Bargaining Order Research Articles

NLRB Ups the Stakes on Unfair Labor Practices

Unfair labor practices during organizing activity have always presented acute risks for employers. Termination of a vocal union proponent, as an extreme example, can result in a bargaining order requiring the employer to recognize the union seeking to represent employees. Short of a bargaining order, employers have also been ordered to reinstate such employees and pay them for their losses. In more recent years, employers violating the law have also been called upon to read the common “Notice to Employees” text in addition to posting the document, thereby emphasizing its contents while generating potential humiliation for managers.

The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency’s published decisions. This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from the labor law landscape in 1969. Under Joy Silk, the NLRB would order an employer to recognize and bargain with a labor union if the union represented a majority of the employees in an appropriate bargaining unit at the time it requested recognition, and the employer denied the request while lacking a good faith doubt as to the union’s majority status and took action calculated to dissipate that majority status. Under closer examination, it has become clear that the NLRB’s abandonment of the good-faith doubt test in favor of the misconduct-centric analysis enunciated in Gissel Packing is intimately connected to the agency’s inability to enforce the law and, as a result, fulfill its statutory mission of encouraging collective bargaining. This Article addresses the primary objections to the NLRB’s use of the good-faith doubt test in the realm of union requests for recognition that were raised in its heyday and elucidates their lack of historical, legal, and practical foundations. The NLRB’s inquiry into motive in the pre-recognition context was statutorily permissible, logically consistent, and effectively deterrent. Reviving the good-faith doubt test of Joy Silk and enforcing Section 8(a)(5) of the NLRA as written would better encapsulate the bargaining orders envisioned in past Supreme Court precedent and equip the NLRB with a tool historically proven to prevent misconduct in elections.

The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency's published decisions. This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from the labor law landscape in 1969. Under Joy Silk, the NLRB would order an employer to recognize and bargain with a labor union if the union represented a majority of the employees in an appropriate bargaining unit at the time it requested recognition, and the employer denied the request while lacking a good faith doubt as to the union’s majority status and took action calculated to dissipate that majority status. Under closer examination, it has become clear that the NLRB’s abandonment of the good-faith doubt test in favor of the misconduct-centric analysis enunciated in Gissel Packing Co. is intimately connected to the agency’s inability to enforce the law and, as a result, fulfill its statutory mission of encouraging collective bargaining. This Article addresses the primary objections to the NLRB’s use of the good-faith doubt test in the realm of union requests for recognition that were raised in its heyday and elucidates their lack of historical, legal, and practical foundations. The NLRB’s inquiry into motive in the pre-recognition context was statutorily permissible, logically consistent, and effectively deterrent. Reviving the good-faith doubt test of Joy Silk and enforcing Section 8(a)(5) of the NLRA as written would better encapsulate the bargaining orders envisioned in past Supreme Court precedent and equip the NLRB with a tool historically proven to prevent misconduct in elections. Few initiatives in General Counsel Abruzzo’s agenda could prove more effective in carrying forth the Board’s statutory mission.

How to Earn an NLRB Bargaining Order

All actions taken during a union organizing campaign should be carefully considered, as the law governing your actions is complicated. One very aggressive employer recently learned that a failure to consider the legality of its tactics can result in remedies so severe as requiring you to reopen a closed business.

