FOCUS □ LABOURLAWREFORMANDTHE ORGANISING AGENDA A direct path to recognition IUS aggressive the workers world's avoidance industry union most face theworld's most aggressive union avoidance industry MARY BETH MAXWELL is Executive Director of American Rights atWork in Washington Between States and median roughly 1947 family and doubled. 1973 income In both the in decades productivity the United folBetween and medianfamily incomein the United States roughly doubled.In thedecadesfollowing ,workers' wages have failedto keep up with the continuousincrease in productivity. From2000to2007,incomeforthemedianworking -agehousehold actuallydropped by twothousand dollarsafter inflation. Thetopone percentofwage earners now hold23 percent ofall income - thehighest inequality in incomesince 1928.Asthetablefrom thelatest State ofWorking America report producedbytheEconomic Policy Institute makesclear- workers arenotsharing in theproductivity theyproduce. Thepathfrom egalitarian and steady growth to a low-wage, high-debt economy is a layered and complexstory.Neitherpattern was accidental: policiesdesigned tofoster equality werereplaced by policiesdesignedto foster inequality. Both worked very welltoward their objectives. One key piece in thisstoryis the decimation of trade unions andother 'equalising institutions' as termed by MIT economist FrankLevy(along withthe quality ofeducation, thewelfare state, international traderegulations, and theotherpolitical structures ). And as Harvard economist Richard Freeman has arguedlabouris necessary to serve as a stabilising macroforce. The current financial 'crisis' can be readas simply strong evidenceof howwelltheinequality policy agendahasworked andwillcontinue toworkwithout decisive policy actiontorestore balancetoAmerican society. In I960,private sectorunionmembership was 30 percent; by 2007,ithad droppedto 7.5 percent .As unionsdeclined,bothunionand nonunionworkers losttheeconomicbenefits ofcollectivebargaining . According to theresearchof Professor HenryFärberat Princeton, morethan halfofthedeclineintheaveragewage ofworkerswithno morethana highschooleducation is attributed tothedeclineinuniondensity. The decline in collectivebargaining is also linkedtotheerosionofemployer-provided benefits .Accordingto data collectedby the US Census Department,the percentage of all American workers with employer-provided health benefits droppedfrom 69 percent in 1979 to 55 percent in 2006.The percentage ofprivate sector workers withvastly superior defined benefit retirement plans(as opposedtodefined contribution plans) decreasedfrom roughly 50 percentto less than20 percent. Unlikeothercountries , US workers do nothavea 'justcause' provisionintheir employment contracts unlesstheir union negotiatesit. US workersdo not have access to universalhealthinsurance.And US workersface the world'smostdeveloped and aggressive union-avoidance consultant industry. It is conceivablethatthedeclinein unionisationis nottheresult ofa systematic policyagenda but ratherrepresentsthe preferences of American workers, as theopponentsof unions and theEmployeeFreeChoiceActtheorise. Yet, theactualdataonAmerican workers' preferences tella different story. One consistent survey finding in particularbelies the assertion that Americans embracethe 'on yourown' philosophy :when American workersthinkabout the economy,theyexpressa strong preference for economicsecurity over economicopportunity. AnAugust 2008survey ofnon-supervisory workers conductedby Lake ResearchPartners on behalfof Changeto Win confirms thesesentiments with75 percent preferring economicsecurity over25percent judging economic opportunitymoreimportant tothempersonally. Analysingseveral decades of polling data, Harvardeconomist, Richard Freeman, findsthat workers wanta voice at worknow morethan ever.Andinrecent national polling conducted by Hart Research Associates, 53percent ofnon-union workerssay theywould forma union if they could - a percentage thathas steadily risensince the 1980s - yet farfewerworkersbelong to unions.As labourscholarHarley Shaiken asserts, "theyawning gap betweentherobust demandto joinunions andtheanaemic membership numbers reflects thefactthat, formanyAmericans, joining a unionhasbecomea risk rather thana right". The AmericanLabour Law System The National LaborRelations Actof1935(NLRA) or the WagnerAct as it is commonly known, givesprivate sector workers inAmerica theright tojoinorform a labourunionandtobargain collectively overwages,hours,and otherworking conditions. Over the yearsthisbasic right has been eroded by amendments and lax enforcement within anoverarching socio-political culture ofincreasing corporate power. Weareleft witha labourlawsystem that allows employers tovetothewilloftheworkers, violate theruleas wellas thespirit ofthelawwithrelativeimpunity , and systematically delaynegotiatinga first contract evenafter a unionvictory. This imbalance issuperimposed upontheinherent and compelling authority ofemployers: theycan hire and fire.Thisreality was highlighted back in a 1941decisionbyJudgeLearned Hand:"language mayserveto enlighten a hearer... butthelight it shedswillinsomedegreebe cloudedifthehearerhasno power...Whattoanoutsider willbe no morethanthevigorous presentation ofa conviction , toan employee maybe themanifestation of a determination whichis notsafetothwart". Untilthelate 1960s,employers wererequired to recogniseunionswhenpresented withcards or otherevidence of majority support,unless INTERNATIONAL union rights Page 6 Volume 16Issue 2 2009 theyhad a 'good faith doubt'as to theunion's majority status. The Boardand thecourts specificallyheldthat wherea refusal to recognise was designed togaintimeso that theemployer could attemptto dissipate the union's support or reflected basic oppositionby the employerto unionisation, thatrefusal was unlawful. The changeto the law givingemployers the right torefuse a request forrecognition andforce theunionto petition foran election, no matter how strong theevidenceof majority support or whattheemployer's motive is forrefusing, came aboutas a result ofa seriesofBoarddecisions in thelate1960'sthat...