Beyond the Employee Free Choice Act: Unleashing the States in Labor-Management Relations Policy Henry H
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Cornell Journal of Law and Public Policy Volume 19 Article 2 Issue 1 Fall 2009 Beyond the Employee Free Choice Act: Unleashing the States in Labor-Management Relations Policy Henry H. Drummonds Follow this and additional works at: http://scholarship.law.cornell.edu/cjlpp Part of the Law Commons Recommended Citation Drummonds, Henry H. (2009) "Beyond the Employee Free Choice Act: Unleashing the States in Labor-Management Relations Policy," Cornell Journal of Law and Public Policy: Vol. 19: Iss. 1, Article 2. Available at: http://scholarship.law.cornell.edu/cjlpp/vol19/iss1/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Journal of Law and Public Policy by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. BEYOND THE EMPLOYEE FREE CHOICE ACT: UNLEASHING THE STATES IN LABOR- MANAGEMENT RELATIONS POLICY Henry H. Drummonds* This Article proposes a major devolution of labor relations policy making authority to the states. Echoing the federalism discussion in other contexts like global warming and prescriptiondrugs, labor relation preemption doctrine should be examined and reformed by Congress. Ex- isting doctrine is entirely judge-made even though only Congress, not the states, carries authority under the constitutional division of powers to displace state law. This judge-createdpreemption law stifles labor rela- tions measures in the states, and leaves labor law smothered in federal orthodoxy. Federal labor law reform is necessary for two reasons. First, the private sector unions face near extinction as collective bargainingrepre- sentatives with fewer than eight percent of private sector employees rep- resented. A rebalancingof labor relationspolicy is necessary to protect and foster employee free choice on questions of representationand col- lective voice. The Employee Free Choice Act debate only opened discus- sion of the many changes possible. Second, new policies more favorable to representationand employee voice can help to rebuild more structural balance in an economy now beset by the swollen powers of the executive suite and financial industry. The needed changes are more likely to arise in the states than in Washington, D.C. Viewed in the larger context of employment law gen- erally, the current broadfederal labor law preemption doctrines are out of step. In wage and hour, occupational safety and health, status dis- crimination,and leave law, the states and federal government share au- thority within federal minimum standards and the states have often been innovators of needed reforms. Sharedfederal-state authority allows ex- perimentation,flexibility, and greater citizen autonomy and involvement. Furthermore, viewed in their own right, the current doctrines find little support in the rationales offered for them, and are riddled with exceptions and inconsistencies. Thus, the Garmon doctrine'spreemption of conduct "arguably" protected or prohibited by federal law sweeps far * Professor of Law, Lewis & Clark Law School. The author expresses his deep appreci- ation to his research assistants, secretaries, and colleagues whose support for this Article was indispensable. 84 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 19:83 broader than necessary to protect federal interests; it was controversial at its inception, and has lost any convincing rationale today. The pri- mary agency jurisdiction rationale reflected a now outmodedfaith in fed- eral administrative agencies, was undermined by repeated rejection of the "expertise" based judgments of the National Labor Relations Board by the courts, and currently suffers from the politicization of the Board. Further a mass of exceptions and limitations make this one of the most complex and little understood areas in all of the law of the workplace. The Machinists doctrine's "free play of economic forces" rationale rested, like Garmon, on implied "obstacle" preemption analysis now less favored by the courts, and in any event, is logically inconsistent with established law allowing the states to legislate labor standards directly and to determine whether to grant or withhold unemployment benefits during a strike or lockout. In addition, both Garmon and Machinists make little sense in light of the "reverse preemption" provisions of Sec- tion 14(b) of the National Labor Relations Act that allow the states to set labor relations policy on the fundamental issue of state "right to work" laws. This internal inconsistency is further reflected in federal labor law's use of balancing of state law property rights to determine issues of union access. Finally, this Article makes some suggestions about what a congres- sional reworking of labor law preemption doctrine might look like. The largerpoint, however, is that the creative ideas and experiments in labor relations are far more likely to originatefrom ferment in state capitals than from the common denominator policies necessary to overcome gridlock in Washington, D.C. INTRODUCTION ................................................. 