Elizabeth Warren released a bill to preempt state right-to-work laws last week. The bill is currently cosponsored by six Democratic senators. As drafted, there is a risk that the bill would not achieve its stated purpose.

1. Warren’s Bill
Warren’s bill attempts to preempt state right-to-work laws by repealing section 14(b) of the National Labor Relations Act (NLRA):

Subsection (b) of section 14 of the National Labor 8 Relations Act (29 U.S.C. 164) is repealed.

This may or may not work depending on your theory of why states are currently able to pass right-to-work laws, as discussed below.

2. Why aren’t state right-to-work laws already preempted?
There are two legal theories about why states can currently pass and enforce right-to-work laws.

2a. Majority Theory
The majority theory goes like this.

Section 8(a)(3) of the NLRA relevantly states that:

Nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization … to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement …

Thus, standing alone, it would seem that section 8(a)(3) establishes an affirmative right of employers and unions to establish a union shop. This should therefore mean that states cannot pass right-to-work laws outlawing such shops.

Section 14(b), which was added to the NLRA in 1947 as part of the Taft-Hartley reforms, states that:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The majority view is that, although section 8(a)(3) initially preempted state right-to-work laws, the insertion of section 14(b) reversed that and gave states the ability to pass right-to-work laws. Thus, under this view, simply repealing section 14(b) would turn things back to when there was only section 8(a)(3) and therefore turn things back to when state right-to-work laws were preempted.

2b. Minority View
The minority view is that section 8(a)(3) never preempted state right-to-work laws in the first place and that the addition of section 14(b) merely affirmed the fact that states have the ability to pass such laws.

This is the view of the National Right to Work Legal Defense Foundation and they have convinced at least one circuit court, the Tenth Circuit, to adopt it:

When Congress enacted § 14(b), it did not grant new authority to states and territories, but merely recognized and affirmed their existing authority.

…

What Congress has not taken away by § 8(a)(3) it need not give back (by § 14(b)) in order for the tribe to continue to have authority to pass a right-to-work law. Although the Supreme Court has characterized § 8(a)(3) as “articulat[ing] a national policy that certain union-security agreements are valid as a matter of federal law,” the Court has also made it clear that § 8(a)(3) was not intended by Congress to be preemptive.

So, under this view, merely repealing section 14(b) would not be enough to preempt state right-to-work laws because section 8(a)(3) does not preempt state right-to-work laws.

3. How to Ensure Preemption
Given that there is a legally viable interpretation of the NLRA that says simply repealing section 14(b) would not cause state right-to-work laws to be preempted, any bill attempting to establish preemption should include an explicit preemption statement.

One example of such a statement can be found in our prior work on this issue:

Section 164(b) of title 29, United States Code, is amended to read as follows:

“(b) Agreements requiring union membership

No Territory or State or political subdivision thereof shall prohibit the execution or application of agreements requiring membership in a labor organization as a condition of employment.”

Rather than repealing section 14(b), this bill text would replace it with text explicitly prohibiting states from outlawing the union shop.