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a contract period do not obligate the employer to continue to recognize the
union at the end of the period [Marine Transport Lines v. International Organization
of Masters. 1986).
Unions are, of course, entitled to bargain for severance pay and other layoff
benefits should reorganization cost jobs, but one survey found that only 40 percent
of union contracts actually include a severance package (Summers. 1995).
Moreover, unions who have managed to bargain for job-security provisions in their
contracts have often found it difficult to enforce these in court (Stone, 1991). And
should even such mild limitations on managerial autonomy be found intolerable, a
generation of declining rates of private-sector unionization suggests that management
IS often in a posilion to "rid themselves or these meddlesome stewards.""
286 BUSINESS ETHICS QUARTERLY
Moving the Common Law in a Stakeholder Direction
The common law system, with its selective use of precedent in both deciding
cases and interpreting legislation, is a mix of tradition and improvisation capable
of generating a great deal of mnovation, albeit at an uncertain rate and
with somewhat unpredictable results. As the law evolves, there are arguments
attorneys can make that, by building on analogy, might move the law incrementally
toward compelling recalcitrant managers toward more consideration of
stakeholder interests without radically interfering with the general independence
of management to run a business as it feels best.
One is the general extension of fiduciary duty to other fmancial participants
(Boatright, 1994). This has begun to happen in conjunction with the previous
mentioned fiduciary duties created by ERISA. As the law now stands, corporations
cannot make business decisions to avoid their responsibilities to their present
and future pension beneficiaries and now with Inter-modal, this has been extended
to forbid business decisions that disregard duties to recipients of other
kinds of benefits such as medical insurance, sick leave, or overtime pay that is
more generous than the legal requirement.
Theoretically, fiduciary duties might be imposed on corporations that benefit
from the various investment decisions stakeholders must routinely make when
relying on the representations of a particular business. Businesses routinely benefit
from the investments made by others: suppliers who install new machinery
to meet the company's requirements; retailers who invest in advertising, training,
and store modifications to accommodate their products; communities who
build roads, establish educational programs, and make various sorts of civic
improvements; and customers who pay with their cold hard cash. Law professor
Katherine Stone (1991) has proposed that internal labor market theory, which
asserts that employers pay below marginal value for neophytes with an implicit
promise to overpay after years of commitment to a particular firm, presents courts
with a fiduciary rational for protecting employee "investments" of years or decades
of service in hopes of such a payoff.
These arguments for extending a fiduciary duty, however, are likely to require
more of a stretch than most courts are comfortable making, particularly
when extant law in contracts, torts, and em^ployment already covers some ofthe
same territory. Stone's proposal in particular requires the ac