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* 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, 2015The 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.
posted by Rich Miller
Monday, Mar 23, 15 @ 10:38 am
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The more attention issues like this get, the happier he is.
That last sentence also reminds me of Rich’s frequent headline, ==It’s only a bill==. This thing isn’t going anywhere right now, but it sure makes for a good talking point. Ignore the other things going on in Springfield…
Comment by Formerly Known As... Monday, Mar 23, 15 @ 10:46 am
The spin makes no sense.
If it’s all about “rights,” shouldn’t the governor be pushing for those “protections” for all citizens?
Why would “rights” be subject to the whims of local governments?
Comment by Wordslinger Monday, Mar 23, 15 @ 10:49 am
Its “wonderful” talking points that have a zero chance of getting the legislative action(s) to make his talking points real.
My frustration/aggravation is the constant focus on these windmills that exist today and making us all ride along.
You don’t have the votes, move on to governing in between these windmill attacks.
Comment by Oswego Willy Monday, Mar 23, 15 @ 10:50 am
==move on to governing in between these windmill attacks==
But that would require… governing?
Both parties just got a collective lump in their throats.
Comment by Formerly Known As... Monday, Mar 23, 15 @ 10:53 am
On the face of it, Rauner seems like one of the laziest governors in recent memory. He rivals Blagojevich, I think.
Rauner has no desire to govern. He wants to opine. Endlessly. I suspect this is how Rauner the businessman worked, too. High paid stuff, but no actual work on Rauner’s part.
A great way to earn a billion dollars, I guess.
Comment by Frenchie Mendoza Monday, Mar 23, 15 @ 10:57 am
Oswego Willy-I agree withyou that the “windmill” aspect of our Governor’s fixation on an issue (RTW) that has no chance of passing the legislature, but his windmilling is aimed at increasing his national stature, not actually doin’ the work of governin’, so it will continue to be about the only thing he focuses on. Good for makin’ him more known nationally, bad for the rest of us livin’ in this state who want to see an actual budget for FY16 passed (let alone a solution to the phony FY15 budget the GA passed last June)…
Comment by Roadiepig Monday, Mar 23, 15 @ 10:59 am
Bruce Rauner as Don Quixote, Ron Sandack as Sancho Panza
Ah, sweet sovereign of my captive heart. I shall
not fail thee, for I know…
I have dreamed thee too long,
Never seen thee or touched thee.
But known thee with all of my heart.
Half a prayer, half a song,
Thou hast always been with me,
Though we have been always apart.
Right to Work Zones… Right to Work Zones…
I see heaven when I see thee, Right to Work Zones,
And thy name is like a prayer
An angel whispers… Right to Work Zones… Right to Work Zones!
If I reach out to thee,
Do not tremble and shrink
From the touch of my hand on thy hair.
Let my fingers but see
Thou art warm and alive,
And no phantom to fade in the air.
Right to Work Zones… Right to Work Zones…
I have sought thee, sung thee,
Dreamed thee, Right to Work Zones!
Now I’ve found thee,
And the world shall know thy glory,
Right to Work Zones… Right to Work Zones
Comment by Oswego Willy Monday, Mar 23, 15 @ 11:04 am
democratic house and senate.
Comment by facts are stubborn things Monday, Mar 23, 15 @ 11:04 am
“More endless speechifyin’ until he either gets a new and more favorable legislative map in his possible second term, or until he leaves office.”
Or, to use the technical term, “Shaking-Up Springfield”.
– MrJM
Comment by MrJM Monday, Mar 23, 15 @ 11:06 am
It’s never been tried in this form by any governor before, it’s never been legally tested before, it has no history by which to judge it, and it’s never going to pass here in any case.
What a wonderful mythical rhetorical device.
Comment by walker Monday, Mar 23, 15 @ 11:08 am
“Is that really interstate commerce?”
Rich, you have missed the boat. Scotus has ruled that anything anybody says or does anywhere at any time is interstate commerce.
