Statutory Protection

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The Failed Promise of Statutory Protection

The subject of the legal regulation of labor is one of great complexity. Up to the present time a priori objections to such regulations have delayed their introduction, and only gradually, as experience has demonstrated their usefulness, have they been extended to situations which seem to require them. In … the United States the notion that the legislative power should not be used … to regulate conditions of employment has been abandoned by most thoughtful persons, but the prejudice against interference … is as strong as ever.

Henry R. Seager, Economics, 1904, p. 431

Following a period of legislative inaction, selective statutory restrictions on the right to dismiss came into existence largely as a byproduct of labor legislation of the late 1920s and early 1930s. The introduction of limitations to the at-will rule within the NLRA framework, in particular, marked the long overdue recognition that, as long as employers had the right to dismiss employees, at-will public policy goals, such as industrial peace and the extension of orderly collective bargaining, were unattainable. Following a roughly historical chronology, this chapter explores how, from the 1920s onwards, restrictions on dismissals were constructed around notions of “orderly” collective bargaining. Thematically, the focus of the chapter is on the creation of new institutional structures and their impact on the status of workers in terms of job security. Underlying this analysis is the tentative hypothesis that the NLRA, and the practices which evolved from it, provided unions and their members with a sense of control over dismissal rights which was largely illusionary. This mistaken sense of control, in turn, encouraged unions to put efforts into job security enhancing measures at the plant and company level which ultimately did not constrain managerial prerogatives effectively. This lack of real control became apparent in the mid 1960s, when the Supreme Court handed down several decisions which reaffirmed the right of management to close branches and discharge employees without union interference. Apart from excluding non-unionized workers, the NLRA system, perhaps against the intentions of its original sponsors, ultimately came to severely circumscribe the right of unions to bargain over job security at the very time when such protection was needed.

The Promised Lands of Protected Bargaining

At the turn of the century, many US industrial relations scholars questioned the assumption that injustices in the labor market could be remedied through legislative acts and/or, more generally, via a strengthening of individual employment rights. Opposition to legislative approaches was grounded primarily in the belief that solutions to the “labor problems of industrial societies” could be created more easily by strengthening the standing of organized labor as collective bargaining agent rather than by creating a host of specific employment regulations.[1] Accordingly, in 1911, the Harvard economist Taussig suggested that the most urgent task in reforming US employment relations was not detailed new legislation per se, but rather the protection of bargaining representatives:[2] The workmen clearly gain by having their case in charge of chosen representatives,

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