The National Labor Relations Act (NLRA) deteriorates due to 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, to survive, labor law must flip its federal default by empowering and expanding state-level labor institutions and by prying open the NLRA preemption doctrine. Eighteen states already maintain NLRA-like statutory frameworks, and fourteen more, as a state public policy, recognize workers’ rights to unionize and act collectively. 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, this Article outlines legal strategies turning retreat into opportunity. After describing the slew of state private sector labor laws, this Article uncovers a hidden labor law principle against the use of preemption arguments that 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, this Article explores how emerging state labor laws utilize novel trigger mechanisms and the ways regional cooperation
