- Imagining a New Labor Law for a New Era of Work
Joseph A. McCartin's essay in this issue, "As Long as There Survives," provides an immensely helpful framework for assessing the effectiveness of the National Labor Relations Act (NLRA) and for developing proposals for labor law reform. He reviews six decades of scholarship about the act, demonstrating his ability, as a historian, to construct a coherent narrative out of the varied and seemingly disjointed approaches that labor relations scholars have taken toward the act over the years. He does an excellent job of characterizing, categorizing, and summarizing the decades of scholarship extolling and critiquing the act, and he concludes that the NLRA is outdated and that it is time to advocate a new labor law for the twenty-first century, one that is attuned to the current realities of work. Yet McCartin also reminds us that a new labor law must embody three features that he sees as key virtues of the existing act. These features are: a vision of political economy with which the labor law is compatible, a focus on empowering workers and bolstering their bargaining power, and a commitment to the goal of promoting democracy. He presents some general thoughts and directions that could inform the creation of a new labor law.1
Despite the breadth of McCartin's intellectual survey of labor law critiques, I believe he has left out one critique that is possibly most relevant to his own agenda for change. That is a critique I presented in my 2004 book, From Widgets to Digits, and have since elaborated in several essays and articles.2 My critique is that the labor law was designed for a different kind of workplace from that which we find today and that any effort to reinvent it has to be grounded in the new realities of work.
I have argued that the NLRA promoted labor-management self-regulation of the workplace by creating a form of worker representation—the certified union—comprising workers who were employed in stable, long-term jobs. The original Wagner Act assumed that workers and employers were in long-term relationships in [End Page 55] which workers were hired at the bottom rung of a job ladder, provided with predictable paths of promotion, periodic longevity-based wage increases, and company-based health insurance and pensions, and given implicit promises of job security. While this type of employment relationship was never universal—it omitted craft workers, for example—it was becoming increasingly commonplace in the large industrial establishments of the 1920s and 1930s. It was the form of employment that served as the template on which the Wagner Act and many of the labor management policies and practices were built.
Many key features of the Wagner Act and the subsequent Taft-Hartley Act were based on the model of long-term employment. For example, under the act, the unionized workplace is divided into discrete bargaining units, each unit a well-defined, circumscribed, and economically stable group. The bargaining unit is an integral part of the statutory scheme of the NLRA; indeed, under the act, unions exist only as representatives of a bargaining unit. The National Labor Relations Board (NLRB) determines bargaining units, holds elections for representation of the bargaining units, and then certifies the successful union as the exclusive representative of all workers in an appropriate unit. The NLRB's test for defining a bargaining unit is a "community of interest" among the employees. Some of the factors the board uses to determine whether there is a community of interest are similarity in kinds of work performed; similarity in compensation, training, and skills; integration of job functions; and commonality of supervision.3 Unions then negotiate collective agreements that contain wages, work rules, and dispute-resolution systems for the individuals in the unit. While the individuals in the unit could and did change, the bargaining rights and bargaining agreements apply to the unit. They do not follow the workers to other jobs when they leave the unit.
Bargaining units imply static job definitions and clear boundaries and thus are in tension with the blurring of departmental boundaries typical of work...