Divide and Conquer: The Legal Foundations of Postwar U.S. Labor Policy+

Abstract

This paper provides an outline for a general theory of postwar U.S. labor law and regulation. It focuses on the structure and administration of the Labor Management Relations Act (LMRA), the centerpiece of U.S. labor policy over the past two generations. The central thesis of the analysis is that American labor law tends systematically to constrain and fragment worker organization, and is best understood as comprising a regulatory regime that both codifies and furthers the weakness of American labor. The organizing principle of this regulatory regime is the general denial of substantive generic entitlements for workers, and the general limitation of enforceable substantive worker claims to those claims arising from the guarantees of specific collective bargaining agreements negotiated within narrow contexts of union-employer dealings. As a consequence of this distinctive structure of interest articulation and satisfaction, unions rationally adopt highly particularistic bargaining strategies in their dealings with employers. As a consequence of such adoption, unions are divided within themselves, from one another, and from unorganized workers, with the result that workers overall are cumulatively weakened as a class.