Document Type

Article

Publication Title

North Carolina Law Review

Publication Date

1995

Abstract

When it enacted the National Labor Relations Act in 1935, Congress gave statutory recognition to collectively bargained terms and conditions of employment. In recent decades, the number of cases in which the Supreme Court has interpreted the NLRA has declined, leaving the Act's interpretation and enforcement primarily to the National Labor Relations Board and the federal courts of appeals. In this Article, Professor Brudney presents the results of his study of 1,224 NLRB adjudications and their fate upon federal court review, from 1986 to 1993. Professor Brudney analyzes the reversal and affirmance data, and identifies areas of general Board-court agreement and disagreement regarding how the Act should be construed. In particular, Professor Brudney identifies a cluster of NLRA issues involving the survival of the collective bargaining relationship, over which the Board and courts markedly split. A closer look at recent cases presenting these issues, Professor Brudney argues, reveals recurrent Board-court tensions over the relative importance of stable collective bargaining relationships versus individual employee free choice Professor Brudney contends that by preferring employee free choice to bargaining stability, courts are reflecting the emphasis on individual rights and freedom that pervades contemporary employment law, as well as contemporary law and society in general. He further argues that the federal courts' apparent effort to "update" the sixty-year-old Act to conform to the larger legal landscape is misguided and may bring considerable costs.

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