Beyond the Employee Free Choice Act : Unleashing the States in Labor-Management Relations Policy

This article proposes shared federal-state authority over labor relations policy. As private sector unionization sinks toward oblivion, employee free choice rights regarding representation must be more vigorously and creatively protected. Adjustments in labor law can also restore greater structural balance in economic arrangements as a counterweight to the bloated powers of the executive suite and financial industry. The debate over the proposed EFCA only began a discussion about how to modernize labor relations law. Shared state- federal authority would square labor law with the broader field of employment law where state and federal governments share authority over such issues as status discrimination, wage and hour policy, OSHA law, and employee leave entitlements. Moreover, revision of the broad labor law preemption doctrines created by judges, not Congress, decades ago would bring labor law into alignment with modern preemption jurisprudence. These include a reinvigorated presumption against preemption, and recognition, under the constitutional division/separation of powers, that only Congress possesses authority to displace constitutionally preserved state authority. Labor law preemption doctrines find little support in the rationales offered upon creation and are shredded with exceptions and inconsistencies. The “Garmon” doctrine’s primary agency jurisdiction rationale reflected the New Dealers’ almost blind faith in federal administrative agencies, was controversial among the Justices at its inception, sweeps broader than necessary to protect federal interests today, and in any case has been severely undercut by the politization of the NLRB, and repeated judicial reversals of Board policy rulings. The “Machinists” doctrine’s “free play of economic forces” and the “uniformity” rationales seem anomalous in light of state authority to legislate labor standards directly, to decide issues like unemployment benefits during labor disputes, and to outlaw union shops. Finally the article offers several suggestions about what a reworking of labor law preemption doctrine might look like