J.D., Harvard Law School, Professor of Law at Lewis and Clark Law School. Prior to becoming a law professor the author represented public and private sector unions and employees for eighteen years. Since that time the author has represented public sector management in labor disputes and has served as the labor relations advisor and representative for two Oregon Governors.
The road forward for labor relations policy in the United States lies not in Washington, D.C., but in state capitols.1 As the current debate over the Employee Free Choice Act (EFCA) reveals,2 stifling Page 98 federal labor law orthodoxy grips the private sector union movement. Indeed private sector collective bargaining faces the vanishing point;3 to the ninety-two point four percent of private sector employees who hold their jobs outside the unionized sector, collective bargaining constitutes, at best, an abstraction.4 Ironically, public sector unions, governed largely by state law, flourish.5 Why Page 99 do blue, pink, and white-collar public employees flock to unions while their counterparts in the private sector do not?
Private sector union membership varies widely from state to state and industry to industry. New York (twenty-four point three percent) and California (eighteen point four percent) contrast with much lower rates of unionization in the South, parts of the Midwest, and the Mountain states.6
Not surprisingly the twenty-one "Right to Work"7 states count among the lowest rates of membership.8 Despite this widely varying support for unionization in the states, judicially-created, broad federal labor relations preemption doctrines ensnarl all states in a stifling and exclusive, yet strikingly inconsistent, federal labor law regime.9
Part II reviews the need for reform of private sector labor relations law. Sixty years have passed since the last fundamental revision of private sector labor law occurred when the Republican Congress overrode President Truman's veto and enacted the Taft- Page 100 Hartley Act in 1947.10 Taft-Hartley, vociferously opposed by the unions of that time, rebalanced the national labor policy to make it less hospitable to unions in response to perceived abuses during and after World War II.11
Today, new conditions exist. After more than a half-century, another fundamental rebalancing is needed to provide more robust protection for employees wishing to voice concerns to their employers as a group.12 At the same time labor law must break out of the confining doctrinal boxes that impede private sector unions from developing new ways to represent employees in more democratic structures that attract support from women, minority employees, younger employees, and those in growing sectors of the economy such as information technology and health care jobs in nursing homes, assisted living centers, and home health.
Beyond the fate of private sector unions, the prevailing federal labor law orthodoxy carries broader public policy implications. Federal labor law, and the folklore surrounding union-management relations generally, cabins the potential for unions to help recreate a structural balance in the allocation of the wealth jointly created by managers, investors, and employees in twenty-first-century corporate life.13 Corporations and the wealth they create are not the personal fiefdoms of executives or hedge funds managers and investment bankers. Yet the times demand new thinking about the role of unions and the processes under which they operate. At the same time, collective bargaining offers a private ordering Page 101 alternative to the increasing demands for direct governmental regulation of economic life in the Great Recession now afflicting the U.S. and world economies.14
As Part III shows, the needed new thinking, experimentation, and flexibility will most likely arise from a less centralized labor relations system. Not only does the current federal labor law fail to keep the promises it makes to employees,15 it further blocks efforts to enact reforms in the states. Although New Deal-era reformers were often prone to view the federal government as the protector of unions, as then Professor Scalia once observed, federalism is "a stick that can beat either dog."16 As the current national debate over EFCA reveals, federal legislative initiatives in labor law come hard and require a kind of federal common denominator for new labor relations policies.17 While the fate of that Act remains at this writing undecided, a review of the...