Communication Breakdown: Reviving the Role of Discourse in the Regulation of Employee Collective Action

Abstract

The problems facing individuals who attempt to act together are considerable. Yet in perhaps no other area are these collective-action problems more acute than the workplace. This reality creates a serious issue for labor law, which guarantees employees the right to engage in collective action. Conditions in the modern workplace increasingly erect barriers to employees’ ability to act together which threaten this right. Rather than knocking down these barriers, however, labor law over the last several decades has reinforced them. A key factor in this failure is the refusal of the courts and the National Labor Relations Board to recognize the substantial role that discourse plays in promoting employee collective action. Relying on public choice theory, game theory, and psychological research, this Article demonstrates the importance of employee discourse and shows that labor law has not given it the respect that it is due. Indeed, although employee discourse should be a major player in today’s most high-profile labor law debates — including the discussions surrounding the Employee Free Choice Act and employees’ right to use e-mail and the Internet at work — to date, it is largely absent from these discussions. Accordingly, this Article argues that employee discourse must be given far more consideration and protection, as the failure to do so will undermine even the most ambitious labor reforms’ ability to expand employee collective action.

Keywords: Union, Communication, Discourse, Card Check, EFCA, Psychology, Public Choice, Game Theory, Collective Action

JEL Classification: K31, J51, J53, J58, J5, K32