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Exploring American Labor Law:
A Conversation With Jeffrey Hirsch

Professor Hirsch is the Geneva Yeargan Rand Distinguished Professor of Law at the University of North Carolina School of Law.

All errors are my own. Edited and condensed for clarity.

Professor Hirsch is one of America’s leading experts on labor and employment law, and holds degrees from the University of Virginia, the College of William and Mary, and NYU Law School. After clerking for Judge Mayer of the U.S. Court of Appeals for the Federal Circuit and Judge Beezer of the Ninth Circuit, he litigated for the National Labor Relations Board’s Appellate Court Branch. Since then, he has taught labor law at a variety of institutions and
published various writings on this topic, and is now a senior professor of labor law at UNC Chapel Hill. Mr. Hirsch, thank you for being here.


Maclain Conlin: We certainly appreciate it. My first question is this: in one of our emails, you said that labor law is an odd bird in American law. How so?


JH: Of course. Labor law is the only class in law school that is focused on collective rights, rather than individual rights. Most laws in the U.S. are centered around the individual and how they relate to the government and other individuals, while labor law, by definition, is focused on the collective rights of
employees. It produces different ways of looking at the law, and in my experience, both judges and attorneys who are unfamiliar with labor law find it difficult to grapple with at first.


OA: Interesting. Now for administrative law, you have the Administrative Procedure Act (APA), which some have called the constitution of administrative law. What are some of the major pieces of legislation governing the labor law field?


JH: Like a lot of legal topics in the U.S., the first step would be to think of federal versus state. The most important statute, in terms of its reach, is probably the National Labor Relations Act, which is a federal law originally enacted in 1935 that covers most (but not all) private-sector workplaces. There are, however, several exclusions from the NLRA. It doesn’t cover employees involved in the railway and airline industries. There is actually an earlier law, the Railway Labor Act, which established a separate set of rules for that industry. It’s similar to the NLRA, but for many reasons, it was set up to avoid labor disputes and work stoppages because of the potential effect on the economy. Also, federal government agencies are excluded from the NLRA, so there’s a separate statute that applies to the federal workplace called the FLRA, which we will get to discuss today when we talk about the FLRA v. Ohio Adjutant General case. One thing to remember about the NLRA and these other federal statutes is that they do not cover state and local employees. Here, you have a wide variation across the country in whether or not state employees (including me, as a professor at a public university) enjoy labor-law protections. This depends solely on whether the state in question has decided to do so. For instance, in North Carolina, there’s nothing, so I have no right to unionize, but other states, such as New York, have very robust state labor laws. Virginia is a mix. They traditionally had none, but there have been some baby steps in the last few years. Those are the big, major statutes.


OA: Interesting. Is there a reason why those acts don’t apply to state governments? Is it because that would create an Anti-Commandeering problem?


JH: Not necessarily. I think they probably would have had the power to do so. Some of it was political, to be honest. The NLRA, for example, was passed in 1935. A little bit of constitutional law history here is important. This is during FDR’s New Deal period during the Great Depression. There had been some
earlier attempts to enact federal labor regulations, one of which was struck down by the Supreme Court. This is a time when the Supreme Court was very skeptical of attempts to regulate the workplace. There was a set of cases striking down those based on a “freedom of contract” idea. At around this time, you
have the “switch in time that saved nine,” when the Court began to uphold these regulations, and one of these new cases involved the Court upholding the NLRA. The NLRA was largely drafted by Senator Wagner in New York and one of his aides. The NLRA, in fact, is often referred to as the “Wagner Act.”
They had to be mindful of the constitutional arguments, and they knew the law would be challenged. The constitutional hook for the Act was Congress’ power to regulate interstate commerce. That was a big concern. As a result, now, if you have a very small employer who only deals with intrastate commerce, that isn’t included. Another issue at the same time, and this is one that still occasionally comes up, is the Federal Government’s regulation of state entities. There was more of a political sensitivity to that. I don’t think there is much of a constitutional one, at least not today. There are other federal workplace statutes
(Title VII of the Civil Rights Act, for instance) which clearly apply to state entities.


To show the political nature of this structure, one of the exemptions to the NLRA that still exists is agricultural workers. This is something that you saw in a lot of labor employment acts. It was purely based on politics. At the same time, the vast majority of agricultural workers were black, and in order to
get Southern Democrats to vote for it, they had to exclude those workers. The politics of the time can affect coverage. Coverage can be very important, as we will see in the FLRA case. These are just a couple examples of that.

