McEntee, Gerald W.

English

Chicago-Kent College of Law

Chicago-Kent Law Review Volume 61 Issue 4 Article 3 October 1985 Labor Law at the Crossroads Gerald W. McEntee Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview  Part of the Law Commons Recommended Citation Gerald W. McEntee, Labor Law at the Crossroads, 61 Chi.-Kent L. Rev. 663 (1985). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol61/iss4/3 This The Piper Lecture 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 jwenger@kentlaw.iit.edu, ebarney@kentlaw.iit.edu. LABOR LAW AT THE CROSSROADSGERALD W. MCENTEE*I've been asked to address the question as to whether the nation'slabor laws can adapt to the changing needs and characteristics of theworkplace as we approach the year 2000.I will respond with lawyerly prudence:Yes, no, and maybe.Before beginning I want to set the scene, to establish a context, be-cause whatever happens will not have sprung from the void. It will bethe consequence of forces that were at work when our ancestors discov-ered fire.One of those forces is the unremitting social tension between thosewho have power and those who believe they are entitled to a greatershare.This struggle for power has taken more forms than the clouds, butthat which concerns us today is the tension between organized labor andmanagement.In the best Thomistic tradition, let me define what I mean by organ-ized labor.A labor union is simply a group of men and women organized toimprove their wages, benefits, and working conditions.Further, labor unions can exist only under some form of representa-tive government; unions are weak or nonexistent under totalitarian re-gimes, either of the left or the right, and are among the first institutionsthey attack.This is because labor unions share another common characteristic:they have traditionally sought to achieve broad social goals.The second notion I want to introduce is on the role of change inhuman affairs-technological, political, and social.Change is rarely an orderly process, and the faith that its course isalways onward and upward, or even that its consequences are foresee-able, is open to serious challenge.Let me give you one small example.International President, American Federation of State, County and Municipal Employees.This paper was originally presented as part of the Piper Lecture Series.CHICAGO KENT LAW REVIEWWithin a handful of centuries our driving industrial technology hasprogressed from the water wheel to electronics.Telecommunications is only one facet--one small facet-of elec-tronics but it has already wrought fundamental changes in the operationof capitalism.By increasing the mobility of capital, by accelerating the movementof labor, money, and ideas across national boundaries, by facilitating therise of the multinational corporation, it has already profoundly affectedthe entire notion of nationalism, not to mention attitudes towardworkers.To whom does a multinational corporation owe its allegiances?How do its largely unmonitored operations influence our policies on for-eign relations and trade, our laws on banking, labor, and much else?The increasing mobility of capital has played a major role in the riseof Third World industrialism, and we are all seeing the consequences forour own economy.In 1950, some 34 percent of the American workforce held industrialjobs. Current projections are that by the year 2000 that will have shrunkto 10 percent.Our economic base is becoming weighted towards services, whichnow occupy 73 percent of the workforce. Many of the service occupa-tions share two important characteristics: they require less educationand pay accordingly.A McDonald's cashier doesn't even know how to add these days.All he or she does is hit buttons labelled "Big Mac" or "Small Fries" anda computer does the rest. This kind of thing has led some to suggest theapproaching end of the American middle class.And even the service sector and its clerical occupations are not im-mune to the international impacts of technology.A growing number of firms which require extensive data processing,such as insurance companies and airlines, are also sending work abroadto Singapore or Hong Kong or other cheap labor markets.Offshore processors don't have to know English. All they do ispunch in the characters, and the bulk results are then transmitted back tothe home office via satellite.Technologically based changes such as these have led Nobel econo-mist Wassily Leontieff and others to suggest the decline of the impor-tance of human labor.From time immemorial, he says, human labor "played the role ofthe principal factor of production." But now he thinks that "there areLABOR LAW AT THE CROSSROADSreasons to believe that human labor will not retain this status in thefuture."He and others foresee a day when the activities of work will be sohighly automated that the only job left for humans will be to clean upafter the robots.In fact, General Motors is building a new plant in Saginaw, Michi-gan to turn out axles. In that plant robots will do everything-and thatincludes sweeping the floors.Despite this, I argue with Leontieff's gloomy assessment, becausesimilar magnitudes of