Practice Of Bargaining Research Articles

The Vanishing Employee: Putting the Autonomous Dignified Union Worker Back to Work

This paper was presented at a symposium, hosted by the Florida International University Law Review during March 2011 to celebrate the 75th anniversary of the enactment of the National Labor Relations Act. Dean R. Alexander Acosta, himself a former Board member, tasked the panelists not only with predicting the Board’s future but also with commenting on the extent to which the Board’s fate is simply to wither away. I chose to demonstrate that the Board and the NLRA are not simply withering away but have been repressed by all three branches of government. I chose to demonstrate that proposition through an historical account of the changing definition of the statutory term, “employee.” That account reveals what I call, the vanishing employee.The NLRA’s definition of employee is significant because it is the gateway to all worker protection under Section 7, which includes the fundamental rights to self-organize, bargain collectively, and band together for mutual aid or protection. Although the Supreme Court has characterized that statutory definition as “striking[ly]” broad, all three branches of government have worked together to narrow that definition and, in doing so, narrow the gate through which meaningful opportunity for free association resides.This paper examines that statutory definition with reference to (1) the plain language, (2) the legislative history, (3) congressional amendment, (4) Supreme Court interpretation, and (5) administrative interpretation. I begin with a deconstruction of the statutory term employee and show that there is an affirmative definition and a negative definition. Building on the work of labor law theorists such as Marion Crain, Ellen Dannin, Matthew Finkin, Harry Hutchinson, Risa Lieberwitz, Ken Matheny, Marley Weiss, among others, I show that, although the plain language of the affirmative part of the definition does in fact broadly include “any employee” and expressly “shall not be limited to the employees of a particular employer,” that definition has been narrowed by all three branches of government. First, Congress added two important exemptions to the definition – independent contractors and supervisors. Second, the Bush II Board, based in part on recent Supreme Court precedent, has interpreted those exemptions, especially the supervisory exemption, in a way that punches a gaping hole in an otherwise broad definition. Third, notwithstanding court precedent, the Bush II Board more recently attacked the affirmative definition of employee by removing wholesale classes of employees from the statutory definition, merely because, in its view, those workers did not have “the economic relationship contemplated and protected by the Act.”I end by arguing in favor of congressional amendment, in particular, by eliminating the supervisory and independent contractor exemptions. In my view, eliminating these exemptions is the best way to maximize worker autonomy and dignity. Recognizing that congressional amendment is unlikely, I describe several other more modest changes that could protect more workers. For example, administrative and court interpretation of the NLRA in light of its purpose – to promote “the practice and procedure of collective bargaining” – would go a long way toward eradicating some of these problems. I also touch upon the experience of Canada to briefly consider whether distinguishing between independent and dependent contractors might broaden the definition of employee by narrowing those who are currently exempted as independent contractors. I conclude by arguing that the best chance for revitalizing workplace participation will be to ensure organization rights to those who meet the statutory definition through the internet and other social networking activities.

Trade unions, democracy and power

Should the law support union recognition by employers? If so, what form should this legal support take? These are the questions that Alan Bogg addresses in his excellent monograph,The Democratic Aspects of Trade Union Recognition. His focus is New Labour's 1999 statutory recognition procedure for trade unions, which he situates within the historical context of the United Kingdom's distinctive approach to the relationship between labour law and the social practice of collective bargaining – aptly (and famously) named collective laissez-faire by Otto Kahn-Freund (1972). Combining political philosophy and legal analysis, Bogg argues for robust legal support for trade union recognition that preserves the autonomy of trade unions to determine their own constituency and recognises their distinctive power to strike. Inspired by the idea of deliberative democracy and an ethical commitment to freedom as non-domination, he argues that civic republicanism provides the best normative basis for trade union recognition procedures. He contrasts this normative framework with the rights-based individualism and state neutrality characteristic of the liberal approach, which, he argues, is embodied in the United States and Canadian versions of industrial pluralism. Bogg also demonstrates the ‘yawning chasm between New Labour's civic rhetoric and New Labour's liberal legal reform agenda’ (pp. 118–19) when it comes to trade union recognition procedures. He concludes by offering a series of proposals that would enhance union recognition and further the values of freedom as non-domination, democratic participation through deliberative democracy, and community.

The Impact of Dubuque Packing Co. Upon the Collective Bargaining Practices of Attorneys and Their Clients

AFL-CIO funded-research that presents empirical results from a survey of a cohort of most prominent labor and union attorneys that establish a strong negative correlation between the National Labor Relations Board’s contraction of employer bargaining duties and their decisions to relocate work from union to non-union sites. The NLRB’s conclusion that plant relocation decisions can be made unilaterally by employers increases the likelihood that employers will relocate to save money spent on, inter alia, union wages and benefits. However, such a decision is contrary to the Congressional determination that national labor policy espouses and encourages collective bargaining.

