In his acceptance speech after being elected President of the AFL-CIO last October, John Sweeney stated that "we begin today to build a new AFL-CIO that will be a movement of, by and for working Americans." President Sweeney went on to pledge that "we're going to spend whatever it takes, work as hard as it takes, and stick with it as long as it takes to help American workers win the right to speak for themselves in strong unions" -- "to organize every working woman and man who needs a better deal and a new voice." "Our commitment," President Sweeney concluded, is to "revitalize the labor movement at every level and to . . . change its face to represent the faces of all American workers."

The need for a revitalized labor movement could not be more apparent. Forty years ago, one in three private sector workers belonged to a labor union; today the figure is closer to one in ten. Numerous studies have found that the decline in the level of union representation has been a major cause of what Lester Thurow terms a "surge in inequality" in the United States -- a surge which threatens the social fabric on which our society is based.

Any discussion of the challenges facing the labor movement, as it begins to fulfill the commitment stated by President Sweeney, must necessarily begin by reviewing the challenges facing, and the problems besetting, working men and women. When all is said and done, what the labor movement must do is nothing more -- but nothing less -- than to find ways to enable America's workers to respond effectively to what is happening to them in the workplace and in the larger society.

More specifically, to serve working Americans in the coming century, the labor movement must develop strategies that respond to two trends which together are wreaking havoc on the lives of so many working men and women.

The first is the growing gap -- indeed the chasm -- in the earnings of American workers. As the Dunlop Commission observed in its Fact Finding Report, our labor market is "bifurcating" into "an upper tier of high wage skilled workers and an increasing `underclass' of low paid labor." This "underclass," it should be noted, is not some small minority of the workforce (as the term may suggest); rather the underclass actually includes all workers whose formal education ended with high school. Those workers actually comprise a majority of the workforce!

The wages of high-school educated workers has been in a free fall for the past two decades; in fact, since 1974 the average wage of males with a high school education or less has declined by more than 20%, and the proportion of such workers who work full-time for poverty-level wages has doubled. Largely as a result, one in five full-time, full-year workers today earns below the poverty level -- a 50% increase since 1979.

Even these statistics, disturbing as they are, understate the depth of the problem working Americans will face in the coming century. Workers entering the labor market face an even more serious plight. For example, the entry-level wage for male high school graduates has declined by over 30% since 1973 and now stands at under $7.00 per hour, or under $15,000 for a full-time, full- year employee. It is hardly surprising that the Dunlop Commission found that the ability of these younger workers "to form families and buy homes has been compromised by their labor market plight." And it is likewise not surprising that in a recent poll 80% of the public expressed concern about whether their kids would be able to find good jobs.

Largely as a result of this collapse in the earnings of the high school educated, the richest 10% of families in the United States now earn almost six times as much as the poorest 10%. As the Dunlop Commission observed, that is "by far the widest" gap among industrialized countries -- twice the level in much of western Europe. And male workers in the bottom 10% in the United States now earn barely half of what their counterparts in Europe earn.

In a report otherwise marked by its unquotable prose, the Dunlop Commission sounded a haunting warning: "A healthy society cannot long continue along the path the U.S. is moving."

At the same time that the labor market has been bifurcating along educational lines, a second and closely related division has been taking place -- one that in large part explains the growing income gap: the division between what are referred to in today's lingo as the "core" and the "periphery."

There was a time, not so very long ago, when the work of firms was done by employees of the firm. In this bygone world, firms were places within which employees were able to develop stable jobs and long-term careers. And within the context of these firms, it was possible to stabilize wages, to establish standardized employee benefits, and to otherwise develop a set of expectations and understandings built around the employment relationship.

For more and more working men and women, such a stable, long- term employment relationship with decent wages and benefits has become an unobtainable dream. Increasingly, firms view hiring as a last resort, and define only a narrow set of functions as those worth being performed by permanent, full-time employees -- "the core." Workers outside the core are deemed "peripheral" and as their jobs are eliminated through downsizing and the like, firms are finding ways to have the exact same functions performed through a variety of "contingent" arrangements which negate or minimize the firm's legal and social obligations owed to those performing these services for the firm.

