By Racaris (Own work) [Public domain], via Wikimedia Commons

Whether the Chicago suburb of Lincolnshire can designate itself as a “right-to-work” community may come down to the question of whether, under Illinois’ home rule provisions, home rule communities, like Lincolnshire, can qualify as “the state” under federal labor laws.

On March 27, attorneys representing Lincolnshire squared off against lawyers for several labor unions over that question before a panel of judges at the U.S. Seventh Circuit Court of Appeals in Chicago.

Jacob Huebert
Jacob Huebert | Liberty Justice Center

The case landed before the Seventh Circuit last August, after U.S. District Judge Matthew Kennelly found Lincolnshire’s attempt to create a local right-to-work zone ran afoul of the federal National Labor Relations Act. Kennelly said the ability to be exempted from the union collective bargaining requirements spelled out in the NLRA is granted only to states who enact right-to-work laws on a statewide basis.

To let local governments determine whether to be right-to-work, Kennelly said, would create a “patchwork scheme” that was never intended under the federal law.

The collection of unions had sued Lincolnshire in 2015 after the village board approved an ordinance effectively designating the village a local right-to-work community, despite no state law authorizing such local right-to-work zones.

The federal government has carved out exceptions under the NLRA, allowing states and territories to enact laws exempting employers within their borders from the need to comply with so-called “union security agreements,” or provisions in collective bargaining agreements which effectively allow unions to force employees working at certain companies and working in certain jobs to join the union, and compel employers to collect dues and fees from employees on the union’s behalf.

More than half of U.S. states have enacted right-to-work laws under that exemption. All of Illinois’ neighbors, including the states of Indiana, Iowa, Kentucky, Wisconsin, Missouri and Michigan have all become right-to-work states.

Lincolnshire argued the ordinance was needed to attract and retain employers within its community, and argued it has the authority under the Illinois constitution’s home rule provisions to designate itself right-to-work, even if the state as a whole will not.

Using home rule powers, for instance, the city of Chicago and Cook County have each imposed a number of additional regulations on businesses and employers, which the state has not, including mandates for paid time off and higher minimum wages than is required by the state.

During oral arguments before the Seventh Circuit, Jacob Huebert, attorney with the Chicago-based Liberty Justice Center, which is representing the village of Lincolnshire, told judges the village believes home rule doctrine effectively delegates to local home rule communities the choice of whether or not to require union security agreements.

“When they (the states) give their municipalities home rule powers, they contemplate those municipalities might do things that the state legislature might be willing to do for the state as a whole,” said Huebert.

Since the state created home rule and delegated home rule powers to local governments, those local governments should be treated the same as the state government when defining the term “state” in interpreting the section of the NLRA allowing states to become right-to-work.

“If people think its bad for home rule unit’s powers to include powers to enact local right-to-work laws, then the appropriate place to go with that would be to the state legislature,” Huebert said.

Attorney James Coppess, associate general counsel for the AFL-CIO, representing the coalition of labor unions, however, asserted Congress through the NLRA never intended for local governments to have such power.

He argued the NLRA was intended to “allow for a certain amount of mess,” but only between differing states, not within a state’s thousands of communities.

The right-to-work exception within the NLRA essentially preserved a labor regulation system under “laws Congress knew about” in the late 1940s, and “local ordinances weren’t any of those.”

As Kennelly found, Coppess argued allowing local communities to enact right-to-work policies would create “a mess.”

“There would be dire consequences for the whole bargaining process,” Coppess said.

“This idea that Congress would’ve cabined the law on the state level … but then meant to allow chaos within the state, is really very counterintuitive,” Coppess said.

Seventh Circuit Chief Judge Diane Wood, however, peppered attorneys with questions throughout the argument, questioning the positions advanced by both lawyers.

Her skepticism, however, appeared to be most strongly directed at Huebert. Judge Wood noted applying this theory of delegated home rule powers could create “a system of massive chaos” and could “destroy a national system of labor relations.”

“You think Congress meant for 90,000 different local government units in the U.S., each to have their own policy on right-to-work?” she asked Huebert.

She questioned whether such a theory of home rule delegated powers could also be applied against environmental regulations and other rules the federal government has instructed states to implement.

“I think you’re using the idea of delegated power in a way that is not consistent with the NLRA,” Wood told Huebert.

During Coppess’ argument period, however, Wood also questioned whether the state could simply divide its territory between right-to-work and “union security” zones. She mused whether the boundary line could be drawn at Interstate 80, for instance, with all land south of I-80 becoming a right-to-work zone.

And citing the village’s arguments, she noted in some instances, states are free to accomplish the goals of federal legislation as they see fit, including perhaps delegating the powers to local units of government under home rule.

“How do you get from the fact that it is certainly true some of the time, but it’s not true here?” Judge Wood asked.

Seventh Circuit Judges Michael Kanne and William Bauer also heard arguments in the case, though neither of them questioned the attorneys.

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Liberty Justice Center U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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