Comment by perry noya Monday, Mar 23, 15 @ 11:08 am
===…but his windmilling is aimed at increasing his national stature, not actually doin’ the work of governin’, so it will continue to be about the only thing he focuses on. Good for makin’ him more known nationally, bad for the rest of us livin’ in this state…===
You are On It.
I guess when he ran for governor, it’s on us that we thought his own personal focus should be on Illinois. Our bad.
Comment by Oswego Willy Monday, Mar 23, 15 @ 11:09 am
@Rich Miller =But what if a school district wanted an “empowerment zone” only for it’s employees.=
That gets complicated, public employees are not under NLRB jurisdiction. Public school teachers in Illinois are under the Illinois Educational Labor Relations Act, which specifically allows for fair share agreements.
Comment by DuPage Monday, Mar 23, 15 @ 11:10 am
Dulcinea deserves a better fate than a Right to Work Zone!
Comment by D.P.Gumby Monday, Mar 23, 15 @ 11:12 am
Does it make any sense that a state can establish citizens’ rights for the state as a whole, which can then be opted into or out of by a local vote?
Can anyone think of an analogous case?
Comment by walker Monday, Mar 23, 15 @ 11:13 am
===Can anyone think of an analogous case? ===
Minimum wage?
Comment by Rich Miller Monday, Mar 23, 15 @ 11:17 am
“Scotus has ruled that anything anybody says or does anywhere at any time is interstate commerce.”
True until 1995, e.g. United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995) https://supreme.justia.com/cases/federal/us/514/549/case.html
– MrJM
Comment by MrJM Monday, Mar 23, 15 @ 11:19 am
Under traditional labor law analysis, I think a state law that would create a patchwork of different labor regulations depending on the city would be immediately struck down.
It’s hard to say what this US Supreme Court would do, however. Because conservative judicial activism reigns supreme at the Supreme Court.
Comment by the Other Anonymous Monday, Mar 23, 15 @ 11:22 am
What’s Rauner’s position on local units restricting firearms?
So, local government should be allowed to abridge the rights of workers to form effective labor unions, but not to restrict (”regulate”) firearms?
“Conservatism” is pushing more and more absurd ideas about “rights”.
Comment by Carl Nyberg Monday, Mar 23, 15 @ 11:22 am
==minimum wage?==
Maybe. But kind of the flip side of the coin.
Chicago didn’t opt out of the state minimum wage, they just exceeded it. It still applies across the state, including Chicago.
Comment by walker Monday, Mar 23, 15 @ 11:27 am
===Dulcinea deserves a better fate than a Right to Work Zone!===
I dunno how to take that, the irony isn’t lost on me.
Comment by Oswego Willy Monday, Mar 23, 15 @ 11:42 am
Er, Carl. The right of unions to collect dues isn’t in the Constitution. Like it or not, the Supreme Court (and 7th Circuit) have spoken loud and clear about the ability of locals to regulate firearms. No court has opined about Rauner’s approach to fair share. It appears from all accounts that it would be an issue of first impression, and that Attorney General Madigan clearly jumped the gun when she issued her “opinion.”
Comment by phocion Monday, Mar 23, 15 @ 11:46 am
I heard this report of a Rauner staff meeting from the Little Birdie Reporting Service. According to Little Birdie, the meeting went like this:
Indy: Governor, the AG’s legal opinion is very damning and it makes an extremely credible argument against our efforts to make people believe this can be done without enabling legislation.
Z: Indy, can we counter with some rhetoric like corrupt union bosses.
Indy: Maybe, but they put great examples of case law in their opinion. That makes are gobbledygook response less credible.
Gov: Darn it guys, I DON’T LOSE. Come up with someth’n NOW.
Indy: We could put together an amendment to somebody’s bill authorizing the empowerment zones.
Z: That’s not on our list of 10 votes.
Gov: None of our purchased members are stupid enough to waste their time on this amendment anyway.
Z: Well, we can say we have something proposed and never release it. That tactic has served us so well up to now.
Gov: That’s what we’ll do. Indy, get work’n on a response saying that all the issues will be addressed in our fathom proposed legislation.
Indy: Yes sir.
