Using Pyett to Counter The Fall of Contract-Based Unionism in a Global Economy
Berkeley Journal of Employment and Labor Law
Structural changes in the economy that contributed to high unemployment have combined with global wage competition to destroy the contract-making and contract-enforcement powers of unions. Supporters of labor uniformly insist on defining the role of unions as contractual, and condemn the Supreme Court's Pyett decision that permits unions to take control of their members' legal claims. Yet unions' contractual powers have dwindled under the National Labor Relations Act, thereby leaving workers vulnerable to the bargaining demands of their employers. This article shows how Pyett can renew the importance of unions. The Article argues that read appropriately, Pyett is positively transformative in the same way as the Steelworkers Trilogy. Although the Pyett decision did not offer a compelling justification for its conclusion that unions are authorized to bargain about antidiscrimination rights, unions' effective advocacy for their members' antidiscrimination claims may be a practical necessity today. The Article focuses on Pyett's potential to transform the workplace by eliminating the line between contract and legal disputes. Using the Trilogy as a backdrop, and antidiscrimination rights as an example, the article addresses the theoretical and practical concerns cited as obstacles to Pyett's viability. It provides original answers to the questions Pyett left open and provides a roadmap on how the decision may be implemented contractually to advance employers' and workers' interests.
Stephen A. Plass, Using Pyett to Counter the Fall of Contract-Based Unionism in a Global Economy, 34 BERKELEY J. EMP. & LAB. L. 219 (2013).