ASSAULT ON AMERICAN LABOR LAW

Reviewing the dismantling of American labor law in more than 100 Supreme Court cases

The National Labor Relations Act (NLRA), signed into law by Franklin Delano Roosevelt in 1935, guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Since its passage, the NLRA has functioned as the foundational statute of United States labor law. Opposed by conservatives and members of the Republican Party from the beginning, its provisions were largely upheld by the Supreme Court until the 1960s. In the latter part of the twentieth century and into the twenty-first, however, the Court began to erode the protections of the NLRA. While some cases have received widespread attention from commentators and scholars, such as Starbucks Corp. v. McKinney (2024), there have been numerous detrimental rulings that are little discussed. Taken as a whole, the Supreme Court’s efforts to undermine the NLRA appear sustained and systematic.

In The Assault on American Labor Law, distinguished labor law professor Roger C. Hartley collects and carefully reviews every Supreme Court decision concerning the NLRA over the past sixty years. By examining approximately 100 cases, Hartley demonstrates that the Court has often operated more like a legislature than a judicial body, effectively amending the NLRA’s collectivist policy underpinnings in favor of the interests of individuals and businesses. These judicial decisions create staggering obstacles for American workers to collectively organize and force them to face globalization, deindustrialization, and technological change individually, without the negotiating leverage provided by union representation. While scholars have suggested individual reforms to re-establish the efficacy of the NLRA, Hartley’s thorough study illuminates how the current crisis in US labor law evolved—a comprehensive view that is necessary to help restore the rights of workers to unionize.

ROGER C. HARTLEY is professor of law at The Catholic University of America. He is the past Secretary of the Labor and Employment Law Section of the American Bar Association and is a member of the Order of the Coif, the American Law Institute, the Labor and Employment Law Section of the American Bar Association, and the Industrial Relations Research Association. He is a member of the Bar of the Supreme Court of the United States. He has published widely on American labor law in journals such as University Pennsylvania Journal Labor & Employment Law, Berkeley Journal Employment & Labor Law, and Practical Lawyer. His books include Fulfilling the Pledge: Securing Industrial Democracy for American Workers in a Digital Economy and Labor Relations Law in the Private Sector.