change are simultaneously occurring in the socialarena. To mention a few, the nature of the family, the increase in one-parent households, the increase of women in the workforce, increased lifeexpectancy, the years that people expect to work.The roles of the sexes themselves are changed. While men mightvicariously enjoy watching Clint Eastwood shoot his way into the sunset,we are offered Alan Alda as the sensitive alternative.Your generation has different expectations than mine, which beingless distantly removed from the depression of the 1930s is more con-cerned with work as a means of income and security than as a source ofpsychic satisfaction.On top of all this, today's Americans-today's workers-are moreprone to question basic institutions: church, government, labor union,education, business.All these things lead to different expectations of personal security,and one way or another these eventually have to be transformed into thelaws and regulations we agree to abide by.This in turn is a process every bit as disorderly as conflict andchange, and nowhere is that clearer these days than in Washington, D.C.The Reagan Administration brought with it a perception of the roleof government that was current a half century ago.It seeks to minimize the role that government plays in our lives,limit it to national security, to certain police powers, and to the encour-agement of something called the free market with its "invisible hand."This perception of the role of government, as the sword arm thatprotects entrepreneurs and clears impediments in their path, is a verydirect reflection of the social dichotomy I spoke of earlier.President Reagan's attitudes toward organized labor can be charac-terized by one of his first actions after assuming office. He broke one ofthe few unions that supported him, PATCO, the air traffic controllers.CHICAGO KENT LAW REVIEWIn effect, he told employers throughout the country that the rules estab-lished in the 1930s to govern labor-management relations had changed.God knows we have plenty of evidence of that.Agencies which have an important role in maintaining workerrights-the Environmental Protection Agency, the Occupational Healthand Safety Administration, and the Equal Employment OpportunityCommission-have been all but neutered in the past four years.There is bountiful additional evidence in the actions of the NationalLabor Relations Board. Established by the National Relations Act in1935, the NLRB is charged with overseeing and protecting legal rights toorganize and to bargain collectively.Since 1981, however, the NLRB decisions have been so consistentlypro-employer that a number of labor leaders including Lane Kirkland,president of the AFL-CIO, have wondered aloud if it is time for labor toignore the National Labor Relations Act in order to protect its survival.The million-member United Food and Commercial Workers Unionis already ignoring the NLRB representational process in organizing newlocals.This is not to say that labor enjoyed a life of bread and roses beforethe Reagan Administration.To the contrary. For almost 40 years now, since passage of the re-strictive Taft-Hartley Act in 1947, labor has found it consistently difficultto win major federal legislation favorable to workers and their unions.In 1978, during the Carter Administration, labor made an all-outeffort to revise the basic 1935 law, the National Labor Relations Act.Faced with increasing employer resistance to unionization, laborwanted to speed up NLRB processes for resolving disputes, and we alsowanted tougher penalties for violating workers' rights, particularly in or-ganizing and in collective bargaining.Labor put everything we had into that effort-money, marbles, andchalk-but Senate conservatives led by Hatch and Helms filibustered thebill to death.We could not win cloture, we fell six votes shy, even in a Senate witha 61-38 Democratic margin.During the recent presidential campaign, just about every candidateexcept Walter Mondale, Republican and Democrat alike, sought politicalprofit by kicking labor.We were described as a dangerous special interest, and listening tosome of those campaign speeches you would have thought that the AFL-CIO-intent on malign purposes, faster than a speeding locomotive, andLABOR LAW AT THE CROSSROADSable to leap tall buildings in a single bound-had to be stopped at anycost.And every one of those candidates knew that labor's influence hasbeen waning for years. To take just one measure, 30 years ago about 35percent of the American workforce belonged to unions; by last year thishad shrunk to less than 19 percent.That vulnerability under the law is perhaps nowhere clearer than inAFSCME's bailiwick, the public sector.In most matters, federal labor-related laws specifically exclude the16 million or so people who work for federal, state, and localgovernment.As workers, they are truly second-class citizens, not covered by theNational Labor Relations Act, or health or safety, or pension protectionor just about anything else.Instead, AFSCME has had to deal with 50 different sets of laws, andhas had to fight state by state and sometimes city by city to win rightsthat