The Post-War Paradigm in American Labor Law

Industrial PluralismArbitration is not a mere afterthought in this scheme, but goes to the heart of this vision of the collective bargaining process.Under the Wagner Act, once a union is formed, both the union and management have a statutory duty to bargain together to produce a written agreement.2 1 Under any such agreement, issues of contract application and enforcement inevitably arise.If there is no mechanism for enforcing the collective agreement, then the duty to bargain is a sham, and the union has in fact achieved no power in the shop at all.Therefore, the question of enforcing collective bargaining agreements is the same question as what power a union actually has under the statutory scheme set up by the Wagner Act.In the industrial pluralist model, disputes over breaches of collective agreements are not submitted to an administrative or judicial tribunal.Rather, they are submitted to the dispute-resolution mechanism that the parties in this mini-democracy have established for themselves-private arbitration.The arbitrator takes on the functions of a judge, outside of the legislative process of contract negotiations and above the day-to-day disputes between the parties.The power of the union, then, is to compel its employer to go to arbitration.26 This, however, is a procedural power only.The actual power is determined in every given dispute by the particular arbitrator.According to the industrial pluralist view, there is a separation of powers in the workplace: the parties are said to govern themselves democratically.A corollary of this description of the industrial world is the prescription that the processes of the state-the courts and administrative tribunals-should keep out.The workplace, portrayed as a self-contained mini-democracy, becomes in the industrial pluralist theory an island of self-rule whose self-regulating mechanisms must not be disrupted by judicial intervention or other scrutiny by outsiders.27 C. This ArticleThis article argues that the industrial pluralist model of collective bargaining represents an ideology shared by legal theorists, judges, industrial sociologists, and labor economists in the post-war era.28 Those who shared work is slack, arbitrators have ordered the companies not to layoff people, but to spread and share the work equally.Id. at 70.He gave other instances in which arbitrators, using the self-government metaphor, prevented subcontracting, id. at 73, approved featherbedding for workers displaced by technological change, id. at 74, and even discharged supervisors pursuant to a worker's complaint of abusive treatment, id.Arbitral decisions such as these are almost unheard of today, but Leiserson's basic vision of the workplace as a mini-democracy with the arbitrator as the judge has survived.25. 29 U.S.C. § § 158(a)(5), (b)(3) (1976).26. Shulman, supra note 19, at 1007.27.Id. at 1024. 28.Ideology is an elusive concept whose meaning has been defined differently by various writers.For the purposes of this article, I define ideology as the set of categories with which one views the Vol.90