A Nebraska Labor Adjudication Board: Addressing Worker Exclusions Under the National Labor Relations Act

Executive Summary

At a moment when many Americans have lost faith in the capacity of institutions to deliver material improvement, labor relations will soon need to choose between an institutional path of reform and a path of political upheaval. The core purpose of a labor-adjudicatory body, and institutions broadly, has always been to negotiate this tension: to secure better conditions for workers while avoiding the destabilizing disruptions that accompany large-scale political change. Yet the United States’ current labor adjudication framework is too ideologically fractured, too practically unstable, and too structurally exclusionary to perform this function. Additionally, federal reform remains stalled while state experimentation is both underdeveloped and legally constrained. This article therefore offers an institutional framework for understanding the scope of permissible state action and proposes a practically structured, ideologically coherent, and inclusive state-level adjudicatory model capable of addressing the NLRA’s most entrenched failures.

This article aims to address the longstanding inclusiveness failures of the National Labor Relations Act (NLRA) through a politically sustainable, state-level mechanism designed to serve as a model for replication across multiple states. First, the paper provides background on the NLRA and identifies its three central problems: an ideological drift away from its New Deal, rights-based foundations following the Taft-Hartley Amendments; practical unworkability caused by political oscillation, weakened enforcement, and doctrinal instability; and a design that excludes major sectors of the workforce from collective bargaining protections. Second, because a fully comprehensive labor framework is unlikely under current federal constraints, primarily preemption, the paper narrows its focus to the types of exclusions that are most aggregating to systemic inequalities and permissible under current law, particularly the exclusion of agricultural workers, domestic workers, and independent contractors, whose omission from the NLRA has weakened the labor movement and entrenched inequity. Third, the article outlines the modern architecture of labor law and highlights the areas most conducive to reform: state-level intervention, sectors omitted from NLRA jurisdiction, and mechanisms that approximate sectoral bargaining. Fourth, it details the historical, constitutional, and policy reasons for each of the NLRA’s exclusions, clarifying which categories can responsibly and legally be incorporated into a state mechanism and which cannot. Fifth, the article explains why exclusion is strategically damaging to the labor movement, weakening bargaining power, undermining solidarity, and leaving the most vulnerable workers without meaningful protection. Sixth, the paper sets forth a policy proposal establishing a constitutionally separable, tripartite Nebraska Labor Relations Board (NE-LRB) empowered to administer sectoral bargaining for agricultural workers, domestic workers, and independent contractors through a democratic and independent governance structure. Finally, the article analyzes how this proposed framework directly addresses the ideological, practical, and inclusivity problems identified at the outset.

Introduction and Problem Description

President Franklin Delano Roosevelt signed the NLRA into law in 1935 with the “high purpose” of “better relations between labor and management” (Franklin D. Roosevelt Library & Museum n.d.). It was a successor to the National Industrial Recovery Act, which was ruled unconstitutional in 1935. Despite the NLRA’s initial high purpose, in the years since enactment three major failings of the broader national labor law framework have emerged: its ideological misalignment post-Taft-Hartley Amendments, its practical failings in enforcement and workability, and its failure to incentivize an inclusive labor movement. These constraints constitute, in part, the “ossification” of labor law, or its stagnation and rigidity. Along with these factors, which describe its failings in statutory design, its ossification is further constituted by congressional gridlock, judicial constraints, and federal preemption (Estlund 2002, 1530).

The ideological foundations of the NLRA have been morally defunct since the introduction of the Taft-Hartley Amendments. The NLRA was born out of the political philosophy of the New Deal that sought to create economic rights that preconditioned democratic society. Its provisions were articulated by its drafter, Senator Wagner, as “the difference between despotism and democracy” (New York Times 1937). In 1947, The Taft-Hartley Amendments introduced the concept of unfair labor practices on behalf of labor, and banned some practices such as secondary boycotts, closed-shop arrangements, and initiation dues, fundamentally shifting the conceptual purpose of the board from rights enforcing to interest weighing (NLRB n.d.). The consequence of this shift is that the NLRA has lost its grounding in rights-based conceptions, even without changing its statutorily stated purpose (Gross 2017). Since Taft-Hartley there has not been a comprehensive update to national labor laws, and congressional gridlock and the current federal political climate make national action unlikely.

