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

Source: Paul M. Secunda, Marquette Law School Legal Studies Paper No. 12-15, September 13, 2012

From the abstract:
The Wagner Model of labor law no longer fulfills the promise of protecting and promoting employees’ collective voice in the American workplace. Legislative and administrative developments in the Wagner Model have made employees subject to intense intimidation and interference by employers with regard to their right to freely choose whether to belong to a union; employers can too easily engage in unlawful conduct as the cost of doing business and practice surface bargaining routinely without ever intending to agree to a contract with the union; and unions are helpless in counteracting these employer organizational and collective bargaining tactics because the ability to engage in strikes is largely illusory in the face of the employer’s right to lawfully and permanently replace their striking workers.

In response to this growing void in workplace representation, others have attempted to “fix” the Wagner Model from within by seeking to pass reforms such as the Employee Free Choice Act. Still others have shifted away from Wagner-style, command-and-control regulation and have urged a new governance approach which seeks to give employers incentives to justly treat their employees. This paper believes EFCA’s enactment is highly unlikely in the short-term and in any event, unlikely to change the current power dynamics hindering effective workplace voice for employees. It also finds the traditional new governance approach to be largely ineffective in securing anything but cosmetic employer compliance with new regulatory schemes and to not provide a secure mechanism for protecting and promoting meaningful employee voice.

Although the ideal solution might be to harness the remaining energies of the labor movement to an Occupy Wall Street-type style movement and to use those energies and passions to forge a new labor-oriented political party in the United States, past history has given proponents little reason to believe that such political reform will happen in the short-term in the two-party, money-soaked political environment of the United States. Instead, this paper has forwarded three promising alternative approaches to labor law reform outside of the Wagner Model. Through use of some combination of pre-recognition framework agreements, the open-source internet platform, and Ghent System-like approaches, the hope is that American labor law will start again to provide workers with the institutional voice they need to promote fair and just workplaces.

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