A Somewhat Random Walk Into Labor Law Implosion

I have been formally teaching labor law, in one way or another, since 1997 (when I first became a National Labor Relations Board attorney in Philadelphia and also began teaching labor law classes at Rutgers’ Union Leadership Academy) in my spare time. I have been informally teaching labor law since 1987 (when I first became a Teamsters shop steward and memorized my first collective bargaining agreement). I give you this mini biography (more is here) to buttress my claim that I have never before seen labor law in its current condition. I will start this post by explaining labor law in a somewhat static fashion. I will write as if I know what labor law is (actually, I know what it was); and then I will shift to offer clues as to how labor law is changing, and explain what I mean by asserting that it is imploding.

Let us first be clear what labor law is (or was, or has been). It is a body of law applicable to “employees,” “employers,” and “labor organizations” (also known as unions). Under Section 7 of the National Labor Relations Act (the NLRA) employees have the right to engage in “concerted” and other “protected concerted activities”: strikes, picketing, organizing unions, leafletting, and, generally, “mutual aid or protection.” You may have noticed that I did not mention unions’ rights in this description. That is because unions have no independent rights under this legal structure. Employees have rights, not unions. When unions are interfered with in some way by employers the conduct violates the law because it derivatively interferes with employees. One big chunk of the study of labor law is learning how employees “designate or select” unions to represent them.

If employers interfere with the designation or selection process it violates the law and may provoke a do-over of the method of selection – which is usually but not necessarily an election. And, even outside the domain of “designation and selection,” when, say, employees are preparing to “organize” for an election – or are just “concertedly” getting ticked off about work (which within bounds is “protected activity”) – employers have a series of things they are not allowed to do in reaction because those things “interfere with, restrain, or coerce” employees in their “exercise” of these diverse Section 7 rights. Another big chunk of a labor law course is cataloguing these “bad acts” that an employer cannot lawfully do. Many of them are intuitive: if you are an employer, you can’t fire someone because of their union or protected, concerted activity; you can’t fire them for testifying at the NLRB; you can’t refuse to “bargain in good faith” with your employees’ union. If you are an employer you also can’t threaten employees with discharge (or other “adverse” action). You can’t “interrogate” employees (that is, ask them questions about their union activity). You also can’t promise employees good stuff (“benefits”) if and only if they forego the union. All of “this,” of course, goes on and on.

There are things – “conduct” – that unions can’t lawfully do, too. As a union, you can’t beat unsupportive employees up on the picket line. You can’t charge too-high union dues; you can’t pretend to be picketing and agitating for a union election when really just want to “pressure” an employer. You can’t pressure some other employer instead of your employer in a circuitous attempt to pressure your employer. The list of things that unions can’t do is relatively short – after violence and threat of violence (while obviously important but covered by criminal law), what else can a union really do to an employee that is job related? There are a few things, but not many. Secondary boycotts (a form of unlawful union conduct) can (and have) shut businesses down cold. Not only are those types of charges typically treated as first “priority” within regional offices (a fact generating much conversation in my labor law classes), they are “mandatory submissions” for federal court injunctive relief. I never had much doubt about what “modern” (post-Taft-Hartley) labor law was most worried about when it came to labor conflict. It may tangentially be worth mentioning that because union dues have often been part of the democratic party’s funding base they come under close scrutiny under republican administrations.

That completes the briefest of capsule summaries of what labor law is. Now, how do I contend labor law is changing, and in what sense do I think it is imploding? For many years cranks like me have complained about labor law’s general weakness. Advocates supporting labor’s cause have aggressively tried to change the law from its roots or, less inspiringly, from within the existing NLRB structure through, for example, (Democrat) General Counsel Jennifer Abruzzo’s agenda -- broadly touted by the press as “leftward leaning,” but not really -- as allowed or scaled backed by the NLRB itself. (The “general counsel” [the GC] essentially litigates in desired policy directions; a multi-member “Board” [the NLRB] adjudicates those changes in policy, though parties participate in the unfolding of those policy changes). Policy change has historically been under the effective control of the sitting President, whose political party apparatus selects the GC, appoints the members and Chair of the NLRB, and holds a 3-2 member advantage in connection with important NLRB decisions. This “3-2 mentality” – a deep hint at some limitation – has pervaded the NLRB for as long as I can recall. It is what has allowed the NLRB to credibly retain even the moniker of “independent” agency. Though the in-party President effectively controlled the agency, the control was not direct or “immediate.” At the most basic level, if you wanted to fire someone at the NLRB – anyone – there would be some kind of “process” “constraining” the executive actors (even the President).