Comment by Norseman Monday, Mar 23, 15 @ 11:49 am
===It appears from all accounts that it would be an issue of first impression, and that Attorney General Madigan clearly jumped the gun when she issued her “opinion.”===
The Attorney General’s Office was asked…asked…for an opinion. There was no jumping of any gun, just answering of a bell.
The merits of the opinion seem to only be in question … if … passed legislation can make it so.
There isn’t 30 or 60 votes to make it so.
Comment by Oswego Willy Monday, Mar 23, 15 @ 11:50 am
OW, thank you for your response. The fact is that the AG is often asked…asked…for an opinion. The AG is under no obligation to provide one. That she did so in an area of law so clearly unsettled is troubling and of questionable judgment on her part.
Comment by phocion Monday, Mar 23, 15 @ 11:56 am
==There was no jumping of any gun, just answering of a bell==
I wish she answered the bell when she was asked for her opinion on some of the pension proposals a while ago. Funny how that works.
Comment by Formerly Known As... Monday, Mar 23, 15 @ 11:56 am
===when she was asked for her opinion on some of the pension proposals===
Was she ever formally asked?
Comment by Rich Miller Monday, Mar 23, 15 @ 11:57 am
===when she was asked for her opinion on some of the pension proposals===
Also, I think she provided her opinion in the court case itself.
Comment by Rich Miller Monday, Mar 23, 15 @ 11:57 am
- phocion -,
You can ask the AG’s Office if you’d like about your idea.
They’re in the book.
Comment by Oswego Willy Monday, Mar 23, 15 @ 12:00 pm
== - phocion - Monday, Mar 23, 15 @ 11:56 am:
OW, thank you for your response. The fact is that the AG is often asked…asked…for an opinion. The AG is under no obligation to provide one. That she did so in an area of law so clearly unsettled is troubling and of questionable judgment on her part. ==
What are you talking about? Unsettled area of law? She cited a handful of cases directly on point. Rauner’s concept isn’t new. There are thousands of cases related to labor law and the State’s ability to do things.
Comment by Democrowhat Monday, Mar 23, 15 @ 12:01 pm
“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.”
So…NOT a uniform set of employees’ rights, then.
” Attorney General Madigan clearly jumped the gun when she issued her “opinion.””
Not really. 1) Even under Barclay’s interpretation, no local government can go out on its own right now and try to enact Rauner’s crap idea; 2) Barclay’s interpretation isn’t all that convincing. The way he describes it, the state basically sets up a framework for local governments to prohibit union security agreements, but it doesn’t require them to do so. It is still the local government that has to take the crucial step, so I don’t think the analysis really changes. Of course, the Rule of Five is always in effect…
Comment by Arsenal Monday, Mar 23, 15 @ 12:07 pm
Democrowhat, I would suggest you read the entire post above. What she cites are cases that are not analogous to the Rauner proposal. And OW, I’m not sure what you’re suggesting. Finally, good question by Rich Miller: Who actually solicited the AG opinion in this case? It’s seldom that an AG sua sponte provides an official opinion.
Comment by phocion Monday, Mar 23, 15 @ 12:09 pm
“Who actually solicited the AG opinion in this case?”
Forby and Hoffman.
Comment by Arsenal Monday, Mar 23, 15 @ 12:10 pm
=== Who actually solicited the AG opinion in this case? It’s seldom that an AG sua sponte provides an official opinion.===
Sen. Forby, Rep. Hoffman did.
Please keep up.
Comment by Oswego Willy Monday, Mar 23, 15 @ 12:10 pm
“What she cites are cases that are not analogous to the Rauner proposal.”
Sure they are; “analogous to” doesn’t mean “directly on point”, that’s why it’s a different phrase.
You might get a court to agree that the state telling localities it’s okay to prohibit union security agreements means the localities DON’T actually prohibit union security agreements, but it wouldn’t really be consistent with labor law up to this point.
Comment by Arsenal Monday, Mar 23, 15 @ 12:13 pm
==Was she ever formally asked==
I thought she was, but could be wrong. It wouldn’t be the first time lol.