 
OA: I appreciate that, sir. Today we would also like to talk about two Supreme Court cases from this past Term, the first being, as you mentioned, Federal Labor Relations Authority v. Ohio Adjutant General. What was going on in that case?


JH: This one is, in some ways, a very narrow case. It doesn’t have a huge application, but it does touch on this broader issue of coverage. That case basically had to do with whether a certain set of employees were covered by the Federal Labor Relations Act, which, as we talked about before, is the Act that gives labor rights to federal workers. For instance, when I was at the NLRB, we were unionized, and the FLRA governed those labor relations. In that case, you had to deal with the issue of civilian employees of a state national guard. National guards are sort’ve odd birds, both under the Constitution and as a matter of workplace governance. On one level, they are run by a state. A state sets up the national guard. On the other hand, they only have the power to do that, under the Constitution, under the purview of Congress. The reason why is that, under the Constitution, the President has the authority to nationalize the national guard at the drop of a hat. This raises an interesting question. You have civilian employees of a state national guard; are they considered federal employees for the Federal Labor Relations Act? Traditionally, that was always thought to be the case, and the employees were unionized for many years. Ohio, for whatever reason, decided to challenge that. This happens on occasion, and the Supreme Court basically said no. It said that, based on the statute that set up states’ authority to hire employees for their national guards, they fell under the federal Department of Defense. Technically, they were employees of the Department of Defense, and therefore, they fell under the FLRA. It was a fairly straightforward statutory interpretation. It doesn’t affect many kinds of employees, but it does affect civilian employees who work at state national guards. It does, though, deal with this issue of how important coverage is to labor and other employment laws, which is really an all-or-nothing approach. If you’re covered, you get whatever rights the statute provides, and if you’re not, you don’t have anything. For instance, I’m not covered by a state labor law. If I tried to gather my fellow professors to challenge our dean, ignoring the fact that we have tenure, he could fire us or retaliate against us. He wouldn’t, but there is no law preventing that.

 

Most people don’t tend to think about these coverage issues, but they are really important. One more recent example that people may have heard of is whether Uber drivers are considered employees under discrimination statutes, overtime and minimum wage laws, labor laws, etc. There is also the question of
whether collegiate athletes are considered employees under the NLRA. These are all coverage issues. The FLRA case is just one version of that.


OA: Do you think there are any unique constitutional issues in this case? In the past, the Federal Government could impose anti-discrimination laws on states, and it could require them to adopt certain minimum wage rules, which the Court upheld in Garcia v. San Antonio. But here, it isn’t just one general rule that applies to everyone and happens to include state governments. Here it was the FLRA having the power to issue an order to a state government to adopt a certain policy. I remember during the oral argument that Justice Gorsuch asked about whether this might create an Anti-Commandeering problem. Do you think that line of reasoning is persuasive?


JH: I don’t see it as a real issue in this case. To my mind, there was no actual commandeering involved. Most of the FLRA is prohibiting certain actions (discrimination based on union activity, for instance). To the extent there is something that might be considered commandeering, like duties to bargain, the
Supreme Court would need to boost their Anti-Commandeering caselaw more than they have so far. Obviously, there are sensitivities. We live in a federalist system. I do think too, though, that the War Powers Clause flips that against the states more, because the Constitution is clear that when it comes to war powers, the Federal Government is extra-supreme, if you will.


OA: That’s interesting sir, and actually last week we had on the lead counsel from Torres v. Texas, [1] the War Powers case from last year, and were able to hear a lot about that particular issue.


JH: I will say that that was my legal argument. I wrote two articles on that case-was it Andrew?


OA: Yes, Andrew Tutt.


JH: I worked with him on that case, actually. I know it very well!


OA: Wonderful! Perhaps we should include that case as well. I didn’t realize that you helped work on it.


JH: Sure thing.


OA: Great! I have just one more question about FLRA v. Ohio before we move on. I was recently reading about a North Carolina case, Charter Day School v. Peltier, [2] about whether charter schools are state actors or not, and I believe the 4th Circuit held that because the state designates them as public schools to fulfill a public function, they are therefore government actors. Here, the Supreme Court basically held that because the Department of Defense designates state national guards to do something, they are subject to the same rules as if the Department of Defense were doing it itself. Do you think these cases are related at all? Could they impact each other?


