Labor Law in America: Facing Up to a Rule of Law Deficit
April 17, 2023 by Percy David Metcalfe
In recent months American unions have garnered significant attention and U.S. public approval of unions has increased considerably. The successful campaign of an upstart union at an Amazon warehouse on Staten Island and the rapid organization of Starbucks partners at stores across the country are emblematic of a trend, in which workers are mobilizing to demand more from their jobs. This re-awakening of worker power has touched workplaces in the tech, retail, non-profit, media, academia, and logistics sectors, among others.
While employee demand for workplace democracy seems to be growing, the supply of government adjudication and administrative management on this matter remains low. Mired by budgetary constraints and statutory limits precluding effective remedies against employers, the National Labor Relations Board is unable to meet the moment and properly deliver justice for American workers. This state of affairs goes beyond the usual dysfunction many have come to accept from Washington. Rather, it reveals a fundamental deficit in the rule of law at the heart of the government’s regulation of the economy that hurts low-income workers the most. The National Labor Relations Act, the legislation that created the Board, states its purpose to encourage “the practice and procedure of collective bargaining” and to protect “the exercise by workers of full freedom of association.” It sought to do this as a means of improving wage rates and workers’ purchasing power. The faltering capacity of the Board, even at a time of great worker agitation and enthusiasm for organizing, threatens to render this law dead letter and abrogate its lofty purpose.
Backlogs at the Board are nothing new: during the Reagan presidency, the number of cases pending review touched “stratospheric” levels—up to 1,647 cases at a time. At the end of FY2022, there were still 145 cases awaiting agency review, an increase of 28% over FY2021. Under the current administration, the agency under General Counsel Jennifer Abruzzo has nonetheless performed admirably in cutting median case processing times. This has happened even as it has received an uptick in the number of election petitions and unfair labor practice charges filed—increasing fifty-three percent and nineteen percent respectively from 2021 to 2022. These gains have happened despite the fact that the Board remains starved of appropriate financial backing, receiving only a temporary reprieve from flatline funding that had persisted since 2014. With the House now in Republican hands, employment law experts predict a return to budgetary stasis or even a reversion to cuts. Moreover, with the Board unable to impose financial penalties beyond those that make unjustly terminated workers whole, and with a mandate for employees to mitigate their own lost wages while waiting for reinstatement, employers continue to operate with impunity. For example, as workers at Starbucks have tried to unionize, the corporation has allegedly committed 548 unfair labor practices, including retaliation against workers for union activity, and terminating over 125 employees in the course of their union busting campaign.
While American scholars generally think of the rule of law as a conceptual framework to critique and suggest improvements of the judicial systems of other countries, ongoing trends in the U.S. labor space suggest the existence of a deep rule of law deficit in the United States itself. Among the key aims the rule of law movement are equality before the law, predictable & efficient justice, and law and order. None of these goals are being achieved through the NLRB under its current constraints and composition.
Regarding rule of law’s equality notions: in 2002, the Supreme Court in Hoffman Plastics enabled corporations to retaliate against undocumented workers without the need to issue back pay. This has created underclasses of workers for whom no individualized remedy is provided and who are, therefore, especially vulnerable to the predations of unscrupulous and anti-union employers. As to the efficient and predictable justice aspect of the rule of law—after a union is elected in a workplace (which can take several months by itself) it takes, on average, 465 days before the union gains a first contract. Importantly, delays at any stage tend to favor employers who are able to wait out restive workers who are apt to move to or take up different jobs. When workers move or take up different jobs, those their earnings are deducted from any back pay won through a successful unfair labor practice case. By the time the union obtains a first contract, the workers who initially fought for it may have moved on, making the union vulnerable to decertification. Lastly, as to the law and order element of rule of law precepts: the impunity of employers discussed above is actively encouraged by the weak remedies that the NLRA can provide. It often makes good economic sense to the employer to unlawfully retaliate by firing key union organizers and thereby avoid a union and potentially have to pay mitigated back pay long down the road than to have to deal with consistently increased labor and personnel management costs incurred by unionization.
