As I often remind my students, labor law stands among the most demanding courses in law school—not just for its intellectual rigor, but for the layered complexity it presents. Labor law is rooted in a dense statutory framework. It requires mastery of intersecting doctrines from constitutional, administrative, and contract law, all of which are interpreted through a case-heavy lens.
At its core, labor law grapples with deeply human issues—power dynamics, structural inequities, and the lived realities of working people. Its scope is wide and constantly in flux, shaped by the shifting politics of Board leadership and the broader currents of social change. But what makes it so compelling—so urgent—is that it is never abstract. It is relentlessly real. It forces us to grapple with clashing perspectives from workers, employers, and unions, each bringing their own lived experience and competing visions of fairness, autonomy, and justice.
Stefan McDaniel understands this complexity and the problems it causes. In Rearticulating Labor Rights, Professor McDaniel offers a refreshingly strategic intervention. McDaniel begins with a striking observation: Section 7 of the National Labor Relations Act (NLRA)—the bedrock of collective workplace rights, safeguarding union and nonunion employees in their efforts to organize, bargain collectively, and engage in concerted activity for mutual aid or protection—does not fail for lack of breadth. It fails because its protections are not easily communicated, understood, or internalized by those it aims to empower. (Pp. 197–205.) McDaniel demonstrates how existing rights fail to register in workers’ minds. McDaniel thereby reframes the problem of nonunion worker disempowerment as a failure of message design, delivery, and reception. Drawing on communication theory, the article proposes a doctrinal overhaul that is both modest in scope and ambitious in effect.
One of Professor McDaniel’s most original applications of communication theory explains a problem that has perplexed labor advocates for 90 years—how Section 7 can be so broad as to encompass the concerted activity of all private-sector, common-law employees (whether union or nonunion), but is rarely used to protect the millions of private-sector employees who are nonunion yet covered by the NLRA.
McDaniel explains that both psychological and structural barriers to Section 7 awareness cause the communication breakdown. Transmission of Section 7’s complex, nuanced, and highly technical message about workers’ rights to those nonunion workers who would most benefit from Section 7 protection is deeply flawed. These nonunion workers have low legal literacy, low civic engagement, weak traditions of collective action, and exposure to strong norms of managerial control. These nonunion workers, who depend on their jobs for survival, experience high job insecurity. Without exposure to competent mediators1 such as unions or labor advocacy groups, these nonunion workers receive Section 7’s message through more indirect, low-conductivity channels such as social media or co-workers. Even the Board’s messaging is indirect—summary commentary on its website.
Drawing on these insights, Professor McDaniel identifies three core problems that prevent Section 7 rights from reaching and empowering nonunion workers: reception, appreciation, and action. First, under the reception problem, workers rarely encounter the Section 7 message—or fail to recognize it when they do. The message gets buried in legal jargon and fuzzy standards, making it hard for anyone—let alone a nonunion worker—to figure out what counts as protected.
Employers often function as “insulators,” whether intentionally or not, filtering or distorting the message through discipline, silence, or subtle signals that convey: “don’t push it.” Even when the Section 7 message is technically present, it competes with more vivid and immediate signs of employer control, such as retaliation, wage theft, or surveillance, which suggest to workers that protest may be risky or futile.
Second, under the appreciation problem, even when workers receive the Section 7 message, they may not grasp its relevance or believe it applies to them. For many workers, especially in low-wage or unstable jobs, labor rights do not feel like something they can reach for—labor rights feel distant, abstract, maybe even dangerous. When legal language is dense and job security is fragile, it is no wonder workers default to playing it safe. They try to be decent, cooperative, conflict-averse—doing what they think will keep them employed. And in that environment, the idea of protected protest does not just seem risky—it barely registers.
Third, under the action problem, McDaniel argues that knowing the law is not enough. Workers must feel empowered to act. The complexity and ambiguity of current doctrine discourage boldness, leaving workers unsure whether their actions will be protected or punished. Without explicit, communicable protection, they hesitate to engage in concerted activity, even when their grievances are widely shared and legitimate.
McDaniel argues that rearticulating Section 7 in terms of vivid, rule-like rights can help overcome these barriers. He offers two such innovative doctrinal revisions to Section 7—the right to challenge and the right to appeal. These rights are designed to be salient (attention-grabbing) to promote reception; accessible (easy to understand and paraphrase) to facilitate comprehension; and directive (inviting bold, legally protected action) to promote appreciation. (Pp. 214–18.) In contrast to the vague, multi-factor tests that currently govern “misconduct”2 and “disloyalty,”3 the proposed rights offer clarity and confidence to workers who are least likely to know or assert their protections.
