7th Circuit Overturns Local Government Mandated Labor Peace Agreements
by Michael Fox
The new union tactics that I referred to recently, A New Page in Organizing, which include pressuring local governments, don't always work. Not always because the city, county or state won't go along; sometimes they go too far. At least that is what happened in Milwaukee County, where the 7th Circuit struck down Chapter 31 of the county's general ordinances. The 2000 legislation requires certain county contractors to enter into "labor peace" agreements with any unions that request them. Metropolitan Milwaukee Association of Commerce v. Milwauke County (7th Cir. 12/5/05) [pdf].
The County sought to rely on its spending power to validate its ordinance. Unfortunately, they ran into the Judge Posner buzz-saw. First, he looked behind the holding in Wisconsin Dept. of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 290-91 (1986), for this key principle: the spending power may not be used as a pretext for regulating labor relations. Having established this principle, Judge Posner then systematically dismantles the one argument offered by the County in defense of its ordinance -- the need to protect the county against work stoppages.
In the end he has no problem reaching this conclusion:
On the contrary, we have seen that labor-peace agreements might well increase the frequency of service interruptions. The claim that the County is requiring labor peace agreements in order to further its interest as a buyer of services cannot withstand scrutiny. On this record, it is a pretext to regulate the labor relations of companies that happen, perhaps quite incidentally, to do some County work.
The pre-emption argument was supported by an amicus brief
filed by the NLRB, authorized by a 3-2 vote of the Board.
And a huge thank you to Mike Cernovich at Crime and Federalism
for his instructions
on properly linking to 7th Circuit opinions. Hopefully for the benefit of future readers, I got it right.