state government, have the same rights as states to pass right-to-work laws.

In 2015, Hardin County, Kentucky passed a right-to-work county ordinance ensuring that no employee is required to join or pay dues to a union. The state of Kentucky legislature had not enacted right-to-work legislation. The labor organizations impacted by the ordinance sued the County, claiming the ordinance violated the Supremacy Clause of the U.S. Constitution because the NLRA preempts right-to-work laws that are not specifically authorized in the Act. Section 14(b) of the NLRA allows for such provisions, but only if they are state law. The district court held the ordinance was not state law, and therefore was preempted by the NLRA.

Hardin County appealed, claiming it fit under the 14(b) exception as a subdivision of state government who had authority to enact these laws. The Sixth Circuit held that the term state in federal law includes subdivisions of a state government, including counties, unless federal law explicitly states otherwise. Therefore, as long as a state has a home rule statute, giving such power to localities, as Kentucky does, right-to-work provisions would not be preempted by the NLRA.

Currently, 26 states have right-to-work laws. Ohio has not passed such legislation. This ruling could have future implications for private employers in Ohio, as Ohio grants home rule powers to some of its local forms of government.

Please feel free to contact FHKAD attorney David Riepenhoff at driepenhoff@fishelhass.com with any questions.