Inside: The NLRB and individual rights in the non-union workplace

The constitutionality of President Obama’s 2011 and 2012 appointments to the NLRB will be important

With the resolution of the constitutional challenges to the Affordable Care Act, or “Obamacare,” the next high profile dispute which will be faced by the Supreme Court in its current term involves the constitutionality of President Obama’s 2011 and 2012 appointments to the National Labor Relations Board (NLRB). While the substance of that dispute is of interest to both political scientists and legal academics, one might ask the very practical question of why, with all of the other issues facing the country and organized labor’s standing in the private workplace (at less than eight percent and still falling), would anyone care about the NLRB anyway?

If the NLRB and the statute it enforces, the National Labor Relations Act (NLRA), was relevant only to the more commonly understood areas of union organizing and collective bargaining, that question would indeed be a good one. However, as with many common assumptions in the area of labor and employment law, this is incorrect both as a matter of law and fact. The assumption is incorrect as a matter of law because the NLRA has long protected various forms of “concerted activity for mutual aid or protection” beyond traditional union activity. As a matter of fact it is incorrect most immediately in light of the ongoing efforts of the Obama-appointed NLRB majority to use an expansive definition of protected concerted activity to exert itself in many areas of the non-union workplace in which organized labor itself has never been, or has largely ceased to be, a relevant player.

Contributing Author

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James A. Matthews, III

James A. Matthews, III is co-chair of Fox Rothschild’s labor & employment law department. He has more than 25 years experience representing management in all...

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