These peripheral workers may be "retained" as independent contractors. They may be hired as disposable employees, either on a temporary or part-time basis. Or their services may be secured through the intermediary of a temporary help agency, an employee leasing firm, or a service contractor whose service consists principally of selling the labor of "peripheral" workers.

Estimates of the number of employees caught up in these various forms of contingent relationships vary widely, depending upon how contingent work is defined. But by any estimate a large and growing number of workers lack the kind of stable attachment to a firm which in the past has been the hallmark of the employment relationship.

The net effect of these two developments -- the bifurcation of the labor market between high wage and low wage workers, and between core and peripheral workers -- has been to divide the workforce into four identifiable segments. Representing each segment raises its own set of challenges for the labor movement, and for labor law.

1. The Core, Skilled Workforce -- There is, of course, a corner of the labor market -- a shrinking corner, to be sure -- in which labor unions can function in the way our labor laws contemplate and in the ways unions have functioned for the past six decades. Here, skilled workers -- principally professionals and technicians but also some skilled craftspersons -- perform core functions for firms to which they are attached on a more-or-less permanent basis.

   Within this universe, the workforce can be organized into unions on a workplace-by-workplace basis. And because these workers possess skills that their employers need, bargaining can take place on a more-or-less equal footing, as the law envisions, with individual employers or on a multi-employer basis with groups of employers in common industries.

   This is not to say that it is, can be, or will be business as usual for the labor movement in reaching out to these skilled, core employees. Today's workers are, without doubt, different from the workers of prior generations. They have different needs and different aspirations. And that is especially true of the more highly educated workers.

   The challenge facing the labor movement, as we seek to organize and represent these workers, is to demonstrate that labor organizations are democratic institutions which provide the means through which the workers can advance their interests as they define their interests.

   Of particular importance here, if we are to succeed in organizing the skilled, core workforce, is the need to show that unions provide a vehicle through which these workers can secure the kind of relationship they want with their employer -- a relationship which, as Professors Freeman and Rogers found in their Worker Representation and Participation Survey, is characterized by "cooperative relations with management and, within those relations, a significant measure of control and independence over how their [the employees'] interests are represented." We must show that unions can help these workers win a voice not only with respect to the terms and conditions of their employment but also with respect to the work they do and the quality of the products and services they produce.

   The labor movement has been hard at this task for some time. We recognize, as President Sweeney said in a recent speech to the National Press Club, that "we can no longer afford the luxury of pretending that productivity, quality and competitiveness are not our business." Indeed, two years ago the AFL-CIO issued a white paper which declared that it is "incumbent upon unions to take the initiative in stimulating, sustaining and institutionalizing a new system of work organization" -- a system "which alters in the most basic ways the manner in which work is organized, businesses are managed, and labor and management treat each other."

   And this is not simply rhetoric. Throughout the manufacturing sector -- in auto, steel, rubber, glass, and apparel to name a few examples -- and increasingly in the service and public sectors, unions and employers, through collective bargaining, are forging strong labor-management partnerships dedicated to achieving world class standards of productivity and efficiency through, democratic, participatory work organizations. In fact, there is mounting evidence that these new work systems are most effective, and most durable, when developed and nurtured through the collective bargaining process.

   The labor movement is committed to continuing these initiatives, particularly as we seek to serve the segment of the labor market populated by skilled, core employees. But there is reason to fear that the law may stand in the way.

   The threat to employee participation does not arise, as many in the management community would have it, from the definition in section 2(5) of the National Labor Relations Act of the term "labor organization." To the contrary, the NLRB's decision in General Foods Corp, 231 NLRB 1232 (1977), and its more recent decision in Vons Grocery, 320 NLRB No. 5 (Dec. 18, 1995), make clear that all employers, union and non-union alike, are entirely free to implement participatory management systems and to involve their employees fully in the work of the firm without creating employer- dominated "labor organizations" within the meaning of sections 2(5) and 8(a)(2). Despite the overheated rhetoric surrounding the so- called TEAM Act now pending in Congress is, that bill has little if anything to do with facilitating teamwork and everything to do with allowing non-union employers to establish employer-controlled systems of in-plant representation as a substitute for the independent representation which labor unions offer.

