Maybe it is Time to Retire the NLRA

Within the first week of his presidency, President Trump removed National Labor Relations Board (“NLRB”)^[1] General Counsel Jennifer Abruzzo and Board Member Gwynne Wilcox, leaving the NLRB without a quorum^[2] and therefore unable to have any real impact on cases brought before it.^[3]  This action sent unions and organizers into a panic as employers celebrated the expanded ability to get away with unfair labor practices and policies that limit strikes and work stoppages.^[4]  However, the history of unions in America is not one defined by the National Labor Relations Act (“NLRA”).^[5]  In fact, the NLRA was implemented to stifle the militancy that unions had garnered.^[6]  Though the NLRA has been celebrated as a liberal legislative win, especially §7,^[7] the creation of the NLRB and its interpretation by the Supreme Court^[8] have only shown its pacifying power.^[9]  After an overall steep decline in union membership since the implementation of the NLRB,^[10] as well as reduced wages, at-will employment, and a widening gap between the rich and poor,^[11] it is time for the labor movement to turn back to its roots and exist outside of the law.  

Through its implementation, the NLRA has shifted power away from workers and toward management.  The NLRA emerged from the Wagner Act in 1935 under President Roosevelt, and many viewed it as a win for labor.^[12] Congress intended to hinder social unrest and business stoppages occurring at the hands of private sector workers by offering a legal pathway to unionization, thereby regulating and limiting organizing (or resistance) efforts.^[13]  Before the NLRA, “there [were] massive and sustained campaign[s] of strikes.”^[14]  Millions of workers were members of unions striking with pickets, sit-downs, and secondary boycotts.^[15]  However, this unrest was inconvenient for both capital and the law.^[16]  To rein in workers, the government pulled labor disputes to the court room (1) by recognizing labor unions via elections and collective bargaining, (2) transforming the inherent power to strike into something with rigid legal parameters, and (3) creating new unfair labor practices that unions could be accused of such as harassment or solicitation.^[17]  These legal changes shifted the way that unions were able to respond to workplace issues.^[18]  

Before the NLRA, unions were collective bodies that made demands from their employers through work stoppages without any bureaucratic hurdles—though they often faced injunctions and police violence.^[19]  Since the NLRA’s passage, unions must have a statutory reason before engaging in protected concerted activity.^[20]  Employers quickly adapted to this shift by finding ways to lawfully discourage unionization and maintain business operations.^[21] Although employer-employee confrontations have become less physically violent since the passage of the NLRA, there are also fewer overall workplace victories that offer long-term benefits and protection.^[22]  There is still a liberal state-violence that deprives workers of basic benefits to prolong survival and quality of life.^[23]

Today, union membership is low, and workplace changes are often delayed by lengthy court processes.^[24] Although union membership immediately increased after the implementation of the NLRA, as employers and profit-centered politicians adapted, union membership steadily declined.^[25]  It became harder for unions to organize due to the practice of union-busting—involving practices beyond the parameters of the NLRA, such as replacement workers brought in to cross picket lines and police force used to suppress striking workers. ^[26]  Meanwhile, unions were accused of harassment and eventually, racketeering.^[27]  

Further, legislation continued to stifle unions and strengthen businesses.^[28]  This left unions without leverage over their employers and prone to both civil suits and severe repression.^[29]  While workers can now request voluntary recognition from their employers to form a union, this rarely occurs.^[30]  Instead, unionization efforts typically proceed through formal elections that follow intense private union-busting.^[31]  Often, workers struggle to sustain these organizing efforts while working demanding jobs.^[32]  Moreover, employers have led decertification campaigns that rely on the manipulation and bribery of workers to reverse any union efforts that are galvanized.^[33]  Thus, the NLRA did not expand the union workforce; rather, it created liberalized^[34] mechanisms for employers to union-bust and prolong the process of union formation without labor stoppages.^[35]

Contemporaneous with the NLRA’s liberalizing^[36] agenda, there has been a significant decline in class consciousness in America.^[37]  Before 1935, unions largely operated without statutory regulation.^[38]  Unions were built on collectives of workers who would strike at the first sign of employer injustice.^[39]  However, since 1935, unions no longer have legitimacy without the NLRA; even if a worker collective wants to strike, they must go through multiple processes to do so lawfully, including meeting the statutory requirements for becoming a union within the meaning of the NLRA.^[40]  Most workers do not know about the processes to unionize or have the capacity to work harder to unionize.^[41]  When it is brutal enough just trying to make ends meet, requiring workers to go through an intensive legal process to achieve workplace justice,^[42] such as union elections, ULP hearings, and collective bargaining,^[43] exhausts the labor force and complicates the simple demand for worker protections.  By legalizing the union process, the NLRA has made it more difficult for workers to receive higher wages, safer workplace conditions, and communicate transparently with their employers.^[44] 

