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Each January, as the Bureau of Labor Statistics (BLS) releases its annual data on union membership rates, labor braces itself to see how steeply the chart dips. This past year, the share of unionized workers declined 0.4 percent, to just 10.7 percent of wage and salary workers overall and a bare 6.4 percent of private-sector workers. As has been the case for many years now, the annual release represents the lowest year on record for unions. Even though it has been the long-stated policy of the federal government, as codified in the National Labor Relations Act, to encourage collective bargaining, federal labor law has proven unable to adequately protect workers in the exercise of their rights, and Congress has proven unwilling to pass even tepid reforms that would help them. As a result, the law does little to protect workers who face increasingly hostile and sophisticated employers who often threaten, fire, and surveil employees in order to crush organizing efforts.

While reforms to federal law have been blocked by Congress, states and cities have faced a different hurdle: the courts. Starting in 1959, the Supreme Court has written into the National Labor Relations Act (NLRA) a continually expanding preemption doctrine that prevents states and cities from passing laws that touch upon anything related to labor, involve the interpretation of a collective bargaining agreement, or even involve issues that the courts believe Congress intended to leave to the free play of market forces.

Congress can, and often does, expressly preempt states from passing laws that fall within a defined scope. Neither the NLRA nor its extensive legislative history, however, contains any mention of preemption: Congress did not expressly preempt states from acting. In instances where Congress has not expressly preempted states from acting, state laws that actually conflict with federal laws are still preempted. However, neither the NLRA nor its legislative history show any consensus that Congress meant to push states and cities from making laws that advanced, and do not conflict with, the pro-collective-bargaining policies of the NLRA.

And yet, as Harvard Law Professor Ben Sachs has pointed out, the Supreme Court has not employed the typical typologies of preemption at all when dealing with labor law. Rather, it has created a “preemption doctrine [that] is among the broadest and most robust in federal law.”

In most other areas of worker protection—from minimum wage to antidiscrimination laws—the federal government has set the floor under which states and cities may not go, but they can and often do raise the ceiling by increasing state or local minimum wage or including additional protected categories such as sexual orientation to existing protections. Indeed, the evolution of many of the nation's employment and civil rights protections began at the state level and trickled up to the federal government. It is only in the area of workers' labor rights that states and cities are powerless to act—and that, solely as the result of judicial decisions.

The Supreme Court's preemption doctrine started with the 1959 case, San Diego Building Trades v. Garmon, where the employer got a state court injunction against the union for picketing. The Supreme Court should have held that the picketing that the union was engaged in was a protected right under federal labor law, and therefore the state could not pass a law that conflicts with that right. Instead, the Court went further and held that Congress gave the National Labor Relations Board primary agency jurisdiction, and so when something is “arguably” protected or prohibited by the NLRA, then only the Board can act. Furthermore, only the Board can answer the initial question of whether conduct is “arguably” under the Board’s jurisdiction.

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The Supreme Court then doubled down on its preemption doctrine in the 1976 case, Machinists v. Wisconsin Employment Relations Commission. In the Machinist case, an employer brought an unfair labor practice charge against union workers who engaged in concerted refusal to work overtime during contract negotiations. The NLRB dismissed the charge because it held that the work refusal was not prohibited under the NLRA, so the employer brought a state court action against the union. In response, the Supreme Court expanded its earlier Garmon preemption to hold that Congress intended that certain conduct be left unregulated and left “to be controlled by the free play of economic forces.” Though the union in the Machinists case benefitted from the Court’s expansion of federal preemption, the decision has led to states and cities being almost absolutely prohibited from passing laws that promote unionization and collective bargaining.

These Court decisions, and thousands of lower court decisions that have followed the precedent in overturning state and local laws, rely on three types of specious and archaic reasons that deserve challenge and reconsideration. First, the Court has repeatedly shown a strong reliance on the state of the economy and labor force during the time when these decisions were issued. In the Machinists case, the Court described how it experimented with various types of preemption before settling on the broad form begun by Garmon, stating, “it was, in short, experience, not pure logic, which initially taught that each of these methods sacrificed important federal interests in a uniform law of labor relations.” The experience the Court referred to was that of the late 1940s and 1950s, when union membership was at its peak. Whatever balance between labor and management that may have existed then has since eroded.

