Petition for Writ of Certiorari — Village of Lincolnshire, Illinois, et al., Petitioners v. International Union of Operating Engineers Local 399, et al.

No. _____

IN THE

Supreme Court of the United States

VILLAGE OF LINCOLNSHIRE, ET AL.,

Petitioners,

v.

INTERNATIONAL UNION OF OPERATING ENGINEERS

LOCAL 399, ET AL.,

Respondents.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Jeffrey M. Schwab

LIBERTY JUSTICE

CENTER

190 S. LaSalle St.

Chicago, IL 60603

David S. Birnbaum

JONES DAY

77 West Wacker Dr.

Suite 3500

Chicago, IL 60601

Shay Dvoretzky

Counsel of Record

Jeffrey R. Johnson

Vivek Suri

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

sdvoretzky@jonesday.com

Counsel for Petitioners

i

QUESTION PRESENTED

Section 14(b) of the National Labor Relations Act

states that nothing in the Act “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.” 29 U.S.C. § 164(b).

Does a law enacted by a political subdivision of a

state constitute “State … law” under section 14(b)?

ii

PARTIES TO PROCEEDINGS BELOW

The defendants-appellees and cross-appellants

below were petitioner Village of Lincolnshire, petitioner Elizabeth Brandt in her official capacity as

Mayor of Lincolnshire, petitioner Barbara Mastandrea in her official capacity as Village Clerk of

Lincolnshire, and Peter Kinsey in his official capacity

as Chief of Police of Lincolnshire. Mr. Kinsey has

since been succeeded as Chief of Police by petitioner

Joseph Leonis. The plaintiffs-appellants and crossappellees below were respondents 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.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

PARTIES TO PROCEEDINGS BELOW .................. ii

TABLE OF AUTHORITIES ....................................... v

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 2

JURISDICTION ......................................................... 3

STATUTORY PROVISIONS INVOLVED ................ 3

STATEMENT OF THE CASE ................................... 4

A. The National Labor Relations Act ............... 4

B. The Village of Lincolnshire Ordinance ........ 5

C. Proceedings Below ........................................ 6

REASONS FOR GRANTING THE PETITION ........ 9

I.

LOWER COURTS DISAGREE ABOUT THE VALIDITY OF LOCAL RIGHT-TO-WORK LEGISLATION .......... 9

II. THE SEVENTH CIRCUIT’S DECISION DEPARTS

FROM THIS COURT’S PRECEDENTS ........................ 14

III. THIS CASE IS AN EXCELLENT VEHICLE FOR

RESOLVING THIS IMPORTANT QUESTION ............... 20

CONCLUSION ......................................................... 24

iv

TABLE OF CONTENTS

(continued)

Page

APPENDIX A: Opinion of the Court of Appeals

for the Seventh Circuit (Sept. 28, 2018) ........... 1a

APPENDIX B: Memorandum Opinion and Order of the District Court, N.D. Illinois,

Eastern Division (Jan. 7, 2017) ....................... 28a

APPENDIX C: Statutory Provisions ..................... 56a

APPENDIX D: Excerpt of Village of

Lincolnshire Ordinance No. 15-3389-116 ....... 58a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Alden v. Maine,

527 U.S. 706 (1999) .............................................. 20

Columbus v. Ours Garage & Wrecker

Servs., Inc.,

536 U.S. 424 (2002) ...................................... passim

Dellmuth v. Muth,

491 U.S. 223 (1989) .............................................. 18

Gregory v. Ashcroft,

501 U.S. 452 (1991) ........................................ 15, 21

Harris v. Quinn,

134 S. Ct. 2618 (2014) ............................................ 1

Holt Civic Club v. City of Tuscaloosa,

439 U.S. 60 (1978) ................................................ 15

Janus v. AFSCME,

138 S. Ct. 2448 (2018) ...................................... 1, 22

Kentucky State AFL-CIO v. Puckett,

391 S.W.2d 360 (Ky. 1965)............................... 2, 12

Knox v. Serv. Emps.,

567 U.S. 298 (2012) ........................................ 20, 22

Oil Workers v. Mobil Oil Corp.,

426 U.S. 407 (1976) ................................ 4, 5, 18, 19

Retail Clerks v. Schermerhorn,

375 U.S. 96 (1963) .................................................. 5

Reynolds v. Sims,

377 U.S. 533 (1964) .............................................. 14

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645 (2017) .......................................... 23

United Auto. Workers v. Hardin Cty.,

842 F.3d 407 (6th Cir. 2016) ........................ passim

Wisconsin Pub. Intervenor v. Mortier,

501 U.S. 597 (1991) ...................................... passim

CONSTITUTIONAL AND STATUTORY AUTHORITIES

7 U.S.C. § 136v ............................................................ 9

28 U.S.C. § 1254 .......................................................... 3

29 U.S.C. § 164 ........................................................ 1, 5

Ill. Const. art. VII ........................................................ 5

OTHER AUTHORITIES

Patrick Gleason,

How Right To Work Laws Are

Making Inroads Even In Blue States,

Forbes, Nov. 6, 2017............................................. 21

Brenna Goth,

Local Right-to-Work Rules Sweep

New Mexico Counties,

Bloomberg News, Sept. 20, 2018 ................... 20, 21

Greg Kocher,

Several Kentucky counties passing or

considering ‘right to work’ laws,

Lexington Herald-Leader,

Jan. 17, 2015 ........................................................ 21

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Kevin Mooney,

Amid Union Opposition, Right to

Work Advances in Delaware County,

The Daily Signal, Oct. 24, 2017 ........................... 21

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2013) ................................................ 17

1

INTRODUCTION

“For many decades, Americans have debated the

pros and cons of right-to-work laws”—laws that preclude employers and unions from compelling employees to associate with or fund unions. Harris v. Quinn,

134 S. Ct. 2618, 2658 (2014) (Kagan, J., dissenting).

Proponents of right-to-work laws argue that compelling someone to associate with a union violates the

freedom of conscience. Opponents of right-to-work

laws contend that they impair the strength of labor

unions and the stability of labor relations. This “policy debate” is “healthy,” “energetic,” and “democratic.”

Janus v. AFSCME, 138 S. Ct. 2448, 2501 (2018).

In the National Labor Relations Act, Congress

decided to leave this controversial issue to the states,

and not to legislate a one-size-fits-all resolution of

the debate for the whole nation. In section 14(b) of

the NLRA, Congress declared that nothing in the Act

preempts any “State or Territorial” right-to-work

law. 29 U.S.C. § 164(b).

The question presented here is whether the

NLRA allows local governments to pass their own

right-to-work laws—that is, whether a right-to-work

law passed by a political subdivision is a “state” law

under section 14(b). This Court has held in two cases—Wisconsin Public Intervenor v. Mortier, 501 U.S.

597 (1991), and Columbus v. Ours Garage & Wrecker

Servs., Inc., 536 U.S. 424, 434 (2002)—that a federal

law that authorizes action by a “state” presumptively

authorizes action by a state’s political subdivisions,

unless the statute contains a clear statement supplanting local authority. These cases reflect the ordinary meaning of the term “state” in federal law. They

also respect state sovereignty: Unless the statute

2

clearly says otherwise, a court should presume that

Congress has left it up to the state to decide which

decisions to take statewide and which to leave to the

local level.

Despite this clear-statement rule, the Seventh

Circuit ruled, in the decision below, that the NLRA

does preempt local right-to-work laws. In the Seventh Circuit’s view, a local law is not a “State” law

under section 14(b). As a result, a state may not

make the same decision about right-to-work legislation that Congress has made—namely, the decision

to leave this controversial issue to a smaller unit of

government.

The question whether section 14(b) protects local

legislation deserves this Court’s review. To start, it is

the subject of a circuit split—the Sixth Circuit upheld a local right-to-work law as “State” law under

this provision, but the Seventh Circuit and the Kentucky Supreme Court struck down local laws as not

covered. See United Automobile Workers v. Hardin

County, 842 F.3d 407 (6th Cir. 2016); Kentucky State

AFL-CIO v. Puckett, 391 S.W.2d 360 (Ky. 1965). The

Seventh Circuit’s crabbed interpretation of “State”

also conflicts with Mortier and Ours Garage. Finally,

the question presented is important. Numerous local

governments have enacted right-to-work laws, and

this Court should clarify whether those enactments

are lawful.

OPINIONS BELOW

The opinion of the court of appeals is reported at

905 F.3d 995 and reproduced at App. 1a–27a. The

opinion of the district court is reported at 228 F.

Supp. 3d 824 and reproduced at App. 28a–55a.

3

JURISDICTION

On September 28, 2018, the court of appeals affirmed the district court’s judgment. App. 1a. On December 12, 2018, Justice Kavanaugh extended the

time to file the petition for certiorari until February

25, 2019. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are reproduced

at App. 56a–59a.

4

STATEMENT OF THE CASE

A. The National Labor Relations Act

Congress enacted the National Labor Relations

Act in 1935, and amended it in the Taft-Hartley Act

in 1947. The NLRA, as in effect today, sets up the

National Labor Relations Board, grants employees

the right to join unions and bargain collectively, defines and prohibits unfair labor practices, and regulates union elections.

The NLRA includes provisions addressing unionsecurity agreements (agreements requiring workers,

as a condition of employment, to associate with labor

unions). Section 8(a)(3) prohibits “closed shop”

agreements, which provide that “the employer will

hire no one who is not a member of the union at the

time of the hiring.” Oil Workers v. Mobil Oil Corp.,

426 U.S. 407, 409 n.1 (1976). But section 8(a)(3) explicitly clarifies that the NLRA does not prohibit “union shop” contracts, which provide that “no one will

be employed who does not join the union within a

short time after being hired.” Id. It also clarifies that

the NLRA does not prohibit “agency shop” contracts,

which provide that “while employees do not have to

join the union, they are required … to make periodic

payments to the union equal to the union dues.” Id.