Clearly something is, and long has been, rotten in the state of labor relations. In years gone by, this deterioration of collective labor protections has seemed to match the attitudes of American workers who appeared to express little interest in reviving the union movement. Now, with unions surging in popularity and capturing headlines with high profile campaign victories, the rule of law deficit central to the hardships of forming a union is made increasingly obvious. The deficit in the rule of law for labor has prevented unionization, even when demand is very high. For a short time, while Democrats held both chambers of Congress, the PRO Act acted as a vessel for many of the hopes of labor supporters, promising to fix many of egregious rule of law issues described in this piece. Now, however, with Republicans holding the Speaker’s gavel in the House, those hopes have been dashed. Whatever comes next for U.S. labor law, it is clear that providing proper rule-of-law-informed justice should be priority number one.
 Justin McCarthy, U.S. Approval of Labor Unions at Highest Point Since 1965, Gallup (Aug. 30, 2022), https://news.gallup.com/poll/398303/approval-labor-unions-highest-point-1965.aspx.
 Karen Weise & Noam Scheiber, Amazon Workers on Staten Island Vote to Unionize in Landmark Win for Labor, N.Y. Times (Apr. 1, 2022), https://www.nytimes.com/2022/04/01/technology/amazon-union-staten-island.html; Mary Yang, Starbucks union organizing gave labor a jolt of energy in 2022, NPR (Dec. 9, 2022), https://www.npr.org/2022/12/09/1140424418/starbucks-union-organizing-gave-labor-a-jolt-of-energy-in-2022.
 Jennifer Elias & Amelia Lucas, Employees everywhere are organizing. Here’s why it’s happening now, CNBC (May 7, 2022), https://www.cnbc.com/2022/05/07/why-is-there-a-union-boom.html; Zane McNeil, Behind the Wave of Non-Profit Unionization: Why are NGOs Unionizing?, L.@ the Margins (Mar. 2, 2022), https://lawatthemargins.com/behind-the-wave-of-non-profit-unionization-why-are-ngos-unionizing/; Jacob Liedke, About one-in-six U.S. journalists at news outlets are part of a union; many more would join one if they could, Pew Rsch. Ctr. (Aug. 4, 2022), https://www.pewresearch.org/fact-tank/2022/08/04/about-one-in-six-u-s-journalists-at-news-outlets-are-part-of-a-union-many-more-would-join-one-if-they-could/; Bianca Quilantan & Blake Jones, ‘It’s about damn time’: College workers organize amid nationwide labor unrest, Politico (Feb. 4, 2023) https://www.politico.com/news/2023/02/04/college-workers-organize-labor-unrest-00081182.
 29 U.S.C.A. § 151.
 John Truesdale, Battling Case Backlogs at the NLRB: The Continuing Problem of Delays in Decision Making and the Clinton Board’s Response, 16 Lab. L. 1, 2 (2000).
 Neil Davey, It’s Time for Congress to Increase the NLRB’s Funding, onlabor (Nov. 3, 2022), https://onlabor.org/its-time-for-congress-to-increase-the-nlrbs-funding/.
 Election Petitions Up 53%, Board Continues to Reduce Case Processing Time in FY22, Nat’l. Lab. Rel. Bd. (Oct. 6, 2022) https://www.nlrb.gov/news-outreach/news-story/election-petitions-up-53-board-continues-to-reduce-case-processing-time-in.
 NLRB Undaunted by Budget Rebuff, 20 Fed. Emp. L. Insider 2, 2 (2023) (noting that the budgetary increase was only 60% of what was originally promised).
 Thomas C. Barnes, Making the Bird Sing: Remedial Notice Reading Requirements and the Efficacy of NLRB Remedies, 36 Berkeley J. Emp. & Lab. L. 351, 355-7 (2015).
