Afterword - Labor Law Reform: Waiting for Congress

Chicago-Kent Law Review Volume 69 Issue 1 Symposium on the Legal Future of Employee Representation Article 13 October 1993 Afterword - Labor Law Reform: Waiting for Congress Martin H. Malin IIT Chicago-Kent College of Law Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Martin H. Malin, Afterword - Labor Law Reform: Waiting for Congress, 69 Chi.-Kent L. Rev. 277 (1993). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol69/iss1/13 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . AFTERWORD LABOR LAW REFORM: WAITING FOR CONGRESS? MARTIN H. MALIN* INTRODUCTION The topic of labor law reform usually focuses attention on Congressional action to amend the National Labor Relations Act or enact other legislation. Most of the articles in this symposium are similarly focused. Presumably, so too is the work of the Dunlop Commission. The last time there was a Democrat in the White House, substantial energy went into the effort to reform the NLRA, but the effort failed. Perhaps this time will be different. There seems to be a different tenor to the debate over labor law reform. Although many acknowledge the continuing need to strengthen the NLRA's protection of collective employee action, there also is a focus on alternatives to traditional collective bargaining. This reflects another way in which this time is different. Organized labor is much weaker than it was when Jimmy Carter was president. As the editors of the recent Industrial Relations Research Association research volume on workplace representation observed, The long term decline in union density to 10 percent of the privatesector work force, the growth and development of new forms of worker representation in both the United States and other countries, and the interest of the Clinton administration in labor law reform, all suggest that the time may be ripe for a fundamental, broad-ranging reconsideration of the role of employee representation in the workplace and the economy.' When an informed and well-respected commentator such as Professor Rogers declares that there is consensus that our traditional system of collective bargaining "no longer works," and "serves neither unions nor workers nor management effectively," 2 and when an indi* Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology, J.D. 1976 George Washington University, B.A. 1973, Michigan State University. 1. BRUCE E. KAUFMAN & MORRIS M. KLEINER, EMPLOYEE REPRESENTATION: ALTERNATIVES AND FUTURE DIRECIONS 11 (1993). 2. Joel Rogers, Reforming U.S. Labor Relations, 69 CHI.-KENT L. REV. 97, 97 (1993). See also Richard B. Freeman & Joel Rogers, Who Speaks for Us? Employee Representation in a Nonunion Labor Market, in EMPLOYEE REPRESENTATION: ALTERNATIVES AND FUTURE DIRECTIONS 13, 16 (Bruce E. Kaufman & Morris M. Kleiner eds., 1993). CHICAGO-KENT LAW REVIEW [Vol. 69:277 vidual such as Professor Gottesman, who has devoted most of his professional career to representing organized labor, laments that legislatively strengthening traditional collective bargaining will add at most a few percentage points to the rate of union density, 3 it is time to focus on alternative strategies for providing collective employee voice in the workplace. The thoughtful contributions to this symposium should prove to be a major contribution to this necessary expansion of our horizons. In closing this symposium, however, I feel compelled to plead that we not lose sight of the need to maintain traditional unionization and collective bargaining as a real option for those employees who may freely choose it. I do not intend to suggest that the contributors to this symposium are hammering nails into the casket of traditional labor unions. On the contrary, all recognize the importance of strengthening the NLRA.4 With the focus on alternatives to traditional union exclusive representation, however, it is important that the need to maintain the availability of the traditional option not get lost in the shuffle. Several contributors to this symposium call for modifying section 8(a)(2) to enable employers to develop employee representation plans as an alternative to traditional labor unions to provide a mechanism for employee collective voice. 5 All recognize the danger that such plans could become sham methods of employer control which stifle, rather than facilitate, employee voice. What will keep such plans honest? Although many employers will recognize that it is in their best interests to provide true mechanisms for employee voice, they are not the ones who we need fear will use the plans to subvert employee voice. It is the unenlightened employers who must be kept honest. The ability of the employees faced with a sham employer-promulgated representation plan to organize a traditional union will be very important in checking abuses of any section 8(a)(2) exception that might be 6 developed. 3. Michael H. Gottesman, In Despair,Starting Over: Imagining a Labor Law for Unorganized Workers, 69 CHI.-KENT L. REv. 59, 61 (1993). 4. Samuel Estreicher, Labor Law Reform in a World of Competitive ProductMarkets, 69 CHI.-KEr L. REv. 3 (1993); Gottesman, supra note 3; Rogers, supra note 2; Clyde W. Summers, Employee Voice and Employer Choice:A Structured Exception to Section 8(a)(2), 69 CHI.-KErr L. REv. 129 (1993). 5. Estreicher, supra note 4; Summers, supra note 4. 6. The advocates of § 8(a)(2) exceptions appear to recognize this. It is the fear of employer abuse that leads Professor Summers to confine his proposed § 8(a)(2) exception quite narrowly. Summers, supra note 4. Professor Estreicher recognizes, "To prevent employer-based schemes from becoming mere tools to manipulate workers, the option to choose an independent union must be a realistic one." Estreicher, supra note 4, at 35. 19931 AFTERWORD Other contributors have called for protections for employees who wish to bargain with their employers in the absence of a traditional exclusive representative. 7 When such bargaining exists, however, employers may feel free to play divide and rule. What will stop an employer from rewarding a minority faction within the workforce to gain their alliance against the interests of the majority? I suggest that one deterrent is the ability of the majority to organize and gain the status of exclusive representative. Thus, regardless of what we do to provide aiternative mechanisms of collective voice in the workplace, we must strengthen the option of traditional exclusive representation by a labor union. Many look to Congress to strengthen the NLRA. Although remedies for discriminatory discharges and prohibitions on striker replacements would und (...truncated)