This Court has interpreted section 8(a)(3) as “articulat[ing] a national policy that certain union-security

arrangements”—namely, the union shop and the

agency shop—“are valid as a matter of federal law.”

Id. at 416.

At the same time, Congress recognized that other

governments might reasonably disagree with it

about the wisdom of these controversial agreements.

5

Section 14(b) of the NLRA states that nothing in the

Act “shall be construed as authorizing” a union-shop

or agency-shop contract that is “prohibited by State

or Territorial law.” 29 U.S.C. § 164(b). This provision

“allows individual States and Territories to exempt

themselves from [section] 8(a)(3) and to enact socalled ‘right-to-work’ laws prohibiting union or agency shops.” 426 U.S. at 409. States thus “have the final say” on the right-to-work issue: Thanks to section

14(b), they may “outlaw even a union security

agreement that passes muster by federal standards.”

Retail Clerks v. Schermerhorn, 375 U.S. 96, 103

(1963).

B. The Village of Lincolnshire Ordinance

The Village of Lincolnshire is located to the north

of Chicago. Lincolnshire is a home-rule unit under

the Illinois Constitution, which means that it “may

exercise any power and perform any function pertaining to its government and affairs.” Ill. Const. art.

VII, § 6(a); see App. 9a.

The Illinois General Assembly has not enacted a

statewide right-to-work law. In 2015, however, the

Village of Lincolnshire adopted a village-level rightto-work law by enacting Ordinance No. 15-3389-116.

The Ordinance prohibits private-sector employers

from requiring employees to associate or to refrain

from associating with labor unions. The provisions at

issue here, section 4(B)–(D), prohibit union-shop and

agency-shop contracts. They state:

No person covered by the NLRA shall be required as a condition of employment or continuation of employment with a privatesector employer: …

6

(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 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 labor organization.

App. 58a–59a.

C. Proceedings Below

In 2016, respondents (four unions that operate in

Lincolnshire) sued petitioners (the Village, the

Mayor, the Village Clerk, and the Police Chief) in

federal district court. They claimed that the NLRA

preempted Lincolnshire’s right-to-work law. (They

also challenged other provisions of the ordinance, but

those provisions are not relevant here, and we do not

discuss them further.)

The district court granted the unions summary

judgment. It concluded, on the basis of the NLRA’s

“language” and “legislative history,” that “Congress

intended to preempt the field of union security

agreements.” App. 45a. The court acknowledged that

section 14(b) of the Act saved from preemption “State

or Territorial law” that prohibited union-security

agreements. Id. The court ruled, however, that section 14(b) must be “read narrowly to extend to states

and no further.” App. 51a.

7

The Seventh Circuit affirmed. It began by explaining that, under this Court’s cases, the NLRA

“occupies the field for any activities that … fall within [its] ambit.” App. 6a (citing San Diego Bldg.

Trades Council v. Garmon, 359 U.S. 236, 244 (1959)).

The Seventh Circuit continued that, again under this

Court’s cases, “union-security clauses … are such activities.” App. 6a (citing Street Employees v.

Lockridge, 403 U.S. 274, 284 (1971)). As a result,

“laws banning union-security agreements clash with

[the NLRA] and thus can be saved only if they fall

within the scope of section 14(b).” App. 7a.

The Seventh Circuit turned, accordingly, to section 14(b), which saves from preemption “State”

right-to-work laws. The court stated that “[a] devotee

of the ‘plain language’ approach to statutory interpretation might think” that section 14(b) does not

cover local right-to-work laws, because “municipalities are not states.” App. 14a–15a. The court also

noted that the NLRA “call[ed] out political subdivisions by name” in some other provisions, but not in

section 14(b). App. 15a.

The court, however, “prefer[red] … not to rely on

the literal terms of the statute.” App. 15a. Instead, it

rested its decision principally on the “goal” of the

NLRA. App. 19a. In the court’s view, “Congress enacted the NLRA to create national uniformity in labor law.” App. 19a. The court believed that

“[p]ermitting local legislation under section 14(b)”

undermines that uniformity by “threaten[ing] a crazy-quilt of regulations.” App. 18a. The court acknowledged that section 14(b) itself constitutes an exception to the NLRA’s policy of uniformity, but insisted

that (in light of the NLRA’s overall goals) the excep-

8

tion must be interpreted to allow only “variation at

the state … level,” not variation “within states.” App.

19a.

The Seventh Circuit likewise consulted “legislative history.” App. 19a. The court considered it significant that “the congressional debates’ repeated references to safeguarding state authority contain no

mention of local autonomy.” App. 19a–20a.

