European Legal Studies Center
In May of 1993, President Clinton's Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission's work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation's foremost academic and political proponents of far-reaching labor law reform. The Commission's Chief Counsel is Harvard Law School's Paul Weiler, who, over the last decade, has built the most formidable edifice of comprehensive reform proposals within the legal academic community.
The appointment of the Dunlop Commission registers several seismic changes in the topography of labor relations in recent decades. First, the percentage of private-sector employees in unionized workplaces has declined from nearly 37 percent in 1953 to less than 12 percent today. The resulting "representation gap" in workplace governance is a salient policy concern for philosophic proponents of industrial democracy and for economic supporters of those welfare-enhancing workplace arrangements that require collective action by employees.
Concurrent with the fall of organized labor, the annual growth in labor productivity slowed from a median of three percent in the post-World War II boom years to little more than one percent since the late 1960s. This climacteric coincided with an intensification of global economic competition and volatility in product and capital markets. These years also saw the emergence, led by Japan, of "lean" production systems that seem to break with the hierarchical mass-production model at the core of United States industry. Many variants of the emergent organizations are based on principles of flexible collaboration and consultation between employees and managers within the firm and among fluid networks of firms.
Their adaptability and delegation of discretion to frontline work teams give such "high-performance" firms and networks the potential for enhanced productivity, innovation, and employee learning. The United States' regime of adversarial, bureaucratic labor relations seems to fly in the face of the high-performance principles of cooperation and trust. That regime not only imperils labor productivity and participation. Its discouragement of high-skill, high-discretion work processes, together with the fall of organized labor, has helped produce the most unequal distribution of incomes and job opportunities of any advanced industrial country.
Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production,
Colum. L. Rev
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