Bargaining Laws Research Articles

First Contract Arbitration and the Employee Free Choice Act

One provision of the proposed Employee Free Choice Act (EFCA) would address the catastrophic underenforcement of the statutory right of employees to bargain, which results in half of all newly certified or recognized unions failing to secure a first collective bargaining agreement. It is an important reform for a seriously dysfunctional aspect of federal labor law and it will be a substantial improvement over the status quo. While political and media conversation surrounding EFCA has largely focused on the changing the process by which unions are selected, the provision for first contract arbitration is as important to the protection of the right to unionize.This Article argues that some form of mandatory interest arbitration for first contract disputes is an appropriate means of stabilizing employee-management relations given the extraordinary difficulties that unions currently experience in negotiating first contracts, the weakness of current NLRB and economic remedies, and the rippling effects of these difficulties on nascent unions. The Article surveys the empirical literature on the operation of interest arbitration in the public and private sector in the United States and in Canada and demonstrates that interest arbitration would increase the incentive for employers to negotiate in good-faith and make reasonable proposals. The Article shows that none of the alternative reforms to the law of collective bargaining and to NLRB procedures for protecting the right to bargain will be effective in addressing failures to bargain to a first contract. The Article also demonstrates that a statutory requirement of first contract arbitration is well within Congress’ power and does not represent an unconstitutional delegation of legislative authority.

The Polical Economy of Fairness: Frank Iacobucci's Labour Law Jurisprudence

The Political Economy Of Fairness: Frank Iacobucci's Labour Law Jurisprudence† Brian Langille Faculty of Law, University of Toronto. Patrick Macklem Faculty of Law, University of Toronto. I Introduction Although Frank Iacobucci ran some rather large operations during his magnificent career (as provost of the University of Toronto, the largest university in the country, and as deputy minister of justice, the largest law firm in the country), and probably spent more time than he cares to remember on personnel issues, he was not a labour lawyer in his pre–Supreme Court life. But it is fair to say that he became one while on the Court. A good one. This is no mean achievement, and it is one in which Frank takes, as he has publicly admitted, some pride in having, as he put it, 'played in a minor role in the development of an ongoing debate on this most fundamental part of our lives.'1 It is no mean achievement because to be a good labour lawyer requires an overview, a coherent account, of all of the various and disparate laws (common law, employment-standards law, human-rights law, collective bargaining law – and much else) that bear upon the lives of human beings engaged in productive activity – often, not always, and decreasingly, within the legal category we call 'employment.' Articulating such an overarching and coherent account of the field is both difficult and a necessary precondition to principled decision making. It is a task Frank undertook with insight and passion. In what follows we first discuss this issue of the nature of labour law and Frank's role in articulating its basic theory. Then we discuss Frank's contributions to labour law under three headings: the common and statutory law of dismissal, the law of collective bargaining, and freedom of association under the Charter of Rights and Freedoms. Finally, we attend to several other cross-cutting themes in Frank's judgments that strike us as significant and revealing, not only of Frank's attitudes to law in general, and to labour law in particular, but of his attitude to life itself. Taken [End Page 343] together, these offer, as our title suggests, not simply a compelling view of the underpinnings of labour law but a moving and realistic account of the political economy of fairness. II What is Labour Law? An account of labour law is a complex narrative of a particular sort that can both explain the field – what it is and is not – and tell why it is important. It must lay out the conceptual metes and bounds of the subject and provide a normative justification for it. Frank had a deep understanding of what this part of our law was all about. He passionately and consistently gave voice to this basic understanding of labour law's point and purpose in the decisions he authored. His account was not unfamiliar and indeed it is important that it be familiar in order to be an account of what professional labour lawyers know is labour law. But it is not often that labour lawyers stop to articulate the basic account of their discipline. They are like fluent speakers of a language who have forgotten, if indeed they ever knew, its basic rules of grammar. But in the role in which Frank found himself, and given important elements of his judicial philosophy, he had to articulate the deep grammar of labour law by giving voice to its constituting narrative. Canadian labour law is the better for it, and, as in so many other respects, we are in his debt. Unlike many areas of law, labour law does not derive its coherence as a subject matter from distinctions and labels that traditionally demarcate legal fields, such as constitutional law versus statutory law; public law versus private law; or contract, property, or tort. Labour law straddles private law and public law and many classifications within each. Its private law...