The time has come to dismantle the hurdles constraining workers.  The NLRA’s strike clauses and collective bargaining have pacified workers.^[45]  Workers must demand what is theirs outside of the NLRA-codified strike clauses and collective bargaining, for employers will not accommodate workers’ needs until workers stop working. True progress will come from workers practicing in mass strikes and collective action^[46]—the very tactics that once built the labor movement.  If the NLRB is to be dismantled by Trump, c’est la vie, let the workers rise up outside of the law.^[47]

^[1] The enforcing agency arm of the National Labor Relations Act.

^[2] “The smallest number of people who must be present at a meeting so that one or more official decisions can be made; specif., the minimum number of members (a majority of all the members, unless otherwise specified in the governing documents) who must be present for a deliberative assembly to legally transact business.” Quorum, Black’s Law Dictionary (12th ed. 2024); see also National Labor Relations Act § 3; 29 U.S.C. § 153(2012) (the quorum requirement is at least three).

^[3] Jennifer G. Betts, Rodolfo R. Agraz, & Zachary V. Zagger, NLRB Shake-up: President Trump Removes Board Member, Discharges General Counsel, Oɢʟᴇᴛʀᴇᴇ Dᴇᴀᴋɪɴs (Jan. 28, 2025), https://ogletree.com/insights-resources/blog-posts/nlrb-shake-up-president-trump-removes-board-member-discharges-general-counsel/ [https://perma.cc/YZW5-6QSQ].

^[4] Id.

^[5] See Karl Klare, Law-Making as Praxis, Tᴇʟᴏs, no. 40, 130 (1979); see also Melvyn Dubofsky & Joseph A. McCartin, Lᴀʙᴏʀ ɪɴ Aᴍᴇʀɪᴄᴀ: A Hɪsᴛᴏʀʏ 36 (2024). 

^[6] NLRA § 7; 29 U.S.C. § 151 (2012) (“The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by (a) impairing the efficiency, safety, or operation of the instrumentalities of commerce []”).

^[7] Id.; “[B]oth § 7(a) and the Wagner Act were explicitly aimed at rationalizing and ultimately reducing labor conflict. This agenda . . . coexisted uneasily alongside the statute’s purpose in rationalizing industrial production as well as its aim to diminish economic inequality and advance workers’ rights for their own sake.” Ahmed White, Its Own Dubious Battle: The Impossible Defense of an Effective Right to Strike, 2018 Wɪs. L. Rᴇᴠ. 1065, 1086; “Not only did the effective use of the right to strike not legitimate itself; as the Jones & Laughlin decision made so clear, it created the conditions for its own invalidation in the name of an effective system of labor rights.” Id. at 1088 (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42 (1936)).

^[8] See Karl Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 Mɪɴɴ. L. Rᴇᴠ. 265, 298 (1978) (citing Jones & Laughlin, 301 U.S. at 45-46; Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944); Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342 (1944); J.I. Case Co. v. NLRB, 321 U.S. 332 (1944)) (explaining that these decisions allowed for the normalization of the contract that still was rooted in an unfair class imbalance because employers always had the upper hand to decide whether or not to adopt the bargain).

^[9] White, supra note 7, at 1086 (“that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace”); see also Karl Klare, Law-Making As Praxis, 40 Tᴇʟᴏs 124, 131 (1979).

^[10] For various reasons, see James B. Jacobs, Mᴏʙsᴛᴇʀs, ᴜɴɪᴏɴs ᴀɴᴅ Fᴇᴅs: Tʜᴇ Mᴀғɪᴀ ᴀɴᴅ ᴛʜᴇ Aᴍᴇʀɪᴄᴀɴ Lᴀʙᴏʀ Mᴏᴠᴇᴍᴇɴᴛ (2006), xi-xiv.

^[11] See Klare, supra note 8, at 297.

^[12] Id. at 265.

^[13] NLRA § 13, 29 U.S.C. § 157 (2012).

^[14] White, supra note 7, at 1070.

