By Olivia Grady

On April 27, 1990, the United States District Court for the District of New Mexico ruled in New Mexico Federation of Labor, United Food and Commercial Workers Union Local 1564 v. Clovis that the Clovis local Right-to-Work ordinance was invalid. Senior District Judge Mechem unfortunately ruled that the National Labor Relations Act (NLRA) allows unions and employers to bargain over union security agreements, and that the ordinance would make all union security agreements invalid.

The ordinance was first enacted to attract businesses to Clovis and improve the economy. It forbade employers from requiring union membership or the payment of dues as a condition of employment (union security provision). It also forbade employers from requiring a referral from a labor union as a condition of employment (a hiring hall provision) and from deducting dues from wages (a deduction provision).

The unions, however, were unhappy with these provisions, which would weaken their power, and sued to declare the ordinance invalid under the NLRA. The Judge quickly declared the hiring hall provision and the dues deduction provision invalid under the NLRA and SeaPAK v. Industrial, Technical & Professional Employees, Division of Nat'l Maritime Union, a Georgia case.

Judge Mechem next focused on the union security provision. The question that this case addressed was whether Congress intended to entirely regulate union security agreements, except for § 14(b) of the NLRA, or whether these regulations were to be left to the states as the Defendants argued.

In order to answer this question of whether Congress meant to leave the regulations to the states, courts examine Congressional intent. There are three types. One is that the language of the bill actually prevents states from legislating in that area. The other is that the Congressional legislation is so extensive that it is obvious what the intent was, and the last is that state legislation wouldn’t allow Congress to accomplish its goals.

The Judge in this case believed that the regulation of union security agreements met the second type, meaning Congress intended to regulate these agreements entirely, without state regulations (with an exception in § 14(b)).  In addition, although Defendants argued that there was already no uniformity with these regulations, the Judge ruled that numerous local ordinances would make Congress unable to achieve its goals:

“However, the diversity that arises from different regulations among various of the 50 states and the federal enclaves within the 21 right-towork *1003 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. A consequence of such diversity for both employers and unions would be to subject a single collective bargaining relationship to numerous regulatory schemes thereby creating an administrative burden and an incentive to abandon union security agreements. This result would effectively undermine Congress' determination in § 8(a) (3) of the Act that union security agreements are consistent with federal labor policy and would similarly undermine the NLRA's purpose by discouraging rather than encouraging bargaining on ‘conditions of employment.’"

Judge Mechem also said that allowing local ordinances would be too much of a burden for business because business might have to follow several different ordinances. Finally, states could only enact Right-to-Work laws, not cities or counties. The Judge did not believe that § 14(b) was written to allow local ordinances because the language in the Act does not mention cities and counties and other parts of the Act do.

§ 14(b) of the NLRA reads:

(b) 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.

Since this case was decided however, the United States Supreme Court has ruled twice that the term “state” includes state subdivisions, such as cities and counties. For example, just a year after the Clovis Right-to-Work case was decided, the Supreme Court decided Wisconsin Public Intervenor v. Mortier and ruled that the Federal Insecticide, Fungicide and Rodenticide Act allowed states and local governments to regulate pesticides, even though the Act only mentioned states.

In addition, in Columbus v. Ours Garage, the U.S. Supreme Court ruled in 2002 that the term "state” in the Interstate Commerce Act included its subdivisions.

The opinion read in part:

Absent a clear statement to the contrary, Congress reference to the regulatory authority of a State should be read to preserve, not preempt, the traditional prerogative of the States to delegate their authority to their constituent parts.

Finally, the Sixth Circuit Court of Appeals ruled in UAW v. Hardin County on November 18, 2016 that a local ordinance in Kentucky was valid under the NLRA:

“Accordingly, per the teaching of Mortier and Ours Garage, the dispositive question is whether Congress’s use of “State” in § 14(b) includes, beyond mere silence, indication of a clear and manifest purpose to preempt state authority to delegate governmental power to its political subdivisions.”

Former Representative Jason Nemes, who was part of the legal defense of the Kentucky ordinance, wrote in an email to the Daily Signal:

“The Supreme Court had said numerous times that local ordinances are included when a federal statute says state law, unless otherwise expressed by Congress. This is because counties derive their authority and actual existence from the state’s sovereignty and have been established by the state to help govern the state. This is particularly true in states like Kentucky, where the state legislature has delegated significant authority to counties by enacting what is known as “home rule” statutes.”

In light of these subsequent decisions, if a New Mexico county or city passes a local Right-to-Work ordinance, a court would likely uphold the ordinance. To decide cases, Judges look at Supreme Court cases, Courts of Appeals cases and other district cases. Precedent would, therefore, include the two U.S. Supreme Court cases and the Sixth Circuit. The Judge also would give more weight to these cases than the Clovis case because they have been decided more recently and by higher courts.