Comment by Formerly Known As... Monday, Mar 23, 15 @ 12:14 pm
=== That she did so in an area of law so clearly unsettled is troubling and of questionable judgment on her part. ===
“Unsettled” says you. We have the AG writing a creditable opinion citing “settled” case law. That doesn’t make her opinion sacrosanct, however, it certainly caused a course change in the Raunerites. Prior to the AG opinion, I hadn’t heard of a legislative proposal. The Gov was going around the state egging locals on to create their own “empowerment” zone. Now they have officially acknowledged that under the best case scenario, legislation will be required. Which means that “empowerment zones” will not be happening until at least 2017 and a successful $40 million purchase of the GA majority.
Comment by Norseman Monday, Mar 23, 15 @ 12:18 pm
=== Who actually solicited the AG opinion in this case? It’s seldom that an AG sua sponte provides an official opinion.===
If you had read the opinion, you would have seen the requestors.
Comment by Norseman Monday, Mar 23, 15 @ 12:29 pm
===If you had read the opinion, you would have seen the requestors. ===
LOL.
Exactly. So much for your argument.
Comment by Rich Miller Monday, Mar 23, 15 @ 12:30 pm
Let’s all remember that BVR’s “legal guy” was actually an associate at a Chicago law firm until Indiana’s troll governor noticed him — not sure why— and then pawned him off to BVR as a great legal mind.
The race to become West Indiana aka Scabistan is severvely delayed with the blunders on “fair share” and now mini Scabistans’.
BTW the agencies don’t really have the power to create funds to store the fair share so expect many foul ups, miscalculations of pension, sick pay, vacation. That should result in more suits, settlements $$$$$
Kinda reminds of Blagoofian efforts to fire IDOT hires that dragged on and on
OMG did we just compare BVR — prexy hopeful — with Blagoof? and he has only be on the job for …less than 80 days
Comment by anonin' Monday, Mar 23, 15 @ 12:42 pm
Rauner’s proposal is that the state legislature pass a law allowing local right-to-work. That, obviously, will not happen any time soon.
But this is also “battlespace” preparation should the Kentucky counties (and others) who have passed their own right-to-work laws actually win before the Supreme Court (a longshot to be sure). Rauner would take credit and a lot of downstate and border counties would follow suit on right to work.
Comment by gopower Monday, Mar 23, 15 @ 1:36 pm
Forby and Hoffman asked for the opinion.
Comment by Bored Chairman Monday, Mar 23, 15 @ 2:07 pm
What a waste of time by Rauner. He’s pushing local right to work zones and ending fair share fees on flimsy legal bases. The court does not authorize local right to work zones and elimination of fair share fees for public workers.
Rauner is using big government to attack and dismantle legal and democratically-ratified organizations. Rauner and his backers are only libertarian when it suits them, not when they’re getting tax breaks and profiting from government business, like pensions.
Comment by Grandson of Man Monday, Mar 23, 15 @ 2:20 pm
Scabistan - I love that word anonin’
Im going to borrow that one for sure.
BVR is Blago Part 2, but I afraid to say this, knows EVEN less about State government that Hot Rod. Rod threw the baby out with the bathwater, but BVR threw out the entire tub, and thinks he can EO his way through the nest 4 years. He’s poked the hornets nest enough times now, that he is going to get stung a lot (or should I say the tax payers will be stung).
Comment by BlameBruceRauner Monday, Mar 23, 15 @ 2:22 pm
Why should a community decide if I want to exercise my rights to join a union or pay fair share. Teachers who don’t live in their districts will not have a say on their working conditions. The community voting to create these zones seems to be the wrong body to vote on the issue.
Comment by I Teach Monday, Mar 23, 15 @ 3:23 pm
“Why should a community decide if I want to exercise my rights to join a union or pay fair share.” Even if Right to Work passes, you will still have the opportunity to be a fair share or full member if you wish…at least until the union is decertified or becomes insolvent.
Comment by Skeptic Monday, Mar 23, 15 @ 4:01 pm