Balancing is for Suckers

Abstract

Balancing workers’ statutory rights against employers’ interests is the heart of labor law. But balancing – or employers’ interests, for that matter – is nowhere to be found in the text of our labor statutes. Yet courts and the National Labor Relations Board routinely grind down workers’ rights against this loose legal premise. Balancing is the meta-doctrine that stripped workers of their statutory right to strike, picket, access information, and act concertedly, among others.

Balancing inherently dilutes statutory rights. Yet it is practiced and preached by employers and unions, Republicans and Democrats, conservatives and liberals. This consensus is devastating. It weakens an already frail agency, channels legal professionals’ biases into doctrine, and encourages employers to break workers’ concerted activities using the courts’ eagerness for balance. Balancing legal rights leads to an imbalanced economy. Continuing to engage in balancing labor law rights with the hope of achieving any other outcomes is, well, for suckers.

There are alternatives to balancing. In other legal contexts, we rarely balance statutory rights with unenumerated interests, even if those are employers’ interests. We don’t balance workers’ rights to a minimum wage or overtime pay with employers’ legitimate business interests. We don’t balance workers’ right to take leave, unemployment insurance eligibility, or workers’ compensation either. Here, textualism can serve labor advocates as a doctrinal path to salvaging labor law.

It might be that balancing power, not interests, is labor law’s goal. For that purpose, I offer a different read of our labor laws that aims to produce a balanced bargaining power between employers like Tesla, Amazon, Starbucks, or Apple and their workers.

Keywords: labor law, employment law, textualism, law and political economy, Workers' Rights, National Labor Relations Act (NLRA), Section 7 Rights, Unionization, Collective Bargaining, Employment Termination, Labor Disputes, Judicial Doctrine, Statutory Rights, Workplace Regulations, Labor Movement, Employee Protections, Balancing Doctrine, Legal Precedents, Labor Relations, Labor Board Decisions, Labor Organizing, Workplace Governance