United Auto., Aerospace & Agric. Implement Workers of Am. Local 3047 v. Hardin Cnty.

• Decision Date: 18 November 2016
• Docket Number: No. 16-5246,16-5246
• Citation: 842 F.3d 407
• Parties: UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA LOCAL 3047, et al., Plaintiffs-Appellees, v. HARDIN COUNTY, KENTUCKY, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

842 F.3d 407

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA LOCAL 3047, et al., Plaintiffs-Appellees,

v.HARDIN COUNTY, KENTUCKY, et al., Defendants-Appellants.

No. 16-5246

United States Court of Appeals, Sixth Circuit.

Argued: October 18, 2016

Decided and Filed: November 18, 2016

Rehearing En Banc Denied March 6, 2017

ARGUED: John T. Lovett, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellants. James B. Coppess, AFL-CIO LEGAL DEPARTMENT, Washington, D.C., for Appellees. ON BRIEF: John T. Lovett, Kyle D. Johnson, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellants. James B. Coppess, Craig Becker, AFL-CIO LEGAL DEPARTMENT, Washington, D.C., Irwin H. Cutler, Jr., Louisville, Kentucky, Robert M. Colone, Louisville, Kentucky, for Appellees. Mitchel T. Denham, Matt James, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Kevin J. Hobson, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Amici Curiae.

Before: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

This case presents a challenge by numerous collective bargaining organizations to a Kentucky county's so-called "right to work" ordinance. The Unions contend the ordinance is unenforceable because it is preempted by the National Labor Relations Act.

The district court awarded summary judgment to the unions, holding that the ordinance is preempted. The court recognized that the NLRA expressly excepts from preemption such right-to-work protections under "State law," but held that the law of a State's political subdivision is not "State law." For the reasons that follow, we affirm in part and reverse in part.

I. BACKGROUND

The National Labor Relations Act ("NLRA") is undoubtedly intended to create a national, uniform body of labor law and policy, but the language used to carry out this purpose is not definite. Further, although the NLRA has been a fixture of the American legal landscape for more than 80 years, there is little authoritative case law on the instant question regarding the Act's preemptive scope. In the absence of any controlling authority, the district court relied primarily on a canon of construction. The court described the context for its decision clearly and succinctly as follows:

The National Labor Relations Act is a broad federal law that regulates the relationships between employers and unions. The NLRA permits agreements between employers and unions that require employees to join or pay dues to the union, known as union-security agreements. But the NLRA also permits "State or Territorial" laws that prohibit such agreements, commonly referred to as right-to-work laws. The primary question presented by this lawsuit is whether a right-to-work law may be enacted solely by a state or territorial government, or whether a local government—in this case a county—may pass a law prohibiting union-security agreements. Because the Court finds that local regulation of union-security agreements is preempted by the NLRA, the right-to-work ordinance at issue here is invalid.

The Fiscal Court of Hardin County is the legislative body for Hardin County, a political subdivision of the Commonwealth of Kentucky. In the absence of a Kentucky state law prohibiting union-security agreements, the Hardin Fiscal Court passed a county ordinance on January 13, 2015, Ordinance 300, which purports to ensure that no employee is required to join or pay dues to a union. The right-to-work provision is found in Section 4 of Ordinance 300, which states that

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[.]

Section 6 of the ordinance declares any such agreements "unlawful, and void, and of no legal effect."

The plaintiff labor organizations assert that Sections 4 and 6 of the ordinance violate the Supremacy Clause of the Constitution. According to the plaintiffs, the NLRA preempts right-to-work laws not specifically authorized in § 14(b) of the Act, including the Hardin County ordinance. Also preempted, they argue, is Ordinance 300's regulation of "hiring-hall" agreements—which require prospective employees to be recommended, approved, referred, or cleared by or through a labor organization—and "dues-checkoff" provisions—which require employers to automatically deduct union dues, fees, assessments, or other charges from employees' paychecks and transfer them to the union. The defendants, various Hardin County officials, contend that the ordinance constitutes state law within the meaning of § 14(b) and thus is not preempted by the NLRA.

