Tuesday, October 14, 2014

Patchwork Preferences

Patchwork Map AlteredAn interesting battle is brewing over whether local governments can become local “right to work” zones within states that have not enacted so-called “right to work” laws.  Illinois Republican gubernatorial candidate Bruce Rauner has suggested that, while he does not intend to push for “right to work” state legislation in historically labor-friendly Illinois, he does favor letting municipalities or counties within Illinois decide whether to enact such laws at the local level.  Rauner says that we could call them “economic opportunity zones.”  Many would no doubt prefer to name them “free-rider zones.”  But, for the moment, I want to set aside the debate over whether “right to work” is a misnomer. 

This political strategy picks up on a recent Heritage Foundation paper arguing that local governments should enact local “right to work” laws.  Many believe, based on the text of the NLRA, that only states – and not localities – are authorized to enact such legislation in the face of federal preemption.  But Andrew Kloster, one of the Heritage authors responded:  “I personally don’t think that is the case. It is certainly not clear. And that is the important thing: When it is not clear, the tie goes to the jurisdiction trying to pass their own law.”

You can decide for yourself whether the statutory text results in a tie.  Section 14(b) reads:

“Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

Elsewhere, in the NLRA's definition of “employer” found in Section 2(2), Congress used the phrase “any State or political subdivision thereof,” suggesting that Congress knew how to intentionally include local governments where it wanted to within the statutory scheme.  But Kloster's argument is that Section 14(b) was merely meant to dispel concerns about possible federal preemption of such laws, and that failing to include specific reference to local governments in 14(b) should not be read to mean that local "right to work" laws are preempted. 

 ALEC is reportedly creating a template for local “right to work” legislation.  This stands in stark contrast to ALEC’s push for state laws that preempt any local living wage laws or local paid sick leave laws, which I previously discussed here.  Advocates of those state preemption laws claim to be concerned about complying with a patchwork of varying local employment laws where employers have employees in multiple cities.  Perhaps some patchworks of local workplace regulation are more concerning to ALEC members than others?  Why not think of a local living wage law or paid sick leave law in Milwaukee, Wisconsin (now preempted by state law) as simply the indirect creation of a local “economic opportunity zone” in nearby Waukesha?  

-J. Bent    


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