Takin’ It from the Streets: How the Sixties Mass Movement Revitalized Unionization

Was the militant zeitgeist of the “long sixties” social movement wave harmful, irrelevant, or revitalizing for labor militancy and union growth? The authors extend research on intermovement relations by examining the influence of ascendant militancy of the new left–inspired mass movement wave on the organizational fortunes of labor. Time‐series models buttressed by secondary historical evidence show that “the movement,” as radical flank, did stimulate a militant oppositional culture that moved from the streets into workplaces. That oppositional culture was especially significant in the public sector, where it fueled union recognition strikes which, in turn, helped push the extension of collective bargaining laws in that sector, opening the door for union growth. The authors consider implications for social movement theory and labor movement revitalization.

Charter School Attitudes and Practices in States with Diverse Public Sector Bargaining Laws

ABSTRACT Virtually all state charter school legislation addresses teacher rights and working environment. Relationships with teacher unions are either specified in the law, or approval of the charter requires suitable provisions for employee hiring, firing, grievances, etc. Charter school evaluation almost without exception includes some references to these issues. This study uses an online survey to gather information gauging the effect of the ambient union environment on charter school practices and attitudes related to teacher rights and teacher participation in school administration and governance. In the first phase of a projected national study, three states were selected whose public sector collective bargaining environments are very different. Analysis of attitudes, practices, and demographics showed significant differences in views about teacher involvement in school governance, but little difference in views or practices concerning teacher unions in charter schools. Limited survey response resulted in collection methods which will be corrected in an anticipated national study. The online survey method of data collection is discussed. Implications for public policy and future charter school legislation are explored. Further studies should address variations in the impact of union involvement between public, private, and charter schools.

'Great Expectations' Defeated?: The Trajectory of Collective Bargaining Regimes in Canada and the U.S. Post-NAFTA

From the beginning of the free-trade era one contentious area has been the impact of trade liberalization on labor law. Opponents of NAFTA (and some supporters) predicted a regulatory race to the bottom (RTB) would ensue leading to increasingly deregulated labor markets. The result would be weaker collective bargaining laws, lower minimum standards, and a decline in the social wage. In recent years a number of scholars have examined the question in light of more than fifteen years experience under CUFTA and ten under NAFTA and there seems to be a growing consensus that, contrary to those 'great expectations', labor laws in North America have not been significantly weakened. In this article, I re-examine the effects of NAFTA on collective bargaining law in Canada and the United States. My contribution to the debates comes down to two points. On the one hand, I argue that the emerging consensus understates the impact of NAFTA-style trade liberalization on the legal regulation of collective bargaining because its focus is artificially narrow. In reaching their conclusions, 'new consensus' scholars have looked exclusively at changes in private sector collective bargaining legislation. I argue this produces a misleading picture of the impact of trade liberalization because it omits public sector collective bargaining and, even more importantly, it fails to consider the impact of trade liberalization on the effectiveness of statutory collective bargaining schemes. If the focus is broadened to include public sector bargaining and labor law's effectiveness, then one finds there has been more labor market deregulation than consensus scholars acknowledge. On the other hand, I accept that, even after broadening our analytical lens, the downward trajectory of the collective bargaining regime has not been as steep as many RTB theorists predicted. I argue that the model upon which this prediction was based was overly structural and that a more nuanced one is needed. Such a model must better take into account a range of factors that mediate the impact of NAFTA-style trade liberalization on labor market regulation. These mediations occur at the economic level, within the collective bargaining regime itself, and in the external environment that shapes the direction of state action.

Collective Bargaining and the Charter: Assessing the Impact of American Judicial Doctrines

This study analyses the impact of American judicial doctrines upon recent Charter decisions relating to Canada's collective bargaining laws. The first section of the paper explores the constitutional foundations of the Canadian and American labour regimes in terms of the fundamental values entrenched in their respective constitutional arrangements. The second section of the paper is an overview of the Charter era labour regime as it has been articulated by the Canadian judiciary and, in particular, by the Supreme Court of Canada. It is the mixed results of this part of the investigation that led us to some tentative conclusions about the impact upon Canadian courts of American judicial influences.

The Law of Bargaining

This brief essay, written for a symposium on The Emerging Interdisciplinary Cannon of Negotiation, describes three categories of rules which comprise the law of bargaining. First, common law limitations govern virtually all negotiators: the doctrines of fraud and misrepresentation limit the extent to which negotiators may deceive, and the doctrine of duress limits the extent to which bargainers can use superior bargaining power to coerce agreement. Second, context-specific laws sometimes circumscribe negotiating behavior in specific settings when general rules are less restrictive. Third, the conduct of certain negotiators is constrained by professional or organizational regulations inapplicable to the general public. These categories are discussed in turn. The final section of the essay reflects on constraints on negotiator behavior in the absence of law.

