If it Walks Like a Duck: Revisiting the National Labor Relations Board's Political Subdivision Test

Abstract

For almost ninety years, the National Labor Relations Act (NLRA) has protected the rights of most private sector workers to form and join a union and to collectively bargain. But what does it mean to be a private sector worker? The question is simple enough on its face. A municipal clerk, for example, is clearly a public sector worker, and a stockbroker is likewise a private sector worker. But is a teacher at a publicly funded charter school run by a private non-profit a private sector worker? Is a nurse at a semi-privatized state hospital which receives no public funding a public sector worker? The NLRA itself provides no guidance for these questions, leaving them for the National Labor Relations Board (NLRB) and the federal judiciary to resolve. To that end, the NLRB has routinely relied on a twopronged test outlined in the 1970s to determine whether an employer is a “political subdivision” and therefore exempt from NLRA coverage. While the test is simple, it over emphasizes certain characteristics as dispositive and downplays or ignores other important considerations. Using the University of Wisconsin Hospitals and Clinics Authority nurses’ effort to form a union as a case study, this Comment considers the organizing protections available to workers at quasi-public entities (neither fully public nor private) at common law, under Wisconsin law, and under federal law. In an era where state governments routinely contract with private employers and privatize their own state institutions, this Comment ultimately suggests that the NLRB’s test is outdated and should be revised to reflect modern practices and better effectuate the purpose of the NLRA and proposes a new test.