The National Labor Relations Act is the federal statute governing the right of workers to organize and bargain collectively, and the right to refrain from doing so. In two episodes of The Bob Zadek Show, attorney Bob Zadek and Professor Richard Epstein discuss the Act as the legal framework that may determine the fate of California’s FAST Act, a state law regulating the fast-food industry. Epstein, described by Zadek as an expert in labor relations and business-labor relations, argues that the NLRA’s guarantee of a right not to organize preempts state efforts to push workers into unions. The discussion also covers the Act’s legislative history, its amendment by the Taft-Hartley Act, and the constitutional questions the FAST Act raises.
The FAST Act and the NLRA
The FAST Act is California legislation aimed at regulating the fast-food industry. Zadek and Epstein describe it as a tool for unionization: because franchisees are separate employers, unions cannot easily organize the industry branch by branch, so the statute creates incentives for workers to unionize. Epstein says the Act treats the statute as a big club which will force workers into a unionization agreement they would not otherwise want, because staying out and being subject to the FAST requirement is more onerous than unionization. Zadek summarizes the dynamic as a classic your money or your life choice, in which workers in the fast-food industry have no choice but to join a union. Which Side Are You On? (2022)
Epstein identifies the NLRA as the source of the legal challenge. He says the question of the balance between union and nonunion shops is set exclusively by the National Labor Relations Act, which provides that workers have the right to join a union and collectively bargain if they choose, and the right to stay out. If this is a federal right, Epstein argues, a state cannot put its heavy thumb on the scales to direct workers toward unionization, and the statute must fall to the extent it has this component. He predicts the issue will be litigated first before the National Labor Relations Board, which he calls a Biden operation unlikely to rule against unions, and then in the courts, ultimately reaching the Supreme Court. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Zadek frames the irony: the NLRA was designed to give unions a leg up at the bargaining table and was very pro-union in its enactment, yet it may now be the final nail in the coffin of the FAST Act, because the state law does not give workers the right to vote on unionization but coerces them. Epstein agrees with the preemption analysis, noting that the statute says not the right only to organize, but the right not to organize, and that forcing people to organize by threatening them with something makes the preemption argument difficult for the state. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Legislative history
Epstein traces the NLRA to the Wagner Act of 1935. He says the Wagner Act had only one set of unfair labor practices, committed by employers against employees, and no public union coverage. Courts then interpreted the statute expansively. After the Second World War, the 1946 election wiped out the FDR New Deal Democrats in both the Senate and the House, and a series of statutes designed to limit union power followed, including the Taft-Hartley Act. Epstein says Taft-Hartley’s key provisions created a parallel set of unfair labor practices applicable to unions as against their workers or against employers, and established not the right only to organize, but the right not to organize. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein describes the intellectual and legal background. He says there was a long history of judicial decisions holding that government efforts to require firms to unionize interfered with freedom of contract. He cites a 1908 decision by Justice Harlan and a more elaborate version by Mahlon Pitney in a case called Coppage and Kansas, decided in early 1915, for the proposition that unions could not be forced on anybody. By the 1920s, he says, people like Felix Frankfurter were so strongly pro-union that it was only a question of time before these earlier cases toppled. The toppling began in 1926 with the Railway Labor Act, applied to railways because the federal government clearly had jurisdiction under a narrow version of the Commerce Clause. In 1930, Felix Frankfurter and Nathan Greene published The Labor Injunction, which Epstein calls very strongly pro-union. Norris-La Guardia passed in 1932, and the National Labor Relations Act followed after a couple of failed attempts in 1937, undoing the earlier structure. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein criticizes the findings the NLRA made. He says the Act declared there was no actual freedom of contract between management and workers, but that employers could not prove these contracts were coercive, that employers were often in a competitive industry, and that wages were rising at the time. He calls it a philosophical belief that the moment you have an employee, there is an inequality of bargaining power which means the worker has no choice, and says this must be reconciled with the consistent rise in wages during the period in which workers were said to be oppressed. He cites a book by a man named Gordon about the rise and fall of the economic system, and says the single greatest improvement in human well-being took place roughly between 1870 and 1940, at a time when labor laws were extremely hostile to unions. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Constitutional questions