The national labor law framework has been further hindered by President Donald Trump’s removal of Gwynne Wilcox, leaving the National Labor Relations Board (NLRB) unworkable since January 2025. This is the most visible instance of the political whiplash present at the NLRB. William B. Gould, a former chair of the NLRB, explains how appointments are the driving force that shift doctrine and enforcement (Gould 2015, 1506–15). Gould explained that under this increasingly politicized appointment process, rulemaking and adjudication have become political exercises, even to the extent that rulings are timed with and substantively impacted by congressional oversight, appropriations riders, and political scrutiny (Gould 2015, 1516–22). This constitutes what observers call the “seesaw” of the board (Gould 2015, 1506–08).

Despite these historical developments, the initial exclusions of the NLRA—the focus of this article—remain some of the most problematic features of the statute. The NLRA excludes “public employees, supervisors, agricultural workers, domestic workers, independent contractors, employees covered by the Railway Labor Act, and ‘any individual employed by his parent or spouse’” (CLJE:Lab 2024). These exclusions can be roughly classed into those made problematic by aggravating systemic discrimination, those made problematic by a changing labor market, and those made for genuine constitutional or policy concerns. Of those made problematic by aggravating systemic discrimination, the exclusion of agricultural and domestic workers from the NLRA has been understood by historians to be a then-race-proxy to exclude Black workers, in an attempt to appease the Jim Crow South (Perea 2011, 95–6). Other workers, including independent contractors, were not included due to their minimal role in the economy at the time of drafting the NLRA, and others, including public employees, supervisors, employees covered by the Railway Labor Act, and those parentally employed, were excluded for genuine constitutional or policy reasons.

Despite these failings, there have been no major reforms to labor law since the Taft-Hartley amendments in 1947. Since this time, the American economy has recovered from WWII, the world changed its monetary system, the internet was invented, and the gig economy emerged. The decades-long congressional gridlock surrounding labor set in the environment of a weakened labor movement and an evolved economy necessitates state-level innovation.

Contemporary Labor Law

Before the passage of comprehensive federal statutes, the common law of labor relations treated unions with hostility, characterizing concerted activity as inducing a breach of contract, or conducting conspiracy, trespass and nuisance, and coercion (Price 1948, 389–93). The modern framework emerged with the US Railway Labor Act of 1926, the National Industrial Recovery Act of 1933, the National Labor Relations Act of 1935 (NLRA), and the Labor Management Relations Act of 1947 (Taft-Hartley). The Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin) later added internal union democracy provisions. Together, these statutes form the federal statutory regime governing most private-sector labor relations. Through the doctrine of preemption the Supreme Court has severely limited the scope of state regulation where federal labor law applies, holding that states may not regulate conduct either protected or arguably protected by the NLRA (Machinists v. Wisconsin). However, states have the authority to regulate areas of labor expressly allowed by the federal labor scheme, such as right-to-work laws, and those areas or sectors excluded from the federal scheme, such as those excluded sectors previously mentioned.

Given these limitations, sectoral bargaining—collective bargaining conducted across an entire industry or occupation rather than employer-by-employer—is a commonly proposed solution to creating a more inclusive labor movement at both the federal and state level. It is an efficient way to increase union density and aligns labor standards across an industry. These structures are most prevalent in Europe, particularly Nordic countries. However, under federal labor law, multiemployer bargaining can only be voluntary (Snyder 1982, 876). In contrast, states have been able to experiment in domains uncovered by the NLRA, such as sector-wide wage and conditions boards, and uncovered sectors such as agricultural workers and domestic workers.

Thus, short of a comprehensive reform of labor law at the federal level, significant improvements can be made at the state level in areas or sectors uncovered by the federal framework. In fact, the impact in these areas may be more pronounced given their lack of formal unionization and bargaining scaffolding.

Exclusion in Labor and State-Level Policy Experimentation

Under the NLRA, “public employees,¹ supervisors,² agricultural workers, domestic workers, independent contractors,³ employees covered by the Railway Labor Act,⁴ and ‘any individual employed by his parent or spouse⁵’” are excluded from the statute (CLJE:Lab 2024). These are the sectors most free to be legislated upon by the states, with the exception of employees covered by the Railway Labor Act.

