Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
Seventh Circuit Finds Municipal Right to Work Law is Prohibited
Quiz on Labor Relations
                  October 29, 2018


                                                   Follow us on Twitter Like me on Facebook

At the end of September, the U.S. Seventh Circuit Court of Appeals found that a municipal "right-to-work" ordinance was preempted by the National Labor Relations Act ("NLRA"), and thus prohibited and unlawful under the NLRA.  IUOE v. Lincolnshire (Sept 29, 2018). A "right-to-work" law prohibits employers and unions from entering into union security clauses requiring the employees to join the union and pay dues in order to work.  The NLRA authorizes "states," such as Illinois, to enact "right-to-work" laws, but is silent as to the authority of local political bodies to do so.    
In 2015, the Village of Lincolnshire, Illinois, enacted a local "right-to-work" ordinance prohibiting union security clauses, dues checkoff, and union hiring halls.  A coalition of unions challenged the law in federal court, arguing it was preempted by the NLRA.   The Seventh Circuit Court of Appeals, covering federal appeals in Illinois, Indiana, and Wisconsin, rejected the argument that the NLRA allowed local political bodies to enact right-to-work laws, on the grounds that a State cannot delegate this power to lower political bodies, and because it would cause an administrative nightmare.  The Seventh Circuit concluded that the ordinance prohibiting union security clauses, hiring halls, and dues checkoff were preempted and unenforceable.
The Lincolnshire decision is at odds with the Sixth Circuit Court of Appeals decision in UAW v. Hardin County, Ky (2016), where local right-to-work laws were found to be lawful and not preempted by the NLRA.  The Sixth Circuit covers federal appeals from federal courts in Kentucky, Michigan, Ohio, and Tennessee.   There is now a split between the federal circuit courts of appeal on this issue, which invites Supreme Court review.   PSB Legal will keep you advised of developments. 
Elections, as we all know have consequences. Elections beginning in 2010 have led to a sweep of right to work legislation in many states. With these states considering and approving right to work legislation, the process of unionization/de-unionization is getting more attention than usual. This mid-term election may result in a few of these laws being 'flipped' back to non-right to work or may hasten further new 'right to work states. 

It has been our experience that many employers and employees are unfamiliar with the important concepts and laws impacting this process, including decertification. This would not be of concern except for the fact that not knowing the law, and coincidentally, your rights and those of your employees, can have significant consequences. We have developed a short quiz to highlight some of the more often overlooked points:

1. A decertification petition to oust an incumbent union can only be filed when there is no contract in place between the employer and the union.
2. A "right to work" law such as was recently passed in West Virginia and Missouri, makes it illegal for employers to agree to a contract to check-off union dues and send them to the union.
3. Counting Indiana and Wisconsin, there are only 11 states that have 'right to work' laws and all of the rest of these 'right to work' states are in the South.
4. "Right to work" laws make it possible for a union to be decertified at any time.
5. A 'right to work' law strips a company and its certified union from their right to enter into a binding "union shop" agreement.
6. Through filing and voting favorably on a de-authorization election petition, employees covered by a collective bargaining agreement can bring "right to work" to their own workplace, even in non-right to work states such as California and New York.
7. To obtain an election to determine whether a union should be certified, a union must collect authorization cards from at least 50 percent of employees in an appropriate unit.
8. An appropriate unit for an election on union representation can consist of just one employee.
9. An appropriate unit for an election on union representation can cover employees at many different locations the employer operates throughout the United States.
10. An appropriate unit for an election on union representation can cover employees at one location and not the other locations an employer operates in the same city even though the employees are doing exactly the same work.
11. Illinois is considering adopting a law which would provide for 'right to work' zones within the state.
12. A case is pending in the US Court of Appeals in Chicago which would decide whether counties or municipalities within a state could become 'right to work' areas when the rest of a state is not.
13. The United States Supreme Court decided a case which provides that all private sector employees enjoy a right to choice on whether to join a union or not.
14. The United States Supreme Court decided a case which provides that all public sector employees enjoy a right to choice on whether to join a union or not.
Watch next week's MMM for the answers! And the mid term elections for the impacts discussed above!

PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


For more information on the firm, please go to our website at or Lisa at