Collective Bargaining Laws: Purpose and Scope

Abstract: This paper argues that the right to bargain collectively should be given to every person working for others for pay who suffers a significant degree of democratic deficit or economic dependency in the work relationship. This would constitute a much broader scope of application compared with the current situation in most countries. This change is justified by an inquiry into the purpose of laws allowing and promoting the practice of collective bargaining, on the one hand, and the purpose of laws preventing cooperation among potential competitors, on the other. Collective bargaining laws promote workplace democracy, redistribution of resources, and efficiency. It is shown that, with regard to the broadened group of workers suggested here, there is no contradiction with the goals of competition law.

Introducing the Issues.

It is no exaggeration to say that the twentieth century has been both a blessing and a bane for US labor unions. While it witnessed an era of social upheavals that, unlike previous ones, generated an important and unprecedented legislative effort (and, notably, a collective bargaining law that matched those adopted in countries such as France), the twentieth century also saw US unions decline to a parlous state. The Wagner Act notwithstanding, the proportion of unionized workers in the privat...

Labour Protection for Self-Employed Workers

Self-employed workers have an legal ambiguous status. Traditionally self-employment is equated with entrepreneurship and legally it is considered to be a form of independent contracting and thus outside the ambit of labour protection and collective bargaining laws. But the evidence suggests that most of the self-employed, especially those who do not employ other workers, are much more like employees than they are like entrepreneurs. Instead of attempting to draw a new line between employment and independent contracting for the purpose of determining the scope of labour protection, collective bargaining, and social insurance laws, all workers, including the self-employed, who depend on the sale of their capacity to work should be covered by these laws, unless there are compelling public policy reasons for a narrower definition.

Trade Union Recognition and Australia’s Neo-Liberal Voluntary Bargaining Laws

When Australia deregulated its economy in the 1980s, political pressures built up leading in the 1990s to the dismantling of Australia’s industry-wide conciliation and arbitration systems. New laws established regimes of collective bargaining at the level of the employing undertaking. This article analyzes the 1993 and 1996 federal bargaining laws and argues that they fail to protect the right of trade unions to bargain on behalf of their members. This is because the laws do not contain a statutory trade union recognition mechanism. The recognition mechanisms in the Common Law countries of the United States, Canada, Britain and New Zealand are examined, and it is argued that Australia should enact trade union recognition mechanisms that are consonant with its industrial relations history and practice.

The Assault on School Teacher Bargaining in Ontario

Between 1975 and 1997, school teacher bargaining was conducted under the School Boards and Teachers Collective Negotiations Act (Bill 100). By most accounts, the teacher bargaining law was successful in promoting bilateral settlements with minimal strike activity. Following its election in 1995, the Harris government reduced public expenditures and introduced educational reforms. In doing so, it repealed Bill 100 and passed laws restricting teacher bargaining. These measures ranged from imposing restrictions on the scope of negotiable issues to attempts to make “voluntary” extracurricular activities mandatory. This study finds that the government’s blunt and heavy-handed efforts to control collective bargaining processes and outcomes, not only proved futile, but led to an increase in work stoppages and protracted guerilla warfare at the school board level.

The Regulation of Labor

We investigate the regulation of labor markets through employment laws, collective bargaining laws, and social security laws in 85 countries. We find that richer countries regulate labor less than poorer countries do, although they have more generous social security systems. The political power of the left is associated with more stringent labor regulations and more generous social security systems. Socialist and French legal origin countries have sharply higher levels of labor regulation than do common law countries, and the inclusion of legal origin wipes out the effect of the political power of the left. Heavier regulation of labor is associated with a larger unofficial economy, lower labor force participation, and higher unemployment, especially of the young. These results are difficult to reconcile with efficiency and political power theories of institutional choice, but are broadly consistent with legal theories, according to which countries have pervasive regulatory styles inherited from the transplantation of legal systems.

Capital, Labor, and State: The Battle for American Labor Markets from the Civil War to the New Deal. By David Brian Robertson. Lanham, MD: Rowman & Littlefield, 2000. 320p. $75.00 cloth, $22.95 paper.

This important new study argues that American labor markets have been and are governed by employers to a degree unique among Western capitalist democracies; that this pattern of governance is the outcome of crucial struggles among unions, employers, and middle-class labor reformers from the Civil War to the New Deal; and that American political institutions strongly shaped the struggles and their outcome. In the nineteenth century, all Western countries largely protected employer control of hiring, firing, wages, hours, and working conditions, but in the twentieth century nations other than the United States began to curb employer prerogatives and extend worker protection in the form of labor regulations, trade union and collective bargaining laws, public management of labor supply and demand, and work insurance (the four major types of policy in Robertson's framework). In the United States, fewer such protections were established, and the fragmented federal and state labor policies that were enacted were often undermined by lax enforcement or court rulings. On the eve of the New Deal, Robertson shows, U.S. employers had a degree of autonomy in labor markets unparalleled in European and other industrialized countries.