JH: I don’t think they will directly impact each other, but they are related, as you mentioned. They are both examples of what you might call a hybrid entity (national guards and charter schools). These kinds of entities often force a yes-or-no question when they don’t really fit a yes-or-no answer. With the FLRA
case, that dealt more with the statutory authority to hire the workers involved. The charter school cases are a bit more complex, and there are actually a fair number of labor cases that arise with charter schools. Very often, those cases are intensely fact-specific. You might have a charter school in one state that the
court determines is more public, and another that is determined to be private based on a single distinction. It has to deal, in part, with how they are set up. How independent are they? What role does the state have in providing rules? You have to dive into the facts of each case.


OA: Thank you for that, sir. Do you mind if we also take a look at the Torres case before we move on to Glacier Northwest, because you specifically worked on that case?


JH: Absolutely. I can talk about Torres as much as you’d like!


OA: I appreciate that, sir. If I remember correctly, the question in Torres was whether or not Congress had the authority to abrogate state sovereign immunity under the War Powers Clause. What exactly happened in that case, and why do you think the Court came to the correct decision?


JH: It’s funny, because my latest article on this was entitled, “War Powers Abrogation,” because you have to worry about pithy titles, but I actually argued that the way the Court held, it wasn’t even an abrogation. There is a federal antidiscrimination statute called USERRA, which prohibits discrimination based on military status. In this case, you had Le Roy Torres, who was an Iraqi war veteran who had his lungs damaged by burn pits. In fact, he and his wife head up an organization which helped to pass the PACT Act, which provided more coverage for veterans for burn pit damage that President Biden signed a year
ago. He filed a claim under USERRA against his employer, the Texas Department of Public Safety, and Texas said that you can’t sue at all. There is a long history of the Supreme Court’s approach to what is called state sovereign immunity. From the Rehnquist Court, that was one of Chief Justice Rehnquist’s
major issues. They basically expanded states’ ability to say that they were immune from private suits seeking monetary damages under federal law. That’s the case of Torres. Torres was a private citizen suing a state for monetary damages under a federal law.


There were a lot of cases on this issue. One of the things that the Court kept saying was that Congress can’t, through a federal statute, can’t subject states to these kinds of suits when Congress uses its Article I powers. That lists Congress’ general powers.


OA: Was that the Alden v. Maine case?


JH: Alden was one of the cases. Seminole Tribe really got the ball rolling. That actually dealt with the Indian Commerce Clause, which most people don’t realize exists. There’s a series of cases repeating this line that Congress can’t abrogate state sovereign immunity under Article I, but these statements were
somewhat dicta. The Court kept saying this, but it was beyond what they needed in each case. In the first article I did, which is actually what allowed me to become a professor in the first place because I wrote it at the NLRB, was about how the Court kept saying, “The test for whether or not abrogation is allowed is
based on the history of the Constitution.” The phrase they will often use is, “the plan of the convention.” (Don’t worry; I promise I’ll get to the War Powers Clause very soon!) The Constitution sets up a system where you have independent states. That’s the default; they have sovereign immunity, unless there’s some exception. Whether there is an exception is based on what the states thought when they ratified the Constitution. For all of these Article I powers, they said no. But that doctrine, which relies on history, leaves open the question of whether there are some Article I powers where it’s different. The first case where the Court said this was right was in a bankruptcy case. You might not think of that normally, but the history in that case was pretty unique. It was obvious that the Bankruptcy Clause of the Constitution was set up to get rid of all this crazy stuff that states were doing-debtors’ prisons, etc. The Court, in a very close decision, said that it would allow abrogation under the Bankruptcy Clause.


This was good for my argument, which was that the War Powers Clause should also be an exception because of the history. Things were quiet for quite a while, although there was a lot of litigation behind the scenes. I had been involved in a Georgia case where the doctor had sued and I was brought in to help with the brief before the Georgia Supreme Court. For years, these cases would pop up and state supreme courts would turn them down, relying on the Supreme Court’s dicta about Article I.

 

But then, the Torres case came up, and this is where your guest last week came in. He’s part of a big law firm and they took on this issue as part of their pro bono work. They were vital in getting this issue more attention. I actually did an amicus brief in the Texas state court, but they denied cert, so that went
nowhere. Then, we did two briefs before the U.S. Supreme Court (one to get cert, and the other on the merits), as we have a Supreme Court Clinic here at the law school. A law student actually did the initial drafts for both of those briefs, which is one of the best things you can do while in law school. When I was
involved with the state issue, I really delved into the history of the War Powers Clause. I looked through the notes from the Founders at the Constitutional Convention, and then I looked at the ratification debates in each state. There is no question that everybody knew that one of the main goals of the new Constitution was to give the Federal Government supreme authority over war. The text of the Constitution talks about it, and lists all of the things that states can’t do on this issue. The only thing states are allowed to do is create national guards and militias, but only under the regulations of Congress.


