Friday, September 15, 2017

Cannot turn Congressional labor law preemption into a First Amendment free zone

Until last week I was unaware of the reach and power of federal preemption. On Labor has a story how Florida was not able to require construction cranes to withstand 140 mph winds because the fed standard was only 93 mph.

Garmon says any labor issue even arguably in NLRB jurisdiction goes before NLRB — no discussion. Machinists tells states not to even interfere with the free play of economic forces related to collective bargaining. Needless to say, forget about anything that improves on federal regulations like barring replacement workers. There’s the answer to my endless question why progressive states never get around to making union busting a local felony.

What’s missed here is that First Amendment protected freedom of association is at stake — making union busting a proper matter for civil rights legislation. MLK died supporting the strike by Memphis sanitary public works employees, who were represented by AFSCME Local 1733.

The (all inclusive) labor regulatory tail cannot wag the (above all) First Amendment protected dog. Congress cannot put up a wall around one aspect of economic life and make the First Amendment disappear somewhere inside.

What might be an interesting question is what happens when Congress decides to make an effective effort to protect organizing and joining. Under present circumstances Congress for sure may not finally take the protection of organizing to itself and then do nothing (virtually) — again, not with the First Amendment at stake. I would say that Congress having for generations ignored the area — added to the civil rights angle — that states could not be barred from protecting organizing period (but of course I would) — tricky though.

Meantime no question Congress cannot fence states out of civil rights legislation it will not impose itself. For an idea how to get the ball rolling see here:

GOT IT!  (I think)
If a state or local legislature passes a law that makes exercising freedom of association (e.g., organizing a labor union) possible where it would not be possible otherwise, then, Congressional preemption of labor law falls to the First Amendment. 


For an all-day read on judicial twists and turns shutting out state labor law under the NLRA(a):
Louisiana Law Review, Volume 70, Number 1, Fall 2009    (97 page PDF)
Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy

Henry H. Drummonds

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