CHICAGO – A recent decision by a federal appeals court in Chicago likely forebodes a legal fight before the U.S. Supreme Court over the fate of so-called local right-to-work zones in Illinois and throughout the country.
In late September, a three-judge panel of the U.S. Seventh Circuit Court of Appeals denied a Chicago suburb's initiative to create a right-to-work zone within its borders, siding with labor unions who argued the village of Lincolnshire's local right-to-work ordinance exceeded the village's authority under the federal National Labor Relations Act to regulate labor and employment.
Attorney Carlos Arevalo of SmithAmundsen LLC in northwest suburban Woodstock told the Cook County Record that the court found the NLRA "does not permit local governments to create local 'right-to-work' (RTW) zones that seek to ban union-only shops in the private sector."
Arevalo noted the decision centered on the question of whether a municipal government, like the village of Lincolnshire, can essentially stand-in for the state, as a "political subdivision of the state," under the NLRA.
Carlos Arevalo SmithAmundsen
The NLRA explicitly allows states to approve RTW laws. But Lincolnshire argued that permission also extends to local governments, like itself, which have been granted broad home rule powers under the Illinois constitution, to set rules that might conflict with those of the state overall.
Arevalo said the Seventh Circuit, significantly, said the power under the NLRA is limited to the state level.
"Local governments like Lincolnshire are not permitted to adopt a right-to-work ordinance," Arevalo said.
However, the Seventh Circuit's decision may not end the matter, as the attorney noted the potential for escalation in the case.
"It is also significant in that the decision creates a split between the 6th Circuit and the 7th Circuit. This sets a potential appeal to the Supreme Court," Arevalo said.
In Cincinnati, the Sixth Circuit Court of Appeals came down on the opposite side of the "political subdivisions" question, finding a "state" included its political subdivisions.
"And so, we have a split," Arevalo said.
That split could set up a date before the U.S. Supreme Court, he said, noting Lincolnshire is represented in the case by the Liberty Justice Center, a Chicago non-profit legal organization, which also successfully represented Illinois state employee Mark Janus in securing a win before the Supreme Court on the question of whether the state can compel non-union government workers to pay fees to unions who ostensibly represent them in collective bargaining. The Supreme Court ruled such compulsory fees were unconstitutional.
The Liberty Justice Center has said they intend to appeal the Seventh Circuit decision.
Arevalo said the "conservative make-up" of the Supreme Court, particularly following the addition of new Associate Justice Brett Kavanaugh "favors (the matter) going to the Supreme Court."
Arevalo noted other home-rule cities like Chicago routinely use their home-rule powers to regulate labor and employment. But he said those regulations, pertaining to issues like sick leave and minimum wages, are not preempted by federal law, leaving local governments free to enact regulations.
He also explained that "there is no prohibition on the state or local governments to issue regulations that are appropriate for each locality," but "local governments cannot adopt regulations that conflict with the state law."