Beyond The Employee Free Choice Act Debate: Unleashing The States In Labor-Management Relations Policy By Reforming Labor Law Preemption Doctrines Crafted By Judges A Half-Century Ago

Source: Henry H. Drummonds, Lewis & Clark Law School, 2009

This article proposes that Congress enact a major decentralization of labor relations law – the law that governs efforts by employees to deal with their employers collectively through unions and collective bargaining. Two events in 2007 and 2008 signaled the emergence of this labor law preemption issue. First, the U.S. House of Representatives passed the Employee Free Choice Act triggering the deepest fundamental debate about labor relations policy since the 1947 Republican Congress reigned in the power of unions in the Taft-Hartley Act. Unlike the debate 60 years ago, the debate in 2009 is not about excessive union power but about whether labor relations law should become more favorable to employee organization in unions. While many possibilities exist for changes in labor relations policy, national consensus often eludes policy makers.

Second, in Chamber of Commerce v. Brown, a majority of the U.S. Supreme Court continued the expansion of judicially created labor law preemption doctrine by striking down California’s law attempting to limit employer use of state monies in union organizing campaigns; such rulings deprive citizens of their right under the constitutional division of powers, absent a decision of the Congress to supplant state authority under the Supremacy Clause, to express their preferences about labor relations policy through their local and state governments. As Chief Justice Rehnquist pointed out more than 20 years ago: “From the acorns of [two early] decisions has grown the mighty oak of this Court’s labor preemption doctrine, which sweeps ever outward though totally uninformed by any express directive from Congress.”

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