Thursday, August 9, 2012

Secunda on the Future of the Wagner Model of Labor Law

SECUNDAOur own Paul Secunda has just posted on SSRN his article, "The Wagner Model of Labor Law is Dead, Long Live Labor Law!"  The abstract:

The Wagner Model of labor law in the United States is dead for all intents and purposes. To invoke the metaphor of Tommy Douglas’ Mouseland, the worker mice in America lose ground in labor relations as they continue to elect corporate cats from both major political parties to represent their interests. We should not be surprised that these cats are interpreting labor laws in a manner that favor cats and not mice.

Putting the Mouseland metaphor to one side, the death of the Wagner Model has long been heralded in this age of the far-flung global economy and increased out-sourcing of American jobs by the increasing lack of meaningful voice for American employees in both the private and public sector workplaces. This difficulty of workers having themselves heard through the traditional means of collective action stems from their inability under the Wagner Model to engage in effective organizing, collective bargaining, or concerted activities for mutual aid and protection. This state of affairs, in turns, stems from the anachronistic and ossified nature of the National Labor Relations Act, due to the political stalemate that has left the law basically unchanged in its current form for nearly fifty-five years and unresponsive to dramatic changes in the labor, capital, and products markets.

Rather than embracing either the Employee Free Choice Act or the new governance approach to labor law, and after dismissing the likelihood of the creation of an American labor political party in the short-term, this paper advances three proposals for increasing collective action and worker voice in the American workplace: (1) use of pre-recognition framework agreements between employers and unions; (2) adoption of the Simple Union open-source web platform to encourage more small-scale organizing and bargaining; and (3) consideration of Ghent System approaches to labor relations with its focus on mutual aid and voluntarism. Alone or together, these three alternatives to the Wagner Model would go a long way to start the process of providing workers in the United States again with meaningful voice within the workplace.

In all, this paper has taken the position that the Wagner Model of labor relations law is irretrievably broken and should be abandoned. Yet, it is not time to give up on the promise of collective action as a way to promote worker voice and participation in the workplace. Rather, it is time to consider alternative and heterodox approaches that provide meaningful opportunities for other forms of collective action and worker voice in the American workplace. Such voice is needed now more than ever to push back against the rising tide of income inequality and excessive corporate influence over government in the United States.

A very timely piece that's well worth the read.


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There are indeed very serious problems with the NLRA. If you have an employer who is not anti-union, then sure a pre-recognition agreement may work. But, how many employers are going to agree to this? The internet may be an effective organizing tool, but what do you do when the employer says NO? The Ghent system seems totally foreign to American Law and does not seem to address collective bargaining. As I understand it, Unions would become administrators of unemployment and other benefits. In my view, they would not be a union. They would be a benefits administrator.
Isn't their only one solution? The law must be strengthen. The economic incentive to violate the law has to be eliminated. The NLRB needs to have some type of penal remedies-at least in some cases. NLRB remedies have to be strengthened. Until that is done, sadly, nothing is going to change.
Obama had his chance with both houses of Congress. But, he spent his political capital on health care. Unfortunately, he does not appear to have enough support to muster any real and lasting change-assuming of course, that he is re-elected.

Posted by: Mitchell Rubinstein | Aug 10, 2012 2:07:14 PM

Re the Canadian comparison referenced in the article, the province of Ontario abandoned card check certification in 1995, instead requiring a secret ballot vote in every application for certification. The difference between votes here and votes there, however, is that in Ontario you get a vote five days after you apply for certification and there's almost nothing the employer can do to stop that vote from taking place.

Posted by: Cornellian | Aug 10, 2012 10:29:08 PM

Good, provocative article Paul. Thanks for sharing it - I have already shared it with my labor law class at Duke, as one of the elements of their final will be to propose ways labor laws can be modernized to better reflect the modern workplace.

Posted by: Dan Bowling | Aug 23, 2012 6:08:24 AM

Thanks, Dan, for the kind words about the article. I do think that one thing that all labor law professors should be doing with their students in these times is having them consider alternatives for unions to undertake to increase worker voice outside the traditional, formal methods.

Posted by: Paul M. Secunda | Aug 24, 2012 4:16:51 PM

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