^[15] When left with no alternatives, unions and workers historically had to resort to violence against their bosses, see Louis Adamic & Jon Bekken,Dynamite: The story of class violence in America, vii (2009); see also Jim Pope, Worker Lawmaking, Sit-Down Strikes, and the Shaping of American Industrial Relations, 1935–1958, 24 L. & Hɪsᴛ. Rᴇᴠ. 45, 98–107 (2006); see also N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240, 261 (1938); see also Judith Stepan-Norris & Jasmine Kerrissey, Waves of strikes rippling Across the U.S., but Number of Striking Americans Historically Low, Nᴇʙʀᴀsᴋᴀ Exᴀᴍɪɴᴇʀ (Sept. 4, 2023), https://nebraskaexaminer.com/2023/09/04/waves-of-strikes-rippling-across-the-u-s-but-number-of-striking-americans-historically-low/ [https://perma.cc/7X28-N6SN]; see also Russell Hollander, A Review of Law and the Shaping of the American Labor Movement, 11 NYLS J. ᴏғ Hᴜᴍᴀɴ Rɪɢʜᴛs 421, 432. Secondary Boycotts occur when a group of workers call for all businesses that engage with their workplace to boycott it as well.  

^[16] See Klare, supra note 8, at 131; see also White, supra note 7, at 1090.

^[17] Id. (The NLRA was not the only legislation being strategically wielded against workers, but it is the central private sector legislation often seen as granting rights to workers rather than limiting their power); see also NLRA §§ 7-8, 29 U.S.C. § 157 (2012).

^[18] See White, supra note 7, at 1074.

^[19] Id.

^[20] Protected concerted activity includes collective actions such as circulating petitions to the workplace and discussing workplace issues with management as well as other employees. NLRA § 7, 29 U.S.C. § 157 (2012).

^[21] See John Logan, Corporate Union Busting in Plain Sight: How Amazon, Starbucks, and Trader Joe’s Crushed Dynamic Grassroots Workers Organizing Campaigns, Eᴄᴏɴ. Pᴏʟɪᴄʏ Iɴs.  (Jan. 28, 2025), https://www.epi.org/publication/corporate-union-busting/ [https://perma.cc/6NZB-NPLB].

^[22] See Klare, supra note 8, at 297.

^[23] Id.; see also Klare, supra note 5 at 132 (describing “liberal legalism”). “Liberal” here is used to connote policies and laws that are enforced to further capitalism and individualism. Liberal laws are implemented symbolically and used to separate morals from judicial action while distancing the elite practice of law-making and law-interpreting from the everyday experiences of workers in capitalist society.

^[24] Compare 30% in 1930’s-1960’s to 9.9% in 2024. See Paul D. Romero & Julie M. Whittaker CRS R47596, Lᴀʙᴏʀ & Eᴍᴘʟᴏʏᴍᴇɴᴛ: A Bʀɪᴇғ Exᴀᴍɪɴᴀᴛɪᴏɴ ᴏғ Uɴɪᴏɴ ᴍᴇᴍʙᴇʀsʜɪᴘ Dᴀᴛᴀ (June 16, 2023), https://www.congress.gov/crs-product/R47596 [https://perma.cc/2MEY-7TSN]; see also U.S. Bᴜʀᴇᴀᴜ ᴏғ Lᴀʙ. Sᴛᴀᴛs., Uɴɪᴏɴ Mᴇᴍʙᴇʀs – 2024 (Jan. 28, 2025), https://www.bls.gov/news.release/pdf/union2.pdf [https://perma.cc/R28J-WRSK].

^[25] See Romero & Whittaker, supra note 25; see also U.S. Bᴜʀᴇᴀᴜ ᴏғ Lᴀʙ. Sᴛᴀᴛs., supra note 25.   

^[26] See Logan supra note 23.

^[27] Racketeer Influenced and Corrupt Organizations (“RICO”), 18 U.S.C. §§ 1961-1968; see also Jacobs supra note 10, at 10; see also White supra note 7, at 1073.

^[28] See RICO supra note 20; see also Taft-Hartley Act, 29 U.S.C. § 186; see also White, supra note 7, at 1090.

^[29] Steven T. Ieronimo, RICO: Is It a Panacea or a Bitter Pill for Labor Unions, Union Democracy and Collective Bargaining?, 11 Hᴏғsᴛʀᴀ Lᴀʙ. L.J. 499 (1994). 