The most troubling exclusions from the NLRA are those of agricultural and domestic workers. As Perea notes, “President Roosevelt and his legislative allies recognized that in order to pass any New Deal legislation at all, it was necessary to compromise with Southern Democrats intent on preserving white supremacy” (Perea 2011, 115–6). The decision to exclude two of the most vulnerable categories of workers was ultimately a matter of political calculus, one that has left the labor movement structurally misaligned with broader social and political justice concerns in the US. Today, domestic workers, largely women of color, are underpaid and operating in poor working conditions (Hickey and Mast 2025), and agricultural workers face hazardous working conditions and wage theft (Beckman et al. 2023). Some states have guaranteed collective bargaining rights for agricultural workers (NALC 2022), and a handful, such as New York, have guaranteed more general labor protections for domestic workers (Gilmore 2012, 147).

Exclusion is a strategic pitfall for the labor movement for three primary reasons. First, it weakens collective bargaining power. A smaller base of members (loosely defined) means less political and financial resources for broader labor reform. Additionally, the creation of an unorganized, excluded class of workers creates a pool of labor receiving lesser wages and working conditions that acts as competition against organized labor. Second, it undermines solidarity; exclusion along arbitrary lines, particularly racial ones, precludes unity among the working class and discourages partnerships with allied social movements. Third, it leaves classes of workers defenseless against their employers. These exclusions undermine the intellectual rigor of a rights-based conception of labor law if it allows certain sectors of workers to remain unorganized and vulnerable. A stronger labor movement requires that all who perform labor be incorporated into a framework.

Policy Proposal

Under the conditions of federal ossification, political volatility, and structural exclusion, this article argues that the most viable site for meaningful labor-law reconstruction lies at the state level, within those sectors and regulatory spaces left uncovered by the NLRA and insulated from federal preemption. Rather than pursuing piecemeal statutory fixes, the following proposal advances a democratically legitimate, sectorally focused body for labor adjudication along with an accompanying Office of Public Advocacy to act on behalf of workers.

The Nebraska Labor Relations Board (NE-LRB) should be established to govern labor relations for employees not covered under federal labor statutes, including agricultural workers, domestic workers, and independent contractors. State employees are excluded from coverage due to the existence of a state-level labor board already serving public employees and the unique sovereign relationship between the state and its workforce. Railworkers are excluded on the grounds that the Railway Labor Act preempts any state regulation in this area. Supervisors are excluded due to federal preemption, and familial workers are excluded because familial employment relationships do not warrant sectoral bargaining protections.

The NE-LRB should be constitutionally recognized as the supreme state authority governing labor relations for employees within its jurisdiction. The Nebraska Constitution should be amended to enfranchise the right to organize for all workers, as exists in Hawaii,⁶ Illinois,⁷ Missouri,⁸ and New York,⁹ to establish the separability and independence of the NE-LRB from other branches or entities of government,¹⁰ and to require the Nebraska Unicameral to provide a statutory framework for the NE-LRB without employee unfair labor practices. This structure is not unique to the NE-LRB, and will mirror the constitutional jurisdictional language of the University of Nebraska Board of Regents.¹¹ This will ensure that the NE-LRB avoids the political swings of the federal labor board, and avoids intrusive partisanship. The board would be tripartite in composition, consisting of representatives of labor, management, and the general public. Its initial membership should include 21 members: seven representing agricultural labor, seven representing domestic labor, and seven representing independent contractors, with each sector mirroring the same structural design.

Within each sector, representation should consist of three employee representatives, three employer representatives, and one chair elected by the general public. This structure ensures that all interested parties are brought to the table, and gridlock is resolved through popular will. It is important that the public-interest representative of the tripartite structure not be appointed by a political actor given the partisan results and structural gridlock such appointments have caused. For employees, all registered employees of a given sector should have the right to self-nominate and to vote for representatives. The three highest vote-getters should serve as employee representatives for three-year rotating terms. Employers or entities employing workers in a given sector should likewise have the right to self-nominate and vote for employer representatives, also serving three-year rotating terms. The sector chair should be elected by popular vote at each midterm and general election, serving a two-year term. Any individual qualified to hold public office in Nebraska may seek election to the chairmanship, with the exception of individuals or immediate family of individuals holding financial stake in a corporation involved in that sector, or a trade association, firm, or other type of organization representing such corporations. Board members are subject to impeachment by the Nebraska Unicameral under the same procedures set forth in Article III, Section 17 of the Nebraska Constitution.¹²

Employee and employer representatives serving on the NE-LRB should be entitled to up to 20 hours per week of compensated work on board duties without suffering adverse employment actions. They should receive public-provisioned compensation at a rate of $30 per hour when performing board duties, adjusted annually for inflation. Each popularly elected board chair will receive a modest salary, defined by the authorizing statute, adjusted for inflation.

