The Development of Employment Rights and the Management of Workplace Conflict

Source: Cynthia L. Estlund, New York University School of Law, Public Law Research Paper No. 13-83, December 12, 2013

From the abstract:
Conflict is endemic in workplace organizations. Some workplace conflict may coalesce into union organizing and collective bargaining; or it may ripen into litigation. At first blush, collective bargaining and litigation seem to represent nearly opposite approaches to workplace conflict. Yet they have more in common than first meets the eye. Both collective bargaining and litigation are fearsome to employers, and have generated a thriving industry of avoidance – “union avoidance,” “litigation avoidance” – to keep them at bay. Both serve simultaneously as a mechanism of conflict resolution and as a catalyst of conflict. The iconic statutes that launched both the collective bargaining system and modern employment litigation – the NLRA of 1935 and the Civil Rights Act of 1964 – were born amidst intense social conflict; and both aimed in part to quell that conflict by channeling it into more peaceful channels – specifically, by empowering employees and compelling employers to deal with them fairly through non-violent though still costly adversarial forms of conflict. For workplace conflict is not simply a social evil to be avoided; it is also a by-product of, and a means for, the pursuit of justice. Yet both the collective bargaining system and statutory employment rights are supposed to induce organizational actors to construct a more just state of affairs mainly through the threat of costly conflict, not its frequent occurrence.

This chapter’s exploration of parallels between litigation and collective bargaining as modes of workplace dispute resolution lays the foundation for advocating one more parallel: Employment rights, litigation, and regulation could follow a path pioneered by the labor movement in leveraging workplace disputes into pressure for more participatory structures of workplace governance. It argues that the forms of governance – regulated self-regulation and internal dispute resolution – that are beginning to take shape under the shadow of litigation and regulation could and should be molded into a system of “co-regulation” that would secure for workers some of what collective bargaining was meant to deliver: a form of participation through collective representation in the resolution of workplace disputes and in workplace governance.