Labor Law as the Century Turns: A Changing of the Guard

Labor legislation in the United States and other countries has been rooted in a basic premise that individual workers lack the bargaining power in the labor market necessary to protect their own interests and to obtain socially acceptable terms of employment. When there is such economic inequality, the function of the law is to protect the weaker party. The continuing question is how we shall protect employees from socially unacceptable treatment by market forces where they lack the bargaining power to protect themselves. This question has two parts. First, who shall act as guard to protect their interests? Second, what interests are to be protected? The National Labor Relations Act of 1935 (also known as the Wagner Act) responded to both of those questions with a single answer—collective bargaining. Collective bargaining was conceived to serve two additional political and social purposes: (1) reduce the need for government regulation to protect employees from oppressive terms, and (2) provide a measure of industrial democracy by giving employees a voice in decisions which influenced their lives. Collective bargaining, however, never became established except in segments of industry. Judicial and legislative regulation have instead been important. But I believe collective bargaining, with its grievance procedure and arbitration, is still the best instrument for protecting individual employee rights, achieving industrial democracy, and minimizing governmental intervention. Collective bargaining, where it is established and accepted, has demonstrated that it can, and for most purposes has, fulfilled those purposes. Clearly, society will increasingly rely on legal regulation of employment relations, but the challenge will be to design those laws so as to bring some coherence to the process, provide appropriate and effective remedies, and ultimately develop structures of employee representation for those not represented through collective bargaining