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Attorney General Madigan Finds “Right to Work Zones” Preempted by Federal Law


March 26, 2015

By Jennifer Dunn and Patrick DePoy 

Last Friday, Attorney General Lisa Madigan issued an opinion finding that Illinois counties, municipalities, and other local governments cannot pass local “right to work” ordinances because they are preempted by the National Labor Relations Act (NLRA). State Senator Gary Forby, Chair of the Senate Labor Committee, and State Representative Jay Hoffman, Chair of the House Labor & Commerce Committee, requested the opinion. The Attorney General found that the NLRA only permits statewide right to work legislation rather than the “empowerment zones” proposed by Governor Rauner, which would allow local governments to enact right to work ordinances within their geographic boundaries. 

As a general matter, right to work laws prohibit the enforcement of union security agreements between a labor organization and an employer. Union security agreements require employees to make payments to a labor organization as a condition of employment. Twenty-five states, including Michigan, Indiana, and most recently Wisconsin, have enacted right to work legislation on a statewide basis. Since his election, the Governor has encouraged the idea that local governments can create local right to work areas, or empowerment zones, coexistent with a local government’s geographic community. 

The Attorney General determined that any ordinance creating an empowerment zone like that proposed by the Governor is preempted by federal labor law. Section 8(a)(3) of the NLRA expressly permits union security agreements under certain conditions. Further, Section 14(b) of the NLRA carves out only one exception to Section 8(a)(3)’s exclusive federal regulation of union security agreements by authorizing “any State or Territory” to pass laws prohibiting those agreements. Relying on federal case law and other state Attorneys General opinions addressing similar proposals, the Attorney General concluded that Section 14(b)’s exception only permits a “State or Territory,” and not its political subdivisions, to prohibit union security agreements. In each of those cases, the reviewing authority found anything less than a statewide right to work law preempted by the NLRA. The Attorney General cited a New Mexico federal court’s holding that, if political subdivisions of a state were allowed to enact right to work ordinances on a local basis, the result would be a “crazy-quilt patchwork of regulations” contrary to the purposes of the NLRA. The Attorney General similarly found that an ordinance passed by an Illinois county, city, school district, or any other unit of local government establishing a right to work zone is preempted by the NLRA and would be unenforceable. 

The Governor’s Office issued a statement that it “respectfully disagrees” with the Attorney General’s opinion. The Governor’s Office maintains that, if the Illinois General Assembly passes enabling legislation, local governments may create right to work zones, and in a separate legal opinion, the Governor’s General Counsel stated that enabling legislation has always been contemplated as part of this plan. The Governor may continue to encourage local governments to pass local right-to-work ordinances, while advocating for enabling legislation from the General Assembly. Any such ordinance passed by a local unit of government would almost certainly face an immediate legal challenge.

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