Management Participation of Workers in the Multiple Labor Union System

우리나라에서 2011년 7월 1일을 기점으로 기업 단위의 복수노조제도가 시행되어 이제는 어느 정도 정착되었다고 본다. 시행 초기에는 교섭창구 단일화, 공정대표의무와 같은 문제 등으로 단체교섭질서의 혼란, 근로조건의 통일성 훼손, 노동조합간의 과도한 세력다툼 및 분열과 같은 산업현장의 혼란 등이 있었다. 또한 일부 사업장에서는 사측과 대립적이고 투쟁적인 노동조합을 무력화하는 수단으로 교섭대표노조제도를 이용하고 있는 경우도 있었지만, 교섭대표노조의 공정대표의무제도를 명확하게 적용한다면, 소수노동조합도 그 조합원 숫자만큼의 권리를 보장받을 수 있다고 본다. 따라서 복수노조제도는 근로자들의 단결선택권을 보장하면서 근로자들의 다양한 참여를 통해 근로자들의 전반적인 이익을 도모할 수 있다고 본다. 그러나 오늘날 기술혁신과 생산성 향상은 근로자의 경제적·사회적 지위의 향상을 가져오게 되었고, 사용자와 기업은 저비용으로 높은 이윤을 창출하려는 경영에서 고생산성 고임금의 경영정책으로 방향전환을 하게 되었다. 결국 노사 쌍방은 서로를 인정하고 각기 자신의 사회적 책임을 인식하고, 필요 이상의 분쟁행위를 가능한 회피하면서, 노사 간의 문제를 될 수 있는대로 이성에 입각한 대화를 통해서 평화적으로 해결하지 않을 수 없게 된 것이다. 따라서 오늘날 세계의 변화는 자연스럽게 참여자본주의를 확산시켰고, 경제민주주의와 산업민주주의를 이끌어 내었던 것이다. 그 결과 사용자의 독점권이라고 여겨왔던 기업의 경영권에 핵심 이해 당사자인 근로자의 참여를 보장하게 되었다. 이러한 근로자의 경영참여는 비시장적 결정영역의 확대, 가치 목적의 다원화, 조직의 대규모화, 교육 수준의 향상, 정보 가치의 증대, 자유 평등주의의 발달, 노동자와 경영자 간의 사회 책임 강화, 근로자의 비인간화에 수반되는 노동소외 감소의 요청, 경영체제에서 복지를 지향하는 가운데 그 발생원인의 근거를 찾을 수 있다. 그 다음으로 노동조합의 내실화 및 조직 강화, 단체교섭의 절제된 성격에서 산업민주주의의 요구, 경영체제의 합리화 요구 등에서 필요성을 찾을 수 있다. 근로자의 경영 참여제도는 의사결정참여, 자본참여와 이익참여로 크게 나누어 볼 수 있다. 이 중 자본참여와 이익참여는 경제민주주의의 영역이라고 하고 의사결정참여는 산업민주주의의 영역에 속한다고 보고 이를 일반적으로 근로자의 경영참여라고 본다. 그러나 기업별노조만 인정되어 왔던 우리나라에서 복수노조제도를 시행함으로 발생되고 증가한 노사 및 노노의 갈등이 노사관계나 근로자의 경영참여에 영향을 미칠 수 있다는 생각에 본 연구를 하게 되었다. 따라서 본 논문에서는 현행 복수노조제도 하에서 복수노조의 현황과 더불어 근로자의 경영참여가 어느 정도 잘 이루어지고 있고, 근로자의 경영참여 시행에 어떠한 문제점들이 나타나고 있으며, 이를 성공적으로 정착하기 위한 해결방안에 대하여 연구하고자 한다.As of July 1, 2011, a multiple labor union system at the corporate level has been implemented in Korea. In the early stages of implementation, there were problems such as confusion in the collective bargaining order, damage to the uniformity of working conditions, and confusion in industrial sites such as power struggles and division among labor unions due to issues with the unification of bargaining windows and the duty of fair table. Some workplaces use the bargaining labor union system as a means of disabling labor unions that were in conflict with management. I believe, however, that if the fair representative duty system of the bargaining labor union is clearly and precisely applied, minority labor unions can also be guaranteed rights as many as their members. Therefore, the multiple labor union system will guarantee workers’ right to make choices while promoting workers’ overall benefits through their various participation. Today, however, technological innovations and productivity gains have resulted in an improvement in the economic and social status of workers, and employers and businesses have shifted from low-cost, high-profit to high-productivity, high-wage management policies. In the end, both labor and management recognized each other and their own social responsibilities, and avoided any unnecessary conflicting actions, resolving conflicts peacefully through rational dialogue, as much as they could. Thus, today’s changes in the world naturally spread participatory capitalism, leading to economic and industrial democracy. The result is the involvement of workers, who are key stakeholders, in the management of a company that has been regarded as the monopoly of the employer. Such workers’ participation in management involves the expansion of non-market decisions, diversification of value objectives, organizational enlargement, improvement of education level, increase of information value, development of liberal egalitarianism, strengthening social responsibility between workers and managers. The cause of this change can be found in the request for the reduction of alienation associated with dehumanization and the welfare-oriented management system. Next, the necessity is found in the internalization and reinforcement of labor unions, the demand for industrial democracy in the understated nature of collective bargaining, and the demand for rationalization of the management system. The workers’ management participation system can be divided into several parts: decision participation, capital participation, and profit participation. Among them, capital participation and profit participation are called economic democracy, and the decision-making participation belongs under industrial democracy. However, this study was carried out on the idea that the increased labor-management conflict between labor and labor unions may affect labor relations or management participation of workers. Therefore, in this paper, I would like to discuss the somewhat well achieved workers’ management participation under the current multiple labor union system, some problems that arise from workers’ management participation, and possible solutions for successfully implementing such solutions.