Finally, the court highlighted what it believed

were the “consequences” of allowing local right-towork legislation. In the court’s view, interpreting section 14(b) to authorize local right-to-work legislation

would lead to “administrative nightmares.” App. 16a.

The court considered it “impossible as a practical

matter” for employers and unions to comply with the

separate laws of thousands of localities across the

United States. App. 18a. The court thus reached

what it described as the “sensible conclusion”: “section 14(b) operates only at the state level.” App. 17a.

The Seventh Circuit acknowledged that this

Court had previously ruled, in Mortier and Ours

Garage, that a preemption exception’s reference to

“State” law encompasses local law, in the absence of a

“clear and manifest indication that Congress sought

to supplant local authority.” App. 24a. The court did

not suggest that there is any such “clear and manifest indication” here. Instead, the court declared that

Mortier and Ours Garage were “distinguishable.”

App. 22a. They involved exceptions to “an express

preemption provision,” whereas this case involves an

exception to “field” preemption. Id. And they involved

the “ability to regulate noxious substances” and “local safety regulation,” while this case involves “antilabor laws.” App. 24a.

9

REASONS FOR GRANTING THE PETITION

I.

LOWER COURTS DISAGREE ABOUT THE VALIDITY

OF LOCAL RIGHT-TO-WORK LEGISLATION

A. Appellate courts have split over the question

presented—whether section 14(b) saves local rightto-work laws from preemption. The Sixth Circuit has

ruled that section 14(b) does cover local right-to-work

laws. In contrast, the Seventh Circuit and the highest court of Kentucky have held that it does not.

Sixth Circuit. The Sixth Circuit has ruled in

United Automobile Workers v. Hardin County that a

political subdivision (there, Hardin County, Kentucky) may pass a local ordinance prohibiting union

shops and agency shops. 842 F.3d 407 (6th Cir. 2016),

cert. denied, 138 S. Ct. 130 (2017) (mem.).

The Sixth Circuit’s analysis rested on two of this

Court’s cases, Mortier and Ours Garage. In Mortier,

this Court addressed a provision of the Federal Insecticide, Fungicide, and Rodenticide Act that said:

“A State may regulate the sale or use of any federally

registered pesticide or device in the State.” 7 U.S.C.

§ 136v. The Court held that the statute did not

preempt local regulation of pesticides. The Court’s

analysis stemmed from the premise that a statute

distinguishes between state and local regulation only

if it provides a “clear and manifest indication that

Congress sought to supplant local authority.” 501

U.S. at 611. The Court ruled that, far from providing

a “clear and manifest indication,” the use of the term

“State” in the saving clause “tilt[ed] in favor of local

regulation,” because “political subdivisions are components of the very entity the statute empowers.” Id.

at 607–08 (emphasis added). The Court acknowl-

10

edged that some other provisions of the Act referred

separately to political subdivisions, but said that

“scattered mention of political subdivisions elsewhere in [the statute] does not require their exclusion here.” Id. at 612. The Court also acknowledged

concerns about “uniformity” and “regulatory coordination” across thousands of municipalities, but concluded that such “policy speculations” cannot suffice

to require preemption of state laws. Id.

Similarly, in Ours Garage, this Court considered

a provision of the Federal Aviation Administration

Authorization Act that saved “State” motor-vehicle

safety regulation from preemption. The Court held

that this saving provision saved local regulation as

well. The Court began with a premise that is “beyond

genuine debate”: A preemption provision’s exception

for “exercises of the … regulatory authority of a

State” presumptively “embrace[s] both state and local regulation.” 536 U.S. at 432. The Court said that

Mortier was “definitive” on this point. Id. Only a

“clear and manifest indication that Congress sought

to supplant local authority” can overcome this presumption. Id. at 434. The Court ruled that the statute at issue “did not provide the requisite ‘clear and

manifest indication.’” Id. The Court acknowledged

that the saving provision saved the power of a

“State” to enact motor-vehicle safety regulation, the

power of a “State or a political subdivision” to regulate tow-truck prices, and the power of a “State [or]

political subdivision” to enact cargo-liability rules. Id.

at 429–30. The Court ruled, however, that even this

stark pattern—using “State” in some parts of the

saving clause and “State or political subdivision” in

others—did not suffice. The implications of the dis-

11

parate inclusion or exclusion of the word “political

subdivision” did not amount to a “clear and manifest

indication.” Id. at 434.

Against the backdrop of Mortier and Ours Garage, the Sixth Circuit held that “§14(b)’s use of ‘State’

includes political subdivisions.” 842 F.3d at 417. The

Sixth Circuit emphasized the presumption that Congress’s use of the term “State” encompasses political

subdivisions in the absence of a “clear and manifest

indication that Congress sought to supplant local authority.” Id. at 414 (quoting Mortier, 501 U.S. at 611).

