UC Irvine Law Review

This Article examines a significant yet underexplored feature in the decline of worker power: the gradual erosion of protections under the National Labor Relations Act (NLRA or the Act) for workplace protest by rank-and-file, nonunion workers. Rather than protect that protest as necessary to engender solidarity and organizing, current labor doctrine offers employers various opportunities to fire workplace agitators. Focusing on nonunion workers standing up to management, this Article offers three key insights into U.S. labor law. First, it draws on social movements to confirm strife’s vital but uneasy role in workplace solidarity. Second, it unearths the NLRA’s original intention to protect the co-constitutive roles of strife and industrial peace. The New Dealers viewed conflict as a short-term step toward achieving collective bargaining’s peaceful dispute resolution. Third, it shows how the United States Supreme Court and National Labor Relations Board (NLRB) misconstrue the NLRA’s industrial peace objective as both the means and the ends of labor relations, to the detriment of strife and the solidarity it generates. This Article calls for greater doctrinal and statutory protections for nonunion workers engaged in workplace protest while clarifying when protests cross the line.