* On Friday, I posted the Rauner administration’s react statement to Attorney General Lisa Madigan’s official opinion claiming that the governor’s right to work ideas are not legal. Here’s the full response from the governor’s general counsel…

From: Jason Barclay, General Counsel to the Governor
Re: Permissibility of Employee Empowerment Zones Under Federal Law
Date: March 20, 2015

The Governor has proposed legislation to protect employee rights, including the right to employment not conditioned upon union membership, in employee empowerment zones. Under the Governor’s proposal, voters could decide whether such rights should apply within their respective county, municipality, school district, or other unit of local government.

The National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(3), preempts the regulation of “union security agreements” in all instances that impact interstate commerce. That preemption does not apply, however, where such agreements have been “prohibited by State . . . law.” Specifically, Section 14(b) of the NLRA provides:

Nothing in this subchapter 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 Territory law.

In opinion 15-001, issued March 20, 2015, Attorney General Lisa Madigan concludes that this exception permits state to prohibit union security agreements only “on a statewide (or territory- wide) basis”, as 25 states and one territory have done. She argues that local governments cannot prohibit such agreements.

The Attorney General’s opinion cites several cases, including Kentucky and New Mexico, that challenged a local ordinance establishing the right-to-work in that locality. Notably, in each of these cases, the law at issue was enacted by the local government, without state authority. None of these cases addressed the structure being proposed by Governor Rauner, which would be based on new state law.

Under Governor Rauner’s proposal, the state would establish a uniform set of employee rights. Those rights would apply to employees only in those parts of the state that opted-in to the state law. Thus, in the plain language of Section 14(b) of the NLRA, the use of labor security agreements in those parts of the state would be “prohibited by State law.” While state law would authorize voters to decide whether or not to apply these employee protections, if applied the protections would derive from state law, not local law, and therefore fit squarely within the exception under Section 14(b) of the NLRA.

That’s actually a pretty decent argument on its face, particularly the final, highlighted paragraph. Also, I think Rauner’s attorney may have missed an angle. The AG’s opinion rightly points out that the federal Labor Relations Act is based on legit interstate commerce issues. But what if a school district wanted an “empowerment zone” only for its employees? Is that really interstate commerce? I suppose the district probably buys goods from other states (including textbooks), but does one have much to do with the other?

* Back to that summation paragraph from Rauner’s legal guy. The AG’s office pointed me to this section of its opinion…

The issue of the validity of local ordinances that prohibit union security agreements was again addressed in New Mexico Federation of Labor v. City of Clovis, 735 F. Supp. 999 (D.N.M. 1990). In City of Clovis, a group of affected labor organizations brought an action against the home rule city challenging an ordinance that purported to prohibit employers located within the city from requiring membership in a labor organization, or the payment of dues, assessments, or other charges to such an organization, as a condition of employment. Concerning preemption, the court found that:

The Congressional regulation of union security agreements is comprehensive and pervasive. [Citation.] Section 8(a)(3) of the NLRA provides for specific conditions which must be met in order for an agreement to be valid. Congress intended to prohibit non-federal laws which would allow agreements impermissible under the Act. [Citations.] This indicates * * * that Congress intended an exclusive regulatory system and that §8(a)(3) so thoroughly regulates the subject * * * so as to preempt the matter from state legislation except to the extent specifically permitted under §14(b) of the Act.

A myriad of local regulations would create obstacles to Congress’ objectives under the NLRA. If the Ordinance is allowed to stand, other local governmental entities * * * could enact such ordinances, or different ordinances, concerning the same subject matter. The result would be a crazy-quilt of regulations within the various states. * * *

It is true that by enacting §14(b), Congress contemplated diversity of regulation throughout the country on the subject of union security agreements. [Citation.] However, the diversity that arises from different regulations among various of the 50 states and the federal enclaves within the 21 right-to-work states is qualitatively different from the diversity that would arise if cities, counties, and other local governmental entities throughout the country were free to enact their own regulations. * * * This result would * * * undermine the NLRA’s purpose by discouraging rather than encouraging bargaining on “conditions of employment.” City of Clovis, 735 F. Supp. at 1002-03.

The court specifically addressed whether the phrase “State or Territorial law” in section 14(b) could be interpreted to encompass local ordinances, and concluded that it could not:

No mention is made [in section 14(b)] of local ordinances or other means. “Congress is presumed to use words in their ordinary sense unless it expressly indicates the contrary.” [Citations.] In ordinary usage, the words “State or Territorial law” would not include legislation enacted by political subdivisions of the state. [Citation.] Courts have held that as a matter of plain language, reference to a “state” does not include reference to subdivisions of the state. City of Clovis, 735 F. Supp. at 1004.

Because of its conclusion that units of local government are preempted by the NLRA from enacting local ordinances that regulate union security agreements, the court found it unnecessary to address the question of whether the city possessed the requisite authority to enact such an ordinance in the first instance. City of Clovis, 735 F. Supp. at 1004.8

I highlighted that one fragment to show that the AG’s office believes that even identical and uniform local right to work zones would be prohibited. But that isn’t much.

* The hard truth is that no governor has ever tried to do what Rauner wants - establish a state opt-in law for local right to work zones. It’s all new and mostly untested. And because of that, his lawyers can keep on saying what they’re saying and the governor will undoubtedly keep pushing the idea during his innumerable public remarks. AG Madigan ain’t gonna stop Rauner’s speechifyin’.

* Also, notice that first line of the general counsel’s memo…

The Governor has proposed legislation…

“Proposed,” I’m told by the governor’s office, does not mean “introduced.” We all know that this thing isn’t going anywhere under the current legislative makeup. So, he will likely introduce it at some point, but perhaps refuse to call it for a vote because it’s just not quite soup yet (notice his endless comments that an FY 15 budget fix is just “days away”).

The end result? More endless speechifyin’ until he either gets a new and more favorable legislative map in his possible second term, or until he leaves office.