This article critically assesses the disloyalty test, offering badly needed guidance in this murky and risky area of labor law. Part I provides an overview of the relevant portions of the Act and the problems facing the National Labor Relations Board (NLRB or the Board) and the courts as these decision makers interpret section 7 law. It reviews the early section 7 exceptions, the creation of the disloyalty test, and the aftermath of this new exception, and it introduces a number of problems left as Jefferson Standard's legacy. Part II discusses the analytical inconsistency applied in disloyalty doctrine analysis and proposes a coherent framework for analyzing section 7 cases. Moving from problems of analysis to problems of application, Part III shows that no uniform definition of disloyalty has emerged, and that Board members and judges have confused the term with other section 7 exceptions. The disloyalty test has proven unworkable because the cases do not, in fact, turn on disloyalty, and because not all disloyal employees lose protection. Part III examines the unpredictable differences among the individual decision makers that shape the way they apply the facts to the disloyalty test: their individual adoption of an "adversary" or a "harmony" labor relations philosophical paradigm, their disagreement over whether disloyalty is an objective or subjective term, their differing emotions and personal ethics, and their reluctance to accord deference to the NLRB. An examination of the different factors often considered by these decision makers shows that consistency in the application of the test is impossible. Part IV discusses the important philosophical and policy problems generated by a disloyalty exception. Fundamentally, all exercise of section 7 rights is "disloyal." The disloyalty test lacks a solid foundation in labor law or common law, and it is at odds with the structure and policies of the Act. Its abandonment will have no adverse practical or legal ramifications. This article concludes that the exception should be abandoned as unworkable, unnecessary, unjustified, and inconsistent with the Act.
Melinda J. Branscomb,
Labor, Loyalty, and the Corporate Campaign, 73 B.U. L. REV. 291