On the Interface between Labor and Employment Law

Abstract

It is useful to think of labor law and employment law as alternative and complementary ways of governing the workplace, one aiming to institution alize a mechanism for governance through collective bargaining, the other governing directly through legal regulation. Labor law and legal regulation coexist in both the non-union and union workplace—even unorganized workers have the right to engage in concerted activities for mutual aid or protection, and workers covered by a collective bargaining agreement enjoy the protection of certain applicable laws—but the relationship between the two is often ambiguous and full of tension. Somewhat like the interaction of tectonic plates moving underneath the earth's surface, the two govern ance modes come into contact with one another across a series of doctrinal fault lines. Consequently, when they do come into contact with one an other, their interaction gives rise to the legal equivalent of earthquakes and volcanic eruptions. In the unionized workplace the issue is not, for the most part, a matter of substantive conflict. While questions may arise regarding the applicabil ity of particular laws to the collective bargaining context1 or regarding whether substantive rights under a particular law are subject to waiver or have in fact been waived through collective bargaining,2 in general, states as well as the federal government may regulate working conditions and apply those regulations to the unionized workplace.3 Thus, the tension be tween legal regulation and collective bargaining has primarily gathered