Why Workers Still Need a Collective Voice in the Era of Norms and Mandates

Source: Cynthia L. Estlund, New York University School of Law, Public Law Research Paper No. 13-79, December 3, 2013

From the abstract:
The drastic decline of union representation in the U.S. has opened up a large and by now familiar ‘representation gap’ in the workplace. Different workers prefer different forms of representation: Many want independent union representation, a choice that is formally available but difficult to secure in the face of management opposition; others want a more cooperative form of collective representation that is unlawful under federal labor law. But the vast majority of workers wants some form of collective representation, and does not have it. On some accounts, workers no longer need collective representation because their interests are adequately protected by a combination of legally-enforceable mandates and self-enforcing norms. This chapter argues that these accounts are wrong and workers are right: Most workers not only want but need some form of collective representation in order to enforce the mix of legal mandates and informal norms by which they are currently governed at work. But both the nature of the collective representation that workers need and the path by which they might achieve it differs for workers at the top and the bottom of the labor market.

This chapter, part of an edited volume on the economics of labor and employment law, maps the current regime of individual contract and employment mandates by which the overwhelming majority of private sector employees are governed nowadays, and the widely divergent results of that regime for workers at the top and the bottom of the labor market. It proposes a two-track approach to workplace governance reform, and to labor law reform, that responds to both the shared need and desire for collective representation and the distinct barriers and opportunities that workers face at the top and the bottom of the labor market.