Can an Illinois county, city, or village pass a 'right-to-work' ordinance, or create a local right-to-work zone by referendum, in the absence of a statewide right-to-work statute?

Plain-English summary

A pair of legislative committee chairs asked whether Illinois counties and municipalities (home rule or not) could enact "right-to-work" ordinances, and whether voters could create right-to-work zones by referendum, in the absence of a statewide right-to-work statute.

AG Lisa Madigan said no on both fronts. The federal NLRA, in section 8(a)(3), comprehensively regulates union security agreements between unions and employers. Section 14(b) carves out one narrow exception: states and territories of the United States may enact statutes prohibiting union security agreements. The carve-out names states and territories. It does not name counties, cities, school districts, or any other political subdivision. Federal courts and other state AGs that have looked at the question (Kentucky's Puckett, the federal District of New Mexico's City of Clovis, opinions from Missouri and Kentucky AGs) have all read the exception narrowly and concluded that local right-to-work ordinances are preempted.

The home-rule status of an Illinois municipality or county does not matter, because federal preemption under the Supremacy Clause overrides whatever local-law authority Illinois might otherwise give. And Illinois statute did not, at the time of the opinion, authorize a binding local referendum on union security agreements; section 28-1 of the Election Code allows only those binding referenda authorized by statute or the constitution, and section 28-6 advisory referenda would have no legal effect even if held.

The opinion noted that the question was actively litigated elsewhere: in early 2015, Hardin County, Kentucky enacted a county right-to-work ordinance and was sued the next day. The AG cited that pending case (and the Pueblo of San Juan tribal-sovereignty exception) as part of the contemporaneous national landscape.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is a 'union security agreement'?
A: It is a contract between an employer and a union requiring covered employees to make some form of payment (or, historically, to join the union) as a condition of employment. The opinion noted two common variants: a "union shop" (employees must join within a short period after hire) and an "agency shop" (non-union employees must pay their proportionate share of bargaining-related costs).

Q: What does NLRA section 8(a)(3) do?
A: It generally bars employers from discriminating in hiring or employment based on union membership but, by proviso, permits union security agreements requiring membership (or its functional equivalent, agency-fee payment) within 30 days of hire, subject to conditions. The federal regulation is comprehensive enough that, absent the section 14(b) carve-out, it would fully preempt state and local law.

Q: What does section 14(b) say?
A: "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." That language permits state-or-territory-wide restrictions only.

Q: Why don't local ordinances count as 'State or Territorial law' under section 14(b)?
A: The opinion drew on Kentucky State AFL-CIO v. Puckett, 391 S.W.2d 360 (Ky. 1965), and New Mexico Federation of Labor v. City of Clovis, 735 F. Supp. 999 (D.N.M. 1990), both holding that the exception is narrow. The City of Clovis court explained that a "myriad of local regulations would create obstacles to Congress' objectives" and that the words "State or Territorial law" do not, in their ordinary sense, include legislation by political subdivisions of the state.

Q: Does it matter whether the local government is home rule?
A: No. Federal preemption operates regardless of how broadly the state has authorized its localities. The home-rule label affects what an Illinois municipality could do under Illinois law if there were no federal preemption; it does not enable the section 14(b) exception, which is reserved for states and territories.

Q: Could Illinois voters create a right-to-work zone by referendum?
A: Section 28-1 of the Election Code allows binding referenda only as authorized by statute or by the constitution, and no Illinois statute or constitutional provision authorized a referendum on union security agreements. Section 28-6 advisory referenda are non-binding. The AG also added that, even if such a referendum were authorized, the result would be preempted by the NLRA.

Q: Was there an Indian-tribe exception?
A: The opinion's footnote referenced NLRB v. Pueblo of San Juan, where a tribe's sovereign status let it adopt a tribal right-to-work ordinance even though local governments could not. That sovereignty-based reasoning does not extend to Illinois counties or cities.

