Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy

The road forward for labor relations policy lies not through Washington D.C. but through state capitols. Stifling federal labor law orthodoxy grips the private sector union movement, even as the percentage of represented employees falls toward the vanishing point. 60 years after the Taft-Hartley Act rebalanced labor policy to address perceived union abuses of that time, today’s changed conditions demand another rebalancing to provide more robust protections for employee “voice.” Innovation and experimentation is needed to develop new democratic processes more appealing to younger employees, women, minorities, and other workers in growing sectors of the economy, and to provide a needed structural counterbalance to the swollen powers of the executive suite and financial institutions. Yet as the EFCA debate revealed, consensus in Washington D.C. remains elusive. Moreover, judicially created labor law preemption doctrines largely block initiatives in the states as the Supreme Court’s divided decision in Chamber of Commerce v. Brown demonstrated. This broad labor preemption needs rethinking. In employment law, businesses must conform human resources practices to varying state requirements in wage and hour policy, occupational health and safety, leave laws, and status discrimination. Decentralization provides a bulwark against the drift of decision-making upward toward national and international level actors in the global economy. Moreover, as this article shows, the uniformity and agency expertise rationales for federal preemption have become detached from reality: the NLRB suffers politicalization; state courts apply federal law regarding such matters as contract enforcement, DFR, and secondary boycott damages; states decide fundamental issues like union security, property rights impacting union access, unemployment benefits during work stoppages, and even minimum labor standards directly limiting collective bargaining. Finally the article offers suggestions about what a more decentralized labor law regime might look like within federal minimums, as in employment law generally