Employer Evades Bargaining Order

In early 2014, aluminum manufacturer Novelis won a union election by a vote of 287 to 273. Subsequently, a National Labor Relations Board administrative law judge found Novelis committed numerous unfair labor practices, including restoring Sunday and holiday pay; removing union literature; interrogating employees; prohibiting employees from wearing union paraphernalia; and threatening employees with wage loss, plant closure, and more difficult working conditions if they were to unionize, as well as demoting an employee for complaining about management on Facebook. Among other measures, the ALJ recommended a bargaining order because “traditional remedies … would be insufficient to alleviate the impact reasonably incurred by eligible unit employees[.]”

Bargaining Order in Multilateral Bargaining with Imperfect Compliments

Using a sequential model of multilateral bargaining involving one buyer and two sellers, who are selling objects which are imperfect compliments for the buyer, we analyse buyer’s preferred bargaining order i.e. whether the buyer prefers to buy higher valuation object first or second. For a narrow range of parameters, where players are patient enough and objects exhibit high degree of complimentarity, multiple equilibria exist such that both the bargaining orders are preferred. For rest of the range, which is relatively much larger, buyer prefers to buy higher valuation object first.

Bargaining Order

Management Report for Nonunion OrganizationsVolume 41, Issue 1 p. 5-6 Campaign Workshop Bargaining Order First published: 26 December 2017 https://doi.org/10.1002/mare.30350Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat No abstract is available for this article. Volume41, Issue1January 2018Pages 5-6 RelatedInformation

Bargaining orders in a multi-person bargaining game

This paper studies a complete-information bargaining game with one buyer and multiple sellers of different “sizes” or bargaining strengths. The bargaining order is determined endogenously. With a finite horizon, there is a unique subgame perfect equilibrium outcome, in which the buyer purchases in order of increasing size–from the smallest to the largest. With an infinite horizon, if the sellers have sufficiently different sizes, there is a unique equilibrium outcome, which has the same bargaining order. If the sellers have similar sizes with an infinite horizon, there may be multiple equilibrium outcomes with different bargaining orders.

Court Upholds Board's Bargaining Order Due to Two Employer ULPs

Court Upholds Board's Bargaining Order Due to Two Employer ULPs

Trump Hotels Agree to Union Demands at Las Vegas and Washington, D.C., Properties

Two Trump hotels have reached labor agreements that will prevent controversy and criticism over potential conflicts of interest between the president's business interests and his executive authority over the National Labor Relations Board. On Dec. 21, 2016, it was announced that Trump International Hotel in Las Vegas agreed to a contract with UNITE HERE, resolving a yearlong dispute that recently resulted in a bargaining order from the NLRB. At the same time, the Trump hotel in Washington, D.C., agreed to remain neutral during a unionization campaign at that property.