Second, the Court has long interpreted the statute to require a uniform labor law across the country—and yet, labor law has become in many ways a crazy quilt, varying from region to region, from state to state, and from one president to the next. The NLRB has become a highly politicized agency, with its decisions swinging wildly every time a new president appoints new members and a general counsel. Cases that proceed through the National Labor Relations Board are often appealed to federal courts, and different federal circuits often come to opposite conclusions, meaning that the laws in different states effectively differ—though it is the courts, not state or local governments, that create those differences. Further, the expansion of state “right to work” laws, as well as a variety of state public sector labor laws have also undermined any goal of national uniformity in labor law.

Lastly, the Court's determination that Congress intended to leave a wide variety of conduct to the free play of economic forces has, in the words of NYU Law Professor Cynthia Estlund, “done what Congress did not do in the NLRA, or even with the Taft-Hartley Act: It has granted to employers a federal ‘right' to use their economic power against unions.”

The Congress that passed the NLRA may have intended to ensure a balance between employer and union power, but there is no indication that it intended employers to be able to use the Act to evade any regulation in broad areas through a laissez faire argument.

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The result of this judicially created broad preemption has been to limit state and local experimentation—in line with what Justice Brandeis described as “laboratories of democracy”—with labor laws that advance the stated purpose of federal labor law. However, since states and cities cannot act in the field of labor law, all discussions of federal labor law reform are purely theoretical and lack any empirical basis for their possible effects.

Numerous labor law scholars have written critically over the years of the rationale for such broad preemption, as well as the effects it has had on workers' ability to organize. Recently, Lewis & Clark Law Professor Henry Drummonds came up with a list of ten potential reforms that would advance the pro-collective bargaining mission of the NLRA—if states could be able to pass such reforms under normal preemption rules. These include allowing states to: increase damages for violating workers' labor rights so the penalties are in line with those for other forms of workplace discrimination; experiment with restrictions on permanent replacement of striking workers and on the use of employer lockouts; experiment with “card check” recognition of the union; provide “equal access” to union advocates as well as employers during a campaign for unions; and require arbitration if an impasse arises in the bargaining over a first contract.

The one and only major state labor reform since the 1935 enactment of the NLRA has had a profound effect on the division of wealth and power in the United States. That, of course, was the provision of the 1947 Taft-Hartley Act enabling states to pass “right to work” laws. Allowing states and cities to create local rules that promote unionization and collective bargaining that are tailored to local needs and local industries could prove just as significant in the opposite direction.

After eight years of the Republicans using a strategy of non-cooperation with President Obama, and now President Trump's open contempt for federal regulation and enforcement, many on the left have begun to push for a “progressive federalism” that relies more on state and local action on issues from climate change to minimum wage to immigration. Labor law should be included on their federalist bill of particulars, and broad federal preemption of labor law should also be challenged. Doing so would free states and cities to experiment with a variety of policies that would protect workers and more adequately allow them to exercise their rights of free association and collective bargaining at work. These experiments could then provide empirical data for national labor law reform, should the day ever come when Congress regains a taste for cooperation and compromise.

To create the ground for such experiments cities, states and unions should begin challenging the Supreme Court to reconsider the preemption doctrine that it wrote into the NLRA. Challenging preemption may lead to unlikely alliances that are not grouped easily into liberal and conservative camps. Even though the results of such a challenge would benefit labor, the promotion of federalist and strict statutory construction arguments are core principles of conservative legal thought. Getting the Supreme Court to overturn its past precedent is always an uphill battle, but it is not impossible.

Though the overall labor figures released by the Bureau of Labor Statistics show a movement in decline, labor's density and power is quite uneven. Labor is still a force in northern cities across the country, as well as major states such as California, New York, Washington, Oregon, Alaska, Hawaii, Pennsylvania, and throughout the Midwest. In many of these states and cities, laws could be passed that advance the original purpose of the NLRA—provided their hands were unbound. It is time for those concerned with workers' rights and with the future of labor in America to challenge the Supreme Court's misreading of the law.