   The real impediment to employee participation and labor- management partnership lies not in the Act's definition of what constitutes a "labor organization" but rather in the definition of who constitutes an "employee" and what constitutes a "mandatory subject of bargaining."

   In order for participative work systems to take root, the more experienced workers within a firm must be willing to assume increased responsibility for directing those with less experience, and the employee group as a whole must be willing to assume some of the decision-making responsibilities previously vested in management. But last year's Supreme Court decision in NLRB v. Health Care & Retirement Corp., ___ U.S. ___, 62 L.W. 4371 (May 23, 1994), when coupled with the Supreme Court's earlier decision in NLRB v. Yeshiva University, 444 U.S. 672 (1980), raise the possibility that employees who assume mentoring functions, or who accept a delegation of "managerial" authority, can become "supervisors" or "managers" and thereby jeopardize their right to continued representation. Indeed in Health Care & Retirement Corp. the Court entertained (without deciding) the possibility that the entire nursing complement of a nursing home, including even the LPNs, were supervisors, and in Yeshiva the entire faculty of a university was held to be managers.

   The threat that this line of cases poses to the continued development of labor-management partnerships is obvious, and is illustrated by College of Osteopathic Medicine and Surgery, 265 NLRB 295 (1982). There, the Board granted a petition filed by the employer to "clarify" a unit by "exclud[ing] all employees who are currently included therein." Id. at 295. The grounds for removing all the employees from the unit and denying them the protection of the Act was that they had obtained through the process of collective bargaining authority sufficient to render them managerial employees under Yeshiva. In other words, the Board held that employees can utilize their statutory rights so effectively that they deprive themselves of such rights.

   College of Osteopathic Medicine underscores the importance of carefully limiting the sweep of the managerial and supervisory exclusions so that the movement towards employee participation and decentralized decision-making does not end up costing erstwhile employees their statutory rights. The Board has begun to wrestle with at least some of these issues in the wake of Health Care & Retirement Corp., holding in Providence Hospital, 320 NLRB No. 49 (Jan. 3, 1996) and ten Broeck Commons, 320 NLRB No. 65 (Feb. 2, 1996), that, on the specific facts of those cases, the nurses in question were not supervisors. Undoubtedly, these issues will have to be carefully sorted out in the coming months and years if labor and management are to be able to continue down the partnership path and to find ways, through collective bargaining, to offer professional and technical employees the opportunity to maximize their contribution to their employers.

   The trend towards labor-management partnerships also requires a rethinking of the scope of mandatory bargaining under sections 8(d) and 8(a)(5) of the Act. Current case law is premised on an outmoded understanding of the division of labor within industry, one in which management planned and labor executed. In that world, labor's interests were essentially limited to the terms under which they labored, and the scope of bargaining could therefore be narrowly circumscribed. But in the world of work teams and labor- management partnerships, labor has a much broader range of interests, one that transcends "terms and conditions" narrowly defined. Here, the ordinary flow of influence from the NLRA to parallel public sector laws may be reversed as law formed in the public sector, where pressure for an expanded scope of bargaining from teachers and other organized professionals has been great, could be imported into the private sector.

2. The Skilled, Peripheral Workforce -- While many professional and technical employees are fortunate enough to enjoy stable employment relationships, there is a large and growing number of skilled workers whose worklife looks quite different. Voluntarily or involuntarily, these workers have become part of what is now commonly referred to as the "contingent workforce."

   Consider, for example, the phenomenon with which every reader of The Legal Times or The National Law Journal is undoubtedly familiar: the growing number of temporary help agencies offering the services of lawyers. These agencies operate under clever- sounding names like Attorneys Per Diem. But the reality is that these agencies are largely populated by law school graduates unable to find permanent employment -- unable to join the "core" -- and doomed to work on a contingent basis for some indeterminate period.