The court ruled that “no showing of such a clear and

manifest purpose ha[d] been made.” Id.

The Sixth Circuit acknowledged that “[section

14(b)’s] recognition of state authority is silent as to

political subdivisions of the State.” Id. at 415. The

court ruled, however, that, “[p]er Ours Garage, this

silence is to be construed as preserving state authority to delegate its governmental powers to its political

subdivisions as it sees fit.” Id. The Sixth Circuit also

acknowledged that the union had raised “policy concerns” about local right-to-work legislation. Id. at

420. In its view, however, Mortier established that

“unconvincing ‘policy speculations’” do not amount to

a “‘clear and manifest indication that Congress

sought to supplant local authority.’” Id. at 414 (quoting Mortier, 501 U.S. at 611). The court therefore

summed up: “Because Hardin County’s right-to-work

ordinance is ‘State law,’ it is not preempted.”

Seventh Circuit. In contrast, the Seventh Circuit ruled in this case that a political subdivision

may not pass a local ordinance prohibiting union

shops and agency shops. The wording of the law in

this case is identical to that in United Automobile

12

Workers: Both provide that an employer may not require an employee “as a condition of employment or

continuation of employment” “(B) to become or remain a member of a labor organization,” “(C) to pay

any dues …,” or “(D) to pay any … third party … in

lieu of such payments.” App. 58a–59a; United Automobile Workers, 842 F.3d at 410. Yet the Seventh Circuit struck down the law, because “section 14(b) does

not extend to the political subdivisions of states.”

App. 3a.

The Seventh Circuit acknowledged that the Sixth

Circuit had reached the opposite conclusion. App. 2a.

The Seventh Circuit, however, disagreed with its

reasoning, especially its emphasis on Mortier and

Ours Garage. App. 20a. In the Seventh Circuit’s view,

these cases were “distinguishable.” App. 22a. The

court pointed out that “sometimes Congress allows

redelegation, as in Mortier [and] Ours Garage, … and

sometimes it does not.” App. 25a. “The aspect of labor

law governed by section 14(b) of the NLRA,” the

court concluded, “falls in the latter category.” Id.

Kentucky Court of Appeals. Kentucky’s highest court has reached the same conclusion as the

Seventh Circuit. In Kentucky State AFL-CIO v. Puckett, 391 S.W.2d 360 (Ky. 1965), it struck down a local

right-to-work ordinance. It reasoned: “We think it is

not reasonable to believe that Congress could have

intended to waive other than to major policy-making

units such as states and territories, the determination of policy in such a controversial area as that of

union-security agreements.” Id. at 362.

B. The lower courts have acknowledged this circuit split. The Sixth Circuit, for its part, recognized

that Kentucky’s highest court had “held that [sec-

13

tion] 14(b) does not encompass laws of political subdivisions,” but ruled that this decision had “no persuasive weight.” United Automobile Workers, 842

F.3d at 417. The Seventh Circuit, likewise, acknowledged that the Sixth Circuit and the Kentucky Supreme Court were already divided on the question

presented even before this case: “Whether a local

law, rather than a statewide law, falls within the

scope of section 14(b) is a subject that has divided

other courts. The Sixth Circuit, in [United Automobile Workers], agreed with the Village that it does …

On the other side of the fence, Kentucky’s highest

court has held that section 14(b) does not permit local legislation on the topic.” App. 2a. The court added

that, by siding with Kentucky’s highest court, it had

“create[d] a [circuit] conflict with the Sixth Circuit.”

App. 3a n.2.

This circuit split will not resolve itself without

this Court’s intervention. The Seventh Circuit expressly said so. “[B]ecause [the panel’s decision] …

create[d] a conflict with the Sixth Circuit,” the panel

“circulat[ed] it to all members of the court in regular

active service,” but none “wished to hear this case en

banc.” App. 3a n.2. The Sixth Circuit, for its part,

rejected the reasoning underlying the Seventh Circuit’s decision. While the Seventh Circuit emphasized statutory purpose, legislative history, and policy consequences, the Sixth Circuit considered arguments about “purpose,” “legislative history,” and “policy concerns” insufficient to “rebu[t] the presumption

arising from Mortier and Ours Garage that ‘State’

includes political subdivisions of the State.” 842 F.3d

at 420. And while the Seventh Circuit found Mortier

and Ours Garage to be “distinguishable,” App. 22a,

14

the Sixth Circuit found them controlling, see 842 F.3d

at 413–16. This Court should intervene to resolve

this disagreement.

II. THE SEVENTH CIRCUIT’S DECISION

FROM THIS COURT’S PRECEDENTS

DEPARTS

A. As already discussed, this Court has decided

two cases—Mortier and Ours Garage—about the

meaning of the term “State” in a federal provision

that saves “State” law from preemption. Each time,

the Court ruled that “State” law includes local law—

and that, if Congress wishes to use the word “State”

differently, it must say so clearly. In this Court’s

words, a statute distinguishes between state and local regulation only if it provides a “clear and manifest indication that Congress sought to supplant local

authority.” Mortier, 501 U.S. at 611.

