Michael C. Duff

In The Death of Labor Law, Professor Alvin Velazquez asks: what if the National Labor Relations Act (NLRA) dies because, as some employers want, the US Supreme Court declares – at this very late hour – that Act unconstitutional? (P. 18.). Assuming that happens, Velazquez offers “a silver lining” by showing how, by doing so, “the Court could serve as a catalyst for a series of (most likely) unfortunate events as well as fervent organizing opportunities.” (P. 7.) Thus, from death comes life. The article falls within a tradition of labor law scholarship that insists (like Oliver Wendall Holmes’ dissent in Vegelahn v. Guntner) that labor conflict is inevitable and labor law is always a provisional accommodation between labor and capital.

In particular, Velazquez considers how the NLRA might collapse (Pp. 13-25); reminds readers that labor law and labor conflict preexisted the NLRA (Pp. 49-50); takes solace in the Norris-LaGuardia Act’s bar on federal courts issuing labor injunctions in peaceful private-sector labor disputes (P. 38); and reminds readers that a defunct NLRA may mean a dissolution of unduly complex federal preemption doctrines, in turn freeing states to innovate in the area of labor relations in ways they cannot do now. (Pp. 31-38.) The article covers a great deal of ground. It will stimulate and provoke labor law readers and perhaps also general legal readers focused on major administrative law developments.

Current courts may attempt to disable the NLRA from regulating labor-management conflict in a variety of ways. One possible way is by using the recently-invented Major Questions Doctrine (MQD) – a clear statement rule of statutory interpretation that ostensibly applies when a federal administrative agency “asserts authority of ‘economic and political significance.’” (P. 14.) Once upon a time, the American legal order accepted instinctively that labor conflict itself was of “vast economic and political significance,” placing the burden on employers covered by the NLRA to justify increasing the risk of industrial strife. Courts today, however, acknowledge neither the risk of industrial strife nor that the NLRA reduces it. What if the “the Court applied the MQD to the NLRA?” (Pp. 14-15.) Disagreeing somewhat with other scholars, Velazquez concludes that “[i]t would be easy for the Court to find a lack of delegation by Congress to the Board, especially if the NLRB interprets the parts of the NLRA defining coverage to new economic industries.” (P. 16.) This insight connects dubious legal protection of the rights-stripping gig economy to MQD invocation. Velazquez concludes that the Court may have ideological reasons to supplement doctrinal reasons for expanding the black hole that is the MQD to undermine the NLRA. (Pp. 16-17.)

Velazquez also considers that the Court may cripple the NLRA by ruling that the NLRA’s removal protection for members of the Board and the ALJs violates the Constitution under the unitary executive theory under which the President may remove all administrative officials “at will” and not just “for cause.” (Pp. 18-23.) (This is the Humphrey’s Executor issue currently working its way through the circuit courts.) Velazquez wonders if the unitary executive theory will capsize the NLRB. He suggests that the Court could use such a challenge to extend its decisions in Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law and Collins v. Yellen to hold that the NLRB’s termination protections for both its members and ALJs are unconstitutional. (Pp. 20-21.) This development seems plausible.

If the NLRA falls in whole or in part on various constitutional grounds, structural questions arise. For example, could the NLRA function without its constitutionally infirm “head”, that is, without the NLRB? As Velazquez observes (P. 25), the NLRA’s “separability” provision states, “[i]f any provision of this subchapter . . .shall be held invalid, the remainder of this subchapter, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.” 29 U.S.C. § 144. Velazquez seems to prefers an actually-dead NLRA to a severed, hampered NLRB. The “merely hampered” NLRB that exists but has no powers to actually enforce labor law despite being intimately intertwined with the Act “actually suppresses the ability for states to engage in creative law making.” (P. 46.) Perhaps the NLRB could be reconstructed in some way, but Velazquez seems to doubt this possibility. (Pp. 46-47.)

Velazquez concludes his article by anticipating objections. If the NLRA completely crashes (as opposed to morphing into a statute implemented with a reconfigured NLRB), workers may be utterly unable to mount a counterinsurgency. Today is not the 1930s, when labor law (on a narrow reading) was born. (P. 60.) But he notes there have been a series of labor protests going on just under the surface of public awareness for decades. (Pp. 61-63.) Such potential worker power, if combined with increasing inequality, might fuel real countervailing worker collective action. (P. 65.) Although Congress may refuse to enact a post-NLRA labor law, even in the wake of increased state-based labor insurgency (Pp. 63-65), such inaction matters depending on how one views the federal labor law project overall. Velazquez seems genuinely worried about the loss of federal labor law, but not to the point of retreat. It may be that “blue state” labor law will provide innovations for other states. Workers in some states may be left with fewer collective bargaining rights, even in the handful of states where their state constitutions nominally protect those rights. (Pp. 31-32.) Organized labor may die “while waiting for Government Action.” (P. 67.) But unions have been resilient. With private sector union density at six percent, maintaining the status quo is difficult to justify. (Pp. 71-72.) In any event, as Professor Velazquez’s article reveals, the U.S. Supreme Court is cutting off options.