   The same trend is apparent in the health care industry, where nurses and even LPNs now find themselves employees of agencies rather than the hospitals or nursing homes for whom they regularly perform services.

   Or consider what is happening within the broadcast industry. Increasingly, television stations --- whose lifeblood is camera work -- are ceasing to employ cameramen/women; instead, camera crews are retained on a daily basis as independent contractors. Writers, too, are no longer employees; they are freelancers. Even announcers are now being hired -- or "retained" -- by the day, as contract workers.

   Whether termed "consultants," "free-lancers," "temporary employees," or "agency employees," these are contingent workers. But unlike the workers who are more often thought of under this rubric -- and whose plight is discussed below -- these workers at least share a common occupation or calling. They compete only with others in the same occupation or calling. And that opens the door for the labor movement to reach out to these individuals by creating new forms of unionism -- unionism which is centered not on the workplace but on the occupation. Such unionism is destined to become an important part of the landscape of the twenty-first century.

   The precise functions of an associational (or occupational) union are not difficult to envision. Indeed, the building trades unions provide a useful model.

   An occupational union can serve as the vehicle through which continuing education and training takes place just as the building trades have provided the vehicle for craft training. An occupational union can assist with the monitoring and enforcement of health and safety, anti-discrimination, and other employment- related public rights. And perhaps most important of all, like a building trades union, an occupational union can provide job search services and a hiring hall to marry members with work assignments.

   Unfortunately, the legal impediments to this form of unionism are, at present, formidable. The NLRA presupposes stable employment relationships. Organizing under the Act takes place among employees of an employer working within a defined bargaining unit. Outside of the building and construction industry -- for which specially statutory provisions were enacted in 1959, see NLRA ' 8(f), 29 U.S.C. ' 158(f) -- where occupational unionism exists today it largely operates in the shadows of the NLRA.

   If this form of unionism is to flourish, the law must be adapted to conform to the present realities. Doing so will require more than simply expanding 8(f) to cover other industries, for decisions of the NLRB interpreting that section have drained it of most of its vitality.

   The Board has held, for example, that while a union which represents construction workers can negotiate an agreement requiring a contractor to obtain workers from the union's hiring hall, the employer can effectively negate that agreement at any time by creating a separate legal entity to do the very same work with non-union labor. And the Board has likewise held that at the termination of such a contract, the employer is free to discontinue recognizing the union (or to hold the threat of doing so over the union's head in negotiation for a renewal agreement). The net effect of these decisions is to leave section 8(f) as a mere permission for union representation in the construction industry but to deny construction workers any enforceable right to secure such representation.

   Thus, to provide skilled, contingent workers with the legal protections they deserve, section 8(f) must not only be extended to other industries but also made stronger and more effective.

3. The Unskilled, Core Workforce -- While their numbers continue to shrink, there are still industries which employ a stable complement of unskilled, low-wage workers. Hotels, for example, employ bellmen, and maids; restaurants employ busboys, dishwashers, and waiters; nursing homes employ nurses aides; even some garment manufacturers employ seamstresses (although the garment industry norm is quite different).

   In the main, these workers have a far more conventional agenda than their more highly-educated and better-paid brothers and sisters. Partnership is nice, but bread is essential. They want a union first and foremost to improve their economic lot.

   These low-wage workers are, understandably enough, highly receptive to organizing; in the Freeman-Rogers survey, for example, an absolute majority of such workers said they would vote for a union tomorrow if given the chance and in the absence of employer opposition. And in theory, at least, the NLRA is tailor-made for these workers since, on paper, the Act affords them the right to organize and bargain collectively.

   The reality, of course, is entirely different. Low-wage, unskilled workers are the principal victims of the demonstrated failings of the National Labor Relations Act. The battle over labor law reform in 1977-78, and over the striker replacement legislation in 1992-94, were at bottom battles over whether these workers would as a practical matter be afforded the opportunity to improve their lot through organizing and collective bargaining.

