The Courts and Collective Bargaining

Chicago-Kent Law Review Volume 59 | Issue 4 Article 3 October 1983 The Courts and Collective Bargaining Julius G. Getman Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Julius G. Getman, The Courts and Collective Bargaining, 59 Chi.-Kent L. Rev. 969 (1983). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol59/iss4/3 This The Piper Lecture is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . THE COURTS AND COLLECTIVE BARGAINING JULIUS G. GETMAN* INTRODUCTION The combination of exclusivity and free collective bargaining has shaped and given special flavor to the American system of industrial relations. The impact upon labor relations has been a great and positive achievement, casting credit both upon those who designed the system and those who have made it work. Where it has not been defeated by union indifference or management intransigence, collective bargaining has helped employees to achieve greater power, wealth and dignity. The widespread use of seniority as a result of collective bargaining and the almost automatic limitation on the employer's right to discharge have helped to establish the idea that employees, through their work, develop a legally enforceable claim to their jobs and that most management decisions affecting significant employee interests must be based on legitimate objective standards. Through bargained for pensions and supplemental benefits, employees are provided protection for their old age and a cushion against unemployment. Collective bargaining has given American unions a visible, significant presence on the shop floor. It has brought them great resources, political power and economic leverage. For many employers, this system, while limiting control and raising labor costs, has provided stability in industrial relations. It has reduced quit rates, encouraged the development of reasonable rules uniformly applied, helped to create a sense of common enterprise and has thereby often promoted greater productivity and efficiency.' Through collective bargaining, labor and management have developed a unique, broadly based private system of dispute resolution, culminating in arbitration, the success of which has been widely acknowledged and given impetus to private and public efforts to develop similar systems in different areas throughout society. Despite this record of achievement and gradual social change, the * William K. Townsend Professor, Yale Law School. This paper was originally presented as part of the Piper Lecture Series. Thanks to Professors Steve Goldberg and Tom Kohler for their helpful comments on an earlier draft. 1. See generally S. SLICHTER, J. HEALY & E. LIVERNASH, THE IMPACT OF COLLECTIVE BARGAINING ON MANAGEMENT (1960); C. Brown & J. Medoff, Trade Unions. The Production Process, 86 J. POL. ECON. 355 (1978). CHICAGO KENT L4W REVIEW judicial attitude toward collective bargaining has increasingly become one of suspicion and hostility. In the remainder of my comments, I will briefly discuss some of the cases which reflect this negative attitude and speculate about its causes. The cases demonstrating the law's diminishing commitment to collective bargaining cover a broad range. They include opinions broadening management's ability to retaliate against unionization, reducing the limitations on alternative schemes of industrial relations, eliminating groups of employees from coverage by the statutes, and limiting the language of § 8(a)(5) concerning the duty to bargain. I will start with those cases whose relation to CB is most peripheral and conclude with those in which the trend of which I speak is most apparent. SECTION 8(A)(2) AND ALTERNATIVE SYSTEMS OF INDUSTRIAL RELATIONS Section 8(a)(2) of the NLRA was intended to outlaw company unions which were seen as an effective way of preventing collective bargaining. The language of § 8(a)(2) is very broad, and early Supreme Court decisions gave it full scope. Thus, the Court in NLRB v. CabotCarbon Co. 2 held that a scheme of employee committees formed to discuss work related problems as a labor organization and that its formation by the employer constituted a violation. The program was ordered disestablished. The Court's reasoning seemed to rule out any employer's efforts to deal with his employees through groups, plans, teams or committees or anything short of collective bargaining with an independent union freely selected. The Board, for some time thereafter, dutifully followed Cabot-Carbonand literally applied the language of § 8(a)(2). 3 This rigid scheme was considered justified because of the need to protect collective bargaining from employer efforts to undermine it by persuading employees that their needs could be served adequately by other forms of employee organization. When the concepts of worker participation and job enrichment became fashionable, it was generally thought that their implementation in the U.S. would prove difficult because of § 8(a)(2) and its previous broad application. In recent years, however, under the pressure of worldwide interest in the concept of worker participation, the Board and the Courts have developed a series of techniques to reduce the impact of § 8(a)(2). These 2. 360 U.S. 203 (1959). 3. See, e.g., Thompson Ramo Wooldridge, Inc., 132 N.L.R.B. 993 (1961), enforced, 305 F.2d 807 (7th Cir. 1962); Walton Mfg. Co., 126 N.L.R.B. 697 (1960), enforced, 289 F.2d 177 (5th Cir. 1961). KENNETH M. PIPER LECTURE include a conceptually unpersuasive distinction between improper support and legitimate cooperation 4 and, contrary to Cabot-Carbon, a narrowing of the definition of labor organization. Most recently, in NLRB v. Scott & Fetzer Co. ,5 the Sixth Circuit upheld a scheme of employee committees virtually identical with that outlawed in Cabot-Carbon. I do not suggest that the Board or Courts in deciding these cases were consciously reducing their support for collective bargaining. They were rather encouraging experimentation and flexibility on behalf of worker autonomy. Nor am I completely unsympathetic with these decisions; nevertheless, implicit in them is a conclusion that the potential gain to employees from such schemes is worth the risk to collective bargaining, an approach which the draftsmen of the statute explicitly rejected. It must be understood that the line between a company union and an enrichment program may be one of labeling, and that we have moved fairly quickly from a system in which all experiments with enrichment were condemned as company unions to one in which company unions are generally accepted in the name of enrichment. These decisions tacitly reject the conclusion, which I believe was accepted (...truncated)