Join us for the 43rd annual Piper Lecture to hear Cynthia Estlund, Catherine A. Rein Professor of Law at New York University School of Law present "The Case for Sectoral Co-Regulation in a Post-Collective Bargaining World." Philip A. Miscimarra, Morgan, Lewis & Bockius LLP and Mark Gaston Pearce, Georgetown University Law Center will provide commentary on the lecture.
The pathologies of barely-regulated labor markets and bare-knuckled labor conflict in early 20th century America gave rise to two dominant solutions: enterprise-based collective bargaining and across-the-board minimum labor standards and mandatory rights. Collective bargaining has since collapsed in the private sector, and there is no reason to expect it to regain a dominant role in workplace governance (though every reason to bolster its viability and availability). That leaves the vast majority of private sector workers protected only by the floor of basic rights and minimum standards and, above that, by their own bargaining power. That is especially worrisome because, going forward, most workers’ market power—individual and collective—is likely to erode (for reasons that are only partly remediable).
In the face of these trends, I and others have called for new regulatory strategies that give workers more of a voice in public workplace governance—for a middle ground of sorts between collective bargaining and traditional forms of regulation that I have called co-regulation. More recently, others have advocated a turn to sectoral bargaining—that is, collective bargaining at a level between the enterprise and the labor market as a whole. But genuine sectoral bargaining requires greater union density than exists or is likely to exist here, and sectoral bargaining without broadly representative unions risks becoming a sham.
A more promising approach lies at the intersection of both mid-points identified above—that is, in structures of sectoral co-regulation in which workers and their organizations have a meaningful role in devising and enforcing sectoral standards. Sectoral co-regulation cannot replace either enterprise-based bargaining or across-the-board rights and standards. But alongside those approaches, sectoral co-regulatory strategies can bolster wages and working conditions and fill part of the gap left by the decline of enterprise-based bargaining.
Live program, in-person at Chicago-Kent.
Cynthia Estlund is the Catherine A. Rein Professor at the New York University School of Law. Her newest book is Automating the Future: Why and How to Save and Spread Work in a World With Less of It (Oxford U. Press, 2021). She has published widely on the law and regulation of work, including three earlier books: A New Deal for China’s Workers? (Harvard, 2017); Regoverning the Workplace: From Self-Regulation to Co-Regulation (Yale, 2010); and Working Together: How Workplace Bonds Strengthen a Diverse Democracy (Oxford, 2003). She has also produced two co-edited volumes and over seventy articles, book chapters, reviews, and essays on a range of topics in both collective labor law and employment law.
Philip A. Miscimarra is the former Chairman of the National Labor Relations Board (NLRB). Phil leads the firm’s NLRB special appeals practice and is co-leader of Morgan Lewis Workforce Change, which manages all employment, labor, benefits, and related issues arising from mergers, acquisitions, startups, workforce reductions, and other types of business restructuring. He represents clients on a wide range of labor and employment issues, with a focus on labor-management relations, business acquisitions and restructuring, and employment litigation. Phil is also a Senior Fellow at the University of Pennsylvania's Wharton School and the Wharton Center for Human Resources.