State Sen. Nancy Cassis has introduced legislation in Lansing that would allow localities to set up what might be called “right-to-work zones.” The authority of local governments to take this step is dubious — what little legal authority there is on the question is all negative — but while courts have struck down local right-to-work ordinances both times they came up, neither of the two decisions involved a state statute that authorized local right-to-work. This is a question on which legal experts disagree vehemently, but a carefully-written “local option” law passed by the state legislature could work.

Among nearly all private-sector workers, labor relations are governed by federal law: the National Labor Relations Act. The NLRA is fairly exhaustive, and the courts have consistently interpreted it as “occupying the field” of private-sector labor relations, leaving very little room for states to act. But there’s one big exception carved out of federal labor law: States can regulate union membership and agency fees. This is where state right-to-work laws come into play.

“Right-to-work” prohibits unions and employers from signing contracts that force workers to join or financially support a union, leaving union membership and support to the conscience of individual workers.

The federal statute authorizing RTW laws covers "state laws" regulating union membership, but doesn't say those laws have to take any specific form:

29 U.S.C. §164(b) -- Agreements requiring union membership in violation of State law

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 Territorial law.

The key phrases are "such execution or application" and "State or Territorial Law." Let's tackle the second phrase first. Would a local ordinance qualify as a state law? Probably not; again, both courts that have considered this question have said no. (It should be noted that local ordinances have been treated as “state law” in other contexts, but none of those involved labor relations.) To clarify, "Territory" is a very specific legal term referring to U.S. possessions that are not part of a state. Guam is a territory, Kent County is not. The bottom line is the courts are very unlikely to allow a local government to enforce a right-to-work ordinance on its own.

But the other key phrase, "such execution or application," opens the door for the state to authorize local right-to-work. The implication is that a state does not have to prohibit all agency fee clauses or none at all. It can allow some while permitting others. It can place special conditions. Colorado has a "Labor Peace Act" that requires a union get separate authorization in a secret-ballot vote before negotiating an agency fee. It's been on the books for ages and has never been struck down.

Doing so will require careful drafting, but a state statute authorizing local governments to establish right-to-work zones that are recognized and enforced by the state has a decent chance of passing legal scrutiny.

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