Andrew Strom, a labor lawyer and contributor to the OnLabor blog published by Harvard Law School, joined the America's Work Force Union Podcast to trace 100 years of American labor law as part of the Labor 132 series presented by the National Labor Office of Blue Cross Blue Shield.
He started with the Railway Labor Act of 1926 — the first federal law establishing collective bargaining rights for American workers. It was passed nine years before the National Labor Relations Act because the U.S. Supreme Court at the time held that Congress could regulate only industries in which goods were physically moved between states. Strom then outlined the passage of the NLRA in 1935, the Taft-Hartley Act of 1947, the creation of right-to-work through judicial interpretation and a series of Supreme Court decisions from 1945 through 2018 that illustrate how profoundly courts can rewrite the practical meaning of worker rights without ever changing a word of the underlying statute.
Strom also explained how the current Supreme Court is comparable to the Lochner-era court of the early 20th century and said that the same freedom-of-contract doctrine that once struck down state bakery-hour regulations is now being invoked to validate mandatory arbitration clauses that strip workers of the right to take collective legal action.
Andrew Strom opened with some labor history that surprises people. The first federal law establishing collective bargaining rights in the United States was the Railway Labor Act of 1926, which passed nine years before the National Labor Relations Act and well before the New Deal era that most people associate with the rise of labor rights.
The reason lies with the Supreme Court of the era, which focused on Congress's constitutional authority to regulate interstate commerce. That court interpreted that authority narrowly, indicating that Congress could regulate the movement of goods between states, meaning it could regulate railroads, trucking and shipping. But a factory, which sat still in one state, was not interstate commerce in any form the high court would recognize. Congress, under that interpretation, could not regulate wages, hours or labor relations in factories. Strom described recent court decisions as a repeat of the 1926 history — a right-wing Supreme Court using constitutional doctrine to block federal protection of workers.
The NLRA followed in 1935 but immediately faced a constitutional challenge. In 1937, NLRB v. Jones and Laughlin Steel Company produced a 5-to-4 Supreme Court decision upholding the law. That decision was not overwhelming. It was barely a majority. But it settled the question and opened the door to the federal labor law framework that shaped the next 85 years of American work life. This ended, Strom said, when the current Supreme Court began chipping away at that framework and raising questions about whether the NLRA as written is actually constitutional.
By 1947, unions represented approximately one in three private-sector workers in the United States. A Republican majority Congress responded to that power with the Taft-Hartley Act, which targeted the tactics that had made unions most effective. The most significant restriction was on secondary activity — the ability of a union to bring allied workers into a dispute by calling on suppliers, truckers and others to join a work stoppage. Controlling trucking, in particular, had given unions significant leverage over manufacturers by allowing them to prevent goods from reaching markets. Taft-Hartley effectively cut off that leverage, Strom said.
The law also introduced what became right-to-work through an interpretive pathway that Strom described as remarkable. The actual statutory language prohibits requiring workers to be members of a union as a condition of employment in states that ban such requirements. It says nothing about fees. Courts subsequently interpreted that language to mean not only that membership cannot be required but that workers cannot be required to pay any fair-share fee for the cost of the union's representation of them — creating, in Strom's framing, the same problem that would arise if taxes were made voluntary. Workers in right-to-work states get the benefits of union representation without contributing to its cost. That free-rider problem has been a persistent drag on union density since the mid-20th century. Private-sector union membership, which peaked near 35 percent in the early 1950s, now stands at about 6 percent.
Strom walked through a set of Supreme Court decisions that illustrate how profoundly the practical meaning of a law can be changed by courts without Congress ever amending it.
Republic Aviation v. NLRB in 1945 established that workers have the right to wear union buttons, hand out leaflets and engage in organizing activity on company property. The court ruled that workers could not meaningfully exercise their rights under the NLRA without being able to do so where they actually work. Some inconvenience or dislocation of property rights, the court wrote, is necessary to make the law work.
Lechmere v. NLRB, decided in 1992, reversed that principle in practice. Union organizers who came to the parking lot of a large retail store in a strip mall, accessible to the public yet surrounded by a busy highway that made sidewalk outreach impossible, were told by the Supreme Court that private property rights superseded their right of access. Workers in that location, scattered across a metropolitan area with no common gathering place, had no practical way to hear from union organizers under that ruling. The court said that was acceptable.
Epic Systems v. Lewis in 2018 completed the arc. Employers in roughly half the workforce now require workers to sign mandatory arbitration agreements as a condition of employment, indicating they agree to resolve any dispute individually in private arbitration rather than bringing collective legal action. The NLRB had struck those agreements down as violations of workers’ right to engage in collective action. The Supreme Court, by another 5-to-4 decision, said freedom of contract prevailed. Workers had signed the agreement, even though they had no say in its terms and took the job on a take-it-or-leave-it basis. The court described the NLRA — once proclaimed the Magna Carta of workers' rights — as a mouse hole in the legal framework, insufficient to override the arbitration law.
Strom said the current court resembles the Lochner-era court of the early 20th century, which used the freedom-of-contract doctrine to strike down state laws regulating bakery hours in 1908. The same doctrine, a century later, is being used to validate employer-imposed arbitration agreements. Congress has not changed the text of the NLRA, but the courts have changed what it means, Strom said.
Strom noted that legislation has been introduced to address at least one of these reversals. If passed, the Restoring Justice for Workers Act of 2026 would take on the mandatory arbitration issue addressed in Epic Systems. He said it is worth watching as the labor movement continues to push for the legal reforms that courts have refused to deliver.
More of Andrew Strom's writing on labor law is available at onlabor.org, a publication of Harvard Law School.
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