In 1935, Congress enacted the National Labor Relations Act, which established federal labor relations standards and the National Labor Relations Board.

See 29 U.S.C. § 151 et seq . In response to abuses of closed-shop agreements, which mandated that only union members be hired, Congress enacted the Taft-Hartley Act banning such agreements. See Oil, Chemical & Atomic Workers Int'l Union, AFL–CIO v. Mobil Oil Corp. , 426 U.S. 407, 414–17 [96 S.Ct. 2140, 48 L.Ed.2d 736] (1976). Congress still allowed for union-shop agreements, which require employees to join the union soon after they are hired, and agency-shop agreements, which require employees to pay union dues whether or not they are members of the union. Id . at 409 & n.1 . In § 14(b) of the NLRA, however, Congress gave any State or Territory the option to exempt itself from that policy. Id . at 409 & n.2 .

Section 14(b), entitled "Construction of Provisions," 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 of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

29 U.S.C. § 164(b). Union-security agreements are also addressed in § 8(a)(3). Pursuant to that section, it is an unfair labor practice for an employer

by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided , That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later[.]

29 U.S.C. § 158(a)(3). Thus, § 8(a)(3) provides that no federal statute shall preclude union security agreements, while § 14(b) provides that state and territorial laws prohibiting such agreements shall take precedence over the NLRA. In other words, if Ordinance 300 constitutes state law within the meaning of § 14(b), it is valid and enforceable. If not, then the question is whether the NLRA preempts a regulation that falls outside of that section.

United Automobile, Aerospace and Agricultural Implement Workers of America v. Hardin Cty., Ky. , 160 F.Supp.3d 1004, 1006–08 (W.D. Ky. 2016) (headings, footnotes, and record citations omitted).

The district court went on to conclude that Hardin County's Ordinance 300 is not "State law" under § 14(b) and is therefore not excepted from preemption under that section. Id. at 1010. The court further found that, apart from § 14(b), the NLRA preempts, as a function of Garmon field preemption, state and local regulation of any activity that the NLRA even arguably protects or prohibits. Id. at 1010–12 (citing San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) ). Reasoning that § 14(b) is the only exception to this broad preemption, and that § 14(b) does not encompass the law of a local subdivision, the court held that the County's right-to-work ordinance—a law that regulates union-security agreements, an activity "protected" by § 8(a)(3) of the NLRA— is preempted and unenforceable. Id. Also preempted, the court held, are the ordinance's prohibitions of (a) "hiring hall" agreements—which require prospective employees to be recommended, approved, referred, or cleared by or through a labor organization; and (b) "dues checkoff" provisions—which require employers to automatically deduct union dues, fees, assessments, or other charges from employees' paychecks and transfer them to the union. Id. at 1012–14.

Hardin County contends on appeal that because it is a subdivision of state government, its laws do come within the § 14(b) exception; and that, even if the court disagrees, the ordinance is still valid because Congress has expressly declined to occupy the field of union-security agreement regulation.

II. ANALYSIS

A. Meaning and Significance of § 14(b)(1) Statutory Construction

All of the County's claims of error present questions of law, which we review de novo. Ohio Democratic Party v. Husted , 834 F.3d 620, 628 (6th Cir. 2016). There are no disputed issues of fact and, on de novo review, the district court's legal conclusions are entitled to no deference.

The NLRA was enacted to "obtain 'uniform application' of its substantive rules and to avoid the 'diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies.' " NLRB v. Nash – Finch Co. , 404 U.S. 138, 144, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971) (quoting Garner v. Teamsters, Chauffeurs and Helpers Local Union , 346 U.S. 485, 490, 74 S.Ct. 161, 98 L.Ed. 228 (1953) ). "The federal regulatory scheme (1) protects some activities, though not violence, (2) prohibits some...