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71 Tex. L. Rev. 921 (1992-1993)
Economic Rationality and Union Avoidance: Misunderstanding the National Labor Relations Act

handle is hein.journals/tlr71 and id is 941 raw text is: Article
Economic Rationality and Union Avoidance:
Misunderstanding the National Labor Relations Act
Cynthia L. Estlund
I.  Introduction ................................. 922
II. Rising Employer Opposition to Unions and the Problem of Union
Avoidance in Capital Allocation Decisions ............. 928
I. Economic Motives vs. Anti-Union Animus in the Analysis of
Union Avoidance ............................. 933
A.   The Basics of Anti-Union Discrimination ........... 933
B. Economic Motives and Union Avoidance in Capital
Allocation Decisions ........................ 936
IV. Economic Rationality and Employer Resistance to Unions: The
Modem Paradox of Unionism ..................... 946
A. Economic Rationality and Employer Resistance to Unions  947
B.  The Alternative: Unions, Productivity, and Labor-
Management Cooperation ..................... 954
1.  Unions and Productivity ................... 955
2.   Unions and Cooperation .................. 960
C. Facilitating a Low-Wage Strategy Through the NLRA: A
Critique of Current Law ...................... 962
V. The Rationality of Resistance to Unions in 1935 and the Historic
Meaning of the Wagner Act ...................... 964
A. What Congress Saw and What Congress Did: The Deliberate
Prohibition of Economically Rational Resistance to Unions 965
B. The Reasons for Curbing Rational Employer Conduct:
Rights, Redistribution, and Recovery ............. 970
* Assistant Professor, University of Texas School of Law. B.A. 1978, Lawrence University; J.D.
1983, Yale Law School. I wish to thank Professors James Atleson, Craig Becker, James Brudney,
Mark Gergen, Jack Getman, Samuel Issacharoff, Douglas Laycock, James Pope, and David Rabban
for their helpful comments on earlier drafts. I would also like to thank Mike Marbut and Amy
Snodgrass for their able research assistance. Finally, I am grateful to the Fund for Labor Relations
Studies for providing financial support.

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