As I have said repeatedly, for all that so-called union reformers want to blame unions for their own problems today, it just doesn’t fit the evidence. Even if many union leaders were (or are) lame and making questionable decisions, it’s far more accurate to place labor’s demise at the hands of the government. As I am arguing in my forthcoming book on strikes in American history, coming out next year, the position the government takes toward labor has always been the most important factor in workers winning or losing a given labor action. This is a point that should be self-evident, yet the literature, sometimes from historians but more commonly from labor journalists, often won’t admit that, with writers preferring to push their own agenda and engage in their own grievances on why labor has struggled than analyzing the real issues at play. One labor writer who very much does not have this problem is the always valuable Moshe Marvit, who has an excellent piece on how the Supreme Court has created enormous leeway for corporations and states to attack labor through the doctrine of preemption:
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.
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.
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.
This is very much a “read the whole thing” article. Very smart piece, filled with good suggestions on how labor can move forward at the state level, given this reality. I certainly am not optimistic that the Court will act on them, even with Donald Trump Real Populist instead of Hillary Clinton Goldman Sachs hack naming Supreme Court justices. I mean, sure, Neil Gorsuch is well to the left of Merrick Garland and all so maybe everything will be OK. Anyway, trying to force the hand of the courts on preemption is a needed strategy.