Background and statutory framework

The NLRA was enacted in 1935 to encourage collective bargaining and protect employee organizing. It rests on Congress's Commerce Clause power. Among the conditions of employment subject to bargaining are union security agreements, which the Act regulates in section 8(a)(3). Section 14(b), added in 1947 by the Taft-Hartley Act, carved out a state-level option to ban union security agreements outright. As of the opinion, twenty-five states had enacted right-to-work laws (some by constitutional amendment, others by statute) and Illinois had not.

The Illinois statutes that authorize "fair share" arrangements in public-sector and educational labor relations (5 ILCS 315/6(e) and 115 ILCS 5/11) reflected the contemporaneous Illinois policy. The opinion noted them in a footnote, but they do not affect the federal preemption analysis for private-sector employers.

The opinion's reach is broad. It applied not just to counties and cities (home rule or non-home-rule) but to "all other political subdivisions, units of local government, and school districts of this State."

Citations and references

Statutes:
- U.S. Const. art. I, § 8
- 29 U.S.C. §§ 151, 157, 158(a)(3), (a)(5), (b)(3), (d), 159(a), 164(b)
- Ill. Const. 1970, art. VII, §§ 6, 7
- 5 ILCS 315/6(e); 115 ILCS 5/11; 10 ILCS 5/28-1, 5/28-6

Cases:
- Wardair Canada, Inc. v. Florida Department of Revenue, 477 U.S. 1 (1986)
- Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141 (1982)
- White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980)
- Jones v. Rath Packing Co., 430 U.S. 519 (1977)
- Retail Clerks International Ass'n v. Schermerhorn, 375 U.S. 96 (1963)
- NLRB v. General Motors Corp., 373 U.S. 734 (1963)
- Davenport v. Washington Education Ass'n, 551 U.S. 177 (2007)
- Oil, Chemical and Atomic Workers v. Mobil Oil Corp., 426 U.S. 407 (1976)
- Kentucky State AFL-CIO v. Puckett, 391 S.W.2d 360 (Ky. Ct. App. 1965)
- New Mexico Federation of Labor v. City of Clovis, 735 F. Supp. 999 (D.N.M. 1990)
- NLRB v. Pueblo of San Juan, 30 F. Supp. 2d 1348 (D.N.M. 1998), aff'd, 280 F.3d 1278 (10th Cir. 2000)
- UAW Local 3047 v. Hardin County, No. 3:15-cv-66-DJH (W.D. Ky. 2015) (then-pending)

Other Attorney General opinions referenced:
- Mo. Att'y Gen. Op. No. 78-86 (July 28, 1986)
- Mo. Att'y Gen. Op. No. 17-87 (March 11, 1987) (memorandum)
- Ky. Att'y Gen. Op. No. 14-007 (December 18, 2014)

Source

• Landing page: https://illinoisattorneygeneral.gov/opinions/
• Original PDF: https://illinoisattorneygeneral.gov/dA/c7af54e095/2015%2015-001%20LABOR%20Authority%20of%20Counties%20and%20Municipalities%20Adopt%20Right%20to%20Work%20Ordinances.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS

Lisa Madigan
ATTORNEY GENERAL

March 20, 2015

FILE NO. 15-001
LABOR:
Authority of Counties and Municipalities to Adopt Right-to-Work Ordinances

The Honorable Gary Forby
Chair, Senate Labor Committee
State Senator, 59th District
903 West Washington, Suite 5
Benton, Illinois 62812

The Honorable Jay C. Hoffman
Chair, House Labor & Commerce Committee

Dear Senator Forby and Representative Hoffman:

