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Agenda for Reform: The Future of Employment Relationships and the Law.

There is a certain exclusive category of books - profiles in Courage being the leading example - whose authorship tends to nudge critical evaluation toward a psycho-analytic search for motives. The circumstances surrounding the 1993 release of Agenda for Reform, by Stanford Law Professor William B. Gould IV, made that search inevitable for myself and most other management labor lawyers. Gould had just been nominated Chairman of the National Labor Relations Board. The controversial views in his book created a firestorm, causing a significant delay in a confirmation that was approved by the closest vote given any Clinton nominee.

Reading the book more objectively the second time, I am struck by its ambitious scope. Gould packages a very topical discussion of the principal NLRA issues of the day (strike replacements, for example) into a larger perspective on the legal status of the employee vis-a-vis the employer in today's workplace. Thus, the NLRA discussion is woven into a discussion of employee involvement, changes in the "employment-at-will" doctrine, the Civil Rights Act of 1991, and points of comparison between the U.S. system and the European and Canadian systems. Agenda for Reform is as good an overview of the current liberal perspective on these issues as could ever be expected.

Gould provides his own yardstick for assessing the book:

As we move toward the twenty-first century, we should attempt to establish more civilized standards in labor-management relations, a more competitive and cooperative environment inextricably tied to such standards, and an order in which we can compete effectively with Germany, Japan, and other countries. (pp. 202-3)

Unfortunately, Gould's vision comports less well with those goals than with the mid-twentieth century concept of a formalized partitioning (albeit somewhat blurred) of the interests of employees and employers. He closes the book by stating, "The challenge of the 1990s, and into the next century, is to devise policies and laws through which workers and management, with mutual self-respect and civility, can institutionalize their inevitable interdependence" (p. 264, emphasis added). Yet, if anything, the most significant development in the workplace today is the deinstitutionalization of those relationships that is following the significant erosion of barriers between management and employees as the latter negotiate with one another instead of management regarding how work is to be done.

Gould, like many of his peers, applauds this erosion while continuing to dwell on differences between the interests of employees and management. He insists that "the cooperative model... cannot serve as a complete substitute for a more adversarial framework in which the strike and arbitration remain integral" (pp. 5-6). In terms that oddly attach 1990s labels to 1930s concepts, he thus proposes broad labor law reform that "encourages employee participation in strikes and other matters" (p. 261).

Thus, labeling it a "product of another era," Gould would reverse Patternmakers' League of North America, AFL-CIO v. NLRB, 473 U.S. 95 (1985), to take away from employees their right to resign during a strike. He fails to see that what makes Patternmakers' so relevant to this era is the evolution of employee attitudes toward unions and strikes. Gould unknowingly acknowledges this sea change by asserting that a key factor in the alleged increase in strike replacements is "the imperviousness of the new work force ... to the clarion call not to cross the picket line" (p. 185).

Gould's assumption that employeesi continue to prefer having someone else speak for them over speaking their minds directly is most obvious in his discussion of employee involvement (EI) - seen by many as perhaps the single most important development in workplace relations since the formation of the assembly line. Gould views EI as a vehicle for collective action, asserting approvingly that "it might ultimately promote [employee] interest in unions and real collective bargaining" (p.8). There is no question that a management attempt to terminate a successful EI program/would inevitably lead to increased employee Interest in unionization. Yet, despite his own acknowledgment that the nonunion sector has been the "driving force" in the implementation of EI (p. 136), the only detailed descriptions of EI programs he provides are in unionized settings. Moreover, in the employee involvement continuum, he believes the pinnacle to be union representation on corporate boards. What Gould is missing is that EI is movement toward recognition by both the employer and the employee of the individual value of the employee, with the individual employee's voice - not that of a representative - shaping the workplace and its production.

One purely literary gripe: the book is often extremely difficult to read. I have the impression that Gould's impending nomination resulted in corner-cutting by the editors to get the book on the shelves as soon as possible, allowing a number of non sequiturs to slip through. For example, in the conclusion to the chapter on Canadian labor laws, Gould begins by observing, "The United States has much to learn from Canada in the labor law arena" (p. 233). He then notes the profound historical, cultural, arid industrial differences between the two countries and concludes that, after NAFTA, competition in Canada is likely to become more like that in the United States. Who is to learn what from whom?

Ultimately, Professor Gould's editors would have served him better by taking the time necessary to correct these flaws. Doing so not only would have resulted in a more readable book, but it may also have spared him a painful nominated
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Author:Yager, Daniel V.
Publication:ILR Review
Article Type:Book Review
Date:Apr 1, 1995
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