Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy

Source: Henry Drummonds, Louisiana Law Review, Vol. 70, 2009, forthcoming

The road forward for labor relations policy in the United States lies not in Washington, D.C., but in state capitols. As the current debate over the Employee Free Choice Act (EFCA) reveals, stifling federal labor law orthodoxy grips the private sector union movement. Indeed private sector collective bargaining faces the vanishing point; to the ninety-two point four percent of private sector employees who hold their jobs outside the unionized sector, collective bargaining constitutes, at best, an abstraction. Ironically, public sector unions, governed largely by state law, flourish. Why do blue, pink, and white-collar public employees flock to unions while their counterparts in the private sector do not? . . . .

Not surprisingly the twenty-one “Right to Work” states count among the lowest rates of membership. Despite this widely varying support for unionization in the states, judicially-created, broad federal labor relations preemption doctrines ensnarl all states in a stifling and exclusive, yet strikingly inconsistent, federal labor law regime.

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