Basically, my argument was that when it comes to war powers, there is nothing to abrogate. States don’t have sovereign immunity at all on this issue. This is the one area, maybe more than any other, over which the Constitution says there is no role for the states. When they tried that under the Articles of Confederation, it was just a hot mess. The Founders’ intent on this issue was clear.

 

OA: It’s interesting. I think all 3 of the labor law cases we are discussing today involve federalism issues.


JH: That’s true. It comes up a lot.


OA: Mr. Tutt from last week gave us some of the historical background for sovereign immunity, going back to Blackstone, but we didn’t have a chance to talk about the more recent caselaw, so I appreciate that.


JH: Of course. It’s an interesting issue.


OA: There was one more labor law case I was hoping to discuss with you today is the Court’s recent holding in Glacier Northwest v. Teamsters. The official question in that case, according to the Supreme Court’s website and the briefs, was, “Does the National Labor Relations Act impliedly preempt a state tort
claim against a union for intentionally destroying an employer’s property in the course of a labor dispute?” First of all, as a general legal question, what is preemption?


JH: Great question. This is definitely keeping up a theme here. We have a federalist system. States are considered sovereigns, but the Constitution has what’s called the Supremacy Clause, which basically says that there are instances in which a federal law (in this case the NLRA) is viewed as preempting, or stopping, a state law. There are different levels and types of preemption. For example, under modern doctrine, the Supreme Court expects a clear statement from Congress before it decides that a federal law preempts state law. However, the NLRA is kind’ve grandfathered in, because while it doesn’t talk about preemption at all in the text, it has long been interpreted to have a quite strong preemption. The main type, which was at issue in Glacier Northwest, is that it preempts state regulation of acts that are actually
or arguably prohibited or permitted under the NLRA. There’s a similar type of preemption, which says that states cannot regulate a field over which the NLRA intends for there to be no regulation. Bargaining, for example, is an area where the NLRA has basically said that it wants no government involvement,
preferring to let the parties work it out amongst themselves. State attempts to regulate bargaining would be viewed as being preempted. But Glacier Northwest is about the prohibited/permitted kind of preemption, which is sometimes called Garmon preemption after a Supreme Court case. That’s
preemption in a nutshell.


OA: Thank you, sir. It’s interesting; you mentioned that the Supreme Court usually requires an explicit statement of preemption, but under Court precedent regarding the NLRA, the test is only whether it “arguably” conflicts with state law. Why has the Supreme Court given that kind of super-deference to
federal authority in this area, as Justice Thomas said in Glacier Northwest?


JH: Probably because of the history of the Act and the cases that interpreted it that way before the Court became more skeptical about preemption. Previously, they were very deferential to preemption arguments. They have been unwilling, so far, to reverse this NLRA preemption. The origins of the NLRA were such that while Congress didn’t explicitly say, in the text, that it was preempting state laws, its intent was clear. There are many aspects of federal labor law that wouldn’t make any sense if states acted contrary to it. It makes sense based on the structure and purpose of the Act, but if the NLRA was passed today, that preemption analysis would probably be very different.


OA: Thank you for that. What were the specific facts in Glacier Northwest, just so our readers know what’s going on in that case?


JH: The facts, at least as the Supreme Court stated them, (as often happens nowadays, there is a dispute as to whether these stated facts are actually what happened) involved a set of employees who were cement truck drivers and went on strike. The employer, at least, was arguing that they went on strike in a way and timed it in a way that caused damage to its trucks because, while I am no cement expert, you constantly need the cement moving around. If you don’t, it turns into concrete. The allegation was that the employees purposely timed their strike so that the employer was unable to stop damage occurring to their
cement trucks. They took off at a time when the employer couldn’t just have other people take over. It caused a lot of property damage.

 

The employer sued under state law using a tort, or a common-law claim, not a statute. But we are a common-law country, and judges often create these doctrines. A tort is just harm. If someone hits your car and you sue, it’s the same thing, except that it’s damage to a cement mixer here.

