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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.