most private-sector workers take for granted.The February Supreme Court decision on San Antonio transit work-ers may help change this.In its 1976 decision in Usery v. National League of Cities the courtgranted states almost total immunity from federal labor laws. The recentdecision overturned Usery in regard to wages and hours, but the implica-tions of San Antonio will probably require years to sort out.Legislatively, then, a very checkered pattern for labor, and far differ-ent from that of almost every other industrialized western nation wherelabor unions are uniformally much stronger.And I include our next door neighbor, Canada. It has an economyvery like ours and even many of the same unions, and labor's power therehas not impeded the country's growth.Fifteen years ago the American and Canadian labor movementswere relatively equal in size. But while most unions in the United Stateshave decreased in size, those in Canada have continued to grow.Why? Because Canadian laws are not lopsidedly stacked againstlabor.One thing for certain, in recent decades organized labor had becomeperhaps too complacent, too satisfied with its past accomplishments,such accomplishments as:The NLRB itself ... the eight-hour day ... disability compensation... unemployment insurance.., the outlawing of child labor.And beyond immediate workplace concerns, support of public edu-CHICAGO KENT LAW REVIEWcation... of civil rights for women and minorities.., of Social Securityfor the aged and Medicare for the sick...Now the point of all the foregoing is that what happens to laborlaws in the next 15 years will be affected by a bewildering complex of pastand future events, and thus prognostication becomes a very riskybusiness.I was reminded of this again and again as a member of a committeeof the AFL-CIO's Executive Council examining the evolution of workand how organized labor should deal with it.We considered the changing nature of the workforce, the expecta-tions of workers, and the failure of the law to protect workers from em-ployers intent on avoiding unionization at all costs.We examined the changing needs of today's workers, such needs aschild care, part-time jobs, parental leave, and flex-time.We looked at industrial dislocation and the need for job security andretraining.We considered workplace conditions such as health and safety andof ways to give workers a greater voice in workplace management.We examined the declining effect of labor's traditional weapons suchas the strike and their replacement by such devices as corporatecampaigns.And from all this came up with a set of recommendations for theAFL-CIO and its 96 affiliated unions.o To experiment with new ways of representing workers and ad-dressing their concerns, such as by seeking additional laws to pro-tect their health and safety and to banish sex-based paydiscrimination.o To establish new categories of memberships for workers not em-ployed in bargaining units.o To concentrate and coordinate organizing, relying more heavily onelectronic media.o To renew efforts to stimulate membership participation in unionaffairs and to train officers and rank-and-filers.There was more, much more, but the point is that organized laborhas embarked on a process of bottom-up renewal, and the priority goal isto secure for workers a stronger voice in their fate, a fairer share ofpower.To the specific question, "Can labor laws adapt to the changingneeds of the workplace?" Certainly they can.Despite the rise of those strange phenomena called neo-conservatismand neo-liberalism, despite the Democratic Party's current anguish, de-spite the results of the recent presidential campaign, and despite the ele-LABOR LAW AT THE CROSSROADSgies for organized labor that we read in the newspapers every day, Ibelieve that those who write our obituary are premature.In the late 1920s they were saying that organized labor had had it,but we're immeasurably stronger now than then.And you may recall that back in the early Sixties they were sayingthat God is dead, but you certainly wouldn't know it twenty years later.I think that what has happened to labor in very recent years hasbeen akin to the experience of that Missouri mule. The Reagan Adminis-tration has been the 2 by 4 that has gotten labor's undivided attention.Because of that ... and because of that age-old imperative for menand women to seek greater control over their earthly lot... and becausein America we use the law to chart our way through the tides of change... and because of AFSCME's own experience as a democratic and ac-tivist and participatory union, I believe that in the year 2000 the lawsgoverning labor-management relations will be, if anything, more progres-sive than they are today.If they are not, if we continue to witness a steady erosion of workers'rights, if we continue to see a concentration of corporate power and thehardening of ideological attitudes, it will have been because of changes inthis society that few of us wish to contemplate.Thank you.

Labor Law at the Crossroads

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Labor Law at the Crossroads

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