Will Labor Fare Better Under State Labor Relations Law?

Abstract

This paper answers the title question positively. Labor would fare better if the United States reduced federal preemption of private sector labor relations law and devolved the legal regulation and enforcement of freedom of association and collective bargaining to the states. This answer runs counter to the standard story in U.S. labor history and traditional views of pro-labor scholars. U.S. history warns against trusting states to protect labor rights. The southern states had slavery until the Civil War and used state laws to suppress blacks for over a century thereafter. Given the opportunity, twenty-one states enacted right-to-work legislation that outlawed union security clauses in collective contracts. By contrast, labor histories often credit the National Labor Relations Act (NLRA) for the growth of unionism in the United States (even though many workers organized outside the Act). And from the 1960s through 2000, Congress enacted a host of labor bills—outlawing discrimination, regulating occupational health and safety, and insuring employment retirement plans.