I have your letters inquiring whether, under current Illinois law, Illinois counties and municipalities, either home rule or non-home-rule, may adopt "right-to-work" ordinances, or whether voters may authorize, by referendum, "right to work" zones within a particular governmental entity's corporate boundaries. For the reasons stated below, it is my opinion that, with one exception, section 8(a)(3) of the National Labor Relations Act (the NLRA) (29 U.S.C. §158(a)(3) (2012)) preempts the regulation of union security agreements in all instances that impact interstate commerce. The single exception to the otherwise exclusive Federal regulation of union security agreements under section 8(a)(3) is in section 14(b) of the NLRA (29 U.S.C. §164(b) (2012)), which permits only states (and territories of the United States) to enact statewide (or territory-wide) "right-to-work" laws. Consequently, counties and municipalities (whether home rule or non-home-rule), as well as all other political subdivisions, units of local government, and school districts of this State, are precluded by Federal law from enacting ordinances or resolutions that limit or restrict the use of union security agreements. Further, current law does not authorize the creation, through the passage of a referendum, of "right to work" zones or local areas wherein union security agreements will not be recognized.

BACKGROUND

The commerce clause of the United States Constitution provides that "Congress shall have Power * * * [t]o regulate Commerce * * * among the several States[.]" U.S. Const., art. I, §8. In 1935, in an effort "to eliminate the causes of certain substantial obstructions to the free flow of commerce[,]" Congress enacted the NLRA (29 U.S.C. §151 et seq.) to "encourag[e] the practice and procedure of collective bargaining and * * * [to] protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing" for certain purposes (29 U.S.C. §151 (2012)). The NLRA requires employers and unions to bargain collectively regarding "conditions of employment." See 29 U.S.C. §§158(a)(5), (b)(3), (d), 159(a) (2012). Among the conditions of employment that may be the subject of collective bargaining are union security agreements.

Section 8(a)(3) of the NLRA addresses union security agreements and permits, under certain conditions, a union and an employer to execute a union security agreement requiring employees to be members of a union, or to pay a proportionate share of the costs of the union's work on their behalf. See also 29 U.S.C. §157 (2012).

Section 14(b) of the NLRA (29 U.S.C. §164(b) (2012)) then carves out one exception to the exclusive Federal regulation of union security agreements. Section 14(b) provides:

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.

Thus, pursuant to section 14(b) of the NLRA, states (and territories) are authorized to prohibit union security agreements on a statewide (or territory-wide) basis. To date, twenty-five states (and one territory of the United States) have enacted constitutional provisions or statutes limiting the use of union security agreements. Illinois does not have such a provision in its laws.

ANALYSIS

When Congress legislates within the scope of its constitutionally granted powers, it has the power to preempt state and municipal authority in a particular field. Wardair Canada, Inc. v. Florida Department of Revenue, 477 U.S. 1, 106 S. Ct. 2369 (1986). In determining whether Federal legislation preempts state and local law, the test is one of congressional intent. Wardair, 477 U.S. at 6, 106 S. Ct. at 2372. Where statutory language expressly prohibits states and municipalities from legislating in a particular area, preemption is manifest. Fidelity Federal Savings & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 152-53, 102 S. Ct. 3014, 3022 (1982). Otherwise, preemption may be inferred from the pervasiveness of the Federal scheme (White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S. Ct. 2578 (1980)) or because state or municipal law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S. Ct. 1305, 1310 (1977).

There are no reported judicial decisions, either State or Federal, addressing the specific issue of whether the NLRA preempts counties and municipalities in Illinois from enacting ordinances that limit the use of union security agreements. Further, this office has not previously issued any opinions on this question. However, courts of other jurisdictions and other state Attorneys General that have examined the validity of local ordinances limiting or restricting union security agreements have uniformly concluded: (1) that the NLRA preempts the prohibition of union security agreements by units of local government in all instances relating to interstate commerce; and (2) that the exception to Federal preemption set out in section 14(b) authorizes only states and territories, and not their political subdivisions, to prohibit union security agreements.