This clear-statement rule reflects the legal status

of political subdivisions. See Mortier, 501 U.S. 597.

“Political subdivisions” are “subordinate governmental instrumentalities created by the State to assist in

the carrying out of state governmental functions.”

Reynolds v. Sims, 377 U.S. 533, 575 (1964). They are

not sovereign entities, and they do not exercise their

own sovereign powers. Instead, they “exercis[e] such

of the governmental powers of the State as may be

entrusted to them.” Id. (emphasis added). Since a political subdivision exercises the powers of the state, a

law of a political subdivision is a law of the state in

the eyes of the Federal Government. As a result, a

statutory reference to “states” “tilts in favor of local

regulation,” since “political subdivisions are components of the very entity the statute empowers.”

Mortier, 501 U.S. at 607–08. Put another way, “the

15

more plausible reading of [a federal statute’s] authorization to the States leaves the allocation of regulatory authority to the absolute discretion of the States

themselves, including the option of leaving local regulation … in the hands of local authorities.” Id. at

608.

Mortier and Ours Garage also reflect “basic tenets of our federal system.” Ours Garage, 536 U.S. at

434. In that federal system, each state has broad

power to define “the structure of its government, and

the character of those who exercise government authority.” Gregory v. Ashcroft, 501 U.S. 452, 460

(1991). In particular, states have “wide leeway” to

create “political subdivisions,” and “extraordinarily

wide latitude” to determine the “number, nature and

duration of the powers conferred” upon them. Holt

Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71

(1978). “If Congress intends to alter the usual constitutional balance between the States and the Federal

Government”—here, by prohibiting a state from delegating its authority to political subdivisions—

Congress must “make its intention to do so unmistakably clear in the language of the statute.” Gregory, 501 U.S. at 460.

Under Mortier, Ours Garage, and the principles

of federalism on which they rest, the proper resolution of this case is straightforward. To establish that

the NLRA saves statewide but not local right-to-work

laws—i.e., to establish that the NLRA deprives Illinois of the power to redelegate its authority over

right-to-work laws to subdivisions—one must show

that section 14(b) contains a “clear and manifest indication that Congress sought to supplant local authority.” Ours Garage, 536 U.S. at 434. “[N]o show-

16

ing of such a clear and manifest purpose has been

made.” United Automobile Workers, 842 F.3d at 420.

And no such showing is possible, because section

14(b) says nothing at all about a distinction between

state and local law. “Mere silence” “with reference to

local governments” “cannot suffice to establish a

clear and manifest purpose to pre-empt local authority.” Ours Garage, 536 U.S. at 432.

B. The Seventh Circuit offered a handful of reasons to justify its contrary conclusion. Each underscores the conflict between the Seventh Circuit’s decision and this Court’s decisions.

First, although the Seventh Circuit disclaimed

reliance on “the literal terms of the statute,” it said

that a “devotee of the ‘plain language’ approach”

should agree with its decision, because “municipalities are not states.” App. 14a–15a. This reasoning

directly contradicts Mortier, which says that “the

statutory language” of an “express authorization to

the ‘States’” “tilts in favor of local regulation.” 501

U.S. at 607–08 (emphasis added). This reasoning also directly contradicts Ours Garage, which says that

it is “beyond genuine debate” that a statutory reference to “state” regulation presumptively “embrace[s]

both state and local regulation.” 536 U.S. at 432.

Second, the Seventh Circuit said in passing that

“Congress sometimes calls out political subdivisions

by name” “elsewhere” in the Act—for example, in a

provision dealing with “cooperation with State and

local mediation agencies.” App. 15a (quoting 29

U.S.C. § 172(c)). This rationale, too, directly contradicts this Court’s decisions. Mortier held that the

“scattered mention of political subdivisions elsewhere in [the act] does not require their exclusion

17

here.” 501 U.S. at 612. And Ours Garage held that

the mention of political subdivisions elsewhere in the

preemption and savings provisions themselves “does

not provide the requisite ‘clear and manifest indication that Congress sought to supplant local authority.’” 536 U.S. at 434.

Third, the Seventh Circuit said that local rightto-work regulation would undermine the NLRA’s

“goal” of “national uniformity.” App. 19a. Yet again,

contrary to this Court’s decisions. For one, the Court

has rejected efforts to satisfy its clear-statement rule

by reference to statutory purposes rather than statutory language. In Mortier, it rejected the argument

that local regulation is preempted because it would

undermine a congressional “goal of regulatory coordination.” 501 U.S. at 615. And in Ours Garage, it

rejected an argument that local regulation is

preempted because it would undermine “the statute’s

deregulatory purpose.” 536 U.S. at 440.

