"AK: Working Lunch" by AFL-CIO America's Unions, CC BY 2.0
In recent weeks, Power at Work has hosted a robust discussion about whether workers would be better off without the National Labor Relations Act (NLRA) and/or if states were given more power to protect workers’ rights. This is a timely and important discussion given the Trump Administration’s relentless attacks on federal appointees and worker protection agencies, including his disabling of the National Labor Relations Board (NLRB). The NLRB was established by Congress in 1935 to protect the right of workers to form and join unions. President Trump’s unprecedented and illegal firing of Senate-confirmed NLRB Member Gwynne Wilcox left the NLRB without the three-member quorum needed to issue decisions. At the moment, workers have no real recourse when employers illegally interfere with their rights to form a union and bargain with their employers over better pay and working conditions. Dedicated (and overworked and understaffed) NLRB employees in the regional offices continue to hold union representation elections and investigate and settle unfair labor practice charges, but there is no Board to rule on appeals.
Given this unprecedented and destructive state of affairs, some advocates and academics have suggested that states should have more leeway to step into the void and regulate labor relations in the private sector. Ordinarily, state action on private sector labor relations is preempted by the federal National Labor Relations Act, according to a judicially-created doctrine. But with a non-functioning NLRB, there is understandably increased interest in states protecting workers’ rights.
There are good reasons to look for additional ways to protect workers’ organizing rights. Worker support for unions is at a record high, particularly among young workers. Millions of non-union workers say they would form or join a union if given the opportunity to do so. Unionized workers enjoy better wages and benefits, and non-union workers benefit from the spillover effects of unionization. Unionized workers are able to collectively demand a greater share of the corporate profits they help produce, which provides an important counterweight to corporate power. And unions are member-driven, democratic organizations that have been on the front lines of fighting back against the anti-worker, anti-union, anti-immigrant and anti-democratic actions of the Trump Administration. Finding ways for workers to get the collective power they want should be at the top of the priority list for those who care about social and economic justice.
"WI Worker's Rights Protests" by Matt Baran, CC BY-SA 2.0
So what’s the problem with giving states more power to act?
The problem is that labor preemption is both a sword and a shield for workers and worker power. It has stopped states from enacting laws penalizing companies for labor law violations or banning companies from spending state money on union busting. But it has also stopped states from adopting laws that restrict workers’ organizing and bargaining rights. Simply, preemption works both ways (except with respect to so-called state “right to work” laws because the National Labor Relations Act explicitly permits them). This double-edged sword means that caution is warranted in arguing too broadly against labor preemption and potentially opening the door too widely for states to act.
Because let’s face it -- the current map does not favor workers. There are more red states than blue states, and more red trifecta states (one political party controls the governorship and both state legislative chambers) than blue trifecta states. Over 40 percent of the U.S. population lives in red trifecta states and only 36 percent in blue trifecta states. If we open the door to state labor regulation, we open the door for these states to pass laws undermining workers’ organizing rights. The right to organize a union shouldn’t depend on whether you work in Alabama or Massachusetts – all workers deserve this basic right. Remember, some of the most successful organizing drives in recent years have been in red states: the UAW at Volkswagen in Tennessee, the Steelworkers at Blue Bird in Georgia, and nurses in North Carolina, Florida and Texas, to name a few.
Some have suggested, as is the case with other federal laws like the minimum wage, that the NLRA should be considered a federal floor and that states should be allowed to regulate on top of it to strengthen the scope of federal labor law, or the remedies for violations. The difficulty for labor law is defining the floor. Federal labor law protects the right to form or join a union and the right to refrain from doing so. Red states could expand the scope of the right to refrain and establish strong penalties for unions that allegedly violate these rights. The National Right to Work Committee, the American Legislative Exchange Council, and other anti-union outfits will be all too happy to assist them in crafting and defending these laws. Just look at the decades-long campaign by ALEC to push laws restricting unions in the public and private sectors, for example, calling for annual recertification elections, a ban on the age-old practice of voluntary recognition of unions via card check, and more.
So is turning to the states hopeless? Is there nothing that states can do? Happily, there are steps that states and elected leaders can take now.
States can pass laws providing collective bargaining rights to the millions of workers who are explicitly excluded from the NLRA, such as agricultural workers, domestic workers, and independent contractors. Agricultural workers recently won bargaining rights in New York State. Operating on the premise that rideshare drivers are unlikely to win employee status under the NLRA anytime soon, the Service Employees International Union and IAM Union have joined forces and won adoption of a state-level collective bargaining system for rideshare drivers in Massachusetts and are pushing to win one in Illinois. They are currently organizing drivers in both states.
"Heartland of America, MN 7-13" by Don Graham, CC BY-SA 2.0
Relatedly, to the extent employers make and prevail in arguments that other categories of workers, such as student workers, are not employees for purposes of the NLRA, states should be free to extend collective bargaining rights to these workers. Employers should not be allowed to get away with a “heads we win, tails you lose” approach to labor rights -- that certain groups of workers aren’t covered by the NLRA, but states can’t protect them.
Massachusetts, California and New York have legislation pending to take over protecting workers’ organizing rights if and when all or part of the NLRA is found to be inoperable or unconstitutional. One possible trigger for these laws could be the success of lawsuits brought by a number of companies, led by Elon Musk’s Space X and Jeff Bezos’s Amazon, to declare the NLRA’s structure is unconstitutional. These “trigger” laws are premised on the idea that preemption is no longer an issue if federal labor law is inoperable. Business groups are not surprisingly taking the position that preemption still blocks these laws. But here again, they should not be allowed to have it both ways: capitalizing on the Trump Administration’s dismantling of federal labor protections and also hiding behind preemption to keep states from acting to fill the void.
Regardless of where the preemption debate lands, policymakers, elected officials, and advocates can and should act now to support workers who are trying to organize, and not wait for passage of new laws. They can use the bully pulpit to visibly and vocally support workers who are trying to organize a union, and to publicly call out and shame companies that are interfering with their workers exercising their rights. This sort of publicity and accountability from elected officials and other community leaders is more important than ever, given workers’ continued interest in forming unions and the dysfunction – or worse - at the NLRB.
