Is it Time to End Labor Preemption?

Published September 11th, 2017 -  - 09.11.1710


By Sharon Block and Benjamin Sachs

Serious thinking about labor law reform seems to be coalescing around a few themes.  One of these is the possibility of allowing state and local intervention into the rules of union organizing and collective bargaining.  Pursuing that goal would mean reconsidering the preemptive effect of federal labor law.

This theme was clearly reflected in our Labor Day opinion writing wrap up.  Newsweek published Sharon’s op-ed in which she argued that the debate over bold labor law reform has to include consideration of preemption rules. The New York Times ran an op-ed by Brishen Rogers and Willy Forbath in which they recommended that the NLRA be amended to allow state and local governments to legislate new models of collective bargaining above the floor of the NLRA. Moshe Marvit made the case in the American Prospect that the Supreme Court should revisit its precedent regarding NLRA preemption in order to allow more experimentation at the state and local level.

The question of whether preemption advances the NLRA’s purpose of “promoting the practice and procedure of collective bargaining” is not, of course, a new one.  In 2002, Cynthia Estlund famously identified preemption as one of the causes of labor law’s ossification.  In 2006, our colleague Richard Freeman took a quantitative approach to answering the question of whether unions would fare better without preemption and came up with a definite opinion:  yes. In 2011, Ben observed that the chokehold NLRA preemption put on state and local level innovation led to tripartite end runs around preemption doctrine that, while facilitating organizing, also raised accountability and opacity issues.

We believe that the time is right to reopen the debate over NLRA preemption in earnest.  As part of this effort, we’ve invited leading labor scholars and practitioners to Harvard Law later this month.  We hope to pursue several key questions:

  • Do laws covering workers outside the protections of the National Labor Relations Act and international labor law provide models for innovation and experimentation in labor law reform at the state and local level?
  • Is this the right moment for innovation and experimentation at the state and local level of government?
  • If they were possible, what would new collective bargaining laws at the state or local level look like? How far could they go in encouraging collective bargaining or in inhibiting it?

Any meaningful debate about NLRA preemption must confront the fact that a change in preemption rules will mean different results for workers in different parts of the country.  In blue states and cities, relaxing the preemption rules would likely mean expedited procedures for union elections, prohibitions on striker replacements, and possibly evolution toward sectoral bargaining.  In red states, on the other hand, experimentation may mean rules that require unions to go through annual recertification votes or that allow employers to fire workers for organizing activity.

For those of us who believe in the centrality of unions and worker collective action to economic and political equality, the question of trading off stronger rights for some against weakened rights for others is a hard one.  But it is a question we believe we must now address.  We look forward to wrestling with this question and to sharing the debate – including papers prepared for the symposium – here on the blog.

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