The first third of my Labor Law class, like most others, emphasizes the important rights of employees under section 7 of the National Labor Relations Act (NLRA). First, Section 7 is crucial in the union organizing process. Second, its protections generally apply not only to employees who are unionized or seeking to unionize, but to all employees the NLRA covers, even if they are not in or do not currently want a union. Third, Section 7’s language protecting “other concerted activities for mutual aid or protection,” is broad and vague. That means it is often unclear how section 7 applies to particular employee actions or employer rules. This, combined with the increasingly politicized National Labor Relations Board (NLRB) – the agency that interprets the NLRA – has caused wide oscillation in legal rules, especially in the 21st century. For many areas involving claims of section 7 rights, the Board dominated by President G.W. Bush’s appointees adopted a much more employer-friendly legal rule; the Obama Board then reversed that rule to make it more union-friendly; the Trump Board reinstated the Bush Board rule; and then the Biden Board returned to the Obama Board rule. While annoying and often hard to keep up with, practitioners and scholars know this pattern well.
Desirée LeClercq’s article demonstrates impressive familiarity with all the shifts in Section 7 law, but she goes beyond common complaints about this pattern by examining it in light of the purposes of the NLRA as a whole, and adding a theoretical framework based on insights from social movements. At the same time, the piece is focused on real-world union organizing and workplace conflicts that may or may not develop into organizing. She also usefully corrects those who think that the Obama/Biden Board rules on section 7 are the best the Board can do to further the purpose of the NLRA.
Her theoretical framework centers on a tension between two core purposes of the NLRA: protecting “strife” (conflict) initiated by workers over workplace issues, while also promoting “labor peace.” One of the article’s key insights is that the NLRA’s drafters in 1935 “considered workplace protest as necessary to engender workplace peace.” LeClercq mostly focuses on conflict in non-unionized workplaces, and how modern Section 7 rules inhibit the type of strife that can lead to organizing and, ultimately, to true labor peace. Drawing on social movement theory, she argues that individual “disruptive” action can ‘break the bonds of authority that keep people quiescent.” But many protests about workplace issues do not immediately inspire collective activity. Employer responses and employee fears inhibit such activity. But when employee protests have legal protection, collective activity is more likely. That makes unionization more likely, which can lead to contracts and relationships more likely to provide real workplace peace in the long term.
The article takes on the most important of the “shifting labor law” rules involving Section 7, “civility” rules; when employee outbursts lose NLRA protection; and Weingarten rights for the unorganized. LeClercq relates each of these doctrines to practical considerations of organizing and strife in non-unionized workplaces, focusing on how rules affect employers as well as employees. In some areas, the Biden NLRB did not go all the way back to Obama Board or pre-G.W. Bush Board rules. As to civility policies, the Biden Board’s Stericycle offers more protection than the Trump Board rule but is more restrictive than the Lutheran Heritage approach that preceded that rule. Also, neither the Biden Board nor the Obama Board reinstated the Clinton Board rule that Weingarten rules apply to non-unionized workers.
But in one of her biggest contributions, LeClercq goes back even further in time to “phase one” NLRB cases (from the 1940s to 1970) in many of these areas. She argues that early Board rules better facilitate the goals of the NLRA than even the most pro-union Biden and Obama Board decisions. For example, the old rule defining “concerted activity” did not generally require more than one employee to be involved (current doctrine mostly does, with only a few exceptions). Older doctrine presumed that a worker, acting alone and protesting a working condition in a non-union workplace, spoke for the group and thus engaged in concerted action. Such a doctrine today would extend section 7 protection to a significantly larger number of employee protests. LeClercq makes similar arguments for rules on employee outbursts and civility policies. She also relates them to modern workplace struggles, including by baristas at Starbucks and the 100+ strikes in the summer of 2023.
LeClercq does not shy away from hard cases. What about employees, engaged in workplace “strife” over wages, hours, or working conditions, who use racist or sexist language in so doing? DeClercq proposes a rule under which employers bear the burden of proving that the means of worker protest lose Section 7 protection when, for example, disciplined workers scream racist or sexist insults at the workplace. Nor does she ignore broader obstacles, such as the difficulty of amending the NLRA and court hostility to new Board law.
This article, comprehensive as it is, will likely leave readers wanting to learn even more from LeClercq. For example, given the relatively weak remedies under the NLRA, how much effect would any change in the substantive Section 7 rules have? I also wonder what we can learn in the areas the article coves from the public sector. There, union organizing has been much more successful in recent several decades than in the private sector, despite rules typically similar or identical to the Section 7 rules she discusses. Finally, do the Taft-Hartley amendments in 1947 change any part of the analysis regarding the fundamental purposes of the NLRA? But I stress that this article is impressive, thorough, original, and convincing as it stands. It is a significant contribution, and I liked it a lot.
