In my article’ which I will summarize in the next few minutes, I argue that there is a single, unified vision of collective bargaining that is embodied in all post-war labor law doctrine and all post-war writings about industrial relations. This vision is both a definition of what collective bargaining is, and a vision of the ideal relationship between unions and management in society as a whole. It has become so pervasive in all thinking and writing about labor relations that, like the ambient air, it is almost invisible.
What I will try to do today is to explain what that vision is and define its major elements so that we can look at it, evaluate it, understand its functions, and consider whether it is an accurate and useful description of the industrial world. First I will try to articulate that vision, then say something about how it has come to be embodied in and enforced by court decisions, and finally, provide some criticisms of it. I will argue that the vision fails to present a plausible description of the industrial world and that it entails a prescription for class relations which has harmed the development of union strength over the last twenty-five years in America.
I call the vision “industrial pluralism.” It is the view that collective bargaining is industrial self-government. In this view, management and labor are seen as political parties-each one represents its constituencies at the bargaining table as political representatives represent theirs in a legislature. The negotiation process is described as a legislative process in which the two parties meet and legislate the rules by which the workplace will be governed. The rules that result– the collective bargaining agreement– are termed a statute or a constitution for the workplace.
The governmental metaphor is central to the industrial pluralist model. Private arbitration plays a key role in the model: that of the metaphoric judiciary. A collective bargaining agreement, like a statute, requires rule application and rule interpretation. A collective bargaining agreement gives rise to innumerable questions concerning the meaning of the rules when they are applied to the varied and often unanticipated situations that arise daily. In the industrial pluralist model, these questions are decided by the arbitrator, who is the judge: the neutral, impartial entity who can interpret and apply the rules because he was not part of the original rule-making process. With a separation between the judicial and the legislative function, the industrial pluralists claim that there is a separation of powers which makes the workplace a microcosmic democracy.
In this scheme arbitration is not a mere afterthought, but rather goes to the heart of the collective bargaining process. Under the National Labor Relations Act (NLRA), management and labor have a statutory duty to bargain and to produce a written agreement. The agreement that results specifies rules which limit management’s discretion and provide certain benefits and protections that the workers or the union have been able to obtain. The question that repeatedly arises is, what happens when management breaks the agreement by failing to provide the benefits or afford the protections specified? If the union has no mechanism to enforce the agreement, then the duty to bargain under the NLRA is reduced to a meaningless charade, and the collective agreement itself is nothing but a sham. The central question under the NLRA, therefore, is, What power do unions have to enforce their collective bargaining agreements? Without that power, the rights conferred by the Act are chimeric at best. Under the industrial pluralist vision, the collective agreement is only enforceable at arbitration. The arbitrator, as judge, decides if there has been a breach and fashions a remedy.
The industrial pluralist vision has institutional implications for the role of industrial relations in the broader judicial and legal process. The principal implication is that other types of legal and judicial processes should be kept out of the workplace. The model describes the workplace as an autonomous, democratic institution. Any intervention by outside process, be it a court, an administrative agency, or legislative enactment, would only disrupt its self-regulating, democratic process.
All of the major case law development in the post-war era can be seen as establishing the institutional structure to effectuate the industrial pluralist vision of industrial relations. The key cases in this process were Lincoln Mills and the Steelworkers Trilogy. In Lincoln Mills, the Supreme Court held that an agreement to arbitrate could be specifically enforced by a union. The Court found it to be the “policy of our national labor laws” to further private arbitration in collective bargaining agreements, and it therefore authorized federal courts to fashion a common law to promote arbitration.
In the Steelworkers Trilogy the Court articulated a presumption of arbitrability, which is that if there is any doubt about whether a dispute is subject to arbitration, arbitrability should be presumed. In the Trilogy the Court also held that a court should enforce arbitration agreements and order arbitration without regard to its view of the merits of the underlying grievance.
Another important case in this development was Carey v. Westinghouse, which involved a dispute that implicated both interpretation of a collective bargaining agreement and a question squarely within the jurisdiction of the National Labor Relations Board (NLRB). The Supreme Court held that in such a situation the jurisdiction of the NLRB over the statutory issue should be deferred in favor of the jurisdiction of the arbitrator. The concept of deference also developed inside the NLRB, culminating in the Collyer Insulated Wire decision, in which the Board said that it would withhold its processes and not decide disputes which allege statutory violations when the dispute is subject to an arbitration clause in the collective bargaining agreement.
Another decision that established and reflected the industrial pluralist view was Boys Markets v. Retail Clerks, in which the Supreme Court said that injunctive relief was available to employers against strikes by unions in violation of no-strike clauses for issues that were subject to arbitration. Boys Markets therefore gave employers an incentive to make as many issues as possible subject to arbitration, and make the injunctive power of the courts available to enforce the national labor policy of private arbitration.
I want to set forth two criticisms of this vision. The first one concerns the implausibility of the vision as a description of labor relations. The view of management and labor as jointly establishing the rules for governing plant life presupposes the possibility of equal power of management and labor and equal input into industrial conditions. This presupposition, which I call the premise of joint sovereignty, is, I will argue, a false premise.
The premise of joint sovereignty is false in part because the law does not permit such equal input. The law makes a distinction in the duty to bargain between mandatory subjects of bargaining and permissive subjects of bargaining. Indeed, there are even illegal subjects of bargaining, such as bargaining over such things as wage rates for employees not within the bargaining unit. Only over mandatory subjects may a union bargain to impasse and, failing agreement, engage in a protected strike. On the other hand, permissive items of bargaining are items which unions can discuss, but not to the point of impasse, and which therefore cannot be the subject of a protected strike. It has become increasingly clear that not all subjects that are important to unions are within the mandatory sphere. One example of a permissive subject is the decision in Allied Chemical Workers v. Pittsburgh Plate Glass Co., which held that unions cannot force bargaining over the pension benefits of retired workers.
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