Last week, the Sixth Circuit denied a request by several collective bargaining organizations to rehear a challenge to Hardin County, Kentucky’s “right to work” ordinance.  The union challengers, including the ALF-CIO, argued that the county ordinance was preempted by the National Labor Relations Act (“NLRA”).  More specifically, they claimed that Hardin County’s ordinance was preempted by the NLRA, which only permits “State or Territorial” laws prohibiting security agreements between employers and unions.  The County, on the other hand, took the position that its ordinance was valid because it was a political subdivision of the Commonwealth of Kentucky.  The lower court found in favor of the union plaintiffs and struck down the ordinance.

Hardin County appealed to the Sixth Circuit, and a three-judge panel reversed the lower court’s ruling, finding that “State or Territorial” laws include ordinances passed by political subdivisions such as counties.  The Court’s decision distinguished a 1965 case from the Kentucky Supreme Court that limited the phrase to “major policy-making units such as states and territories.”  The union plaintiffs filed a petition asking the entire Sixth Circuit to reconsider the case, but it was denied on March 6, 2017.  Consequently, the decision of the three-judge panel stands.

At the time the Hardin County ordinance was enacted, Kentucky had not yet passed a state-wide “right to work” law. Since then, Kentucky has become the twenty-seventh state to enact this type of legislation.