Why Your City or Town Could Be the Next Step for Right-to-Work

by James Sherk & Andrew Kloster

Should workers have to pay union dues to keep their job? Unions think so — their contracts require companies to fire workers who do not pay up. Fortunately, many states have passed “right-to-work” (RTW) laws that prohibit this coercion.

Unions, however, have blocked right-to-work in 26 states, but this doesn’t mean that unionized workers in these states must pay up.

In a new Heritage paper, we conclude that cities and counties in non-right-to-work states can pass their own RTW ordinances.

Many local-government officials in those states, though, have simply assumed they cannot pass RTW laws. Labor law is complex, and the instinct of many local officials is simply to avoid rocking the boat. Because valid federal law overrides (or “preempts”) conflicting state or local laws, local officials are often unduly afraid of potential lawsuits. And Section 14(b) of the National Labor Relations Act (NLRA) expressly authorizes states and territories — but not cities — to pass RTW laws. So, the story goes, Congress must have clearly meant to block local RTW laws.

Not so fast. When Congress passed § 14(b), state laws were the only ones on the books. Lawmakers simply wanted to make it clear they didn’t intended to preempt RTW laws. Congressional silence as to local RTW ordinances doesn’t mean that it disapproved of them — in fact, one federal court of appeals went so far as to say that tribal RTW laws are allowed under the NLRA, even though the statute is also silent about tribes. As the U.S. Supreme Court noted in Retail Clerks Local 1625 v. Schermerhorn, Congress added § 14(b) to make “clear and unambiguous” its intention “not to preempt the field” of RTW law.

All of this is to say that it’s a stretch to argue that Congress clearly meant to prohibit local RTW. Consistent with our constitutional, federal scheme, if Congress hasn’t clearly preempted local laws, the thumb is on the scale in favor of recognizing and giving effect to those local laws.

No federal court of appeals has ruled directly on this issue, and it seems unlikely that any court would go so far as to read the NLRA as clearly blocking local RTW ordinances. Until they do, local governments in states unlikely to pass right-to-work laws should feel free to pass their own.

Doing so would protect the freedom of their workers while attracting jobs and investment to those communities. Many companies will not locate in non-right-to-work states. It was no coincidence that Boeing located its new assembly lines in South Carolina — a right-to-work state — instead of non-RTW Washington. Nor is it coincidental that most of the foreign transplant automakers have located their plants in RTW states.

Local right-to-work laws would level the economic playing field for counties in non-RTW states. They would bring more freedom and more jobs – something for everyone to celebrate this coming Labor Day weekend. 

— James Sherk is the senior policy analyst in labor economics at the Heritage Foundation’s Center for Data Analysis and Andrew Kloster is a legal fellow in Heritage’s Edwin Meese Center for Legal and Judicial Studies.