69 Chi.-Kent L. Rev. 3 (1993-1994)
Labor Law Reform in a World of Competitive Product Markets

handle is hein.journals/chknt69 and id is 21 raw text is: LABOR LAW REFORM IN A WORLD OF COMPETITIVE
PRODUCT MARKETS
SAMUEL ESTREICHER*
U.S. private sector unionism is in decline. From a high water-
mark in 1953 of around 35.7% of the private nonagricultural
workforce, union membership has fallen to 11.5% and unions repre-
sent under 13% of private sector workers.' Absent reform of the la-
bor relations system,2 the trend is clear. Unions will remain a
significant force in government employment, big-city commercial con-
struction, rail and air transportation, and certain shrinking mining and
manufacturing industries. Aside from these pockets of unionism,
* Professor of Law, New York University. A.B., Columbia College, 1970; M.S. (Industrial
Relations), Cornell University, 1974; J.D., Columbia Law School, 1975. A version of this article
was given as the Kenneth M. Piper Lecture in Labor Law at the Chicago-Kent College of Law
on March 23, 1993, and published as Employee Voice in Competitive Markets, 14 THE AMERICAN
PROSPECT, Summer 1993, at 48-57. I have benefitted from the suggestions of David Abraham,
Orley Ashenfelter, Aleta G. Estreicher, Michael C. Harper, Alan Hyde, Marcel Kahan, Bruce E.
Kaufman, Michael Klausner, Thomas C. Kohler, Lewis Kornhauser, Robert Kuttner, Martin
Malin, Ricky Revesz, Stuart Schwab, David M. Silberman, Peter Swenson, Leo Troy, David
Westfall, and the students in my Seminar on Labor Law Theory, 1990-93; the opportunity to
present earlier drafts to law school workshops at Cornell, NYU, Pennsylvania, and Seton Hall
universities; and from the able research assistance of Martin Moe, NYU Class of 1994. All er-
rors that persist are entirely my own. The financial support of the Filomen D'Agostino and Max
E. Greenberg Research Fund at the New York University School of Law is also gratefully ac-
knowledged. Copyright (c) 1993 by Samuel Estreicher. All rights reserved.
1. Union density is the percentage of wage and salary workers who are members of
unions and employee associations or are represented by such organizations. (Until the early
1980s, the Labor Department obtained membership data from the organizations themselves.
Since 1985, this information is derived from the Department's monthly household employment
survey (conducted by the U.S. Bureau of the Census-called the Current Population Survey).
Prior to 1980, the Labor Department did not separate public from private unionism. The 1953
figure is from LEO TROY & NEIL SHEFLIN, UNION SOURCEBOOK: MEMBERSHIP, STRUCTURE
AND FINANCE DIRECTORY app. A, at A-1 (1st ed. 1985).
In 1991, 13.1% of employees in private firms, or 10.9 million workers, were either members
of unions and employee associations or represented by such organizations. In 1992, the union
density rate dropped to 12.7%, or 10.6 million workers. See Union Membership: Proportion of
Union Members Declines to Low of 15.8 Percent, Daily Lab. Rep. (BNA) No. 25, at B-5 (Feb. 9,
1993). Some employees covered by union contracts pay union dues but are not union members.
The proportion of the private workforce who were members of labor organizations was 11.9%,
or 9.9 million workers, in 1991, and 11.5%, or 9.7 million workers, in 1992. Id.
2. Although this Paper addresses labor law reform, I am not suggesting that any change in
the legal framework for the conduct of labor relations can itself stem or redirect the larger eco-
nomic and socio-cultural forces at work. However, to the extent the legal system inhibits the
development of alternative institutional arrangements and encourages the actors in the system to
perceive and advance their interests in particular ways, legal reform holds the promise of new
alternatives and incentive structures, and perhaps different outcomes of the system.

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