The Wagner Model of Labour Law is Dead, Long Live Labour Law!

Abstract

The Wagner model of labour law no longer fulfills the promise of protecting and promoting employees’ collective voice in the American workplace. Legislative, administrative and judicial developments under that model have subjected employees to intense employer interference in choosing whether to opt for collective bargaining, have allowed employers to practice surface bargaining without ever intending to reach agreement with unions, and have rendered the right to strike largely illusory because of the employer’s right to replace strikers permanently. The Employee Free Choice Act, which purports to reform the Wagner model from within, is not likely to be passed and would in any event probably be inadequate to change the current power dynamic. Also, the “new governance” approach would likely secure little more than cosmetic employer compliance with new regulatory schemes.

The best courses of action might be to use the remaining energies of the labour movement to support an Occupy Wall Street-type movement and to forge a new labour-oriented political party, but the state of the American political environment gives little reason to believe that such reforms could come to fruition in the short term. Instead, the author advocates three other initiatives which he considers more promising as supplements to the current Wagner model: pre-recognition framework agreements; the Coworker.org open-source service that uses social media to connect workers to each other with a view to reinforcing their bargaining positions on workplace issues; and an approach inspired by the Ghent system, which has long been in place in several northern European countries, through which unions would provide employment-related benefits to non-members in order to increase the union presence throughout the workforce.

Keywords: Wagner Model of labor relations, labor law, NLRA, new governance, EFCA, Ghent System, pre-recognition agreements, Simple Union