^[30] See Thomas Kochan & John S. Ahlquist, What It Takes to Form a Union – and Where to Begin, Hᴀʀᴠᴀʀᴅ Bᴜsɪɴᴇss Rᴇᴠ.(Oct. 7, 2024), https://hbr.org/2024/10/what-it-takes-to-form-a-union-and-where-to-begin [https://perma.cc/AG56-FUL6] (“[] historically most employers have not voluntarily agreed []”).

^[31] See Logan, supra note 21.

^[32] NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345 (1938); See also Ahmed A. White, Workers Disarmed: The Campaign Against Mass Picketing and the Dilemma of Liberal Labor Rights, 49 Hᴀʀᴠ. C.R.-C.L. L. Rᴇᴠ. 59, 117–18 (2014).

^[33] N.L.R.B., Decertification Election, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/decertification-election[https://perma.cc/82A5-ZTWY]; Duncan Freeman, Brooklyn Defenders workers call for ouster of director after alleged attempt to push decertification, Tʜᴇ Cʜɪᴇғ (Sept. 27, 2025), https://thechiefleader.com/stories/workers-at-brooklyn-defenders-call-for-ouster-of-org-leader-after-alleged-attempt-at-decertification-coercion,55175? [https://perma.cc/CPE7-VB4G].

^[34] “Liberalized” meaning policies passed with the modus operandi of progress but actually expanding capitalist and corporate power. See supra note 24.

^[35] See Klare, supra note 8, at 130; Henry Mayer, Strategy of the Strike, 11 Lᴀʙ. L.J. 753, 754 (1960).

^[36] See supra notes 24, 35.

^[37] See Jay Bettencourt, Contracts are not Class Struggle, Iɴᴅᴜsᴛʀɪᴀʟ Wᴏʀᴋᴇʀ(Oct. 17, 2024), https://industrialworker.org/contracts-are-not-class-struggle/ [https://perma.cc/83NK-LCM9]; see also Reeve Vanneman & Lynn Weber Cannon, Tʜᴇ Aᴍᴇʀɪᴄᴀɴ Pᴇʀᴄᴇᴘᴛɪᴏɴ ᴏғ Cʟᴀss, 1-18 (1987).

^[38] See Klare, supra note 8, at 297.

^[39] Id.; see also Loc. 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S. 95, 97(1962) (compelling arbitration instead of permitting a strike based on the unjust termination of a worker).

^[40] See Bettencourt, supra note 37; see also White, supra note 7, at 1088.

^[41] See Kochan & Ahlquist, supra note 27.

^[42] See White, supra note 7, at 1068; J.G. Getman, The Supreme Court on Unions: Why Labor Law Is Failing American Workers, Cᴏʀɴ. Uɴɪᴠ. Pʀᴇss (2016), http://www.jstor.org/stable/10.7591/j.ctt1h4mh9k  [https://perma.cc/NF2V-36UQ]; see also James Gray Pope, How American Workers Lost the Right to Strike, and Other Tales, 103 Mɪᴄʜ. L. Rᴇᴠ. 518 (2004).

^[43] See White, supra note 7, at 1069.

^[44] Id. at 1093.

^[45] Id.

^[46] Collective action includes mass-picketing, slowdowns, sit-downs, and secondary boycotts. Sit-downs and slowdowns are methods to stop or slow the production of labor while at work. Mass-picketing occurs after leaving work or striking from work to protest outside of a workplace. See White, supra note 7, at 1096, 1102. For secondary boycotts, see supra note 15. Most of these practices are illegal under the NLRA. NLRA § 8(b), 29 U.S.C. § 158 (2012).

^[47] Benjamin Y. Fong, A Movement Beyond the NLRA?, Jᴀᴄᴏʙɪɴ (Feb. 13, 2025), https://jacobin.com/2025/02/a-labor-movement-beyond-the-nlra[https://perma.cc/M6PX-DYFC]; Benjamin Y. Fong, Michael McQuarrie, & Maria Esch, Beyond the NLRB: Contemporary Strategies and Practices for Labor Movement Renewal, Aʀɪᴢ. Sᴛᴀᴛᴇ Uɴɪᴠ. Cᴇɴᴛᴇʀ ғᴏʀ Wᴏʀᴋ ᴀɴᴅ Dᴇᴍᴏᴄʀᴀᴄʏ (2025), https://cwd.asu.edu/projects/beyond-nlrb-contemporary-strategies-and-practices-labor-movement-renewal [https://perma.cc/L7VC-UDJW].