William B. Gould III was an electrical engineer who had trouble getting--and could not keep--a job in his profession until he was 38.
William B. Gould IV, a 48-year-old Stanford Law School professor, recalls that, in his family, "there was great feeling that my father had been treated unfairly."
Today, if the senior Gould got fired, he, like vastly increasing numbers of non-union employees, might follow the growing trend of going to court to seek damages or reinstatement in his job.
But Stanford's Gould, and others on both sides of labor management relations, increasingly are advocating arbitration as a better problem-solving method than litigation in situations where non-union employees feel that they have been unfairly dismissed.
Promotes Workers' Cause
Partly as a result of his late father's treatment, Gould spends much of his life as a law professor promoting the workers' cause and seeking ways to implement fair, effective and acceptable relationships among non-union employees and their bosses. The lawyer has become a nationally respected authority on those relationships.
Charles G. Bakaly Jr. is a man who commands similar respect among those who deal with non-union labor problems. Figuratively speaking, Bakaly sits on the opposite side of the table from the Stanford professor. He is a partner in the law firm of O'Melveny & Myers, head of his firm's labor and employment law department and an attorney who spends much of his time representing employers in court and in arbitration proceedings.
Despite their considerable differences, Bakaly and Gould agree that going to court is not the best route to take when non-union workers and their bosses find themselves at loggerheads over employee-management disagreements, such as contested firings.
They prefer arbitration to litigation.
In arbitration, employers and employees hire mutually acceptable arbitrators from a pool of men and women who make their livings at such work.
Gould says there was one basic reason for his father's inability to keep an engineering job: He could be fired without due cause. The only electrical engineering job he got before age 38 he lost when his employers discovered that he was black. "My father was a light-skinned black man," Gould said, "and some people didn't recognize him as a black man."
When his father finally got and kept a job in his profession, it was with the Army Signal Corps, Gould said, adding that "World War II was about to start, and they needed electrical engineers."
Gould and Bakaly see many areas in labor-management relationships where they feel non-union workers and employers both get shortchanged.
Lack of Organization
High on Gould's list of problem areas is lack of organization. Non-union workers are unorganized and therefore at the mercy of their employers, who can fire them or shift them from job to job and place to place more or less at will, the law school professor said.
Gould grants that the door swings both ways, observing that employers as well as employees have legitimate problems. The professor feels that employers, when sued by employees, are often treated unfairly by juries and judges who see companies as impersonal entities oppressing "the little man"; it's a kind of man-against-machine concept, with management cast in the role of machine, Gould said.
For management, "the most troublesome institution is the juries," Gould added. "They are volatile and unpredictable in their damage judgments."
Bakaly agrees that juries tend to be biased against large corporations. "I would say a jury would be likely to favor the employee," the attorney said.
Gould also takes a pro-management stance when it comes to supporting no-strike clauses in labor-management contracts (such clauses forbid strikes for the duration of contracts), and he advocates prohibitions against unions using economic pressure during the term of a contract. He also opposes the right to strike when it involves certain workers, such as police.
Trade Union Growth
"On the other hand," Gould said, "I think that public policy ought to be on the side of trade union growth and collective bargaining. Otherwise, the worker is at the mercy of what could be whim and arbitrary judgment on the part of the employer."
As might be expected, Bakaly--who represents management--takes issue with Gould's contention that public policy should favor trade union growth. "I do not agree," Bakaly said. "I think that most employers today are treating their employees fairly and have procedures that guarantee that employees will be treated fairly."
Regardless of how fairly workers may be treated by many companies these days, lawsuits filed by non-union employees who get fired have become increasingly common.