   Because the unskilled workers know that there are others capable of doing their work (and know how difficult it would be to find another job), these workers are most easily intimidated by the illegal firings that the Dunlop Commission conservatively estimated occur in one out of every four organizing drives. They are equally terrorized by talk about what could happen to their job if they choose to organize -- talk which is, remarkably enough, entirely lawful.

   Perhaps most troubling of all, these unskilled workers are completely vulnerable to what has become an integral part of the anti-union campaign: the permanent replacement threat. What is the point of organizing, they wonder, if the employer is hell-bent on avoiding a contract at all costs (or at least a contract which offers any improvements for the employees) and if the employees' only recourse is the strike which the employer can break through the use of permanent replacements? Why run the risks?

   It seems quite clear that these considerations explain why so many organizing drives which begin with solid majority support for unionization end in defeat. And these considerations explain the vehemence of the opposition to the labor law reform proposals of 1977-78, to the striker replacement bill, and even to recent efforts by the General Counsel of the NLRB and the Board itself to expedite representation elections.

   In light of the impotence of the current law in protecting low-wage workers and their growing frustration over their declining wages, inexorably workers will take their cause to the streets with increasing frequency to respond to employers determined to suppress the exercise of the workers' associational rights. Their plight must, and undoubtedly will, become the civil rights issue of the next decade or more.

   At the same time, a principal challenge facing the labor movement in serving these unskilled workers will be to develop new means of asserting economic pressure against recalcitrant employers so that organizing and bargaining are not exercises in futility. We must enhance and expand our capacity to exert workplace and non- workplace pressure through a variety of methods that are generically referred to as strategic campaigning. These strategies will raise legal issues of at least five types.

   • First, the line between protected and unprotected strikes -- and between permanent and temporary replacements -- will continue to be tested as workers seek to refashion their work stoppages in order to shield themselves from permanent replacement. The Board has clearly held that a strike is protected no matter how short, Polytech Inc., 195 NLRB 695, 696 (1972); that two strikes are protected, Robertson Industries, 216 NLRB 361 (1975), enf'd 560 F.2d 396 (9th Cir. 1976); and that a series of short strikes are protected so long as they do not arise out of a plan repeatedly to strike regardless of the existence of new provocation, see Union Electric Co., 219 NLRB 081 (1975); Blades Mfg. Corp., 144 NLRB 561 (1963), enf. denied, 344 F.2d 998 (8th Cir. 1965). How far these decisions reach in protecting short and intermittent strikes remains to be seen.

     Similarly, questions will arise as to the whether a replacement work can properly be deemed "permanent" if he/she has yet to complete the probationary period or met other conditions that the employer would normally require as a prerequisite of acquiring true permanent status. Issues will also be raised as to the duty of employers to immediately reinstate strikers who unconditionally offer to return to work after a short strike, since the Board's decisions on whether an employer's agreement to retain temporary employees for a set time period is grounds for delaying reinstatement are contradictory, Compare Harvey Manufacturing, Inc., 309 NLRB 465 (1992), with Pacific Mutual Door Co., 278 NLRB 854 (1986). And the Board's holding that employers are entitled to a five-day grace period to reinstate unfair labor practice strikers after a short strike lacks reasoned justification. See Drug Package, 228 NLRB 108 (1977).

   • Second, strategic campaigns will continue to challenge the antiquated notion that lenders, suppliers, or customers of an employer are somehow "neutral" with respect to a labor dispute involving that employer and should be shielded from economic pressure. It is only in the twisted vision of the labor law that each employer is an island unto itself; no business can survive today if it in fact operates in that fashion (as Apple Computer is proving so well). And no rule of labor law is more divorced from reality than the rule treating the parent or a corporate affiliate of the primary employer as a "neutral" in disputes involving that employer.
   • Third, access issues will continue to arise as workers seek to go beyond the strike and make common cause with workers and consumers with common interests at other workplaces or places of business. Although Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), dealt only with the access rights of nonemployee organizers seeking to induce others to exercise their section 7 right of self- organization, the decision is proving to have much greater sweep.

