Document Type

Article

Publication Date

2009

Abstract

In many respects the US is a deeply conservative country. Unique among the major industrial democracies of the world, it imposes the death penalty, provides no national health insurance, fixes a high legal drinking age, and subscribes to the doctrine of employment at will. Perhaps not surprisingly, its labor movement is also one of the most conservative on earth, eschewing class warfare and aiming largely at the bread-and-butter goal of improved wages, benefits, and working conditions. Yet American employers have generally never been as accepting of unionization as their counterparts in other countries (Bok 1971; Freeman and Medoff 1984). Over the last half century the density of unions in the private sector has fallen from about 35% to 7.5% (Bureau of Labor Statistics 1980, 2008). Employee apathy, vigorous employer opposition, and changing patterns of work have all played a part in that decline but this paper will focus on the role of law. The sweeping victory of President-elect Barack Obama and the enhanced Democratic majorities in both houses of Congress will improve the chances for federal legislation favoring unions and working people. But success is not preordained. In 1976, when Jimmy Carter was elected President, the Democrats wound up with a 61–38 majority in the Senate (there was one independent) and a 149-member margin in the House. That might have seemed filibuster-proof but it wasn't. President Carter proposed a Labor Reform Act in 1977 that was carefully tailored to enable easier organizing of nonunion firms without changing the existing balance of bargaining power between unionized businesses and the unions representing their employees. The bill easily passed the House. Carter promised to persist until any filibuster in the Senate was broken. But after an unprecedented six attempts at cloture failed, the Administration gave up and the measure died (Congressional Quarterly Almanac 1978). Obama will not have as many Democrats in the Senate as Carter had. As Senator, Obama co-sponsored one of the labor movement's fondest wishes, the socalled Employee Free Choice Act, discussed below. But as President, Obama will be confronting a grave economic crisis, with direct costs to the government in the trillion-dollar range. He has also made energy, heath care, and education top priorities. How much credit will he be prepared to expend on enacting labor legislation if hard choices have to be made? In this paper I shall review some of the major proposals already before Congress concerning labor and employment regulation, and some of the ideas that I believe should be pursued to make regulation fairer and more effective. The American workforce is changing so radically, with more and more persons providing services who can hardly be classified as “employees” in the traditional sense, that sooner or later we may need dramatically new forms of regulating workers and those who engage their services (Hyde 2003; Stone 2008). But I shall first concentrate on efforts to improve the more conventional legislation dealing with union–employer–employee relations.


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