That constraint is almost certainly close to gone. Let’s start at “the bottom,” with federal line enforcement employees – especially employees out in the field enforcing the NLRA (field attorneys and field examiners). Once upon a time I was such an employee. I worked under a collective bargaining agreement and was protected from “adverse” employment actions by a just cause provision. Who cares? Suppose Elon tweeted. The union files a charge contending that the tweet is coercive. In the real world, the NLRB found a violation and, eventually but unsurprisingly, the Fifth Circuit Court of Appeals “reversed.” In a world in which I’m not protected against adverse action by just cause, I may never recommend to my superiors the finding of a violation in connection with an Elon-tweet. Bad things might happen. Ladies and gentlemen, I have seen such things. I recall a very early email case in which a well-known South Jersey company shut off its email system in reaction to a union organizer sending employees emails. Now that is not the easiest case in present times, but it was an easy case back then. The NLRB accepted at the early, investigative stage of the case an absolutely crazy employer defense that somehow its email system would become technologically overwhelmed if the union gained access. This was a large employer, rendering the argument absurd. I knew exactly what happened. Someone reached out and touched someone. If I say, “let’s issue a complaint against Elon,” and Elon has friends, I would like the protection of a collective bargaining agreement and its just cause provision before acting. But suppose I possess no collective bargaining agreement with a just cause provision. That is what the destruction of collective bargaining in the U.S. Government has been “about.” Unionization in the federal government is not about striking, because federal workers cannot strike. It is not about pay and benefits, because federal employees can’t really negotiate over pay and benefits (that is controlled by Congress). I have been a federal employee and a federal union official and know that the chief value of federal sector unionization is protection against arbitrary discharge (or similar adverse actions). So, the more the President crushes federal sector unions, the greater the risk in performing one’s job in a manner that irks the in-party.

Let’s look at a second avenue of constraint. People are probably wondering what in the Sam Hill has been going on with the “unitary executive” theory and litigation in the federal courts. The long version of the story is too long (not too complicated, just too long). Over the past several decades, we have had a system in which certain administrative agencies were “independent.” What that meant, as a practical matter, was that agency “heads” and “members” did not simply “serve at the pleasure” of the President. In theory, agency officials could follow what they independently thought was best for the agency. The NLRB is one of the earliest independent agencies. What the independence means, again as a practical matter, is that when one political party goes “out,” and the other comes “in,” the agency could not simply change everything all at once to mirror the policy views of the “in party.” If you went back to the capsule summary of the NLRB I provided above, and scrutinized every labor law rule I discussed or alluded to, you would find that there are “republican” and “democratic” flavors of the law around every legal issue. Eventually, the in-party’s views on these issues would substitute for the (now) out-party’s views. But historically that transpired over a substantial period of months, not immediately. And not before the now-in-the-dissent out-party had an opportunity to (often very cautiously) develop a sophisticated contrary view, which very often would eventually become the controlling law – once the out-party regained in-party status.

It was, in other words, already a big problem for a law professor to teach oscillating “core” labor law – even though much of that core might feel like inconsequential minutiae to the general public. Very little core policy oscillation has involved issues that probably should but don’t cause people to sit up and take notice: “If you strike, you can be permanently replaced. If you are (“merely”) threatened with adverse job action there are no monetary damages. An employer may close its entire business out of anti-union animus, but it cannot merely threaten to close in such circumstances. A worker reasonably fearing that an interview with the boss might lead to discipline is entitled to a union representative in a unionized workplace but not an employee representative in a non-union workplace.” . . . and on and on, the stuff of a labor law course.

But, once agencies become “non-independent,” the unitary executive will swoop in. The President would be able to simply fire every member of the NLRB (certainly at the “Board level, maybe beyond) and replace them with his or her own people. Some people keep talking to me about whether the President will decide cases with less than a five-person Board. “Suppose there were two republicans and one democrat?” Oh, I don’t know, suppose there were four republicans and one democrat. Or let’s just get to brass tacks (as I think the President very well may) and suppose there are five republicans and zero democrats. That is what I would call a “dominated” labor board. Everything I remember about serving in different regions during the terms of George W. Bush would essentially be put on steroids. The easiest thing for a layperson to keep in mind is that in a dominated republican NLRB no interests hostile (or even unfriendly) to big business would likely ever be contemplated.

Please don’t misunderstand me. I’m not suggesting there is anything earth shattering the NLRB core could do. Once you really read and understand the statute, you realize how little it can do. It was a statute that I believe contemplated marauding hordes of strikers waiting in the wings permanently poised to physical pounce on management overreaching. That world seems to be gone for now. And it does not surprise me that in the world that currently exists NLRA protections are very weak. This year, for example, the courts have been about the project of dismantling a backpay remedy somewhat creatively devised (to perhaps make the NLRA less weak) at the end of Biden’s term. Typically, the standard remedy for a labor law violation resulting in job loss is to “reinstate” the involved employee with “backpay,” and courts have always policed such limits fiercely. You can do a lot of creative things with backpay. (See CHM 10536 et seq). You can pad it with vacation pay, overtime, sick time. But compensation for “net back pay” is not the same as paying compensatory damages. Again, it is too long a story to tell well. I said to those around me that most federal circuit courts would not buy the expanded “Thryv” remedial theory, and they are not buying it. The simple truth is that without remedies that “bite” scofflaw employers literally laugh at you. (Many years ago, for example, I wrote about how silly it is to claim that undocumented workers are statutory/NLRA employees when they possess no affirmative rights to back pay and reinstatement). Yet, however weak the NLRB was before, it will be weaker still now that the unitary executive nail is in the coffin (see ahead) – though, to be clear, we’re not precisely sure how the nail will be hammered. There is a lot of fine rhetoric dancing around because, frankly, people are scared of the new era that is on the verge of “being born.”