     Thus, in Leslie Homes, Inc. 316 NLRB 123 (1995), enf'd sub nom Carpenters District Council v. NLRB, 68 F.3d 71 (3rd Cir. 1995), and Loehmann's Plaza, 316 NLRB 1160 (1995), enf'd sub nom. Food and Commercial Workers v. NLRB, ___ F.2d ___ (D.C. Cir. 1996), the Board held that workers seeking to exercise their own section 7 right to handbill or engage in other concerted activity have no right of access to the property of an employer with whom the workers have no employment relationship so long as that property has been neutrally closed to all other forms of solicitation. On the other hand, in United States Postal Service, 318 NLRB No. 56 (1995), the Board recently held that employees of the Postal Service who worked at one location were not "strangers" to other locations of the Postal Service but rather should be treated like off-duty employees under Tri-County Medical Center, 222 NLRB 1089 (1976), for purposes of access to those other locations. Workers and their unions will continue to test the limits of these decisions in other contexts.

   • Fourth, as employers increasingly seek to break strategic campaigns by resort to the state (and federal) courts, issues are certain to arise as to the scope of protection under Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), for workers and unions who are being subject to a torrent of lawsuits alleging libel, slander, tortious interference with contract, and a variety of other state torts. The standard for finding such lawsuits to be unfair labor practices is most fully articulated in Makro, Inc. (Loehmann's Plaza), 305 NLRB 663 (1991), but it remains far from clear.
   • Finally, as workers seek to use strategic campaigns to secure recognition for their designated representative outside the traditional representation processes, the Board's holding in Majestic Weaving Co. of New York, 147 NLRB 859, enf. denied on other grounds, 355 F.2d 854 (2d Cir. 1966), will come under increasing scrutiny. Negotiations over a non-Board recognition procedure often spill over to discussing the terms of a future collective bargaining agreement, should the union demonstrate majority support. Under Majestic Weaving, however, this is an unfair labor practice. It is illogical to allow such discussions if the union already represents some employees of the employer, for example in an "additional store" clause, but not if the union has no foothold with the employer. Compare Houston Div. of Kroeger, 219 NLRB 388 (1975), with Majestic Weaving.
4. The Unskilled, Peripheral Workforce -- By far the greatest challenge facing the labor movement in the coming century, is to find ways to advance the interests of unskilled, peripheral (or contingent) workers. Lacking stable employment, these workers are in the most desperate economic straits. Yet precisely because they lack a stable employment relationship, they are orphans of the law with no ready means of advancing their interests.

   The unskilled, peripheral workforce actually is comprised of three discrete sub-groups, each raising its own set of legal issues.

   • (a) Independent Contractors -- In a number of industries, employers have proven quite adept at exploiting the common law definition of "employee" to create large new classes of "independent contractors." For example, by taking money from taxicab drivers rather than giving money to them, taxicab companies have succeeded in virtually eliminating employees from the taxicab industry and transforming almost all cab drivers into independent contractors. The trucking industry has followed a similar course. And this trend has gone so far that one Seattle cleaning contractor, after submitting the lowest bid to clean downtown office buildings, proceeded to sell "franchises" for the right to clean floors of downtown office buildings for $4,000 to $7,000 a floor -- transforming low-wage janitors, mostly immigrants from Central America and Asia, into "independent contractors."

     Plainly, the time has come to reexamine the line the common- law -- and, derivatively, the NLRA -- draws between employee and independent contractors. The Dunlop Commission's recommendation in this regard -- that "economic realities" should be determinative of the extent of labor law protection and that "workers who are economically dependent on the entity for whom they perform services generally should be treated as employees" -- merits far more attention than it has received.

   • (b) Temporary and Part-time Employees -- Even more difficult problems are posed by the itinerant workers who move from workplace to workplace and by part-time employees who regularly work for one, two or even three employers. The temporary workers often are treated as employees -- for an hour, a day, perhaps a week. And the part-timers are "fortunate" enough to have multiple permanent employment relationships, each of which keeps the employee below the level at which various employment benefits (such as health care or even sick leave) kick in.

