The Employee Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken System of Labor-Management Relations Law in the United States

Source: William B. Gould IV, University of San Francisco Law Review, Vol. 43 no. 2, Fall 2008

The role of labor law, as an instrument for the promotion of freedom of association amongst workers to ban together effectively to join unions and promote the collective bargaining process, has declined as well. However, many observers assume an incorrect non sequitur, i.e., that these two developments are connected with one another and that if the law can be reformed, union decline can be halted. In my judgment, this analysis is superficial, as there are numerous factors which are responsible for the union decline phenomenon:
– globalization and foreign competition
– the composition of the work force force, particularly because of the advent of numerous undocumented workers who do not enjoy the protection of the NLRA
– union-nonunion wage differential creates a greater incentive for nonunion employers to resist unionization
– the fact that the Unites States and other industrialized countries are shifting from manufacturing to service industries

In a number of respects, however, the law has played a role in union decline. In the first place, employers, able to use the permanent replacement weapon in response to lawful strikes since 1938, have begun to use this tactic increasingly since the 1980s–perhaps in response to President Reagan’s example when he fired the unlawfully striking air controllers. Employers have been able to disappear and relieve themselves of their union and contractual obligations through creating alter egos and have escaped union relationships through the successorship doctrine devised by the United States Supreme Court. Unions have been weakened by the Court’s holding that union members have the right to resign from membership and obligations at any point, including the time of the use of the strike weapon itself, and thus escape contractual obligations entered into, notwithstanding union constitutional provisions which impose limitations on this right.

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