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Unpreemption: The NLRB’s Untapped Power to Authorize State Experimentation


The 2020 election of President Biden coupled with Democratic control of Congress brought with it a new wave of hope for federal labor law reform. But as the prospects of such reform have dimmed, we are left where we have been for decades now: with a severely dysfunctional federal labor law that fails to fulfill its central statutory mission of enabling workers to form unions.

At OnLabor, CLJE Faculty Co-Director Benjamin Sachs writes about an untapped mechanism for relaxing preemption rules and enabling states to improve upon the federal system: the National Labor Relations Board’s authority to cede jurisdiction to states in a wide range of cases.

Here’s how it could work. A state could seek the Board’s opinion — through an advisory opinion following hearings or through a rulemaking — as to whether the Board would decline to assert jurisdiction over an industry in that state. In its petition, the state could detail the types of labor regulation it would enact, or has enacted, to prevent labor disputes in the industry. For example, a state could enact a comprehensive system of collective bargaining for employees in a particular industry in the state. Such a system could provide for many pro-union policies, like works councilsmembers-only unions, and card check recognition at the level of the individual workplace, as well as sectoral representation and sectoral bargaining at the level of the industry. It might also provide union organizers with the right to access employees on employer property and set up a procedure to allow employers to receive compensation for such access rights. Just as the 1935 Congress viewed the granting of union organizing and collective bargaining rights as an important means to reduce labor disputes, the Board could today decide that these state-level policies would have similar results. And if, in the Board’s opinion, the state’s proposal would reduce labor disputes so that their effects would not be “sufficiently substantial to warrant the exercise of jurisdiction,” the Board could decline jurisdiction and thereby unpreempt the state’s policy. The state would then be free to implement or enforce its alternative labor law.

(Photo: Geraldshields11 via Wikimedia Commons)

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