Viewpoint: Attacks on U.S. Labor Rights Should Be an International Scandal

The National Labor Relations Board, the only federal agency charged with enforcing private-sector workers’ rights to organize and bargain collectively, is facing a constitutional crisis. On August 19, the Fifth Circuit Court of Appeals ruled that the structure protecting NLRB administrative law judges (ALJs) and Board members from presidential removal violates the Constitution’s separation of powers.

Workers’ greatest power has always been in direct action against employers. Legal remedies are just one tool in the broader struggle. Today, with the Board’s enforcement capacity under threat, the importance of shop floor power is clearer than ever.

WHAT HAS CHANGED?

Under the National Labor Relations Act (NLRA), if workers believe their boss has broken the law, they can file an unfair labor practice charge with the NLRB. The local office investigates, and if it finds the case has merit, it takes the employer to trial before an administrative law judge, who then decides the outcome.

The immediate consequence of the Fifth Circuit ruling is stark: workers in Texas, Louisiana, and Mississippi can still file charges with the NLRB’s regional offices, but those cases cannot proceed to a hearing before an ALJ.

Investigations may be conducted, and complaints may even be issued, because these are functions performed by the NLRB region. But once a matter requires adjudication, employers in the Fifth Circuit will be able to obtain injunctions from district courts halting the process. For workers in these three states, meaningful recourse for unfair labor practices has been suspended.

The danger does not end at the Fifth Circuit’s borders. The case is now on a collision course with the Supreme Court, which will ultimately decide whether the protections that shield ALJs—and even NLRB members themselves—from at-will removal by the president are constitutional.

If the Court grants the president this unilateral removal authority, the consequences could be catastrophic. The administration could replace career ALJs with anti-labor ideologues—or even worse, remove the ALJs and Board members and stall in appointing any replacements at all. Without judges to hear cases, the Board’s enforcement function—already chronically underfunded and understaffed—would collapse nationwide. The agency would remain on paper, but in practice it would be unable to enforce the law.

That this ruling comes from the South is telling: the same region that built its wealth on slave labor and repression of workers under Jim Crow is once again deploying the law as a weapon for the ruling class to dominate and exploit workers.

For unions and workers, the court’s decision leaves them in a legal desert. In the Fifth Circuit today, and potentially across the entire country soon, the right to organize exists in theory but is becoming unenforceable in practice. Workers may still file charges, but their cases will sit indefinitely in limbo. Employers who fire union supporters, refuse to bargain, or trample on workers’ rights are dramatically less likely to be held accountable until the constitutional question is resolved.

U.S.: GLOBAL LABOR SCOFFLAW

This breakdown in enforcement also places the United States in violation of its obligations as a member of the International Labour Organization. Under the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work, all member states—even those, like the U.S., that have not ratified the specific conventions on freedom of association and collective bargaining—are bound to respect, promote, and realize those principles.

The ILO’s Committee on Freedom of Association (CFA) has consistently ruled that governments must provide effective machinery to protect workers’ rights.

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A CFA complaint today would make clear that the United States, while lecturing others on democracy and human rights, has allowed its domestic system for enforcing basic worker protections to collapse. The findings would not be legally binding, but they would provide unions with an additional organizing and advocacy tool, both domestically and internationally. They would also force the U.S. government to answer, in writing, for its failures before the ILO.

Findings from the ILO CFA could bolster claims under Europe’s new laws requiring due diligence in corporate supply chains. The EU’s Corporate Sustainability Due Diligence Directive, along with various national laws in EU member states, requires multinationals operating in Europe to identify and address labor rights violations throughout their supply chains.

If the CFA finds that U.S. workers have no effective legal remedy for labor rights violations, unions and allies in Europe could use those findings to file complaints in European courts and regulatory bodies against multinational corporations that do business in America and Europe. That would expose U.S. employers to liability and reputational risk abroad, creating new points of leverage even when U.S. law fails at home.

DISRUPTION: THE ORDER OF THE DAY

The crisis now facing the NLRB is a challenge to the foundation of American labor law. In parts of the South, workers are already living without effective legal protection for their rights. If the Supreme Court extends the Fifth Circuit’s reasoning, that situation could spread nationwide, depending on what actions are subsequently taken by the executive branch. If the president gains unilateral power to remove ALJs and Board members without replacing them, the NLRB’s enforcement capacity could vanish altogether.

In such a moment, turning to international bodies like the ILO is a necessity. The collapse of labor law enforcement in the U.S. should not be met with silence. By filing a complaint with the CFA, unions can force the issue onto the international stage, sending a message that American workers will not accept being stripped of their rights and the machinery to enforce them.

CFA findings would also be a political weapon at home. The collapse of labor rights in the U.S. is not only the handiwork of Republicans; Democrats share responsibility for decades of neglect and cowardice. If Democrats regain unified control of Congress, unions could use the ILO’s conclusions to force labor law reform onto the legislative agenda, instead of allowing them to again let it languish.

But we should be clear-eyed about the limits of this strategy. The United States often disregards its international obligations with impunity. Today the U.S. continues to provide military support to Israel in its military assault on Gaza, despite widespread accusations from U.N. experts and major human rights organizations that Israel is committing genocide.

So an ILO complaint is no silver bullet—it cannot, on its own, compel the government to act. What it offers is a way to raise the costs of inaction, expose U.S. hypocrisy, and strengthen workers’ hands in the broader political and organizing struggle.

Unions must remember that the NLRA was a compromise from the start. The law came into existence after waves of strikes and factory takeovers throughout the country that threatened the foundations of production in the United States. While we often think of it as a law meant to empower workers and their unions, the purpose stated in the law was “to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce.”

If the courts succeed in rendering meaningless what remains of that historic compromise, and if our own government is predictably unpersuaded by appeals to a decaying international order, workers and unions must be prepared to turn again to disruption as the order of the day.

Benjamin Dictor is a New York City-based labor attorney representing unions throughout the United States.