The Global Practice of Plea Bargaining and the Nigerian Legal System

Plea bargaining is now a global feature in the administration of Criminal Justice the world over. The trend is of such a tsunamic force that nations whose Legal Systems hitherto does not recognize the concept of a plea in criminal prosecutions are now developing, evolving and coining various concepts to accommodate a form of lea bargaining in their legal system.Plea bargaining is a practice in a criminal proceeding whereby the accused is induced to plead guilty to a charge in return for a lesser sentence or dropping of some charges or both.The concept seems nouveau in the scope of principal Nigerian criminal legislations and case law. The practice is really gaining ground in the Nigerian criminal justice process in Lagos state and more especially, in the prosecution of financial crimes undertaken by the Economic and Financial Crime Commission (EFCC). This notwithstanding, the question however, how does the concept intend to socialize withe the Nigerian Legal System and the populace as a whole?The paper is an attempt to find a rendezvous between the concept of plea bargain and the Nigerian Legal System. This paper set forth the substance of the global concept and practice of plea bargaining from a perspective that is holistic and with an unbiased jurisprudential basis. It is hope to show that it is illuminating against the background of the Nigerian jurisprudential dynamics and hybrid legal system.

The Impact of ‘Good Faith’ Obligations on Collective Bargaining Practices and Outcomes In Australia, Canada and the USA

This paper examines the collective bargaining (CB) framework in Australia’s Fair Work Act 2009 (Cth), including the legislation’s good faith bargaining (GFB) requirements, in comparison with the much longer-standing GFB laws of the USA and Canada. The paper considers the extent to which North American concepts such as ‘hard bargaining’, and limits on ‘direct dealing’ and communication with employees during bargaining, are influencing the interpretation and operation of Australia’s GFB laws. Areas of parallel and divergence are identified. At a more ‘macro' level, the paper assesses the early impact of the new Australian legislation on CB practices and outcomes – and in particular, its effect on employer resistance to CB. The paper finds that, after almost 12 months of operation, there are indications that the new Australian regulation is achieving the federal Government’s policy objective of encouraging CB.

A Survey of Postsecondary Art Educators’ Workplace Concerns

Abstract Early in the fall of 2006, an invitation to participate in a survey entitled the NAEA Higher Education Demographics, Interests and Needs Assessment was distributed to art teacher educators via the National Art Education Higher Education Listserv. The purpose of the survey was to gather information regarding the demographics and workplace conditions of art educators in higher education. This article shared findings and addresses workplace issues related to art educator faculty salaries, workloads, promotion and tenure policies, and collective bargaining practices in the field of art education.

A Survey of Postsecondary Art Educators' Workplace Concerns

Early in the fall of 2006, an invitation to participate in a survey entitled the NAEA Higher Education Demographics, Interests and Needs Assessment was distributed to art teacher educators via the National Art Education Higher Education Listserv. The purpose of the survey was to gather information regarding the demographics and workplace conditions of art educators in higher education. This article shared findings and addresses workplace issues related to art educator faculty salaries, workloads, promotion and tenure policies, and collective bargaining practices in the field of art education.

Government and Trade Union Responses to the Economic Crisis in the Financial Sector

This working paper provides an overview of government and trade union responses to the economic crisis in the financial sector. It provides a comparative presentation of trade union and government responses to the crisis with particular emphasis on the country-specific conditions and practices of collective bargaining and social dialogue. It is based on a survey carried out among financial sector unions affiliated to Uni-Europa.

Naming and Blaming: The Case of "The Rehnquist Court"