For another, as this Court explained in Ours

Garage, a court errs by giving “a specific exception” a

“narro[w] … construction” in order to advance the

“general policy” of the statute as a whole. Id. The ordinary rule in statutory interpretation is that the

specific governs the general, not the other way

around. And, in any event, “the limitations on a

statute’s scope are as much part of the statute’s ‘purpose’ as the scope itself.” Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts § 63 (2013). The Seventh Circuit violated these

principles by invoking the NLRA’s general goal of

uniformity to narrow the scope of section 14(b),

which is a specific exception to that policy of uniformity.

18

Fourth, the Seventh Circuit relied on “legislative

history,” stressing that “the congressional debates’

repeated references to safeguarding state authority

contain no mention of local autonomy.” App. 19a–

20a. Once more, it contradicted this Court’s decisions; if “snippets of legislative history” cannot satisfy the clear-statement rule of Mortier and Ours Garage, then the absence of such snippets certainly is not

enough. Mortier, 501 U.S. at 615. Indeed, “legislative

history” is ordinarily “irrelevant” to the application

of a clear-statement rule; if “Congress’ intention is

not unmistakably clear” in “the language of the statute,” “recourse to legislative history will be futile, because by definition the [clear-statement] rule … will

not be met.” Dellmuth v. Muth, 491 U.S. 223, 230

(1989).

Fifth, the Seventh Circuit declared that allowing

local right-to-work laws would lead to “catastrophic”

“consequences” and “administrative nightmares.”

App. 16a, 19a. This rationale, as well, contradicts

this Court’s cases, which held that “policy speculations” cannot justify interpreting a statute to

preempt local authority and to deny a state the power to delegate authority to local governments. Mortier, 501 U.S. at 615.

In any event, the Seventh Circuit’s Cassandralike gloom is unwarranted. In Oil Workers, this

Court adopted a federal choice-of-law rule for rightto-work laws adopted in accordance with section

14(b). 426 U.S. 407. Under that federal choice-of-law

rule, an employer’s relationship with a given employee is governed by the right-to-work laws of the

employee’s “predominant job situs”—that is, the

place where the employee “perform[s] most of [his]

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work.” Id. at 414. “Under a job situs test, parties entering a collective-bargaining agreement will easily

be able to determine in virtually all situations

whether a union- or agency-shop provision is valid.”

Id. at 419. Employees whose predominant job situs is

in Lincolnshire are covered by the Lincolnshire ordinance; employees whose predominant job situs is

elsewhere are not. There is no reason to fear “administrative nightmares” or “catastrophic” consequences.

App. 16a, 19a.

Finally, the Seventh Circuit tried to distinguish

Mortier and Ours Garage. The Seventh Circuit first

emphasized that those decisions involved the scope of

an exception from “an express preemption provision,”

while this case involves the scope of an “exception to

the general preemption established in the Act for the

field of labor relations.” App. 24a. That difference,

however, makes this an a fortiori case. An express

preemption clause (which Congress included in the

statutory text) surely deserves more weight, not less,

than implied field preemption principles (which

courts have inferred from the statutory text). As a

result, if it is improper to narrowly interpret the

word “state” in an exception to an express preemption clause, it is even more improper to narrowly interpret the word “state” in an exception to implied

field preemption.

The Seventh Circuit also declared that Mortier

and Ours Garage involved the “historic police powers

of the States” over “noxious substances” and “safety

regulation”; it believed that no such “historic police

power” is at stake here, because “for nearly a century

the regulation of unions has rested with the federal,

rather than state, government.” App. 22a, 24a. As an

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initial matter, the Seventh Circuit framed its analysis at the wrong level of generality. This case is not

about “the regulation of unions” in general; it is

about right-to-work laws in particular. And the power to pass right-to-work laws is among the historic

police powers of the states: Even when federalizing

much of the field of labor relations in the NLRA,

Congress expressly reserved the power over the

right-to-work enclave to the states. In any event,

there is an even more fundamental state power at

stake here, quite apart from the power to pass right

to work laws. That is the power of a state “to order

the processes of its own governance.” Alden v. Maine,

527 U.S. 706, 752 (1999). The Seventh Circuit’s decision undermines that power by prohibiting states

from delegating the right-to-work issue to their subdivisions.

In sum, the Seventh Circuit’s arguments “are the

very kinds of arguments that the Supreme Court rejected in Mortier and Ours Garage.” United Automobile Workers, 842 F.3d at 420. The direct conflict

with this Court’s decisions underscores the need for

this Court’s review.

III. THIS CASE IS AN EXCELLENT VEHICLE FOR RESOLVING THIS IMPORTANT QUESTION

A. The question presented is exceptionally important. As members of this Court have recognized,

public debate about right-to-work laws “is currently

intense.” Knox v. Service Employees, 567 U.S. 298,

341 (2012) (Breyer, J., dissenting). In the course of

that debate, many local governments have, in recent

years, enacted their own local right-to-work laws.