The article’s strength lies in its layered pragmatism. It acknowledges the limitations of transmission strategies (such as the 2011 notice-posting rule), the procedural delays inherent in Board adjudication, and the political volatility associated with administrative reform. Yet it insists—persuasively—that clearer doctrine can still shift behavior, spark solidarity, and lay groundwork for broader change. Case illustrations (Trus Joist4 and MikLin5) show how the proposed rights would simplify analysis and protect workers in real-world disputes.
This is not just a call for stronger rights. It is a call for rights that nonunion workers can hear, understand, and act on. McDaniel does not pretend this fixes everything, but he offers something rare: a doctrinal shift built with real workers in mind. If Section 7 is to mean anything to the people it was meant to protect, it must speak their language. This article shows how.
- Mediators are those channels through which labor protection information flows to workers. These include the Board, unions, employers, journals/public commentators, friends/family/coworkers. (Pp. 181–82, 197–99.) According to McDaniel, “sophisticated and credible mediators are scarce.” (P. 181.) Moreover, although unions are “[t]he most competent and motivated mediators,” they “have only limited opportunities to engage with nonunion workers directly,” and “[w]hen they do interact, they will naturally tend to emphasize doctrine relevant to unionization, perhaps leaving these workers comparatively ignorant of the Section 7 rights that they possess outside the union context.” (P. 201.)
- See, e.g., Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979) (establishing a four-factor balancing test for determining whether an employee’s Section 7 activity loses the Act’s protection because of that employee’s verbal interaction with management: “(1) the place of the discussion; (2) the subject matter of the discussion: (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice”); Clear Pine Mouldings, Inc., 268 N.L.R.B. 1044, 1046 (1984) (adopting the Third Circuit’s “objective test for determining whether verbal threats by strikers directed at fellow employees justify an employer’s refusal to reinstate: ‘whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.”) (internal quotation marks omitted), enforced mem.765 F.2d 148 (9th Cir. 1985). Pier Sixty, LLC, 362 N.L.R.B. 505–06 (2015) (applying a totality of the circumstances test for determining whether “‘employees’ off-duty, offsite use of social media to communicate with other employees or with third parties” loses its protection) (quoting Triple Play Sports Bar & Grille, 361 N.L.R.B. 308, 310 (2014)), enforced, 855 F.3d 115 (2d Cir. 2017).
- See, e.g., NLRB v. Loc. Union No. 1229, Int’l Bhd. of Elec. Wkrs., 346 U.S. 464, 474–75 (1953) (Jefferson Standard) (“insubordination, disobedience or disloyalty” are sufficient reasons to discharge an employee for cause); Mastec Adv. Techs., 357 N.L.R.B. 103, 107 & n.9 (2011) (explaining that under Jefferson Standard, “‘employee communications to third parties in an effort to obtain their support are protected where the communication indicated it is related to an ongoing dispute between the employees and the employers and the communication is not so disloyal, reckless or maliciously untrue as to lose the Act’s protection.’”) (quoting Mountain Shadows Golf Resort, 330 N.L.R.B. 1238, 1240 (2000) (footnote omitted)).
- See Trus Joist Macmillan, 341 N.L.R.B. 369, 370–72 (2004). Here, using the Atlantic Steel test, the Board found two factors neutral (location and provocation), one slightly favoring protection (subject matter related to union rights), and one strongly against it (the offensive, calculated nature of the employee’s outburst), ultimately concluding that the employee’s conduct fell outside the scope of protected activity. By contrast, under McDaniel’s proposed framework, employee’s conduct—however offensive—would likely remain protected as part of a legitimate workplace challenge, with less emphasis on intent, tone, or planning, and more focus on the core labor rights at stake.
- See MikLin Enters., Inc. v. NLRB, 861 F.3d 812 (8th Cir. 2017) (en banc). Here, the Eighth Circuit found that a workers’ public sick leave campaign—suggesting food contamination—was unprotected under Section 7 due to its perceived disloyalty and misleading nature, thereby rejecting the Board’s narrower definition of disloyalty based on malicious intent. By contrast, under McDaniel’s “right to appeal” framework, similar worker tactics would likely be protected, as the campaign was sincere, not defamatory, and focused on the labor dispute.
