Despite Preemption: Making Labor Law in Cities and States

The preemption regime grounded in the National Labor Relations Act (NLRA) is understood to preclude state and local innovation in the field of labor law. Yet preemption doctrine has not put an end to state and local labor lawmaking. While preemption has eliminated traditional forms of labor law in cities and states, it has not prevented state and local reconstruction of the NLRA’s rules through what this Article terms “tripartite lawmaking.” The dynamic of tripartite lawmaking occurs when government actions in areas of law unrelated to labor — but of significant interest to employers — are exchanged for private agreements through which unions and employers reorder the rules of union organizing and bargaining. These tripartite political exchanges produce organizing and bargaining rules that are markedly different from the ones the federal statute provides but that are nonetheless fully enforceable as a matter of federal law.

By describing the phenomenon of tripartite lawmaking, this Article allows for a more complete understanding of the local role in contemporary labor law. But the existence of tripartite lawmaking also reveals important characteristics of federal preemption more generally. In particular, the potential for tripartite lawmaking within the confines of formally preemptive regulatory regimes points to the limits of preemption’s ability to allocate regulatory authority among different levels of government and deliver a uniform, national system of law. State and local lawmaking that occurs through the tripartite dynamic also has a number of distinctive features that become visible once we recognize the existence of this form of lawmaking. As this Article suggests, moreover, tripartite lawmaking is likely not limited to the labor context but may occur wherever federal preemption coexists with the possibility for private ordering.