By Olivia Grady

The village of Lincolnshire, Illinois passed a local Right-to-Work ordinance on December 14, 2015. Inspired by Kentucky counties that had passed similar measures that year, Ordinance No. 15-3389-116 was “an ordinance on economic development and worker empowerment by regulation of involuntary payroll deductions for private sector workers.” The ordinance reads:

SECTION 4: GUARANTEE OF EMPLOYEE RIGHTS

No person covered by the NLRA shall be required as a condition of employment or continuation of employment with a private-sector employer:

(A)  to resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization;

(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;

(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; or

(E)  to be recommended, approved, referred, or cleared for employment by or through a labor organization.

The ordinance text cites the reasons for Right-to-Work: there are 200,000 fewer employees in Illinois after the Great Recession than before, and a poll of CNBC’s Global Council of CFOs showed that Right-to-Work was important for business in choosing where to invest.

In response to the ordinance, four unions that operate in Lincolnshire: International Union of Operating Engineers, Local 399, AFL-CIO; International Union of Operating Engineers, Local 150, AFL-CIO; Construction and General Laborers' District Council of Chicago and Vicinity, Laborers International Union of North America, AFL-CIO; and Chicago Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, filed suit against the village in federal court to invalidate the ordinance. They argued that the ordinance was invalid under the Supremacy Clause, that the National Labor Relations Act and the Labor-Management Relations Act overruled the ordinance.

The defendants argued that the unions lacked standing and that the unions couldn’t prove that “Lincolnshire violated a federally protected right.” The unions replied that they had standing because they were injured when the ordinance was passed. Because of the ordinance, the unions argued that their contract agreements were invalid, and they couldn’t make any more similar agreements.

On January 7, 2017, Judge Matthew Kennelly, a District Judge for the Northern District of Illinois Eastern Division issued his decision in the case officially known as International Union of Operating Engineers (IUOE), Local 399 v. Lincolnshire.

The District Judge ruled that three of the four unions lacked standing to challenge the hiring hall provisions and the dues check-off arrangement of the ordinance and that all four unions could not bring a claim of deprivation of rights. The Judge however denied the village’s summary judgment motion because one union had standing for all three claims: Right-to-Work, hiring hall provisions, and dues check-off arrangement.

The Judge found that all four unions had standing to challenge the Right-to-Work part of the ordinance and that federal law preempted the village’s ordinance. He further argued that while the state was allowed to pass Right-to-Work laws, the NLRA exception that allowed this state power did not apply to local governments because there would be no unity of union security agreements.

IUOE Local 150 President-Business Manager James M. Sweeney was thrilled with the decision:

“We have long argued that local governments simply are not empowered to pass these laws, and we are pleased with Judge Kennelly’s decision. This was a political attack against middle class workers, and we will always take up the fight on behalf of workers who depend on decent wages and benefits to support themselves and their families.”

Although Right-to-Work advocates were not pleased with the decision, another court ruled the opposite way. The Sixth Circuit already ruled in a decision in November 2016 allowing Kentucky counties to pass Right-to-Work. Meanwhile the Illinois case will likely be appealed to the Seventh Circuit. James Sherk, Research Fellow in Labor Economics at the Heritage Foundation explains what this might mean:

“If all the federal appeals courts rule the same way, the U.S. Supreme Court typically does not step in. But if the 7th Circuit were to rule against the local right to work, then you would have a conflict between the two circuits and typically the Supreme Court steps in to create consistency in the law when you have two circuits reading it differently. The litigation out of Illinois could go up to the Supreme Court potentially.”

With President-elect Donald Trump likely to choose a pro-Right-to-Work judge to replace Justice Antonin Scalia on the Supreme Court, prospects look good for lovers of liberty in Lincolnshire and across the country.