LAW REFORM, COLLECTIVE BARGAINING, AND THE BALANCE OF POWER: RESULTS OF AN EMPIRICAL STUDY

Despite Congress' having made clear policy statements in the National Labor Relations Act that the law was intended to promote equality of bargaining power between employers and employees, to promote the practice and procedure of collective bargaining as the method of setting workplace terms and conditions of employment, and forbidding construing the law “so as to either interfere with or impede or diminish in any way the right to strike,” by early 1940, the courts had given employers the right to permanently replace strikers and implement their final offer at impasse. Judges have often justified these doctrines as promoting balance in bargaining. Critics contend that the doctrines have the capacity to destroy the right to strike, unbalance bargaining power, and divert parties from the process of bargaining collectively. Some have proposed allowing temporary but not permanent striker replacement. We use a bargaining simulation followed by a survey and debriefing comments to test these opposing claims.