Agenda for Reform: The Future of Employment Relationships and the Law.

• Author: Craver, Charles B.

It is impossible for any neutral observer to be sanguine regarding the current state of the American labor movement.(1) The union density rate -- the percentage of nonagricultural labor force participants in labor organizations -- has declined from a high of 35% in 1954(2) to 15.5% today.(3) When the increase in public sector unionization over the past several decades is discounted, the dire state of private sector unions becomes even more apparent. The private sector density rate is currently an anemic 10.9%(4) -- the lowest figure since 1936. If the rate of membership decline over the past twelve years continues, the private sector union density rate may fall to five percent by the end of this decade.(5) Labor organizations would only be relevant -- and, in light of international competition, would diminish in significance -- in such heavy industries as automotive, electronics, and steel.

The decline of labor organizations might be palatable if counterbalanced by increased respect for and protection of individual employee rights. This has not, however, been the case. Even though Congress has enacted more expansive statutes protecting employees against certain forms of invidious discrimination, and even though employees enjoy minimal wage, health and safety, and benefit protection, most American workers are less confident of their future employment security today than they have been since the Great Depression. Under the traditional employment-at-will doctrine that still is accepted in forty-nine states, workers may be terminated at any time for good cause, bad cause, or no cause. Technological advancements may supplant them, or they may lose their positions to workers in emerging nations who earn one-tenth the wages of U.S. personnel. Their employers are under no legal obligation to discuss these possible developments with the directly interested employees before implementing final management decisions and laying off the adversely affected individuals. Nor are firms required to consult their workers regarding other operational modifications that may profoundly alter employee job functions or future employment security. Rank-and-file personnel are given no more respect than the machines they operate.

In his thoughtful book Agenda for Reform, Professor William Gould(6) describes both the demise of the American labor movement and the continuing erosion of worker dignity and job security. He explores the absence of wrongful termination protection for most U.S. employees and the lack of meaningful worker participation programs. He then evaluates the need for National Labor Relations Act amendments that would streamline the certification process and expand the scope of collective bargaining. He also proposes measures that would increase the economic weapons available to representative labor organizations. Gould concludes by comparing the American and Canadian experiences over the past several decades in an effort to understand the unique nature of the American decline in union density.

In Agenda for Reform, Gould recommends many legal changes that would enhance individual employment rights, encourage the growth of unions, and contribute to the efficacy of the collective bargaining process. Even though a number of management representatives consider many of Gould's proposals radical, his suggested modifications are truly modest and, in fact, wholly inadequate to alleviate the crises facing both individual workers and labor organizations. They are more reflective of the current conservative political climate than of the true needs of American workers.

It is time to acknowledge that U.S. workers have minimal employment dignity and almost no job security. Instead of being considered an integral part of the production or service process, they are treated like fungible machines. They are ignored by most management officials when critical operational decisions are formulated, and they enjoy meager statutory protections. The circumstances affecting labor organizations are even worse. Unions have found it extremely difficult to organize new bargaining units, due to the overt hostility of most business firms. The relatively few labor organizations that currently represent employees are fearful of management-encouraged decertification efforts, find it increasingly arduous to negotiate effectively over the most significant issues affecting bargaining unit members, and have few economic weapons they can use to support their bargaining demands. In the coming years, the United States must decide whether it will view free trade unions as an important part of a democratic society or, instead, provide corporate leaders with unrestrained authority over lower-level personnel.

1. FACTORS CONTRIBUTING TO THE RISE AND DECLINE OF UNIONS

   In his first substantive chapter, Chapter Two, Gould briefly describes the expansive growth of unions from 1935 until 1955, a growth fueled by the ability of newly created industrial unions to organize the automobile, electronics, rubber, steel, textiles, and transportation industries. Curiously absent from this part of the book is any significant acknowledgement of the momentous impact of the enactment of the National Labor Relations Act (NLRA)(7) in 1935 and its explicit congressional policy "encouraging the practice and procedure of collective bargaining and ... protecting the exercise by workers of full freedom of association [and] self-organization ...."(8)

   Gould next describes the three major developments that have contributed to the substantial decline of labor organizations over the past several decades. The first factor cited is the development of a global economic system that has forced domestic firms to compete with business enterprises in lower-wage countries (pp. 12-13). The rise of multinational corporations has undermined labor solidarity and forced high-wage American employees to compete against personnel in countries such as Mexico, where wage rates are approximately one-tenth of those in the United States (pp. 12-13). Moreover, the creation of the North American Free Trade Zone will encourage the migration of traditional unionized manufacturing jobs from the United States to Northern Mexico. American production workers whose jobs are not transferred will need to moderate their wage and benefit expectations if they are to avoid ultimate displacement by foreign laborers (p. 13).

   Between 1969 and 1985, 3,500,000 production jobs were transferred from the United States to other countries.(9) Over the next decade, employers will relocate several million additional production jobs to Mexican facilities to take advantage of the lower labor costs, minimal health and environmental law enforcement, and hostile union climate in that country. Millions of other production jobs have been supplanted by technologically advanced machines, as the United States has changed from a production economy to a postindustrial society composed primarily of white-collar and service personnel.(10) These phenomena will threaten the continued viability of major industrial unions like the United Automobile Workers, the United Steelworkers, the United Mine Workers, and the International Union of Electrical Workers. Although the global economy and deindustrialization have also affected nations such as Canada, Germany, Sweden, Denmark, and the United Kingdom, their labor organizations have not suffered the significant membership losses sustained by U.S. unions (pp. 14-15, tbl. 2.1). This observation would suggest that factors unique to the United States are primarily responsible for the decline of American labor organizations.

   Even within the United States, the increase in international competition does not explain the lack of union organizing success in the expanding service sector among employees whose jobs cannot be easily exported to foreign nations. Although employees performing routinized jobs for bureaucratic institutions in the banking, computer, health care, and insurance industries should be ripe for collectivization, union success in these service areas has been minimal. Gould attributes this situation to his second determinative factor -- the antilabor environment generated during the Reagan administration (pp. 13-14). The Reagan Labor Board enlarged management prerogatives by refusing to require collective bargaining with respect to corporate decisions that Board members thought management officials should unilaterally decide (pp. 21-25). Support for Gould's view regarding the negative impact of the anti-union Reagan presidency may be found in the data indicating that during the 1980s the absolute number of union members declined for the first time since the enactment of the NLRA.(11)

   Gould fails to ask whether the election of President Reagan actually generated the anti-union climate of the 1980s or merely served as a reflection of an antilabor environment created by private business firms in the mid to late 1970s that culminated in the election of President Reagan in 1980. American business leaders have historically opposed worker organizing.(12) During the late 1800s and early 1900s, for example, they used antitrust and criminal conspiracy doctrines to prevent unionization.(13) They required employees to sign "yellow-dog" contracts that precluded union membership and hired private detective agencies to report on the concerted activities of their workers. Employers summarily terminated union sympathizers and blacklisted them, preventing subsequent employment with other area firms.

   Business leaders vigorously opposed enactment of the NLRA, and they lobbied diligently for the adoption of the 1947 Labor Management Relations Act(14) and the 1959 Labor Management Reporting and Disclosure Act(15) amendments to the NLRA that were designed to dilute the rights previously extended to employees and labor organizations. In some instances, moreover, legislative modifications were not even necessary because...