Public sector union democracy: A comparative analysis

A congressional subcommittee held “union democracy” hearings in 1998 and 1999 to debate the impact and effectiveness of the union-democracy protections provided by the Land rum-Griffin Act which provides union members in the private sector and U.S. Postal Service certain democratic rights and protections. What was not resolved at that hearing was whether state sector or public employee union members should also enjoy the same democracy protections. We survey the existing 28 state sector collective bargaining laws and find that the majority of state legislation falls considerably short of the protections provided by the Labor Management Reporting and Disclosure Act. Moreover the consequences of limited state-enacted union-democracy protections are discussed and assessed to determine whether LMRDA jurisdiction should also cover public sector union members.

Labor and the wartime state: labor relations and law during World War II

The context of wartime labor relations -- The mobilizing period -- The response to war -- The War Labor Board and the law of collective bargaining -- Managerial prerogatives -- The institutional security of unions -- The no-strike pledge in principal andpractice -- The new industrial workers -- The threat of restrictive legislation -- The transference of wartime visions to peacetime -- The contractualism of labor relations and the postwar consensus -- The limits of mature collective bargaining.

American Labor in the Era of World War II.

Acknowledgments Introduction by Sally M. Miller and Daniel A. Cornford Labor in the National Arena CIO Leaders and the State, 1935-1955 by Robert H. Zieger The Law of Collective Bargaining and Wartime Labor Regulations by James A. Atleson The United Steelworkers of America and Health Insurance, 1937-1962 by Alan Derickson Struggles at the Workplace Wartime Shipyards: The Transformation of Labor in San Francisco's East Bay by Marilynn S. Johnson The San Francisco Machinists and the National War Labor Board by Richard P. Boyden Who Controls the Hiring Hall? The Struggle for Job Control in the ILWU during World War II by Nancy L. Quam-Wickham Race, Gender, and Community Her Husband Didn't Have a Word to Say: Black Women and Blues Clubs in Richmond, California During World War II by Shirley Ann Moore African-American Migrant Women in the San Francisco East Bay Area by Gretchen Lemke-Santangelo Catalyst for Change: Wartime Housing and African Americans in California's East Bay by Delores Nason McBroome The CIO: A Vanguard for Civil Rights in Southern California, 1940-1946 by David Oberweiser, Jr. Index

Balancing Union and Individual Rights in Israeli Collective Bargaining: Job Security and the Reinstatement of Wrongfully Dismissed Employees

This paper will deal with the reinstatement of wrongfully dismissed employees in the Israeli law of collective bargaining. According to the current state of Israeli labor law, this question is connected with many other issues, such as the difference between individual and collective disputes (a problem most exhaustively developed in the law of strikes), the ability of an individual employee to enforce rights deriving from a collective agreement and the application of the regular contracts remedies law to collective agreements. We begin with the collective agreement and its administration.Israel's Collective Agreements Law of 1957 exhibits an intriguing amalgam of American and continental influences. From America the act borrowed the concept of an exclusive bargaining representative. It was contemplated that in aspecialcollective agreement between a labor organization and a single employer or in ageneralcollective agreement between a labor organization and an employers' association,onelabor organization only would be entitled to enter into the collective agreement — the labor organization with the largest union membership. An agreement made by such a representative labor organization would directly bind all employees in the plant or trade covered by the agreement, whether members of the representative labor organization or not.

From “Porkchoppers” to “Lambchoppers”: The Passage of Florida's Public Employee Relations Act

This study suggests an historical explanation for Florida's enactment of a statewide public sector collective bargaining law in 1974. Florida has characteristics that, in other states, have tended to militate against the passage of such a law: a weak statewide labor movement, low interparty competition, active business opposition, and the long-term incumbency of conservative southern Democrats. Using interviews and historical documents, the authors identify events and conditions that, they argue, account for the 1974 legislation. Notably, federal court-ordered reapportionment led to the election of urban progressives; a revision of the state's constitution gave public employees collective bargaining rights; and the Florida Supreme Court, responding to a suit filed by a local teachers' union, took actions that forced the legislature to enact a collective bargaining law.

Collective Bargaining Laws, Threat Effects, and the Determination of Police Compensation

This article demonstrates that state collective bargaining laws are important determinants of union and nonunion public employee compensation. State laws that provide stronger bargaining rights and ensure closure to the bargaining process increase the direct effect of police unions on compensation. Moreover, indirect threat effects on the pay of nonunion police also increase with stronger bargaining laws. In each law category investigated, nonunion police receive most of the compensation premium enjoyed by unionized police. Previous studies that have not adequately controlled for these effects of bargaining laws have therefore underestimated the full effect of public-sector unions on compensation.