Zadek raises two constitutional issues. The first is preemption under the NLRA, discussed above. The second is equal protection: the FAST Act defines the types of establishments it covers both by size and number of units, and Zadek says there is speculation, maybe more than speculation, that treating different restaurants differently may trigger an equal protection issue. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein responds that the Act targets big franchisors, those with 100 units or more, but that if a franchisor has 100 units outside California and one unit inside California, the California unit is subject to the statute because the state counts out-of-state units. He calls this a crazy fault pattern of advantages and disadvantages. On the equal protection claim, he says the level of scrutiny depends on the classification: race triggers strict scrutiny, sex raises more than one eyebrow and at least intermediate scrutiny, but economic affairs receive a level of scrutiny so low that it is just a joke to say a violation could be found for differences between different kinds of economic organizations. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein also mentions a case called Janice, in which he says the Supreme Court held that the state is subject to powerful restrictions so that people are not dragged to support a union against their free speech wishes. He predicts the FAST Act will follow a conservative-liberal line at the Supreme Court, with conservatives voting to strike it down. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Economic and policy critique
Epstein argues that the franchise model dominates the wholly owned model in long-term success, and that companies like McDonald’s keep franchisor-owned outlets at four or five percent of the market for testing innovations. He says holding the national chain responsible for every franchisee mistake would force the chain to exert greater control, getting rid of the right economic incentives downstream. Which Side Are You On? (2022)
He criticizes the broader regulatory environment, saying the Labor Board has become absolutely hopeless under the current administration, the FTC and Justice Department treat any acquisition as anti-competitive, and the SEC has done one dumb thing after another. He quotes Margaret Thatcher: if it’s my money, I’m going to watch it; if it’s your money, I’m willing to spend your last dime on my particular purposes. Which Side Are You On? (2022)
On labor law specifically, Epstein says the current version of the NLRA was designed by Republican influence not to repeal the whole statute, which he says he has championed for the last 40 years or more. He notes that his student note in 1967 was an antiunion piece, written after he returned from England in 1966 where he studied law at Oxford, and that he saw labor unions would bring England down until Margaret Thatcher took office in 1979. He argues that the pre-New Deal period, roughly from the end of the Civil War to the Second World War, was closest to a classical liberal framework and was where all the progress started to take place. He says the old model worked perfectly well, and the great intellectual puzzle is why it was destroyed in the New Deal period if it was so successful. His one-sentence answer is that the macro situation completely deteriorated: Smoot-Hawley with respect to tariffs, massive deflation under Hoover, and then reinflation that caught people in the downs and ups. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Epstein concludes that statutes like the California Fast Food Act must never see the light of day because the damage they wreak will last long beyond their repeal. He says it is a source of great sadness that popular sentiment runs in favor of practices he regards as utterly destructive. California Passes the Worst Piece of Legislation Since AB 5 (2023)
Across episodes
The two episodes, Which Side Are You On? (2022) and California Passes the Worst Piece of Legislation Since AB 5 (2023), treat the same question: whether the NLRA preempts the FAST Act. The earlier episode raises the preemption argument and the equal protection issue briefly; the later episode develops the legislative history of the NLRA, the Taft-Hartley amendment, the equal protection scrutiny analysis, and Epstein’s broader critique of labor law. Epstein advances the argument in both; Zadek frames the preemption irony in both. The excerpts show development in depth rather than a change in position.
What the sources do not cover
The excerpts do not state the outcome of any litigation over the FAST Act, nor do they identify the court that would hear the first challenge. They do not give the full text of the NLRA or the FAST Act, nor the specific provisions that create the preemption conflict beyond the right to organize and the right not to organize. They do not state the date of the FAST Act’s enactment or the name of the case Epstein calls Janice in full.