86 I. THE TIME Is RIPE FOR A FEDERALISM DISCUSSION IN LABOR LAW ........................................... 89 II. THE DECLINE OF PRIVATE SECTOR UNIONS AND THE FAILURES OF THE NATIONAL LABOR RELATIONS ACT ..... 94 III. THE EMPLOYEE FREE CHOICE ACT ...................... 98 A. The Process of Demonstrating A Union Majority .... 98 1. The Background of the EFCA .................. 98 a. A Critique of the Present System ........... 99 b. The Response to the Critique ............... 102 2. An Alternative Solution: The Neutrality A greem ent ..................................... 103 3. The Solution Proposed in the Employee Free Choice A ct .................. ................. 104 4. Beyond the Employee Free Choice Act .......... 104 B. The Processfor Resolving Bargaining Disputes ...... 107 20091 BEYOND THE EMPLOYEE FREE CHOICE ACT 1. The Change Proposed in the Employee Free Choice A ct .................................... 107 2. The Current Balance of Power in Bargaining D isputes ....................................... 108 3. Beyond the Employee Free Choice Act .......... 109 C. Remedies for Unfair Labor Practices................ 112 1. The Employee Free Choice Act ................. 112 IV. THE STATES HAVE ALWAYS BEEN BASTIONS OF INNOVATION UNDER THE BASELINE RULE IN THE AMERICAN LAW OF THE WORKPLACE .................... 113 A. Minimum Wage, Overtime Pay, and Child Labor R egulation ......................................... 114 B. Occupational Health and Safety-Preventing and Compensating Workplace Injury and Workplace- Related D isease .................................... 115 1. Compensation for Injury ........................ 116 2. Workplace Injury and Disease Prevention ....... 116 C. Status Discrimination............................... 117 D. Family and Other Leave Issues ..................... 118 E. Summary of Shared Federal and State Law in the Law of the Workplace .............................. 119 V. THE MAZE OF JUDICIALLY CREATED LABOR LAW PREEMPTION DOCTRINE .................................. 119 A. "Garmon" Preemption of State Law Concerning Conduct That Is Either "Arguably Protected" or "Arguably Prohibited" by the NLRA ................ 121 1. The Garmon Decision and Its Underlying R ationales ..................................... 121 a. The "Conflict in Substantive Rights" Rationale of Garmon ....................... 124 b. The Primary Agency Jurisdiction Rationale of the Garmon Majority .................... 125 2. Garmon's Tangled Web of Exceptions and D epartures ..................................... 128 3. Garmon's Effects on State Attempts to Update the Moribund Law of Labor Relations ........... 129 a. Gould ..................................... 130 b. Helmsley-Spear v. Fishman ................. 131 B. The Machinists Doctrine and Its Extension in the 2008 Chamber of Commerce Case .................. 131 1. The Machinists Case ........................... 131 2. The Post-MachinistsCases ..................... 134 86 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 19:83 3. The Culmination of Machinists-A State Cannot Control the Use of Taxpayer Monies in State Contracts-the 2008 Chamber of Commerce D ecision ....................................... 137 C. The Premises of the Broad Preemption Doctrines Announced in Garmon and Machinists and Extended in Later Cases are No Longer Supportable .......... 138 VI. A VISION OF A NEW FEDERALISM REGIME FOR LABOR RELATIONS ................................................ 140 A. Some Proposals .................................... 140 B . Objections ......................................... 141 1. Laws Unfavorable to Unions .................... 141 2. Big Labor and Big Business in Washington, D .C ............................................ 142 CONCLUSION ...................................................... 143 INTRODUCTION This Article proposes that Congress enact a major decentralization of labor relations law-the law that governs efforts by employees to col- lectively deal with their employers through unions and collective bar- gaining.1 Two recent events have signaled the reemergence of federal preemption as an issue in labor law. First, in 2007, the U.S. House of 2 Representatives passed the Employee Free Choice Act of 2007 (EFCA), triggering the deepest fundamental debate 3 about labor relations policy I Although this Article uses the conventional reference