The Private Sector.

Just before Thanksgiving, in a unanimous decision, the federal Sixth Circuit Court of Appeals ruled that local governments can enact right-to-work laws that will apply to private sector businesses and organizations whose labor relations are covered by the National Labor Relations Act (“NLRA”). Right-to-Work is shorthand for a law or ordinance that prohibits private sector collective bargaining agreements from making the payment of money to a labor union a condition of employment. The decision, United Autoworkers Union v. Hardin County, Ky., is now the law in Ohio, Kentucky, Michigan and Tennessee – the states that constitute the Sixth Circuit. Prior to Hardin, the NLRA was interpreted to reserve that right to the state government itself. Organized labor waged a furious, but ultimately futile campaign against the Hardin County law.

Ohio is bordered by three states that already have statewide right-to-work laws – Indiana, Michigan and West Virginia – and by a fourth state, Kentucky, that many labor observers expect to adopt one soon. To make themselves more attractive to business, cities and counties near these states are likely to be among the first adopters of a Hardin-type law or ordinance.

The Wall Street Journal reports that a similar case is underway in Illinois, which is in the Seventh Circuit in the federal scheme. If that case ever gets to the Seventh Circuit, which is likely because the stakes include untold millions of dollars in lost revenue for private sector labor unions, the result could be two neighboring federal Circuits that allow local right-to-work laws. On the other hand, if the Seventh Circuit answers the question differently than the Sixth Circuit did, the matter could land in the U.S. Supreme Court.

The Public Sector.

Public sector labor relations – police, fire, EMS, teachers, etc. – are covered by state law and not the NLRA. Consequently, there are dozens of different public sector labor relations statutes. Most state collective bargaining laws require public employees who work under collective bargaining agreements to either join the union and pay the dues the union charges or to opt out of union membership and pay to the union a fair share fee instead of dues. Each union must calculate its fair share fee in advance. Ohio’s Collective Bargaining Act requires fair share.

Recently, the fair share requirement was challenged under the U.S. Constitution in a California case known as Friedrichs v. California Teachers Association. That case made it to the U.S. Supreme Court, but was heard after Justice Antonin Scalia died and resulted in a 4-4, no-decision tie. There are several similar public sector cases in the works, but they will likely take several years to reach the Supreme Court, if any one ever does. However, right-to-work currently is a hot topic in labor law and given the November election results, Ohio and many other states are expected to tackle it in both the public and private sectors. As of December, 2016, Republicans outnumber Democrats 64 to 34 in the Ohio Assembly, and 23 to 10 in the State Senate.

Fred Englehart is a senior counsel attorney with Walter | Haverfield’s Labor and Employment Law group.