Labor Law Breaks Free: Reviving State Capacity to Protect Workers Under the NLRA

Introduction

“American labor law is fundamentally broken, and nothing less than comprehensive statutory reform can fix it.”

For decades, this has been the dominant view among labor law scholars and progressive policymakers. Yet in just a few short years, the current National Labor Relations Board (NLRB or Board) has challenged this notion by significantly reimagining how existing labor law can augment worker power within a modern economy. Many of the Board’s recent innovations are now threatened by anti-union corporations and hostile courts (in fact, the very existence of the Board is threatened by hostile courts [Gyauch-Lewis 2024]), and there is still much to be done to make the renewed vision real and lasting. But ongoing contestation should not take away from the significance of what this Board has accomplished—and all that it tells us about how our existing labor law can and should work, when our politics allow it.

Over the past several years, the Board has taken major steps toward reversing what scholars call the “ossification” of labor law. For arguably the first time in decades, the NLRB has lived up to its statutory obligation to craft national labor policy responsive to economic and institutional realities. Importantly, this step did not require statutory reform. Rather, what it took was a “deossification” of labor politics.

Increased worker mobilization and a resurgence in public support for unions have simultaneously enabled and pushed the Board to do what the agency was always supposed to do—to make our labor law work for workers.

As it turns out, the state had much greater capacity to use existing legal authority to protect and support workers—all workers, unionized or not—than it had been using; what was missing was the political will to do so. Will the Board’s recent efforts survive? As a legal matter, they should. As a political matter, well, that depends on us.  

The Ossification Thesis

In a field-defining article written more than 20 years ago, legal scholar Cynthia Estlund suggested that labor law had played a causal role in American deunionization during the mid–late 20th century (Estlund 2002). Labor law, she argued, had become ossified and was no longer responsive to the conditions and needs of American workers. By “ossification,” she meant that the law had become inflexible, hardened into doctrines that no longer served workers’ interests and sealed off from democratic reform. The vectors of the law’s ossification were many: political gridlock that prevented even the most basic legislative reform; decades of hostile Supreme Court decisions (including Lechmere, Inc. v. NLRB and Hoffman Plastics Compounds v. NLRB); the Taft-Hartley Act’s prohibition on the Board’s employment of economists (Hafiz 2018), which inhibited development of pro-worker economic policy; and the National Labor Relations Act’s (NLRA) own built-in resistance to innovation, through its broad preemptive reach and dogged insistence on a particular form of collective worker power—majority bargaining units or bust. As a result of all these constraints, labor law was stuck, frozen in time: perhaps well-enough designed for stable, industrial employment (although many would contest even that), but a fundamental mismatch for the dynamic and flexible information and service economy that has emerged since the 1980s (Estlund 2002).

In the decades since Estlund wrote, the idea that the NLRA—the statutory center of American labor law—is broken and must be fundamentally rewritten has gained almost universal acceptance. It features prominently in almost every scholarly (Andrias 2016) or popular press (Bazelon 2020) article about the problems facing workers and the labor movement, including in my own work (Reddy 2021). As Harvard labor law professor Sharon Block¹ has emphasized, there were more people in unions before there was a federal right to unionize than there are today, 90 years after the NLRA became the law of the land (Block 2017). Many scholars, practitioners, and labor leaders have accordingly inferred that the statute itself must be the problem.

The failures scholars have noted with the NLRA are multiple. Across the critiques, there are major themes. Some of the most noted deficiencies in American labor law, whether as written, as construed by courts, or as applied by the Board, include:

• Unfair and Inefficient Election Process. Current doctrine permits employers to refuse to voluntarily recognize a union when presented with clear proof that a majority of employees want to unionize, and to instead demand that their workers participate in a formal NLRB election. Employers regularly leverage the additional time afforded by this process to intimidate and discourage workers from unionizing through coercive activities, such as requiring employees to listen to repeated anti-union polemics on the job, and flat-out illegal activities like firing pro-union workers.
• The NLRB’s Limited Remedial Authority. Unlike most other administrative agencies, the Board lacks the power to impose fines, penalties, or punitive damages on law-breaking employers; its remedial authority is limited to compensating plaintiffs for immediate losses. As a result, the law can actually incentivize anti-union employers to illegally undermine a union election or drag out first-contract negotiations until workers lose momentum. If an anti-union employer thinks that firing a major union supporter might help defeat a union drive, the lack of potential consequences creates a twisted economic rationale for doing so. Illegal retaliation may help stop unionization in its tracks, and even if it doesn’t, there’s almost nothing to be lost by trying. The union may never file a charge, or its claim may be too hard to prove. And ultimately, even if an employer is held liable for law-breaking, the only cost is the same as what compliance would have cost them in the first place.
• Exclusion of Workers Along Racial and Gender Lines. The NLRA’s enactment was a result of political compromise with southern Senators, who in order to preserve the southern caste system demanded the exclusion of domestic and agricultural workers from the statute’s protections. These statutory exclusions, along with court-crafted doctrines that also exclude independent contractors and deny remedies to undocumented workers, continue to disproportionately deny women and people of color the full protection of labor law.
• Insufficient Options for Collective Power and Insufficient Relevance to Nonunion Workers. The NLRA is designed to facilitate the formation of exclusive bargaining relationships between a union selected by a majority of employees and their immediate employer. This all-or-nothing approach fails to support minority unions or other nonunion forms of collective worker power that might be a better fit in certain industries or jobs.
• Ineffective Right to Strike. The “right” to strike recognized by the NLRA is riddled with confusing limitations that significantly weaken its power as both an economic weapon and a form of political protest. These restrictions include prohibitions on some of the most effective forms of worker protest, including striking indirect employers who exercise market power further along the supply chain. Perhaps most bizarrely, while employers are legally prohibited from firing employees for going on strike to get a better deal, employers remain able to “permanently replace” them, a distinction only a lawyer could dream up.
• Overbroad Preemption. The NLRA has been interpreted to have an incredibly broad preemptive reach.² Unlike the vast majority of federal employment laws, which set a floor but not a ceiling for state regulation, labor law has been interpreted to prohibit states from legislating to further support worker power, significantly deterring innovation and the expansion of labor protections within our laboratories of democracy. 
• Narrow Focus on Individual Firms and Lack of Sectoral Regulation. The NLRA imposes bargaining obligations only on individual employers and provides no meaningful mechanism for industry-wide or sectoral bargaining. Unfortunately, focusing on just one employer at a time can create competitive pressure for employers to resist unionization, and it impedes building meaningful union density and power in a fissured economy.

Given these pervasive problems with the statute, all of which fundamentally weaken its ability to encourage collective bargaining—its stated purpose—labor law scholars have invested major efforts in reimagining what a functional labor law regime might look like. Recently, a powerhouse team of scholars, practitioners, organizers, and workers put forth the bold and visionary Clean Slate Plan for Worker Power (Block and Sachs 2020). The report begins with its central premise: “Our laws to empower workers are outdated, failing to keep up with changes in the economy, technology, and employers’ tactics to undermine them.” Rather than statutory tweaks, then, the report proposes “a new labor law”—one that is “capable of empowering all workers to demand a truly equitable American democracy and a genuinely equitable American economy.”

Footnotes and Suggested Citation

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