See, e.g., Brenna Goth, Local Right-to-Work Rules

21

Sweep New Mexico Counties, Bloomberg News, Sept.

20, 2018; Kevin Mooney, Amid Union Opposition,

Right to Work Advances in Delaware County, The

Daily Signal, Oct. 24, 2017; Patrick Gleason, How

Right To Work Laws Are Making Inroads Even In

Blue States, Forbes, Nov. 6, 2017; Greg Kocher, Several Kentucky counties passing or considering ‘right

to work’ laws, Lexington Herald-Leader, Jan. 17,

2015. The validity of local right-to-work laws is thus

a recurring issue.

This issue matters to all the relevant participants. To start, the issue matters to states. Any federal law or judicial decision that tells a state that it

must exercise certain powers at the statewide level,

and that it may not delegate those powers to its subdivisions, strikes at “the independence of the States”

by undermining its power to determine “the structure of its government … free from external interference.” Gregory, 501 U.S. at 460. This Court recognized the significance of this intrusion upon “the

basic tenets of our federal system” when it granted

certiorari in Mortier and Ours Garage. Ours Garage,

536 U.S. at 434. The intrusion remains just as significant today, particularly in the politically charged

context of right-to-work legislation.

The issue also matters to local governments, who

need certainty about whether they can pass their

own right-to-work laws. The typical American town

or county does not have a large litigation budget or a

large legal staff. A political subdivision may wish to

pass a right-to-work law, yet avoid doing so just because it does not wish to get dragged into a long and

bitter legal fight with labor unions. Taking up this

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case and reversing the Seventh Circuit’s judgment

would lift that fog of legal uncertainty.

The question presented similarly matters to individual employees who do not wish to associate with

private-sector unions. This Court has explained that

“[f]orcing free and independent individuals to endorse ideas they find objectionable is always demeaning.” Janus 138 S. Ct. at 2464. It has also explained—quoting Thomas Jefferson—that “to compel

a man to furnish contributions of money for the

propagation of opinions which he disbelieves and abhors is sinful and tyrannical.” Id. And the Court has

emphasized that unions “can also speak out in collective bargaining on controversial subjects such as climate change, the Confederacy, sexual orientation

and gender identity, evolution, and minority religions.” Id. at 2476. The Court made these points in

the context of public-sector unions, but they remain

true even for private-sector unions. Compulsory

speech is still demeaning even if the source of the

compulsion is a private employer’s agreement with a

union, rather than a governmental enactment. It

thus matters a great deal to individual employees

whether their local governments can shield them

from compulsion to violate their consciences.

The question presented, similarly, matters to unions. Right-to-work laws can affect a union’s ability

to fill its coffers. And “union revenues” are “a matter

of considerable importance to the union.” Knox, 567

U.S. at 341 (Breyer, J., dissenting).

Finally, the question presented matters to businesses. They have an interest in knowing what terms

they may and may not include in their collectivebargaining agreements with unions. They also have

23

an interest in knowing what local laws they must

comply with, and what local laws are preempted by

the NLRA. Resolving the question presented is essential to giving businesses definite answers to these

questions.

B. This case is an ideal vehicle to decide the

question presented. The Seventh Circuit’s decision

turned entirely on its interpretation of section 14(b).

And nothing would hinder the Court in reviewing

that interpretation. The parties agree that at least

one of the unions has standing to bring the claim at

issue, and the district court and the Seventh Circuit

ruled that all four of the unions do. App. 4a–5a; 34a–

40a; see also Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1651 (2017) (“At least one plaintiff

must have standing to seek each form of relief requested in the complaint”).

Similarly, there are no jurisdictional disputes,

procedural complications, alternative holdings, or

other obstacles to this Court’s review. In this way,

this case presents a far better candidate for certiorari than the Sixth Circuit’s decision in United Automobile Workers did. After the Sixth Circuit upheld

the county ordinance at issue there, the state passed

a right-to-work law, mooting the case. See Petition

for Certiorari, United Automobile Workers, 138 S. Ct.

130 (No. 16-1451), 2017 WL 2459685, at *i (raising,

as the first question presented, whether the Sixth

Circuit should have “vacate[d]” because “further review [wa]s precluded by mootness”).

24

CONCLUSION

The Court should grant the petition for writ of

certiorari.

Respectfully submitted,

Jeffrey M. Schwab

LIBERTY JUSTICE

CENTER

190 S. LaSalle St.

Chicago, IL 60603

David S. Birnbaum

JONES DAY

77 West Wacker Dr.

Suite 3500

Chicago, IL 60601

Shay Dvoretzky

Counsel of Record

Jeffrey R. Johnson

Vivek Suri

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

sdvoretzky@jonesday.com

Counsel for Petitioners

FEBRUARY 14, 2019