The NLRA’s Legacy: Collective or Individual Dispute Resolution or Not?
ABA Journal of Labor and Employment Law, Vol. 26, pp. 249-266, 2011
20 Pages Posted: 21 Oct 2010 Last revised: 2 Jun 2012
Date Written: October 19, 2010
In this brief essay I review the legacy of the NLRA for dispute resolution - which is a mixed legacy, for both employment and labor rights, as well as for other areas of human disputing. The processes which grew around labor rights, including collective bargaining, negotiation, arbitration, mediation, med-arb and other "impasse" breaking techniques are good developments, demonstrating that there are other forms of dispute resolution, rather than winner-take-all litigation, brute struggles of power within "unassisted" negotiation, or worse, violent conflict. Labor processes, beginning with collective bargaining and grievance arbitration that became hybridized and more complex, such as grievance mediation and med-arb, were important innovations that spawned a whole new field in dispute resolution - dispute system design. But, in what many regard as a distortion of using alternative processes to reduce the contentiousness of litigation, or to save costs, or to serve some other (usually, employers’) interests, arbitration placed in mandatory, pre-dispute contracts of employment (and now all other kinds of contracts) and then interpreted to be the only form of dispute resolution available, is a controversial legacy which is hardly producing labor "peace." Indeed, the very goals of "collective" employment rights may be eroded as rulings from non-union individual employment matters (and commercial contracts more generally) are being "blended" with and eviscerating what were often intended to be collective rights. The legal processes that have developed around the separation of legal concepts and consciousness of "employment" (seen as individual rights) versus labor (seen as collective rights) is one of the major themes of this essay.
In this examination of the NLRA’s legacy it is important to recognize how much processes used to deal with labor-management relations have given us, but also how different processes for different purposes might be essential for producing not only labor peace, but labor justice. As I have argued about processes in general - process pluralism - process choice and variety may be essential for delivering some form of justice in different contexts. Labor relations might benefit from learning that lesson - one size will not fit all, including limited (under current law and practice) labor negotiation and bargaining strategies, "mandatory" commitment to grievance or employment arbitration in different contexts, whether contractual or statutory, and in my view, insufficient attention to mediation, for both collective and union-management, as well as individual, issues and disputes.
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