By Gershenfeld, Walter J. | Dispute Resolution Journal, November-January 2007 | Go to article overview
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Gershenfeld, Walter J., Dispute Resolution Journal

How labor law should be changed to protect worker representation rights, allow first agreements to be negotiated, address the more professional work force, and improve labor-management cooperation.

This article proposes a four-fold approach to labor law reform in the United States. A strong case can be made for a new law to reflect the imbalance between management and unions and other changes that have occurred in the workplace.

Union membership has fallen from a post- World War II high covering more than onethird of the labor force to a present low of about 13%. Unions in manufacturing amount to less than 10% of total employment. Management is increasingly in charge in many relationships, and the strike is not the threat that it was in the past.

Thomas Kochan identified a number of changes in the American workplace,1 particularly the move from an industrial economy to a service- based economy and the rise of knowledgebased work. He noted that workers-from professional to front-line personnel-increasingly perform quasi-supervisory roles, which has raised questions about their status as bargaining-unit members. Kochan discussed several approaches to better effectuate worker representation. Among these are card counts instead of representation elections, as recommended in the Employee Free Choice Act, and European-style work councils.2 Kochan observed that we have had short-lived windows of opportunity for change in the past, but we have not taken advantage of them.

My proposal for possible changes in American private-sector labor relations covers the following four areas: representation rights, first agreements, new work arrangements, and labor-management cooperation.

The emphasis is on achieving change within the political limits of possibility. Kochan's point about a window of opportunity is well taken. The Democratic Party may have such a window after the presidential and congressional elections of November 2008.

Representation Rights

Unions believe that counting cards signed by potential bargaining-unit members could overcome their inability to provide the representation they believe many employees seek. However, even with card counts, employers could still delay elections by challenging the appropriateness of job classifications included by unions in the bargaining unit.

Also, questions could be raised about card counts since the number of negative votes often exceeds the number of cards signed. This might signal that some employees sign cards under peer pressure. In informal conversations, federal and state labor board personnel have said that competing unions sometimes turn in cards signed by the same individuals.

I believe that management is going to spend a considerable amount of money to convince the public and Congress that the card count is not an appropriate change in the existing election system.

Another approach has been suggested by Professor Charles Morris. In his book, The Blue Eagle at Work, Morris advocated that unions have the right to represent workers who choose to belong to the union,3 which could lead to multiple unions representing the same group of employees, a type of representation largely found in Europe.

Morris argued that a multiple-union representation policy in the same bargaining unit can be found in the National Labor Relations Act. He may be right. However, it does not take much imagination to realize that management would vociferously oppose multiple-union representation. This form of representation was tried when President Kennedy issued Executive Order 10988, providing representation rights for federal employees. I believe the consensus then was that both unions and management found the system somewhat unworkable and the approach was soon dropped.

My sense is that management's prime weapon is money it can spend to delay elections until the union goes away. Recent data obtained from both the National Labor Relations Board (NLRB) and the Federal Mediation and Conciliation Service (FMCS) show that 35% of election petitions filed do not get to the election stage.

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