United States: Federal Appeals Court Rules Counties May Enact Right To Work Laws

The term "right to work state" is fairly well known. After all, 25 of the United States are "right to work states," states which have enacted laws prohibiting compulsory unionism as part of a collective bargaining agreement. In a right to work state, the law prohibits the parties to a collective bargaining agreement from including a "union security clause," which is a provision requiring bargaining unit employees to become and remain members of the union (and pay dues) as a condition of continued employment. To the extent such provisions exist in right to work states, they are rendered null and void by state law. Although employees working in right to work states are not required to join the union many voluntarily decide to do so (consider this: Nevada is a right to work state and virtually every employee working on the casino strip is a union member).

But, what if the state decides not to enact right to work legislation but one of its counties does? Is a county ordinance that effectively makes it a "right to work county" entitled to the same deference as a state law?

According to one court of appeals, the answer to this question is yes. In a recent decision UAW v. Hardin County, Kentucky et al., No. 16-5246 (6th Cir. November 18, 2016), the Sixth Circuit Court of Appeals ruled that county right to work laws do not conflict with federal labor law and may be enforced.

Kentucky is a non-right to work state. There have been several efforts over the years by the state legislature to enact a right to work law, but those efforts failed. In 2015, Hardin County, Kentucky enacted a right to work ordinance. Shortly thereafter, eleven other Kentucky counties adopted ordinances banning compulsory unionism.

The ordinances, which apply to private sector employees, contain similar provisions:

no person covered by the National Labor Relations Act shall be required as a condition of employment or continuation of employment:

(B) to become or remain a member of a labor organization:
(C) to pay any dues, fees, assessments or other charges of any kind or amount to a labor organization; [or]
(D) to pay to any charity or other third party, in lieu of such payments, any amount equivalent to or a pro-rata portion of dues, fees, assessments, or other charges regularly required of members of a labor organization[.]

[the ordinance states such agreements to be] unlawful, null and void and of no legal effect.

Plaintiff, a coalition of labor organizations, filed suit in federal district court alleging that these ordinances were preempted by federal labor law and could not be enforced. Specifically, the plaintiff cited to Section 14(b) of the National Labor Relations Act [29 U.S.C. §164(b)] which it asserted did not grant authority to counties to enact right to work legislation but only to states. Section 14(b) provides:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition in any State or Territory in which execution or application is prohibited by State or Territorial law.

County Right To Work Ordinances Are Authorized By Section 14(b) And Are Not Preempted

The federal district court struck down Hardin County's ordinance ruling that the plain language of Section 14(b) did not entitle it to exception because it was not a "State or Territorial law":

[I]t makes little sense to read 'State or Territorial law' as encompassing local law in the light of the statute's previous reference to 'any State or Territory'–if 'State or Territorial law' includes the laws of political subdivisions then the statute must be read 'in any State or Territory [or political subdivision thereof]' to avoid assigning two different meanings to 'State' in the same sentence. This is not a logical reading.

On appeal, the Court of Appeals disagreed, holding that the court's interpretation was too narrow a reading because counties are essentially creatures of each State. The Court held:

[I]f the first reference to 'State' in §14(b) (referring to a geographical jurisdiction) includes political subdivisions of the state (which it plainly must, as political subdivisions are components of the State within the State, that exercise governmental power of the State), then the second reference to State must also be read to include political subdivisions, thereby necessarily excepting the law of political subdivisions from preemption as well.

Having concluded that counties would fall within the Section 14(b) exception, the court then reviewed Supreme Court precedent and concluded that when a federal statute allows for "State" action it allows for action by political subdivisions such as counties. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 607-608 (1991) ("The principle is well settled that local governmental units are created as convenient agencies for exercising such of the governmental powers of the State as maybe entrusted to them. . .in its absolute discretion"); City of Columbus v. Ours Garage and Wrecker Service, 536 U.S. 424, 429 (2002) ("Absent a clear statement to the contrary, Congress' reference to the 'regulatory authority of a State' should be read to preserve, not preempt the traditional prerogative of the States to delegate their authority to their constituent parts").

Finally, the court considered whether the ordinance was preempted by virtue of pervasive federal regulation as set forth in the Supreme Court's decision in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959). The court held that the question of whether the county's right to work ordinance is preempted is dependent upon the answer to whether Section 14(b)'s "explicit exception of state law from preemption encompasses laws of the political subdivisions of the State." Because the court concluded counties fell within Section 14(b)'s exception there could be no preemption.

County Ordinance's Hiring Hall and Checkoff Provisions Preempted By Federal Law

Two other provisions of the county's ordinance prohibited to other collective bargaining agreement provisions: checkoff clauses (where employers agree to deduct union dues from employee paychecks) and hiring hall provisions (which require employers to hire only from a union hiring hall). The court concluded both of these contractual provisions were heavily regulated by the NLRA and were not subject to an exception (as was the right to work provision). Therefore, the ordinance's attempt to regulate these matters was preempted by federal law and essentially nullified.


In the last few years it has been quite common for cities and counties to diverge from state labor and employment laws and this is another manifestation of the phenomenon. The Sixth Circuit's decision surely will not be the last word in this area, although it might encourage other counties (and perhaps some cities as well) to consider adopting right to work laws. This is an area of the law that will be worth watching as it evolves.

Federal Appeals Court Rules Counties May Enact Right To Work Laws

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions