In My Opinion…It’s Time to Amend the National Labor Relations Act

March 12, 2024 | by Beverly A. Williams, Esq., Partner at Wong Fleming

The time to amend the National Labor Relations Act (NLRA or Act), which was enacted in the 1935, and last amended in 1974¹, has long passed. The Act should require the parties to engage in exhaustive, good faith alternative dispute resolution and fact finding before a strike can be called. Strikes should be a nuclear option, the option of last resort, to be deployed when all other options have been explored and failed.

The goals of the NLRA were to encourage collective bargaining by protecting workers’ rights to organize to negotiate better working conditions without fear of retaliation, and to reduce the burdening or obstruction of interstate commerce caused by strikes and other forms of industrial unrest.²

The NLRA conferred upon workers the right to organize and join unions, to bargain collectively, to strike, “and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.” The legislation also created the National Labor Relations Board to administer the new law, and to enforce and maintain workers’ new rights.³

Well before 1935, the United States had transitioned from an agrarian economy to a commercial, industrial, manufacturing economy, and currently is immersed in the Age of Technology and Artificial Intelligence. Workers and businesses have changed over the years with both labor and management pivoting in response to business and technological developments, workforce demographics, customer preferences, the deleterious effect and impact of COVID-19, and changes in federal and state administrations. The NLRA, however, has not kept pace with the aforementioned changes.

As recent labor disputes confirm, financial losses because of lengthy strikes serve neither labor nor management. Estimates place the economic cost of the strike by the Writers Guild, Screen Actors Guild and American Federation of Television and Radio Artists at more than $6 billion in lost wages and business impacts in production heavy states like California and Georgia, and elsewhere. Labor and management are not likely to fully recoup the financial losses they suffered.

Alternative Dispute Resolution and Fact Finding Should Be Exhausted Before Resorting to Strike.

Instead of the tumult and uncertainty associated with labor strikes, there should be a required period of negotiation, utilizing mediators, collaborative professionals and/or arbitrators, during which businesses and workers endeavor to reach mutual agreement about provisions of successor collective bargaining agreements (“CBA” or “CBAs”).

Mandatory, good-faith fact finding, mediation, use of the Collaborative Law Process and/or interest arbitration⁴ should begin 120 days after the ratification and signing of the successor CBA. By that time, both labor and management are well aware of the future issues they want to negotiate, and have had time to “decompress” following the ratification of the new CBA.

Issues left over from prior negotiations or that arose after the most recently negotiated CBA was ratified and signed should be on the negotiating table. Procedures for how to incorporate the few unanticipated issues should be agreed upon by the parties.

Over the next 120 days, formal proposals and demands and the reason or justification for those changes should be exchanged and discussed so that both sides fully understand the changes to the CBA sought by the other party. Mediation, Collaboration and/or Arbitration should commence.

The Collaborative Law Process is a type of alternative dispute resolution developed to enable parties, with the help of trained legal, financial and other professionals (facilitators), to reach an agreement that meets the needs of all parties without bitterness and acrimony, characteristics associated with labor strife.

One of the issues which should be addressed in drafting amendments to the NLRA and regulations for their implementation, is the issue of a party’s good or bad faith in rejecting a proposal which it subsequently accepts. Reportedly, the Writers Guild of America, Screen Actors Guild, and American Federation of Television and Radio Artists settlements contain concessions that management initially considered unrealistic. The proposed amendment to the NLRA should require that proposals and demands that are rejected early in the process, and subsequently accepted must be explained, and justified.

An arbitrator selected by the parties should conduct hearings on the issues raised and subsequently agreed to. A finding that a party acted in bad faith, should result in a financial penalty. The amount of financial award should be based on the party’s financial ability to pay.

In my opinion, as interest in unions seems to be increasing, 1) a statutorily mandated early start to the bargaining process; 2) utilizing mandatory alternative dispute resolution procedures, including employing the Collaborative Law Process, to create a less stressful approach to negotiating successor CBAs; and 3) imposing sanctions for bad faith negotiating will create a win-win for all parties, and the public at large.

Let’s begin a discussion.


*Thank you to Marcia K. Werner, Esq. (ret.) for readily sharing her knowledge about the Collaborative Law Process, and her editing acumen.

¹ The NLRA was amended in 1947 by the Labor Management Relations Act (Taft Hartley Act), in 1959 by the Labor Management Reporting and Disclosure Act (Landrum-Griffin Act), and The 1974 Healthcare Amendments.

² The National Labor Relations Act,


⁴ Interest arbitration is used to settle a collective agreement impasse instead of resorting to a strike and lockout.

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For additional information, please contact:

Beverly A. Williams

Partner in the Princeton, NJ office of Wong Fleming