One of the potentially significant developments in American labor
law in the last decade is the unheralded reemergence of the individual
contract, of employment as a central legal concept. The law is rediscovering
that whether the employment relation is governed by a
collective agreement or by unilateral employer action, a basic building
block is the individual contract.
One of the principal contributions of this refocusing of labor law is
to give increased emphasis to the rights of individual employees.
When employment is not covered by collective agreements, which is
more than seventy percent of the labor market, the individual contract
can be a significant source of legal protection for the individual
employee against arbitrary employer action. Increased protection will
come by giving increased protection to that contract. When there are
collective agreements, there are also individual contracts of employment,
the terms of which are defined by the collective agreement. It is
this individual contract of employment that is the basic source of legal
protection against arbitrary union action.
The reemergence of the individual contract of employment as a
central legal concept thus links two seemingly unrelated areas of
turmoil and transition in labor law-the duty of fair representation
and the doctrine of employment at will. My thesis here is that both the
present turmoil and the future direction of the law can be better
understood by recognizing the contract of employment as the central
focus. This thesis is presented only in suggestive outline without any
attempt to work out its implications in detail. That must wait upon
another day.