 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 198 (1941) (holding that “only actual losses should be made good”).
Celine McNicholas et al., Unlawful: U.S. employers are charged with violating federal law in 41.5% of all union election campaigns, Econ. Pol’y Inst. (Dec. 11, 2019), https://www.epi.org/publication/unlawful-employer-opposition-to-union-election-campaigns/ (noting that U.S. employers are charged with violating federal law in 41.5% of all union election campaigns).
 Matt Bruenig, The Starbucks Union Won 267 Elections in 365 Days, People’s Pol’y Project (Dec. 9, 2022) https://www.peoplespolicyproject.org/2022/12/09/the-starbucks-union-won-267-elections-in-365-days/; Michael Sainato, More workers say Starbucks retaliated for union efforts: ‘I lost everything when they fired me’, Guardian (Oct. 16, 2022), https://www.theguardian.com/us-news/2022/oct/16/fired-workers-starbucks-retaliation-union-organising-nlrb.
 See e.g., Matthew Stephenson, A Trojan Horse in China, in Promoting the Rule of Law Abroad: In Search of Knowledge 191, 193-5 (Thomas Carothers, ed. 2006) (describing how since the 1990s rule of law promotion entered into the U.S.-China agenda); see also Reuters Staff, U.S. senators urge Poland to respect democracy, rule of law, Reuters (Feb. 14, 2016), https://www.reuters.com/article/us-poland-usa/u-s-senators-urge-poland-to-respect-democracy-rule-of-law-idUSKCN0VN0ZG.
 Rachel Kleinfeld, Competing Definitions of the Rule of Law, in Promoting the Rule of Law Abroad: In Search of Knowledge 31, 38-42 (Thomas Carothers, ed. 2006).
 Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 151-2 (2002).
 Jennifer Berman, The Needle and the Damage Done: How Hoffman Plastics Promotes Sweatshops and Illegal Immigration and What to Do About It, 13 Kan. J.L. & Pub. Pol’y, 585, 608-9 ; Catherine Fisk & Michael J. Wishnie, The Story of ‘Hoffman Plastic Compounds v. NLRB’: Labor Rights Without Remedies for Undocumented Immigrants, in Labor Law Stories: An In-Depth Look at Leading Labor Law Cases 351, 390 (Laura J. Cooper & Catherine L. Fisk eds., 2005).
 Robert Combs, ANALYSIS: Now It Takes 465 Days to Sign a Union’s First Contract, Bloomberg L. (Aug. 2, 2022), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-now-it-takes-465-days-to-sign-a-unions-first-contract; See also, Alina Selyukh & Giulia Heywood, Amazon loses bid to overturn historic union win at Staten Island warehouse, NPR (Jan. 11, 2023), https://www.npr.org/2023/01/11/1125205641/amazon-warehouse-union-staten-island (noting that in the Amazon Staten Island warehouse case the time between the union electoral victory and just certification was nine months, April 2022 to January 2023).
 Robert Douglas Brownstone, The National Labor Relations Board at 50: Politicization Creates Crisis, 52 Brook. L. Rev. 229, 266-7 (1986) (noting that “[a] remedy for management’s coercive behavior is likely to have little effect when instituted years after a representation election has failed”, that “when management knows that the NLRB is delaying the processing of unfair discharge cases, employers tend to engage in further anti-union activity,” that “the employee/claimant is further hampered [by delay] by the fact that he or she has had no recourse to state or federal courts while his or her NLRB case was pending,” and that in general “delay is deleterious to labor because most cases brought before the NLRB are brought by employees against management.”).
 Derek C. Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38, n. 46 (1964).
 Protecting the Right to Organize Act of 2021, H.R. 842, 117th Congress (2021); Celine McNicholas et al., How the PRO Act restores workers’ right to unionize, Econ. Pol’y Inst. (Feb. 4, 2021) https://www.epi.org/publication/pro-act-problem-solution-chart/.