Oswalt, Michael M.
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The idea that the right mix of conditions will spark workers to engage in mass collective action is a theme sometimes invoked by labor movement writers, activists, and reformers. It is also an assumption found — and intentionally embedded — in labor law’s basic statutory system for forming a union. To establish a certified bargaining representative under the National Labor Relations Act (NLRA), a group of workers must first get together and petition the government for the right to vote for the union in a secret ballot election. While the fact that the law predicates elections on stirrings of collective agitation is from a historical perspective not all that surprising, this article makes the claim that the reasonableness of that expectation varies with history, and that in the current environment it is no longer reasonable to expect workers to invoke the Act’s election procedures on any meaningful scale. Worker culture has changed, but labor law has not, and the costs posed by the law’s background presumption that workers will naturally turn to collective bargaining as a way to improve wages and working conditions have swollen dramatically. The article responds to that misfit by envisioning a labor law that does not wait for workers to call the collective bargaining question, specifically proposing that the NLRA be amended so that employees are presented with the preemptive choice to unionize or not through automatically or annually scheduled elections — just as our political democracy allows citizens to vote for or against representatives on a regular basis.