The Trade-offs of Justice: A Theory of the Optimal Use of Alternative Criminal Procedures

Criminal cases can be adjudicated via court trials or alternative criminal procedures, such as plea bargaining and penal order. We develop a model of optimal allocation of cases across these alternatives based on offense severity and available evidence. The model predicts that the evidence standards — and thus the number of wrongful convictions and wrongful acquittals — fundamentally depend upon the cost structure of the criminal process as well as on the budget resources allocated to the criminal justice system. We call this phenomenon the marginal cost of justice. Our model offers explanations why the scope of plea bargaining in the United States has been traditionally broader than the scope of alternative procedures in Europe and why their use in Europe has recently expanded.

Bargaining order and delays in multilateral bargaining with heterogeneous sellers

We consider a complete-information multilateral bargaining game in which a single buyer negotiates with two heterogeneous sellers selling perfect complementary units. While bilateral negotiations take place through a sequence of offers and counteroffers, the bargaining order is exogenously given. We solve for the conditions under which (a) the buyer prefers to negotiate with the lower-valuation seller first and (b) efficient (inefficient) outcomes emerge for the two bargaining orders. We find that the buyer prefers to negotiate with the lower-valuation seller first whenever the players are relatively impatient or the sellers are sufficiently heterogeneous. We show that there exists a unique efficient outcome when the buyer negotiates first with the lower-valuation seller and the sellers are sufficiently heterogeneous; however, significant delay in reaching agreements may arise when they are not. In case the buyer bargains with the higher-valuation seller first, an inefficient outcome is shown to exist even when players are extremely impatient.

Textbook Case of How to Get a Bargaining Order

A Los Angeles nursing home where the Service Employees International Union was campaigning to represent the workers committed so many unfair labor practices (ULPs) that the National Labor Relations Board issued an order to bargain with the union although there had been no election (Vista Del Sol Health Servs., Inc., NLRB ALJ, No. 31‐CA‐115318 (2015).

Novelis Antiunion Campaign a Warning for Employers

In a recent decision, a National Labor Relations Board administrative law judge (ALJ) found that a bargaining order was appropriate to remedy unfair labor practices (ULPs) that Novelis Corporation committed in response to an organizing campaign. The case is a road map of unfair labor practices in response to union organizing. Understanding how this employer wound up with so many ULPs may help others avoid having defeat similarly snatched from the jaws of victory.

Two Companies Ordered to Bargain With Unions

Management Report for Nonunion OrganizationsVolume 38, Issue 4 p. 2-8 News Two Companies Ordered to Bargain With Unions First published: 17 March 2015 https://doi.org/10.1002/mare.30046Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Abstract The most powerful weapon labor law makes available against employers who commit unfair labor practices is an order to bargain with a union that has not even won a representation election. Both the National Labor Relations Board and federal judges may issue bargaining orders—as two companies recently found out. Volume38, Issue4April 2015Pages 2-8 RelatedInformation

Bargaining Order in a Multi-Person Bargaining Game

This paper studies a bargaining game with one buyer and multiple sellers of different sizes or bargaining strengths. The bargaining order is determined by the buyer. If the buyer can commit to a bargaining order, there is a unique subgame perfect equilibrium outcome where the buyer bargains in order of increasing size -- from the smallest to the largest. If the buyer cannot commit to a bargaining order and the sellers are sufficiently different, there is also a unique subgame perfect equilibrium outcome again with the order of increasing size.

Bargaining Order in a Multi-Person Bargaining Game

This paper studies a complete-information bargaining game with one buyer and multiple sellers of di¤erent ?sizes? or bargaining strengths. The bargaining order is determined by the buyer. If the buyer can commit to a bargaining order, there is a unique subgame perfect equilibrium outcome where the buyer bargains in order of increasing size ? from the smallest to the largest. If the buyer cannot commit to a bargaining order and the sellers are su¢ ciently di¤erent, there is also a unique subgame perfect equilibrium outcome again with the order of increasing size.

