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69 Chi.-Kent L. Rev. 149 (1993-1994)
Employee Caucus: A Key Institution in the Emerging System of Employment Law

handle is hein.journals/chknt69 and id is 167 raw text is: EMPLOYEE CAUCUS: A KEY INSTITUTION IN THE EMERGING SYSTEM OF EMPLOYMENT LAW ALAN HYDE* If union density does shrink to five percent of the American workforce, how will employees express and act on their grievances with their emp!oyers? The not-very-radical initial thesis of this Article is that, in thinking about this admittedly speculative question, one should look to how American employees in nonunion settings actually pursue their interests. The conclusions that will be developed are that (1) the voluntary, informal caucus of employees will emerge as a cru- cial institution of employee representation, particularly in the vast ma- jority of workplaces that have no unions; (2) such caucuses will often emerge along ethnic, racial, gender, or sexual identity lines; (3) such caucuses, though surely not envisaged as part of the Wagner Act sys- tem,' are already significantly protected by federal labor law; and (4) if one concentrates on the emerging caucus, one can see certain as- pects of labor law that frustrate or impede their development that will come under scrutiny over the next decade and might profitably be altered. Employee representation through caucuses is most developed among higher-educated employees in high technology workplaces who communicate through computer networks. As such, it is of inter- est even if it never spreads much beyond those workplaces. However, I believe, and will argue-most speculatively-that the high technol- ogy workplace will play roughly the role in the American imagination that the automobile factory did in the first half of the century, and that the institutions of employee voice that develop in that industry will be * Professor of Law and Sidney Reitman Scholar, Rutgers, the State University of New Jersey, School of Law-Newark. Visiting Professor, Yale Law School. This Article benefited from conversation with Karl Klare, James Pope, and Joel Rogers and the research assistance of Stephen C. Payne at Yale. 1. The Wagner or National Labor Relations Act is codified at 29 U.S.C. §§ 151-169 (1982). The Wagner Act system includes the practices that were encouraged by and reinforced that legislation, of which the archetype was always collective bargaining in the automobile industry: exclusive representation by a majority, industrial union; formal, written collective agreements; industrial action limited to interest disputes at the termination of the agreement; grievance processing, conceived as distinct from interest disputes, through formal channels ending in arbi- tration. The best analysis of the relationship among American law, the economy, and institu- tions of industrial relations is CHARLES C. HECKSCHER, THE NEW UNIONISM: EMPLOYEE INVOLVEMENT IN THE CHANGING CORPORATION 15-33 (1988).

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