Broad attacks on economic regulation, particularly the employment relationship, are resurgent. Earlier this year, several of the country’s largest companies, including SpaceX, Amazon, and Trader Joe’s, mounted legal challenges to the constitutionality of the National Labor Relations Board, threatening to dismantle nearly 90 years of federal labor law and regulation. While both authors of this post are attorneys with the Board and involved in the litigation against SpaceX, we discuss neither the legal stakes at issue nor the jurisprudential impact of the litigation, given the active nature of the case. Rather, we turn our attention to a brief historical moment before the adoption of the National Labor Relations Act, when an emerging consensus recognized workers’ rights to freedom of association, self-organization, collective bargaining, and other concerted activity for mutual aid and protection as fundamental rights.
The most salient recognition of these rights was the Norris-LaGuardia Act, which reflected Congress’ efforts to protect workers’ “freedom of labor” by outlawing yellow dog contracts and stripping federal courts of jurisdiction to enjoin peaceful self-help, including labor strikes. In this brief post, we review the history and logic of this legislation and argue that, given threats to the current system of labor rights protection—as well as labor unions’ increasing willingness to take an active role in addressing controversial political issues—Norris-LaGuardia is primed to take on a newfound relevance in coming years.
Norris-LaGuardia and the Freedom of Labor
In the late nineteenth and early twentieth century, the labor movement faced a nearly immovable obstacle: the federal judiciary. Courts frequently deployed antitrust law, meant to restrain monopolists, as a bludgeon against organized labor. They also regularly enjoined strikes and solidarity activities. In one particularly infamous 1927 case, for instance, the Supreme Court essentially shut down all union organizing in West Virginia’s coalfields and prohibited, among other things, holding meetings, distributing information, distributing funds for striking workers, and urging workers to join the union.
In response, organized labor successfully agitated for a labor-rights provision in the Clayton Antitrust Act of 1914. In evocative terms, the Act declared that “the labor of a human being is not a commodity or article of commerce,” and that labor and agricultural organizations could lawfully carry out their “legitimate objectives.” While it was hoped that this would be labor’s magna carta, the courts simply ignored it. Under the prevailing judicial view, employees could form unions, but they had no right to engage in self-help that would interfere with employers’ unfettered access to laborers, which was framed in property terms. This deflationary view of the Clayton Act would reach its highest prominence in the Supreme Court’s Tri-City Foundry decision, which found that the Act was simply declaratory of “what was the best practice always” and did not protect the means by which unions could accomplish their objectives, such as strikes and boycotts.
The Norris-LaGuardia Act was a direct response to such judicial intransigence. Adopted in 1932, the Act prohibits courts from issuing injunctions in labor disputes, which are defined quite broadly and not limited to disputes between employees of a particular employer. It enumerates a nonexclusive list of acts—such as strikes, picketing, and boycotts—which may not be enjoined whether done singly or in concert. It also imposes procedural requirements for injunctions, including notice and testimony “in open court,” a response to the common practice of courts issuing labor injunctions ex parte based on an employer’s affidavits with no opportunity for cross examination. The law also curbed the so-called yellow-dog contract, which required employees to refrain from union membership and labor activity. This ensured that employers could not accomplish by contract that which courts could not do through their equity powers. Finally, it repealed “All acts and parts of acts in conflict with” its provisions.
In contrast to other labor legislation, including the earlier Railway Labor Act and subsequent National Labor Relations Act, which were premised on Congress’ commerce power, the Norris-LaGuardia Act is based on Congress’ power to create exceptions to the jurisdiction of the lower federal courts. It operates to get the federal courts out of the way of workers. As such, it is not a source of positive rights, but rather takes for granted that these rights already exist: its findings and policies instruct that “the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect [their] freedom of labor.” “Freedom of labor,” so understood, is not dependent on a contractual relationship—note the use of the word “worker” rather than “employee”—nor on the existence of legally defined remedies, but rather is innate to producing value through work.
This vision of “freedom of labor” was deeply rooted in the labor movement of the early 20th century, which was heir to an earlier producerist ethos that regarded labor as the source of all wealth. From this perspective, “freedom of labor” is a status that allows workers to receive a fair share of wealth they create and participate in economic decision-making as in other aspects of civic life. This vision went beyond fair remuneration and acceptable conditions—the modern conception of “decent work”—to include opportunities for leisure and recreation, cultural and intellectual pursuits, self-improvement and political agency.
To protect “freedom of labor” under Norris-LaGuardia, Congress declared it necessary that workers have:
full freedom of association, self-organization, and designation of representatives of [their] own choosing, to negotiate the terms and conditions of [their] employment, and that [they] shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
If that sounds familiar, it’s because Congress would adopt nearly this exact formula three years later in the National Labor Relations Act. And when the Supreme Court upheld the constitutionality of the NLRA, it found that these freedoms represented “a fundamental right.” What becomes clear from this history is that “freedom of labor” was not simply a turn of phrase. It was a principle important enough for Congress to enact a statute limiting the jurisdiction of federal courts and recognizing rights that were, in the words of a 1936 Fifth Circuit decision, “obnoxious to the common law.”
But though the NLRA and Norris-LaGuardia both embraced many of the same necessary incidents of freedom of labor, the NLRA adopted a much more statist approach in establishing the metes and bounds of what the government would protect through positive remedies. For example, employees fired for labor activity may be reinstated, but may lose protection for “disloyalty,” opprobrious conduct, or violating other statutory policies. And while employers could be ordered to bargain with a union selected by a majority of employees in an appropriate unit, the mandatory scope of bargaining is limited to wages, hours, and other terms and conditions of employment. Violations of the duty to bargain, moreover, can be difficult to establish and enforcement protracted. Norris-LaGuardia, by contrast, adopts a purely negative approach; it generally embraces self-help and prevents courts from interfering in economic warfare between labor and business unless the combatants cross the line into fraud or violence.
