Washington state governor Bob Ferguson signed new state labor legislation into law on Monday, March 23. The legislation is the latest “trigger law” to be passed by a state. These laws provide a mechanism for state authority over the organizing and bargaining rights of currently federally-preempted private sector workers. The measure, (HB 2471^[1]) is similar to other trigger bills that have been passed in New York and California, but differs both in terms of how it is “triggered” and what scheme it sets up for the state governance of labor relations. 

First, the trigger. Both California and New York’s state law bills were written to go into effect while the NLRB is still standing. California’s bill, broadly speaking, granted the state labor agency concurrent jurisdiction over NLRA-type disputes if the NLRB had ceded jurisdiction, lacked a quorum to act, lost independence due to a Supreme Court finding that members are unconstitutionally protected from removal, or if a workers’ case was pending for more than six months without the issuance of a complaint. The NLRB sued California and a federal judge significantly limited the circumstances in which the state agency can exercise jurisdiction over labor disputes to circumstances where the worker in question is not subject to the NLRA due to repeal, injunction, or the ceding of jurisdiction by the Board. 

Washington’s law attempts to avoid such litigation by using a much more conservative trigger: it would only go into effect if federal law ceases to preempt the regulation of private sector labor-management relations, or any part thereof, because the Board or the Act is declared unconstitutional, or due to the Board ceding jurisdiction or determining that a portion of workers previously covered by the Act is outside of its jurisdiction. This means that the bill has a significantly higher chance of surviving litigation in the courts but also has a lower chance of ever actually being triggered. Still, with the current litigation seeking to have the NLRA declared unconstitutional in total, the Board’s flip-flopping on whether, e.g., graduate students are subject to the Act, and the real power of the Board in Sections 10(a) and 14(c) of the Act to cede or decline jurisdiction over portions of the workforce, the measure’s power isn’t entirely illusory.

Second, the substance. Both California and New York’s trigger laws would essentially give the state labor agency concurrent jurisdiction to enforce the state’s public-sector labor law over private-sector employees. Washington’s law sets up the scheme a little differently. It does not extend the state’s public-sector labor law to private sector workers. Instead, it calls upon a long-standing but little utilized state law affectionately called the Little Norris La-Guardia Act, which was first enacted in 1933.  That law provides broad protection for worker organizing, (“it is necessary that [workers] have full freedom of association, self-organization, and designation of representatives . . . free from interference, restraint, or coercion of employers of labor . . .”), and has been interpreted broadly by the Washington Supreme Court. For the past almost hundred years, it has been applied to groups of private-sector workers that are excluded from NLRA coverage (like agricultural workers) to protect workers from being terminated or retaliated against when they organize together. Under the new measure, Washington courts and the Washington state labor agency, PERC, would have concurrent jurisdiction to enforce the Little Norris La-Guardia Act. If workers’ rights to organize were interfered with by an employer (i.e., if an employer committed an unfair labor practice), workers or the union could bring either a charge with PERC or could sue in state court. PERC or the state court would use the broad interpretative scheme set by the Washington State Supreme Court to analyze whether a violation had occurred, which takes NLRB jurisprudence as persuasive but not binding, and which accounts for differences well developed under Washington law, such as the proof of causation needed to prove a violation. And the remedy for violation of the Little Norris La-Guardia Act includes damages, reinstatement of employees, and attorneys’ fees and costs. 

Issues about scope of representation, elections, and collective bargaining, would all be directed to PERC under Washington’s new state labor law. (The Little Norris La-Guardia Act only contemplates workers being free to organize, it does not speak to union elections or collective bargaining rights.) Under the new measure, PERC would have jurisdiction to conduct union elections or recognize unions as the exclusive bargaining representative via card check. And disputes about collective bargaining (i.e. NLRA Section 8(a)(5) violations), as well as stalled negotiations, would go to interest arbitration for resolution. 

Put together, the Washington law, if triggered, would not just mean that workers now file their same unfair labor practices with a different agency, it could encourage a new scheme entirely. The default to the Norris La-Guardia Act, rather than to another unfair labor practice structure, would enable broader protections for worker organizing, and a release from the shifting and idiosyncratic case law that the Board and federal courts have developed under the NLRA. The concurrent jurisdiction of state courts over violations of the protections for concerted activity grants private rights of action to unions and workers who have historically been funneled into the bureaucratic and opaque agency system. And the remedy of interest arbitration for collective bargaining disputes would encourage the signing of deals, particularly first contracts, rather than encouraging employers to delay indefinitely. 

Labor lawyers and others in the movement debate the strategy and efficacy of state trigger laws. Some say that the passing of state trigger laws is beneficial because it scares companies away from trying to bring down the NLRA or NLRB as unconstitutional, thereby strengthening the current federal scheme. Others argue that reverting to state-level solutions for our labor law problems is a race to bottom, where we risk the rights of workers in red states. One thing is clear: our current labor law system does not work. Washington’s new state labor law might never get triggered, but at least it begins to imagine a system that might work better. When there are no obvious solutions to the rapid entrenchment of corporate, anti-union power and the concurrent dissolution of working-class power, every avenue towards change seems worth pursuing. 

^[1] Myself and Kathy Barnard helped draft the measure.