All 21 members should convene as a single governing board responsible for administering the NE-LRB and overseeing a Public Advocacy Office. The Public Advocacy Office should be led by a Chief Public Advocate, elected by two-thirds of the full governing board, charged with: (1) identifying and registering qualifying employees and employers; (2) disseminating labor rights information to workers under the jurisdiction of the NE-LRB; (3) fairly and impartially administering all elections conducted outside the general public framework; (4) preparing grievances and representing workers before the NE-LRB subboards; and (5) hiring and supervising staff necessary to carry out these duties. The Chief Public Advocate and all staff should be compensated through a state-level employer-side payroll tax levied on corporations under the jurisdiction of the board, with funding adjusted annually to reflect the prior fiscal year’s caseload and administrative demands.

Each NE-LRB subboard should, on a four-year basis, conduct negotiations and vote on a proposed set of standards and regulations, on subjects authorized by statute, within a 90-day period. Those standards should be ratified at the next sector-wide election by a majority of workers voting during that election. Should a set of standards not be voted upon or ratified, the previous standards will remain effective into the next four-year term.

The NE-LRB should administer a clear and accessible grievance structure to ensure that all workers within its jurisdiction can bring controversies without undue delay or procedural complexity. Each sector-specific seven-person subboard should exercise exclusive jurisdiction over any controversy arising between employees and employers in its sector, including all those issues outlined by the constitutionally mandated statutes drafted by the Unicameral. Workers must file grievances with the NE-LRB within 90 days of the alleged violation, after which the Public Advocacy Office will promptly docket the case and assign the worker a public advocate: a trained, independent representative who will accompany the worker throughout the process, assist in drafting the complaint, and represent their interests in all proceedings before the subboard. Upon docketing, the subboard must hold an initial conference within 14 days and issue a final written decision within 30 days, unless good cause is shown for an extension. All hearings should be conducted before the full seven-member subboard, which alone maintains the authority to determine findings of fact, apply the governing statute, and issue binding restitutionary, injunctive, and punitive remedies. Restitutionary and punitive remedies of the NE-LRB are only reviewable by state courts for issues of due process and constitutionality.

By a two-thirds vote, the full board may determine the existence of a distinct, uncovered sector of workers within the state of Nebraska and establish a new sector under a mirror governance structure consistent with existing provisions.

In the event that the NLRB becomes inoperative or its jurisdiction is substantially restricted through legislative or judicial action, the NE-LRB should serve as a functional mechanism to preserve collective bargaining rights and labor protections for Nebraska workers.

Analysis

The mechanism should be nonpartisan in nature, with constitutional separability from the three primary branches of government. Its structure would mirror the constitutional independence enjoyed by the University of Nebraska Board of Regents, which sets policy for the University of Nebraska System. Similarly, the NE-LRB will possess constitutional authority over labor relations, free from substantive interference by the legislative, executive, or judicial branches. While the Legislature will retain budgetary and statutory authority, funding for board members should be indexed to inflation, and funding for the Office of Public Advocacy should be tied to a state payroll-tax formula. Legislative actors retain autonomy only through defining the breadth and scope of unfair labor practices in the constitutionally mandated statute. This legislative “nozzle” on the board’s potency is an important safeguard against dissolution or statutory neglect, while the constitutionally required absence of employee-side unfair labor practices ensures that the system avoids the ideological distortions introduced by the Taft-Hartley Amendments.

The NE-LRB will use a tripartite adjudication structure,¹³ representing employees, employers, and the public, to reduce perceptions of bias, increase democratic decision-making, and institutionalize public participation. To mitigate the appearance of bias, employees and employers must have a formal seat at the table. At the same time, the board will necessarily remain pro-labor, given that unfair labor practices will be defined exclusively on the employer side under the proposed constitutional amendment. Democratic legitimacy will be strengthened through the inclusion of a popularly elected public member, helping to prevent gridlock and ensuring that the interests of the broader public in stable labor relations, especially in economically vital sectors such as agriculture, domestic work, and independent contracting, are represented. Three members serving staggered three-year terms will limit entrenchment and allow for regular recalibration of the board’s composition. Finally, lay participation will be institutionalized by requiring that active employees and employer representatives serve on the board, ensuring that on-the-ground perspectives are integrated and that technocratic decision-makers do not dominate the institution.

