Paper by Theodore J. St. Antoine
Collective bargaining lies at the heart of the union-management relationship. It is the end and purpose of the whole effort to protect employees against reprisals when they form an organization to represent them in dealing with their employers. Collective bargaining is grounded in the belief that industrial strife will be checked, and the workers' lot battered, if workers are given an effective voice in determining the conditions of their employment. My thesis is that federal law, even while placing the force of government behind collective bargaining, has so artificially confined its scope that the process has been seriously impeded from achieving its full potential.
One of the most disarmingly simple provisions of the National Labor Relations Act (NLRA) is section 8(a)(5), which makes it an unfair labor practice for an employer “to refuse to bargain collectively” with a union representing its employees. Strangely, Senator Wagner's original “labor disputes” bill, as reported from committee in 1934, contained no explicit requirement of collective bargaining, although the Senator believed it was implicit in the employees' right to organize. Some felt that imposing a statutory duty to bargain would amount to no more than a pious exhortation. Sumner Slichter, for example, caustically likened it to legislating “that the lions and lambs shall not fail to exert every reasonable effort to lie down together.” Other labor experts took a different tack, opposing “legislation by implication” and insisting that failure to mandate collective bargaining “omits the very guts” of the organizational process. The views of the latter prevailed and their recommended language was accepted.
Yet what exactly had been done was left uncertain. The NLRA's two leading proponents diverged sharply over the meaning of the duty to bargain. Senator Wagner, the Act's sponsor, thought it would obligate an employer to “negotiate in good faith” and “make every reasonable effort to reach an agreement.” Senator Walsh, the chairman of the Senate Labor Committee, felt instead that the parties would merely be required to get together, to meet and confer. “The bill,” said he, “does not go beyond the office door.” These contrasting positions presaged a long and continuing debate. An influential pair of articles in 1950 by Archibald Cox and John Dunlop insisted that the Wagner Act was concerned with “organization for bargaining—not with the scope of the ensuing negotiations.” They lamented that the NLRB, with judicial endorsement, had embarked on the mission of “defining the scope of collective bargaining.” Eventually, nevertheless, Senator Wagner's concept of a duty to bargain in good faith prevailed. Even so, as late as 1961 a distinguished labor study group branded the bargaining requirement “unrealistic,” adding that “the provision designed to bring ‘good faith’ have become a tactical weapon used in many situations as a means of harassment.”
Over the years, however, there has been increasing evidence that the statute has had a positive practical effect, including voluntary compliance by management. One survey revealed that successful bargaining relationships were eventually established in seventy-five percent of the cases sampled that were pursued to a final Board order as well as in ninety percent of the cases that were voluntarily adjusted after the issuance of a complaint. Although a recalcitrant offender can drag his heels with impunity, because a Board order to bargain operates only prospectively and ordinarily does not furnish any monetary relief, the majority of American employers and unions are law-abiding. However hard it may be to identify “good faith” and to classify legally such particular tactics as “take-it-or-leave-it” bargaining, it would seem almost perverse at this late date to deny that, overall, the statutory duty to negotiate has had a salutary impact.
Nonetheless, important problems remain. This paper will focus on one of the most crucial: the subject matter about which the NLRA mandates bargaining.
About the Author
Theodore J. St. Antoine. James E. & Sarah A. Degan Professor of Law, University of Michigan. A.B., Fordham College, 1951; J.D., University of Michigan, 1954.
Citation
58 Tul. L. Rev. 1301 (1984)