The Maya of Morganton: Work and Community in the Nuevo New South (review)

Reviewed by: The Maya of Morganton: Work and Community in the Nuevo New South Judy Ancel The Maya of Morganton: Work and Community in the Nuevo New South. By Leon Fink. Chapel Hill: University of North Carolina Press, 2003. 254 pp, 25 photos. $34.95 hardback, $17.95 paper. This book asks how Guatemalan immigrant refugees of one of the most brutal civil wars in recent history could organize and win union recognition at a southern poultry plant in 1995 when virtually no one else could. The answer is as intricate as the huipiles the Mayan women wear. These dazzling woven and embroidered blouses, symbols of pride and village identity, are like the workforce itself, filled with complex and sometimes opposing threads of experience, expectations, and relationships, and Leon Fink deftly unravels them, always asking, as he puts it, "Who sticks with whom and under what conditions?" The situation at the Case Farms poultry plant in Morganton, North Carolina could be summed up as Ken Sehested of the Baptist Peace Fellowship did in a support speech: "Worlds colliding. Peasant farmers of distant land meet small-town USA. What twist of fate has brought you together? The world's plant managers know. They have their hands around both your throats." The story begins with strikes at Case Farms in 1991 and 1993 by the Guatemalan workers who make up most of the 80% Hispanic workforce over issues of pay and working conditions. Then in 1995 the already substantially organized workers affiliate with the Laborers International Union (LIUNA) and hold an NLRB election in July, which they win 238 to 183. Case Farms appeals and loses. The company is slapped with a bargaining order; fruitless negotiations follow and then another bargaining order. The anti-union animus of this company is unbelievable. They actually demand that 30 cents an hour be withheld from wages until the end of the contract for an insurance fund against strikes. Finally, in 2002, after having expended vast resources in its Poultry Workers Alliance, LIUNA bows out, leaving the workers with a workers center to be set up by the Chicago-based Interfaith Worker Justice coalition and funded by LIUNA. The Case Farms struggle could be a textbook example of the best organizing practices of the mid-1990s advocated by the Sweeney-led AFL-CIO. It includes bottom-up organizing, skilled and inspiring Spanish-speaking [End Page 103] organizers, corporate and consumer campaigns, international solidarity, and the constant replenishment of rank and file and leaders despite high turnover. And they still don't win, if winning means a signed union contract and dues-paying members. The Maya of Morganton should be read by every student of labor, every organizer and strategist, at minimum.to understand about immigrants and organizing But this book deals with many other issues too. I would have liked to know more about the attitudes of the few American-born workers, black and white, at Case Farms. And a chronology of events and name list of players would have helped for reference. Fink leaves readers asking what winning means. The Western North Carolina Workers Center is now self-sustaining. Its staff members Francisco Risso and Juan "Nacho" Montes come right out of the book. In 2005 there was another union election with RWDSU, which the union lost. The still largely Guatemalan workforce maintains their organization and intends to try again. As Nacho told me, "Unions must refocus on organizing the base in this country. We have patience." Judy Ancel University of Missouri, Kansas City Copyright © 2006 the West Virginia University Press, for the United Association for Labor Studies

Multifirm unions and the incentive to adopt pattern bargaining in oligopoly

This paper develops a model of wage bargaining between an industry-wide trade union and firms in an oligopoly and considers the circumstances under which the union prefers pattern bargaining, that is negotiating contracts in a sequential manner, to simultaneous bargaining with the firms. The paper goes on to consider the importance of the bargaining order in pattern bargaining when the firms are asymmetric. The analysis shows that the union gains by first targeting a firm which is in a relatively weak bargaining position (i.e. impatient to settle) or a firm with relatively large profits.