Naming and Blaming:The Case of "The Rehnquist Court" Edward A. Purcell Jr. (bio) Nancy Maveety . Queen's Court: Judicial Power in the Rehnquist Era. Lawrence: University of Kansas Press, 2008. ix + 194 pp. Notes, bibliography, and index. $29.95. Using the names of chief justices to demarcate periods in the history of the United States Supreme Court is as common as it is misleading. The label "Warren Court" seems etched in stone, for example, even though the Court went through two, if not three, quite distinct phases between 1953 and 1969 when the eponymous Earl Warren was chief. The last phase, moreover, arguably continued for almost a decade after Warren left the bench, and might—at least after the early 1960s—have more accurately been termed the "Brennan Court." Applying the chief justice's name to the recently terminated "Rehnquist Court" is particularly inapt, Professor Nancy Maveety argues in her new book, Queen's Court, a title that readily captures her thesis. Seeking "to assign a definitive meaning to the 'Rehnquist Court'" and "identify its historical importance," Maveety concludes that the Court under Chief Justice William Rehnquist "should be remembered legitimately as Justice O'Connor's." Both its long-term significance and the "real difficulties—jurisprudential and systemic" that it created—flowed from the "judicial O'Connorism" that characterized its work (p. 4). A specialist in the Court's history and the author of Justice Sandra Day O'Connor: Strategist on the Supreme Court (1996), Maveety is well positioned to evaluate the contributions of the Court's first female member during her twenty-five-year tenure from 1981 to 2006. Few, of course, would dispute the author's general premise that O'Connor "sat, figuratively if not literally," at the center of the Rehnquist Court (p. 4). Indeed, her pivotal role has long been recognized. Edward Lazarus, who clerked for Justice Harry Blackmun in the late 1980s, concluded a decade later that the Court "remains, as it was in my day, a creature of Justices O'Connor and Kennedy." The two "swing" conservatives controlled. "In case after case," Lazarus explained, "these swing-vote justices write separate concurrences, usually modulating the conservative insurgency, [End Page 440] but always bending the Court and the law to their will."1 Subsequently, surveying O'Connor's tenure after her retirement, Jeffrey Toobin portrayed her position similarly if more dramatically. "The way to win a majority in the Rehnquist Court was to earn O'Connor's support," he wrote, "so her colleagues invariably came to her as supplicants."2 Thus, the importance of Maveety's book lies neither in its identification of O'Connor's pivotal position on the Rehnquist Court nor in its description of her "as a centrist conservative on a sharply divided and jurisprudentially polarized Supreme Court" (p. 3). Rather, its importance lies in its more specific argument that O'Connor used her key position not just to swing cases her way but also to reshape the Court's inner workings. Largely assuming, rather than examining, issues of political context, judicial values, and substantive doctrine, Maveety concentrates on the Court's evolving institutional norms and de facto decision-making process, and it is in those areas that she locates O'Connor's principal significance. O'Connor was "the crucial contributor to each of the several legacies of the Supreme Court during the Rehnquist era" she concludes, and the Rehnquist Court's primary legacy was its normative and behavioral acceptance of a distinctive "judicial O'Connorism" (p. 4, italics in original). Queen's Court builds its argument in a series of steps. Chapter one, based largely on the papers of Justice Harry Blackmun covering three early terms (1986, 1991, and 1993), argues that "individuated judicial behavior defined the Rehnquist Court" (p. 5). The chief ran a "nondeliberative conference" (p. 14) that fostered a norm of "judicial individualism" (p. 35) as well as a practice of informal bargaining in which the justices strove to pull together majority coalitions to support specific results in individual cases. "O'Connor and her colleagues," Maveety explains, "behaved as if the circulation of conditional join memos and concurrence drafts was the duty of all justices in their individual...

Professionalization and Probity in a Patrimonial State: Labor Inspectors in the Dominican Republic

AbstractAre international labor rights campaigns making a difference in Latin America? This article reveals that Dominican policymakers and bureaucrats are responding to foreign pressure by redoubling their commitment to a distinctively Franco-Iberian model of labor law enforcement, in which skilled labor inspectors use their discretion to balance society's demand for protection with the economy's need for efficiency. In so doing, they provide an alternative to traditional collective bargaining practices—which at least partly decouples both the intensity of the enforcement effort and the degree of worker protection from the level of unionization—and an example for the rest of the region. The article therefore concludes by reconsidering the Central American experience in light of the Dominican findings and discussing their joint implications for our understanding of administrative reform, industrial relations, and globalization, not only in the so-called CAFTA countries but in Latin America more generally.

The Practice of Plea Bargaining and its Effect on the Anti-Corruption Crusade in Nigeria

The world we live in is just one of the worlds. The world of the animals has never been faced with the shortage of means of sustenance. Hence, our present conundrum is a product of our machinations. The brain behind our present predicament is the evil corruption which has eaten deep into the fabrics of our society. Corruption is every where. It is clearly and visibly written in the air. We are all victims of one corrupt practice or the other. Corruption is not peculiar to Africa. It is common to all governments and countries of the world. Its effects are more visible here simply because, the rate at which it is operated is beyond imagination and the enforcement machinery has been compromised especially recently with the increasing instances of plea bargaining introduced into its prosecution. This work will analyze the incidence the incidence of corruption in Nigeria, the havoc it has caused on the society and the attempts made by government at curbing it. The insurgence of plea bargaining in our criminal justice system will be considered and its effect on the anti-corruption crusade.

