Document Type
Article
Publication Date
2025
Publication Information
46 Berkeley J. Emp. & Lab. L. 177 (2025).
Abstract
From the Article
In principle, Section 7 of the National Labor Relations Act (NLRA) guarantees most private-sector employees the right to be free from employer interference when they band together in pursuit of shared interests. In practice, most workers—especially the “pre-organizational” workers who have no contact with a union—cannot use their Section 7 rights because they do not know they exist. In 2011, the National Labor Relations Board (the Board), the agency which administers the NLRA, promulgated a Rule requiring employers to post notice of workers’ rights. The Rule happened to succumb to legal challenge but would, in any case, have had the substantive defects common to all isolated transmission strategies: efforts to take the current doctrine—vague, complex, and uncertain as it is—and simply relay it to unsophisticated workers. Instead, this Article proposes a rearticulation strategy. It identifies three principles of designing communicable doctrine—salience, accessibility, and directiveness—and proposes that the Board apply these principles to vest pre-organizational employees with two discrete rights (subject only to a handful of employer defenses that will rarely apply): (1) the right to challenge (i.e. confront managers and supervisors over terms and conditions of employment) and (2) the right to appeal (i.e. seek external support in labor disputes). The proposed rights would establish, and conveniently name, zones of near-absolute protection and permit workers to violate norms of worker deference and timidity. Because they are easy to understand, explain and vividly illustrate, knowledge of these rights would tend to propagate.
Recommended Citation
Stefan M. McDaniel,
Rearticulating Labor Rights,
46 Berkeley J. Emp. & Lab. L. 177 (2025)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1720
Comments
A paper from the 9th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL).