In the private sector, organizers have all but abandoned the use of the traditional NLRB campaign model. Usually, when the model is still employed, it is only is conjunction with a more comprehensive and multifaceted campaign. Because the law so favors employers who use union busting tactics that it has become almost wholly ineffective as a vehicle for workers to advance their cause.
One of the few exceptions within the law however, has been the interpretation of the definition of the scope of legally protected concerted activity. What constituted legally protected concerted activity has been the backbone of much of the non-traditional work performed by organizers going back to the Reagan administration.
Recently, however, in MikLin Enterprises, Inc v. NLRB the Eighth Circuit US Court of Appeals has turned back the clock eighty years on workers rights by overturning an NLRB decision, and stating that "Section 7 rights do not disturb an employer's right to expect loyalty from their employees and their continued efforts in support of the business."
If allowed to stand (and there is no reason to believe it won't in the current climate), MikLin could easily establish a dangerous new precedent affecting all formerly accepted forms of legally protected concerted activity. It could mean that every handbill, every picket, every poster, and every communication between workers, could be forced to survive a new set of legal litmus tests surrounding the issue of employee loyalty.
Almost nothing in the existing private sector union organizer's toolkit is safe under this bizarre new world legal order where the backbone of workers rights under Section 7 of the NLRA is anchored by employer loyalty, and support of the businesses they are presumably engaged in a labor dispute with.
In short, any expansion of this decision, and the further erosion of workers rights under the NLRA, will deem the law completely useless, instead of the current interpretations that leave it almost entirely useless. When the last tooth goes bouncing across the courtroom floor, private sector organized labor needs to have a new organizing playbook.
Perhaps instead of organizing workers to change the law, or work within the suffocating confines of ever restricting law, we ought to instead be organizing workers to ignore them altogether?
Read more on the MikLin decision here: