Document Type

Article

Comments

This article is scheduled for publication in the Wisconsin Law Review in 2025.

Abstract

The National Labor Relations Act (NLRA) deteriorates from constitutional attacks and political sabotage. As labor law buckles, its preemption regime, a keystone of U.S. labor governance, has become unsustainable. This Article argues that labor law must flip its federal default by empowering and expanding state-level labor institutions and expanding gaps in NLRA preemption doctrine. Eighteen states already maintain NLRA-like statutory frameworks, and fourteen more recognize workers’ rights to unionize and act collectively as a state public policy. These under-examined laws hint at an alternative labor governance model in lieu of the NLRA.

Building on emerging preemption challenges, weaknesses in federal enforcement, and employers’ own challenges to the NLRA, the Article outlines legal strategies turning federal retreat into an organizing opportunity. After describing the slew of state private sector labor laws, the Article uncovers a hidden labor law principle against the use of preemption arguments to create regulatory “no-man’s lands,” where workers have no recourse in state or federal labor law. It also introduces a "Catch-22" argument, whereby employers who deny NLRA coverage or authority cannot shield themselves from state law with preemption arguments. Then the Article explore how emerging state labor laws utilize novel trigger mechanisms and the ways regional cooperation can signal the outlines of a bottom-up hybrid labor governance model.

Date of Authorship for this Version

7-22-2025

Keywords

United States. National Labor Relations Act, National Labor Relations Board, Worker organization

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