We recently ran Lynn’s excellent piece on sectoral bargaining, and in that piece, she raises some important concerns about reforming (or ending) labor preemption. I agree with almost everything Lynn says. She is right that “[c]hanging the rules on preemption might open the door to pro-worker reforms in Blue states, but it would also open the door to anti-union actions in Red states.” It’s also true, as she says, that “we need to be careful not to overestimate the likelihood and scale of success in more union-friendly states” if preemption rules were relaxed or eliminated. 

In a recent law review article, John Fry and I lay out some thoughts on whether eliminating NLRA preemption would be good or bad for labor. The article, like Lynn’s post, stresses that there is much we cannot know about how things would play out in the absence of federal labor preemption. Among the things we can’t predict with certainty is “which states and cities would adopt which policies.” But, as we also write, “there are certain things we can know about a post-NLRA preemption world.”

What follows is a heavily excerpted and lightly edited synopsis of our argument, which begins with the observation that the potential impact of pro-union labor law reforms dwarfs the potential impact of anti-union reforms.

Why? There are almost 50 million workers in Democratic trifecta states not currently covered by a union contract. So, if blue states and cities enact labor policies with even relatively modest impacts on union density, the impacts on total union coverage numbers would be significant. For example, blue state labor law reforms that increased private-sector union density by 5% would result in 2.3 million new union workers. Should blue states and cities act more aggressively and pass labor policies that, in the aggregate, boost density in blue states by 20%, the result would be more than 9 million new private-sector union workers – a 100% increase in private sector union density.

Of course, in the absence of preemption, red states and cities could enact labor policies that would decimate private-sector unionism in those states and cities. But the potential of red jurisdiction labor policy is more circumscribed. [T]here are currently 2.25 million private-sector union members in Republican trifecta states. This means that if every red trifecta state enacted labor law reforms with a 100% impact on density, the total number of lost union workers would be 2.25 million. If red state policy was 50% effective – still a robust estimate – 1.25 million union workers would become non-union.

Because there are far more non-union workers in blue states than union workers in red states, blue state policy can be far less effective than red state policy and still result in a national net gain of union workers. To illustrate: If blue state policy facilitates a 4.9% increase in union coverage rates, that would exactly match the impact of red state policy that led to a 100% decline in union coverage. If blue state policy were slightly more effective – say 10% effective – and red state policy were 50% effective, the nation would see an increase of approximately 3.475 million union workers.

Several questions remain. The first is whether national figures are the right way to assess the desirability of eliminating preemption. For example, nearly every southern state is currently governed by a Republican trifecta. So, eliminating NLRA preemption would cause a loss of union coverage across the South. Given the history of racial discrimination, disfranchisement, and outright violence directed at workers in this region, and given the lack of alternative protections for workers in the south, the fact that southern workers would bear much of the costs of ending preemption has enormous significance.

Next, if the costs of eliminating preemption were to fall disproportionately on workers of color (and if the benefits were to accrue disproportionately to white workers) that would be critical to the analysis, especially given the pernicious history of racial exclusions from federal labor law. Indeed, disparate racial impact would provide a clear reason to oppose the elimination of preemption. As with the other questions presented by the prospect of eliminating preemption, it is not possible to predict with certainty the racial impact of preemption reform. There are, however, ways to approach the question. We know, for example, that there are far more – 10 times more – non-union Black workers in Democratic trifecta states (approximately 4 million) who stand to benefit from the end of preemption than there are Black private-sector union workers in Republican trifecta states (approximately 400,000) who stand to lose from preemption reform. In this sense, then, preemption reform might offer a net benefit to Black workers. Moreover, the 400,000 Black union workers who would likely suffer from preemption reform account for 30.4% of the total number of Black private-sector union workers nationally, while the 1.4 million white private-sector union workers in Republican trifecta states who would suffer the consequences of eliminating preemption account for 30.5% of the total number of white private-sector union workers nationally. On the other hand, 38.5% of all white workers live in Democratic trifecta states and stand to benefit from the elimination of preemption, while only 31.8% of Black workers live in those states Also relevant is the fact that Black workers are disproportionately represented in a number of Republican trifecta states. The statistics for Hispanic workers are largely consistent with these. While these data cannot resolve the question of what racial impact preemption reform would have, they provide some reasons to predict positive outcomes as well as some reasons for caution.

Another relevant fact is that eliminating NLRA preemption would impact actual, ongoing organizing campaigns. On the one hand, ending preemption would allow blue states to increase the success rates of campaigns taking place in their jurisdictions, for example the Starbucks or the Amazon campaigns. On the other hand, ending preemption would enable red states to hinder – or to defeat outright – extant union organizing efforts in those jurisdictions, including the UAW’s historic effort to organize the South.

We conclude the article by raising the optimistic possibility, which Kate Andrias and I developed in earlier writing, that preemption reform could lead to an upward cycle of labor policy innovation and union density gains. That is, preemption reform could enable states to pass labor reforms that lead to increases in union density. Then, that new density could then be used to win further state labor policy reforms, which might fuel further density gains. The increased political power from the increased density could, moreover, be exported from blue states to red ones, where it could be deployed to mitigate the costs of preemption reform that had been borne by workers in those states.

Of course, the fact that this dynamic is theoretically possible does not imply that it is practically likely. But it is a possibility that should be part of the conversation.