Kentucky State AFL-CIO v. Puckett, 391 S.W.2d 360 (Ky. Ct. App. 1965), is among the first cases to address the issue of whether local ordinances may regulate union security agreements. Puckett involved a city ordinance providing that "the right of persons to work shall not be denied or abridged on account of membership or nonmembership in, or conditioned upon payments to, any labor union, or labor organization[.]" Puckett, 391 S.W.2d at 361. The Kentucky Court of Appeals reviewed sections 8(a)(3) and 14(b) of the NLRA and concluded that "Congress has pre-empted from cities the field undertaken to be entered by the [subject] ordinance." Puckett, 391 S.W.2d at 362. The Court reasoned that because section 14(b) constituted an exception to what would otherwise be full Federal preemption, the exception should be strictly and narrowly construed, and that "Congress was willing to permit varying policies at the state level, but could not have intended to allow as many local policies as there are local political subdivisions in the nation."

The issue of the validity of local ordinances that prohibit union security agreements was again addressed in New Mexico Federation of Labor v. City of Clovis, 735 F. Supp. 999 (D.N.M. 1990). In City of Clovis, a group of affected labor organizations brought an action against the home rule city challenging an ordinance that purported to prohibit employers located within the city from requiring membership in a labor organization, or the payment of dues, assessments, or other charges to such an organization, as a condition of employment. The court found that "[t]he Congressional regulation of union security agreements is comprehensive and pervasive" and that "Congress intended an exclusive regulatory system and that §8(a)(3) so thoroughly regulates the subject * * * so as to preempt the matter from state legislation except to the extent specifically permitted under §14(b) of the Act." The court specifically held that the phrase "State or Territorial law" in section 14(b) does not encompass local ordinances.

In addition to the Puckett and City of Clovis decisions, three Attorney General opinions have addressed local ordinances that attempt to regulate union security agreements. In an opinion issued in 1986, former Missouri Attorney General William Webster concluded that statutory-class cities and noncharter counties may not enact right-to-work ordinances. The following year, Attorney General Webster reached the same conclusion as to charter or home rule counties or cities. Most recently, the Office of Kentucky Attorney General Jack Conway similarly concluded that Kentucky's local governments may not enact ordinances prohibiting union security agreements because such ordinances are preempted by the NLRA. Ky. Att'y Gen. Op. No. 14-007, issued December 18, 2014.

Consistent with the judicial decisions and Attorney General opinions discussed above, it is my opinion that section 8(a)(3) of the NLRA preempts the regulation of union security agreements, subject only to the narrow exception set out in section 14(b) of the NLRA. Section 14(b) of the NLRA permits states and territories of the United States, but not their political subdivisions, to enact laws prohibiting union security agreements. Accordingly, counties and municipalities in Illinois are preempted from adopting local ordinances that regulate union security agreements, as are other political subdivisions of the State, units of local government, and school districts. In this regard, the status of a county or municipality as a home rule or non-home-rule unit is irrelevant to the analysis.

Senator Forby also inquired whether, under current Illinois law, voters may authorize, by referendum, "right to work" zones that would be enforceable within a particular governmental entity's corporate boundaries. Article 28 of the Election Code (10 ILCS 5/28-1 et seq. (West 2012)) addresses the submission of public questions to the electors of the State, any political subdivision, district, or precinct. Section 28-1 of the Election Code (10 ILCS 5/28-1 (West 2012)) provides that "[q]uestions of public policy which have any legal effect shall be submitted to referendum only as authorized by a statute which so provides or by the Constitution." No constitutional or statutory provisions currently authorize local referenda relating to the creation of local areas wherein union security agreements will not be recognized. Consequently, Illinois law does not authorize the submission of a binding referendum on matters related to the regulation of union security agreements. Further, even if such authority did exist, it would be preempted by the NLRA.

CONCLUSION

It is my opinion that the National Labor Relations Act preempts counties and municipalities, as well as other political subdivisions of the State, units of local government, and school districts, from adopting local ordinances that regulate the use of union security agreements in all instances that impact interstate commerce. Further, even if not preempted by the National Labor Relations Act, it is my opinion that Illinois law does not authorize the creation, through the passage of a referendum, of local zones or areas wherein union security agreements will not be recognized.

Very truly yours,

LISA MADIGAN
ATTORNEY GENERAL