73 Am. U. L. Rev. 1569 (2024).

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Abstract

Artificial intelligence poses a significant threat to unionized professionals in creative industries, particularly as employers may be tempted to replace unionized workforces with artificial intelligence. However, Supreme Court precedent and the National Labor Relations Act paves a path forward for unionized workers in creative fields to safeguard themselves from job displacement through collective bargaining.

This Comment argues that replacing a unionized workforce with artificial intelligence is analogous to subcontracting under Fibreboard Paper Products Co. v. NLRB, First National Maintenance Corp. v. NLRB, and congressional intent behind the National Labor Relations Act. Consequently, artificial intelligence should be a mandatory subject of collective bargaining because it directly affects workers’ “terms and conditions of employment.” Applying Fibreboard, requiring employers and employees to bargain over artificial intelligence use would not “significantly abridge” an employer’s ability to operate its business nor alter the basic scope of the business. Moreover, as suggested by First National, the decision to implement artificial intelligence is appropriately suited for resolution through collective bargaining. Ultimately, treating the replacement of union workers with artificial intelligence as a form of subcontracting aligns with the congressional intent and objectives behind the National Labor Relations Act.

* Junior Staffer, American University Law Review, Volume 73; J.D. Candidate, May 2025, American University Washington College of Law; B.A., Political Science, May 2019, University of North Carolina at Chapel Hill. Thank you to my faculty advisor, Professor Michael Gan, and the entire American University Law Review staff for helping bring this piece to life.