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Texas Law Review

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Sixty years after the National Labor Relations Act (NLRA) was passed, collective action appears moribund. Current analysis burying and praising the NLRA has focused primarily on the changed economic realities of the product and labor markets. Yet there is another story to be told involving a comparable transformation of the legal culture. Relying in part on empirical analysis of court decisions, I argue that changes in federal workplace law over the past thirty years have undermined the concept of group action-in particular collective bargaining-as a preferred means of regulating the employment relationship. These changes are the product of leading institutional actors that share general legal responsibility for regulating the workplace: the federal courts of appeals, the Supreme Court, and the Congress. To be sure, the diminished legal role for group action in labor relations is in part a function of the diminished power of unions in an economy increasingly subject to global competition and rapid technological change. I want to suggest, however, that changes in the legal status of group action may be cause as well as effect. When the actions of the legislative and judicial branches of government indicate that collective bargaining has become an anachronistic means of promoting employee interests, one inevitable consequence is a loss of legitimacy for unions as the enablers of group action. This loss of legitimacy encourages the business community and the general public to erode and belittle the role of unions, thus making it more difficult for unions to adjust to new economic realities. Accordingly, a proper appreciation for how the legal system has devalued group action may assist in understanding the steady decline of collective bargaining in the American workplace. Part I examines how group action has been diminished by Congress and the federal courts over the past thirty years. It briefly summarizes the goals of the NLRA, goals that Congress meant to be achieved through collective action in the workplace. It then describes how Congress since 1963 has enacted a series of workplace regulatory statutes that have effectively subordinated the role of group action by making individual rights preeminent. Finally, Part I demonstrates that in a legal world where group action is the exception, both the Supreme Court and the courts of appeals have thwarted the original legislative commitment to collective bargaining when interpreting the NLRA. Part II raises questions about the subversion of a legislative scheme that has not been revised by Congress for nearly half a century. It discusses different factors that may have led the courts to turn away from vigorous enforcement of the NLRA's core idea. In this context, Part II also probes the extent to which judicial disrespect for collective bargaining may be a natural consequence of the statutory aging process.