 

The union involved with the strike raised a defense that it could not be sued because the NLRA preempted these kinds of state tort claims. It argued that the NLRA protects the right to strike, which is true. That’s what teed up the preemption argument, as to whether or not this type of state tort claim was preempted by the NLRA.


OA: And the Court ultimately rejected that argument 8-1 and held that the employer could sue for property damage. What was their reasoning there?


JH: Sure thing. First of all, I’m going to do the law professor thing, and take a step back for a moment. Many people on the union side were worried about this case, because oftentimes when the Court agrees to hear a case, there is at least the thought that they are doing so for a reason. Either there’s confusion, or they want to change something. There really wasn’t any confusion here, so the thought was that they were going to change their doctrine on this. The doctrine at issue was one of the longstanding exceptions to NLRA preemption, which is sometimes referred to as the, “inherently local exception,” meaning that there are certain issues which are so inherent to state regulation that the Court would not find federal labor preemption. One obvious example is criminal law. If a striker threw a brick through a car window at their boss, that’s a criminal act, and has long been an exception to preemption.


There was a concern that the Court was going to broaden the inherently local exception to make it easier for employers to sue unions for damage that was involved with strikes. If you increase the cost of strikes, you decrease their value to unions.

 

The Court ultimately did not change that doctrine at all. They stated what they’ve always said, and said they would keep doing it. From the union perspective, that was a win. That said, the union in this case lost, and what this case really came down to is how they applied the facts. It’s a fact-dependent
determination, and this is where my comment earlier about how the facts were disputed comes in. The union argued that they really didn’t surprise the employer. The Supreme Court did not give credence to those arguments, and said it was pretty clear from these facts that the union did intend harm and caused damage to the employer’s property. That is also a longstanding exception to preemption, so the Court allowed the suit. The union will still have a chance to prove it in state court, so they could still win the day in the end.


Again, the doctrine itself remains unchanged. I think unions are a little worried that as these cases come back to the Supreme Court, it will tend to be more sympathetic to the employer’s arguments. That view is not without justification, because the Court, for a long time, has not been a big fan of unions. That being
said, the Supreme Court is not going to take a lot of these cases. Maybe it’s sending a message to other courts to look at the facts a little more skeptically, as far as the unions’ arguments. That remains to be seen.


But for the most part, this was a sigh of relief for unions, because this case could have come out much worse for them.


OA: Based on the facts the Court assumed in this case, would you have come to the same conclusion?


JH: Based on the facts that they stated, yes. To the extent that a union intentionally caused property damage, that’s an exception to preemption, under traditional labor law. I don’t think that’s particularly controversial.


OA: Thank you for that. I also have another question on this broader issue of preemption. All 3 of the cases that we have discussed today, as I mentioned before, involved federalism issues. Why do you think there is a great deal of conflict between federal and state labor laws? Is it because it used to be a state area and now it’s not? Why do you think this tension exists?


JH: Federalism arguments definitely pop up all the time. You’d think that after 200 years we would have worked all these issues out, but that’s not the case. I think the reason it never seems to end is because the Federal Government is quite large and active. As you have a lot of federal regulation, that creates the
potential for more federalism arguments. But it also implicates peoples’ views of the proper role of governance, whether it should be bigger or smaller in general, whether it should be more federal or more state, etc. In labor law in particular, you see a lot of arguments about that. One thing that I didn’t mention
on the historical end, which explains in part why labor preemption has been so strong, is that there is a precursor statute to the NLRA called the Norris–La Guardia Act. This was also implicated in the Glacier Northwest case. That Act actually deprived federal courts of the power to enjoin union strike activity. It
tried to take courts out of regulating strikes. The policy reason for that in the early 1900s was that many employers would sue unions for strike activity, arguing that it was either an antitrust violation or would go against state tort law. They found a very receptive ear in courts, and judges would frequently enjoin
strikes. In the Norris–La Guardia Act, Congress said no to that. It wanted to give the parties a chance to negotiate and work it out.


One of the underpinnings of federal labor law is that strikes are not inherently viewed as being bad. That’s usually viewed as being economic pressure applied when the parties can’t agree. They can’t sign a contract, so one party executes a work stoppage, imposing costs on both sides and trying to force a settlement.


Limits on strikes and costs to strikes runs contrary to that labor policy. That’s the other policy issue going on in Glacier Northwest. But it’s also an example of what you asked about with the federalism point. We have this federal labor policy that explicitly encourages or protects the right to strike, but that runs up
against state tort law, which discourages damage. Which one should win out? And basically in Glacier Northwest, the Court reaffirmed the doctrine that while federal labor law normally wins, when the state tort law is inflated enough, with for instance intentional harm, then it would let the state get involved, in spite of labor policy.


OA: Interesting, and out of curiosity, why do you think Congress felt the need to become involved in labor law? As you said, this was during the Progressive Era, and many states had passed laws further regulating the power of both employers and unions. Why do you think Congress felt the need to become
involved?


JH: It’s definitely a multi-faceted situation. First, there had been a history of numerous extraordinarily violent strikes. Employers would hire groups like the Pinkerton Agency, which you may have heard of and is actually still around. Basically, private militias, and there are examples of them setting up batteries and gunning down strikers. Violence on the other side was also committed by unions. Clarence Darrow, who you may have heard of, was actually primarily a labor lawyer and most of his work was criminal defense for labor activists accused of committing various crimes.


So, lots of violence and lots of work stoppages. Then, when you hit the Great Depression Era, the economy becomes a key concern. The idea was that we need to let parties work things out, but that this is getting out of hand. All this violence is too much, and it’s hurting the economy, beyond just the parties involved. Basically, Congress said that, as I tell my students, the U.S. needed rules of war for labor disputes. We let parties fight it out, but within limits. That’s where the regulation comes into play.

 

One of the things that labor law does not have is a lot of specific commands. “Employer, employee, you must do x,” etc. It’s more about negative commands, like saying that you shouldn’t discriminate based on union activity. To the extent that it requires certain things, the biggest by far is that both parties must bargain in good faith. They don’t have to come to an agreement, but they have to make a good faith attempt to bargain. Strikes and lockouts can be part of that in most instances, with a few exceptions. Although it is regulated, there is still a lot of power for the parties to figure things out and do what they need to do. That is one area where judges, even if they might not love labor law or unions, recognize that it isn’t as intrusive as one might think, although employers certainly dislike it.


OA: Thank you, sir. That history helps put it into perspective. On a final note, if any students reading this article are, like myself, interested in labor law, do you have any publications that you would recommend they start following? They can certainly begin reading your op-eds and papers, including your articles on the Torres case, but are there any other sources that you would suggest as well?


JH: It depends a little bit on what you want to do. There are potentially good histories of labor law. For instance, there is a story on Eric Loomis. He's definitely on the pro-union side, but frequently on places like Twitter he will have a, “This day in labor history,” post, followed by a thread about an interesting labor strike or something like that. He also has a book, I believe entitled Ten Strikes That Changed The World, which looks at the history of U.S. labor through these major strikes that happened throughout the years. If you’re really interested in labor law, (and this is a good law school tip) a lot of law students and lawyers will use “Nutshell” treatises or hornbooks, which are smaller books that summarize a labor course. They have them for pretty much every major law school course you can take. I have one that I co-authored entitled Mastering Labor Law. Other authors also have similar books. They are very helpful if you want to get a better understanding of what this area of law means. Also, the NLRB also has a pretty good website explaining what your labor rights are, explaining the key parts of the NLRA, and basically summarizing federal labor law, so you can definitely check that out.

 

Another thing I will also say is that if this is something that you’re interested in but don’t want to get into the weeds, which would make total sense, look for newspaper articles. For instance, the Washington Post just had a great story on some of the union organizers at Starbucks, focusing on one in particular and what’s happened to her. No matter what side you are on the labor issues, it talks a lot about some of the rights that unions have and also some of the limits. From the union side in particular the NLRA is viewed as being pretty weak. There are lots of exceptions, and the NLRB has significant limits on its power to remedy violations. Looking at that, Amazon was in the news a lot a couple years ago. We’re also starting to see more about the college athletes case. Just reading the stories about that, especially some of the good reporters at the New York Times and the Washington Post, which both have people dedicated to covering labor issues, you’ll get a better view of the NLRA. This will give you a great overview of what’s going on in the field.


OA: Thank you so much for that, sir. We really appreciate your time.


JH: Sure thing. Thanks for having me.

[2] The Supreme Court ultimately denied review in this case on June 26, 2023. However, the North Carolina General Assembly recently voted to pass a bill which would remove charter schools’ designation as“public schools.” New developments in this fascinating case will follow as it heads back to the trial court for a second round. For more thoughts on how Peltier relates to FLRA v. Ohio Adjutant General, I have written a brief analysis of this topic at https://www.originalistangles.com/reviewing-flra-v-adjutant-general.

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