The Future of US Labor Law and the Long Struggle for Labor Rights

Source: Ellen Dannin, Employee Responsibilities and Rights Journal, posted online April 08 2009
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It appears to be taken for granted today that there is no future for U.S. labor law and that the only legitimate discussion is about what will replace the National Labor Relations Act. However, what if these conclusions misread the complex forces that have affected union membership and power? For example, is our labor law to blame for union decline, or is the law’s weakness caused by union decline and resultant inability to support the law, or are both true? So, too, have de-industrialization and globalization weakened US unions, or is de-industrialization and globalization the result of a union movement with no power to oppose them? If the trajectory of U.S. labor and labor law is more properly seen as an oscillating spiral – and, in the case of unions, a death spiral – then a strategy that targets the NLRA as the cause of union decline picks the wrong objective and overlooks real solutions.

Some contend that unions and collective bargaining are dinosaurs that have no relevance to our times. However, consider the role of unionization and collective bargaining as necessary counterweights to the power of corporations and, thus necessary constituents of a democracy. As the NLRA observes, corporations could not exist but for the laws that exempt them from common law obligations. Those laws were created because corporations were seen as useful in a modern society. However, over time, that law had created unbalanced bargaining power between employers and unions and, as a result, destroyed the economy. Congress’s answer was to enact the NLRA in order to rebalance bargaining power for the good of our society and democracy.

We live in a time in which corporate power is unrivaled, and the growth of that power parallels the decline of unions and working conditions. Did unions simply lose out in the market because they were poor competitors, or is the story more complex?

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