Defining the Economic Relationship Appropriate for Collective Bargaining

These are, of course, difficult times for those who share the goals of the framers of the original National Labor Relations Act (the NLRA or Act ) .\u27 As union density in the private sector has continued to decline2 and as the NLRA has proven helpless against the economic developments that have generated continuing employer resistance to collective bargaining, the original vision of the Wagner Congress must seem myopic and shaded with an excessively optimistic tint. Observing these economic developments and the enhanced impediments to union organization that they have posed makes it clear that only a much different statute could achieve the Act\u27s original goals. It is equally clear that the current Congress has little interest, and little cause for interest, in such a statute or, for that matter, in any goals of the Act that extend beyond providing legitimacy and stability to our industrial system. Nevertheless, economic and political winds may yet shift. Those who continue to believe that collective bargaining should have a central role in our modern capitalist economy may yet fruitfully inquire how government regulation might attempt to achieve that role. In this essay, I will contribute to that inquiry. I will do so not by attempting an analysis of the causes of union decline or by presenting a comprehensive regulatory framework that might be sufficient to arrest that decline and achieve the goals of the original Act. More modestly, I will focus on how the Act, as currently formulated and interpreted, cannot adequately respond to one particular set of economic arrangements that has offered employers inviting routes to evade collective bargaining and the basic compromise between capital and labor that the Act provides. My focus will be on peripheral or segmented employment arrangements. These include the structuring of economic relationships to treat workers as independent contractors not covered by the Act\u27s definition of employee and the leasing of employees from employment agencies that retain sufficient direct control over the work of the employees to be classified as the employees\u27 sole, or at least joint, employer. Perhaps most importantly, they include a firm\u27s subcontracting of work necessary to make its capital productive to independent firms, which are treated as the workers\u27 sole employers