     If these workers are to be protected -- and if the incentive to transferring more and more work to temporary and part-time employees is to be curbed -- it can only be through the enactment of state and federal labor standards regulating the use of temporary and part-time employees and imposing obligations on firms which use such employees. Representative Schroeder has introduced a bill which would take some small steps forward in this direction.

   • (c) Intermediary Contractors -- Different questions are raised, and different measures are needed, to protect unskilled workers who find steady employment with an intermediary contractor which essentially sells labor, for these workers enjoy the form -- but not the substance -- of legal protection under the NLRA.

   The building service industry provides a useful case in point. There was a time when building maintenance was done by employees of the building owners. The janitors enjoyed stable jobs working for "their" building. And employees of a particular building could organize and bargain collectively with "their" owner.

   In most cities, this is no longer the case. Today, building owners use cleaning contractors to preform maintenance services. These contractors sell little more than the labor of the janitors they employ. And the process of competitive bidding for the service contracts drives the janitors' wages and benefits down to the lowest common denominator.

   In theory, of course, the employees of a cleaning contractor could organize a union. But if the janitors of a contractor were to organize, the contractor's client -- the building owner --- could, under current law, terminate the contract (and effectively terminate the employees) simply because the employees had so voted. Indeed, it is not uncommon when janitors begin to organize for the identity of their employer to suddenly change or for the employer, and the employees, to be terminated.

   Moreover, even if the janitors of a cleaning contractor were to succeed in organizing they would win the right to bargain only with the individual cleaning contractor. And even if the building owner were willing to suffer a unionized contractor, as a practical matter the contractor would have no capacity to agree to increase wages or benefits for the janitors without jeopardizing his cleaning contract.

   The labor law's traditional answer to this dilemma is to tell the union to organize all of the employees and firms within the industry, i.e. all the cleaning contractors. But because building maintenance is an unskilled occupation, the potential labor supply is virtually limitless. And because, in this new world of intermediate contractors, the employers are no longer the owners of capital but uncapitalized intermediate firms, the supply of potential employers is equally without limit.

   It is for this reason that in SEIU's Justice for Janitors campaigns attention has been focused on capital -- the building owners -- rather than solely on the contractors themselves. The owners effectively determine the wages of the janitors through the contracting process. And whereas wages and benefits negotiated with the contractors can be readily circumvented by the introduction of new contractors, the owners have the capacity to establish and maintain stable labor standards.

   Our current labor laws, as construed to date by the NLRB, see things quite differently. Even though the owners effectively control the wages of the janitors, the Board has adopted an unnecessarily narrow concept of "joint employer" which generally enables building owners to escape any bargaining obligation with respect to the employees of a contractor.

   The Board has likewise adopted a restrictive interpretation of ' 8(a)'s prohibitions so as to leave owners free to terminate contracts based upon the protected activity of the contractor's employees. Yet at the same time the NLRB has applied an indefensibly broad definition of "neutral" for purposes of the secondary boycott laws so as to immunize the building owners from picketing, even while occasionally acknowledging that the statute does not require such treatment. See, e.g., Teamsters Local 560 (Curtin-Matheson Scientific, Inc.), 248 NLRB 1212 (1980).

   Each of these doctrines ought to be reconsidered in light of the economic realities of the relationship between capital and intermediate employers which sell little other than labor. The notion that building owners or other client firms are "wholly unconcerned" about disputes between the workers and their contractor employers when the client firms can terminate a contractor precisely to nullify its collective bargaining agreement with a union, see NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), or to bring in a nonunion contractor as it is privileged to do, see Local No. 447, United Ass'n of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (Malbaff Landscape), 172 NLRB 128 (1968), makes no sense. In other words, as employers disorganize themselves, often in order to evade responsibilities imposed on direct employers, the definition of who is the "employer" and the restrictions on secondary pressure must correspondingly be refashioned.

