The Rise and Fall of Private Sector Unionism: What Next for the NLRA?

In this Article, we ask whether the National Labor Relations Act, enacted over 70 years ago, can remain relevant in a competitive economy where nonunion employer discretion is the dominant form of workplace governance. The best opportunity for the NLRA’s continued relevance is the modification of its language and interpretation to enhance worker voice and participation in the nonunion private sector, without imposing undue costs on employers. Examples of such reforms include narrowing the NLRA’s company union prohibition; implementing a conditional deregulation system that relies on consent by an independent employee association; changing the labor law default to some form of a nonunion work group; expanding state and local authority over labor relations; and encouraging NLRA protection for employee use of employer-owned Internet services. These legal innovations have the potential to be welfare enhancing, as compared to outcomes likely to evolve under the current legal framework. Although the political likelihood of such changes is currently low, steps in this direction could result in an increased relevance for the NLRA in the modern economy.