The Return of Norris-LaGuardia
With the current labor apparatus under attack, we face the distinct possibility that workers may have no effective means to enforce their rights under the NLRA; this would also, however, include hobbled enforcement of the strike and boycott restrictions of the Taft-Hartley amendments. Under such a situation, one commentator notes, US labor relations might return to the “law of the jungle,” and the labor movement would likely enter an era of labor militancy and radical strike activity, the likes of which precipitated the NLRA’s passage. And with more varieties of strikes available—from wildcat strikes to sit-down strikes to jurisdictional strikes—Norris-LaGuardia could again become central to legal disputes over labor actions.
Its resurgence is already evident, in fact, as labor unions are increasingly using workplace advocacy and bargaining to advance principles of justice and the common good, rather than merely pursuing traditional economic goals—what Diana Reddy has referred to as a turn away from “apolitical economy.” This is perhaps most apparent in unions’ recent use of labor mechanisms to speak out in solidarity with Palestine, from UAW Local 4811’s stand-up strike in protest of the crackdown on Gaza solidarity encampments across multiple University of California campuses this past spring; to the aberrant temporary restraining order granted by a New York judge to block an internal vote of the Association of Legal Aid Attorneys (UAW Local 2325) regarding the issuance of a ceasefire statement. While American labor has long taken political stances—many workers and unions supported the Civil Rights Movement and South African BDS efforts, to name just two prominent examples—we are no doubt witnessing a surge in labor taking a more active role in addressing controversial political issues.
In the most relevant of these cases, the University of California sought to enjoin Local 4811’s strike, which a state trial court judge in Orange County granted in clear contravention of California’s “Little Norris-LaGuardia Act.” Without wading into the legal mechanics—the details of the ruling have been deftly covered by Noah Zatz—this case exemplifies the reach of the “freedom of labor” that Norris-LaGuardia is primed to safeguard.
Indeed, one of the more interesting developments to come out of the Norris-LaGuardia jurisprudence is the protection of solidarity activities, notably the sympathy strike. In Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Association, et al., 457 U.S. 702 (1982), the Supreme Court held that even in the case of a collective bargaining agreement that contained a mandatory arbitration clause, federal courts could not enjoin strikes pending arbitration where the underlying dispute that prompted the strike was not arbitrable under the collective bargaining agreement. Two years prior, the International Longshoremen’s Association had gone on strike to protest the Soviet invasion of Afghanistan, refusing to handle any cargo going to or coming from the Soviet Union. Because this underlying dispute—the political protest—was clearly not arbitrable under the contract, the Court denied the employer’s request for an injunction while arbitration was pending to determine whether the strike violated the no-strike clause of the collective bargaining agreement. Writing for the majority, Justice Thurgood Marshall underscored the expansiveness of what constitutes a “labor dispute” under Norris-LaGuardia and explicitly articulated that “[t]he language of the Norris-LaGuardia Act does not except labor disputes having their genesis in political protests.”
But the Court did not stop there. In response to the employer’s claim that a labor dispute had to implicate a union’s economic interests, the Court further underscored the reach of Norris-LaGuardia. While Jacksonville Bulk Terminals involved a suit brought under Section 301 of the Taft-Hartley Act, which grants federal court jurisdiction where there is a contractual dispute between an employer and a labor organization, the Court was clear in articulating that Norris-LaGuardia does not necessitate an employment relationship. Justice Marshall specifically cited to New Negro Alliance v. Sanitary Grocery, Co., 303 U.S. 552, 560 (1938), a landmark case where the Court found that Norris-LaGuardia prohibited an injunction against members of a civic group who, as “persons interested in a labor dispute,” engaged in a prolonged picket of a grocery store to pressure the store to employ more Black employees. “Even in cases where the disputants did not stand in the relationship of employer and employee,” Marshall wrote, “this Court has held that the existence of noneconomic motives does not make the Norris-LaGuardia Act inapplicable.”
The Court’s ruling is salient because it shows that “freedom of labor” does not reside solely in formal employment, but exists as a free standing right that exceeds the bounds of a contractual relationship between employer and employee. It is an implied covenant that not only underwrites the employment relationship, but can also be untethered from it.
The Norris-LaGuardia jurisprudence regarding solidarity strikes effectively sanctions the use of labor strikes and boycotts to achieve social or political goals. This is significant, as it recognizes the power of a worker’s labor as it is embedded within a nexus of social relations. It also fills a lacuna in existing labor law, which fails to capture the worker as tenant, as consumer, as congregant, as voter. In this way, Norris-LaGuardia reflects the importance of what Jane McAlevey would refer to as “whole worker organizing.” As unions continue to advance political causes and to advocate for the common good—whether by getting cops out of school campuses, securing affordable workforce housing fees in collective bargaining agreements, or even building working class political power—the Norris-LaGuardia Act offers a powerful foundation for such efforts.
We should not, however, overstate its power: Norris-LaGuardia is ultimately an indirect law that advances only negative rights, prohibiting judicial interference with a worker’s “freedom of labor.” As scholars have argued in the housing rights context, workers will have greater power when they operate against a background of robust, universal protections that lend more substance to “freedom of labor,” protections that exceed the safeguards in the NLRA and that are tied to the fundamentality of this right. For now, however, workers must wield what power they have.
The views expressed in this article are the authors’ alone and not those of the National Labor Relations Board or the United States Government.