   Indeed, if the employees of these intermediate contractor firms are, in fact, to enjoy organizational rights, those employees should enjoy at least one additional right: the right to preferential hiring in the event their employer's contract is terminated and a new contractor is brought in to do the work. The District of Columbia has enacted such a law (which was held by the D.C. Circuit in Washington Serv.Contractors Coalition v. District of Columbia, No. 94-7143 (D.C. Cir., May 12, 1995), not to be preempted by the NLRA), and President Clinton has, by Executive Order No. 12,933, 59 Fed.Reg. 53559, established a like requirement for contracts covered by the Service Contract Act. These provide useful models for other jurisdictions to follow.

   Other legal doctrines will also need to be reexamined if the contract workforce is to enjoy a realistic right to organize and bargain collectively. For example, even a revamped doctrine of joint employment would be of little utility so long as the Board continues to adhere to the rule that where employees are represented by more than one employer, all employers must consent to inclusion of their employees in a single unit. See, e.g., Flatbush Manor Care Center, 313 NLRB No. 73 (1993). This rule traces back to Greenhoot, Inc., 205 NLRB 250 (1973), where the proposed unit consisted of the employees of a property management company working at buildings owned by 14 separate entities. In Greenhoot, the Board found the unit inappropriate on the grounds that all 15 employers did not consent to what the Board characterized as a multi-employer unit. The extension of this holding to cases like Flatbush Manor where only two employers are involved, one the supplier of temporary employees to the other, is dubious.

   Similarly, if contract workers are to be able to organize, the Board will have to pay careful attention to the application of Lechmere in situations in which employees of a contractor seek access to the property of the contractor's client. In Southern Services, Inc., 300 NLRB 1154 (1990), enf'd, 954 F.2d 200 (11th Cir. 1992), the Board held that an employee of a cleaning contractor had the right to engage in solicitation and distribution protected by Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in Coca Cola's world headquarters where she worked on a full-time basis. But as important as it is, this decision did not make clear whether the holding would have been the same had the janitor worked at the building only every other night or for only part of each night or had she attempted to solicit Coke employees rather than those of her employer. As the number of service contract and other contingent workers multiplies, so too will the variations on the fact pattern in Southern Services.

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Clearly, the necessary changes in the law and culture will not come easily or quickly. But, transcending all forms of these labor market segments is a set of concerns that arguably should spur a search for common ground between labor and management.

The proliferation of automated technologies, together with the continuing impact of foreign competition with cheap labor markets, has led some to predict that over the next quarter century, we will witness the elimination of the blue collar, mass assembly-line worker from the production process.

Moreover, the theory that those losing jobs in the manufacturing sector will be generally absorbed into the service sector is losing currency as it is becoming clear that service jobs are, themselves, not invulnerable either to off shore outsourcing (e.g., telephone operators, data processors) or to automated technology (e.g., bank tellers, office secretaries).

Nor is it realistic to expect the new "knowledge sector" to absorb more than a fraction of the unemployed and underemployed casualties of this transformation. As a result, the widening gap between the haves and have nots will only continue to grow.

As the trend accelerates, certain possibilities for a labor- management accommodation emerge. For one thing, although corporations may be enjoying short-term gains from present wage stagnation, downsizing, outsourcing and casting off of permanent employees, the longer term effects include a workforce with considerably diminished consumer purchasing power. In some industries, corporations are already acknowledging the adverse effects of this trend.

Furthermore, as employers are contributing into pension funds on behalf of fewer and fewer "employees," the forced savings pool that has for many years constituted a primary financing source of capital investments in our economy, will gradually be depleted.

At the same time as employers are coming face-to-face with the disadvantages of the union-free environment they have so long sought, employers are also rediscovering the contributions to productivity, quality and efficiency that can be gained from a truly empowered workforce with an independent voice in the workplace.

All of this should lead an enlightened management to place less currency on resisting unionization and other legitimate forms of independent employee representation, and to join labor in advocating strong labor standards and effective labor law for all four of the labor market segments that exist today and will exist tomorrow.