THE PRESENT STATUS OF COLLECTIVE CONTRACTS IN THE AMERICAN LEGAL SYSTEM

Can it be that less than a score of years has elapsed since Schlesinger v. Quinto pointed out the difference between employment contracts and collective contracts? And yet in that short period the various objections recurrently raised regarding the enforceability of these contracts, such as lack of consideration and of mutuality as well as the dictate of the "personal service" rule, came to be disregarded. At a time when employers are not only obliged to bargain collectively but also, after reaching an agreement, to reduce it to writing, reminiscences of the "custom" doctrine must, indeed, resemble the frozen sounds in Munchausen's posthorn. From a review of the vast number of reported cases of more recent origin and particularly those of the decade just past, one can easily glean three characteristic features of collective contracts.

First, they neither create the employment relationship nor do they deal exclusively with it. Second, their terms present a set of rules with respect to employment relationships, a phenomenon similar to that demonstrated in insurance law by the standard forms of policies enacted as a result of legislative delegation. Here, however, the analogy ends, for a third characteristic of collective agreements is that they themselves create rights and impose duties. For and upon whom?

When one finds the answer to this question, one has perhaps come an important step nearer to the solution of the problems concerning the impact of collective contracts on the employment relationship.