Adequate compensation and guaranteed time off, coupled with protections against adverse employment action, are essential for ensuring that employers cannot coerce or intimidate their employees who serve on the board. These protections also help maintain a meaningful connection between board members and their respective constituencies.

The Public Advocacy Office is an indispensable component of the NE-LRB. Because the covered sectors are geographically diffuse and often difficult to organize, the office will be responsible for maintaining an up-to-date catalogue of workers in each sector, likely supported by state tax return data. This function is crucial both for administering internal elections among employees and employers and for communicating statutory rights established by the Nebraska Unicameral. By embedding robust outreach efforts within the board, the NE-LRB aims to avoid the stagnation that has plagued many labor-adjudication bodies whose distance from workers has undermined their effectiveness.

The mechanism for identifying new sectors and for assuming jurisdiction in areas where the NLRB retreats is delegated to the board, pursuant to the state constitutional guarantee of the right to organize. This trigger mechanism ensures that Nebraska’s labor relations framework can respond to federal retrenchment and continue to extend meaningful protections to workers.

The proposed NE-LRB effectively responds to the three structural failings of the NLRA identified at the outset, its ideological misalignment, its practical unworkability, and its failure to incentivize an inclusive labor movement. First, by constitutionally enshrining a rights-based guarantee to organize and by removing employee unfair labor practices, the proposal restores the NLRA’s original New Deal–era normative foundation, directly countering the rights-to-interests drift introduced by Taft-Hartley. Second, the tripartite, constitutionally insulated structure of the NE-LRB responds to the practical problem of political whiplash and enforcement instability, replacing the federal “seesaw” of partisan appointments with staggered terms, popular election of neutral chairs, and structural independence comparable to the University of Nebraska Board of Regents. Third, the jurisdictional focus on the NLRA’s excluded sectors, agricultural workers, domestic workers, and independent contractors, coupled with a mandated Public Advocacy Office, directly addresses the ossified and exclusionary design of federal labor law by expanding collective-bargaining pathways for historically marginalized and structurally unprotected workers. The proposal substantively realigns labor law with its original democratic purpose, offers a stable and functional adjudicatory model, and creates an inclusive framework capable of strengthening the labor movement in sectors where federal law has failed to act.

Conclusion

The NLRA was enacted to secure “better relations between labor and management,” yet its current operation falls short of this aspiration on ideological, practical, and inclusivity grounds. This article has argued that the combination of Taft-Hartley’s rights-to-interests shift, persistent political “seesawing” at the National Labor Relations Board, and the statute’s exclusions has produced an ossified regime unworkable for large segments of the modern workforce. Within a constrained environment of congressional gridlock, judicially enforced preemption, and a transformed labor market, the path to meaningful reform necessarily involves state-level authority in uncovered sectors.

The proposed Nebraska Labor Relations Board responds to these conditions by constructing a constitutionally separable, tripartite body with jurisdiction over agricultural workers, domestic workers, and independent contractors. By entrusting governance to a representative structure of employees, employers, and a popularly elected public chair, and by insulating the board from ordinary partisan pressures through constitutional design, the NE-LRB centers on a rights-based conception of organization while mitigating the doctrinal and enforcement volatility that characterizes the federal system. The inclusion of a Public Advocacy Office and a constitutionally mandated mechanism to recognize emerging uncovered sectors ensures that the framework is capable of adapting to evolving labor markets and of stepping in should federal protections further erode.

Substantively, the proposal addresses the three-pronged failings of the NLRA by restoring a normative commitment to workers’ organizational rights, providing a stable and democratically grounded adjudicatory forum, and extending meaningful protections to workers who have been structurally excluded from federal law. Institutionally, it offers a model that other states can adapt to their own constitutional and political contexts.

Yet the success of such a mechanism cannot be guaranteed by design alone; it will depend on sustained engagement by unions, worker centers, and community organizations that can activate these rights and the institution. If adopted and engaged by such organizing, a state-level body like the NE-LRB would not only fill gaps left by federal law, but also move American labor policy closer to the democratic, rights-based vision intended by the New Deal.