Here is a third avenue of constraint – jolting us further from NLRA-core. A theory has been gaining ground in the federal courts that is, once again, not very accessible to the layperson. But it is another variant of the unitary executive theory. It goes like this. Any member of the executive branch of the federal government should be “removable” by the President. But under the NLRA:

Board Members may be removed by the President only “for neglect of duty or malfeasance in office[.]” And ALJs may be removed only “for good cause,” as determined by the Merit Systems Protection Board (MSPB)—itself an independent, quasi-judicial agency that adjudicates “[f]ederal employee appeals from agency personnel actions.”

The Fifth Circuit Court of Appeals, in the Space X opinion, concluded that, “[t]he Constitution does not countenance unlawful power. And when the Constitution draws boundaries, neither agency expedience nor institutional inertia can erase them.” (opinion at page 32). In other words, the President’s removal power must be virtually unlimited within federal administrative/executive agencies. Of course, no one has understood that to be the case since the 1930s. Highly-paid think-tankers have been “out there” agitating, agitating, agitating for these changes in legal philosophy – for decades. I met some of them when I was in law school in the 1990s.

A fourth avenue of constraint involves the NLRB’s use of administrative law judges to impose monetary “remedies.” Some lawyers argue that NLRB backpay is sufficiently close to damages (remember that idea?) that only Article III federal judges (those with lifetime tenure) should be able to lawfully award it. See SEC v. Jarkesey, 503 U.S. __ (2024). The stock response to this argument is that backpay “ain’t damages,” it’s an “equitable” remedy meant to restore the fired employee to the situation existing prior to the NLRA-unlawful conduct. This makes sense to me. But I also know that you could also characterize good old tort (personal injury lawsuit) damages as “equitable.” Which also means you could characterize equitable backpay as a species of damages over which only judges with federal lifetime-tenure may impose. And, in Texas, that is exactly how things are currently viewed.

The third and fourth avenues of constraint are deeply, and newly, problematic. They imply the need for complete reconstruction of the NLRB. Any student of bankruptcy law will recall that Stern v Marshall, 564 U.S. 462 (2011) demolished the then-existing bankruptcy system. The demolition occurred because Article III (full, lifetime-tenured federal judges) did not (it was deemed) adequately supervise bankruptcy cases. Article I bankruptcy judges held a legal status somewhat similar to NLRB Administrative Law Judges (term-limited, federal specialists). You see the problem? It seems to me unlikely that the Supreme Court will do nothing if it finds the NLRB unconstitutionally assembled. My colleague Alvin Velazquez has explored some interesting if scary ways of conceptualizing the potential dissolution of the NLRB (at least as we have known it up to now).

If all of this is not enough to press home the present plight of the humble law teacher, how do we even get an NLRB charge started? The Fifth Circuit, once again, has decided that it is so likely Space X will succeed on the merits of its underlying constitutionality arguments, as discussed briefly above, and that the company would suffer irreparable harm simply by being subjected to the unconstitutional process. Other circuit courts have disagreed, holding that even if the NLRB were unconstitutionally put together, a company against which an NLRB charge is filed could not complain about the “bad architecture” until the agency actually “threatened” it with a legal remedy. In other words, Space X was not even required to defend the case against it in the Fifth Circuit given the claimed unconstitutional NLRB process. Pretty wild. I’m not sure what will happen next. Perhaps any employer aggrieved in the 5^th Circuit by the mere exercise of the NLRB’s jurisdiction may file for injunctive relief.

This is why I say we’ve arrived at “implosion.” The NLRB may be unconstitutional in its structure. If it is not, unions may face what I have referred to as a “dominated” NLRB. The best case scenario is what unions used to think of as the worst case scenario – four years of republican-centric/union hostile decisions bad enough in years past to have deserved the title, September Massacre. And as crazy as all this sounds, I really don’t know what happens if the democrats win in 2028. Somehow my textbook will have to make sense of it, I am rapt in “fear and trembling.” If the republicans win in the next four year cycle perhaps labor law is simply over and it is back to the barricades for us workers – perhaps this time against an AI overlord. All these years just to return to the plot of The Terminator.