The complex changes which have occurred in the US over
the past decade can be summed up by telling you that the largest private
employer in the US is now Manpower, a temporary employment agency, and the
largest private employer in Mexico is now General Motors. The growth of
the contingent workforce a workforce made up of temporary workers, independent
contractors, part timers, and on-call workers is an undeniable force. Why
it is occurring is open to some debate. Some argue that the major force
is the desire of employers to dissolve the links that once bound employer
and employee in an industrial marriage, complete with the complex web of
duties and rights owed one another. Some argue that today's worker no longer
wants or needs the suffocation of a lifelong, full time job that stifles
creativity, individualism, and self-interest. We do know that contingent
workers, particularly the women, tend to earn less than regular full time
workers. The averages are skewed, because there are in these ranks some
workers who have sufficient bargaining power to command high wages.
Understanding the motives driving the creation of the contingent
workforce can play a role in devising methods to facilitate their organisation
and bargaining position. However, current US collective bargaining law,
the National Labor Relations Act, creates hurdles that may make it impossible
to secure its protections for organisation and collective bargaining.
The NLRA was enacted in 1935 at a time when the model of
the workplace was one in which workers performed their work over a long
period of time for a single employer in one location. Even in its early
years, some occupations did not fit this model and thus organisation in
those industries was illegal.
The key industry was construction. There, workers are employed
for many employers, each job lasting as little as a few days. The NLRA was
eventually amended to provide special rules for organizing in the construction
industry, in large part because employers saw organisation and collective
bargaining as beneficial to them.
Independent contractors and temporary workers have qualities
that resemble those of construction workers. They work for many employers,
often for very brief periods of time. They may also benefit from an extension
of the NLRA provisions that support collective bargaining in the construction
industry. These provisions include pre-employment recognition of a bargaining
representative and the ability to negotiate an agreement before employees
are on the job. These things would be illegal in any other industry. They
are vital in construction, because they provide uniform terms across the
industry and have long been a means of ensuring a trained workforce that
can be recruited quickly as the need arises. Union construction workers
are actually less expensive even though their pay is higher when costed
out on a square foot basis, because they know how to work quickly and efficiently,
they perform high quality work, and they have uniform practice that make
it possible to start working the first minute on the job.
To achieve the protections of the law, independent contractors
and temporaries would need to organize and would need to demonstrate to
employers the value of dealing with the organization. That coalition would
make changes in the law more likely. As it stands now, temporary workers
could form a union which could negotiate with an employer, but the NLRA
makes it illegal to recognize a union which does not represent a majority
of an employer's employees and to negotiate with it outside the construction
industry. Independent contractors face another hurdle. The NLRA supports
collective bargaining between employees and employers; independent contractors
are specifically excluded from the definition of employee. Thus an organisation
which represents them cannot be a labour organisation.
Some have suggested that a union of temporaries or other
contingent workers could perform one of the key functions employers value
in construction unions acting as a hiring hall. In industries in which training
is needed, they could provide the training and also certify those who have
satisfied certain basic requirements, thus assuring employers of the availability
of a trained workforce. Such a first step might assist in securing the changes
in law necessary to real power through collectivisation. Workers might be
attracted to join such an organisation if it could provide workplace benefits,
something out of reach for most temporary employees and independent contractors
today. |