LAW REFORM, COLLECTIVE BARGAINING, AND THE BALANCE OF POWER: RESULTS OF AN EMPIRICAL STUDY

Despite Congress' having made clear policy statements in the National Labor Relations Act that the law was intended to promote equality of bargaining power between employers and employees, to promote the practice and procedure of collective bargaining as the method of setting workplace terms and conditions of employment, and forbidding construing the law “so as to either interfere with or impede or diminish in any way the right to strike,” by early 1940, the courts had given employers the right to permanently replace strikers and implement their final offer at impasse. Judges have often justified these doctrines as promoting balance in bargaining. Critics contend that the doctrines have the capacity to destroy the right to strike, unbalance bargaining power, and divert parties from the process of bargaining collectively. Some have proposed allowing temporary but not permanent striker replacement. We use a bargaining simulation followed by a survey and debriefing comments to test these opposing claims.

LABOR LAW INSIDE OUT

Today, some sixty years after passage of the Taft‐Hartley amendments to the National Labor Relations Act, it seems that the centerpiece of the Act has become the right to refrain from protected, concerted or union activity. The original 1935 legislation was enacted, of course, to protect the right to engage in that activity, and to encourage the practice of collective bargaining. For nearly sixty years after Taft‐Hartley added the “right to refrain” to Section 7's employee protections, the Board has struggled to reconcile the sometimes competing statutory goals of promoting the stability of collective bargaining relationships and the individual freedom of choice, preserved by Section 7. That has changed, however, as the National Labor Relations Board, in several recent decisions, has said for the first time, that freedom of choice—which is to say, the freedom to reject union representation—prevails in the statutory scheme. It is as if the law, in abandoning the primacy of achieving economic justice through collective action, has been turned inside out. The stakes for this shift in policy are great.

Law Reform, Collective Bargaining, and the Balance of Power

Despite Congress' having made clear policy statements in the National Labor Relations Act that the law was intended to promote equality of bargaining power between employers and employees; to promote the practice and procedure of collective bargaining as the method of setting workplace terms and conditions of employment; and forbidding construing the law so as to either interfere with or impede or diminish in any way the right to by early 1940, the courts had given employers the right to permanently replace strikers and implement their final offer at impasse. Judges have often justified these doctrines as promoting balance in bargaining. Critics contend that the doctrines have the capacity to destroy the right to strike, unbalance bargaining power, and divert parties from the process of bargaining collectively. Some have proposed allowing temporary but not permanent striker replacement. We use a bargaining simulation followed by a survey and debriefing comments to test these opposing claims.

Collective Bargaining in Eastern Europe: Case Study Evidence from Romania

This article compares collective bargaining practices in Romania after 1989 with those in continental Western Europe. It focuses on the structures, processes and outcomes of collective bargaining in four large chemical companies; comparisons are also made with other Eastern European countries. Unexpectedly, the findings point to an increase in state intervention in establishing terms and conditions of employment after 1989. The development of collective bargaining in Romania appears to follow a nation-specific path, with the continuance of certain pre-1989 features, such as unclear boundaries between trade unions and management.

Labour relations, collective bargaining and employee voice in SMEs in central and eastern Europe

Drawing upon the examples of Bulgaria and Hungary, this article explores employee representation and voice in SMEs in central and eastern Europe in the context of the spectacular development of the SME sector during the post-1990 transition and associated changes in labour relations and collective bargaining practices. The article examines the relationship between the regulation of employment relations and employee representation and voice. It suggests that the absence of formal channels of representation in SMEs hides the existence of a number of informal compromises between employers and employees over matters such as wages, working time, and health and safety conditions. The authors argue that future trade union strategies should be based on a clear understanding of these social realities.

Retributivism and Plea Bargaining

Plea bargaining is a ubiquitous phenomenon in certain contemporary criminal justice systems. Most estimates of its frequency in the United States, for instance, suggest that upwards of ninety per cent of criminal cases are resolved through some form of it. (1) Plea bargaining consists of both sentence bargaining, where charged defendants agree to plead guilty in exchange for sentence reductions, and charge bargaining, where charged defendants plead guilty to a subset of charges (sometimes for reduced sentences) against them in exchange for prosecutors dropping other charges (or not adding additional ones). There has been some philosophical discussion of the practice of plea bargaining, much of it focused on whether prosecutors' offers are in some way coercive. (2) Considerably more attention has been paid to it by legal scholars. (3) But none of the extant literature addresses very fully or carefully the ways and extent to which the practice comports with a retributive approach to the justification of legal punishment. (4) Intuitively, plea bargaining seems at odds with an approach to the justification of legal punishment that focuses on sanctioning offenders in accordance with the severity of their crimes. The relation between plea bargaining and just punishment seems too contingent to satisfy retributivists, especially since the existing literature on plea bargaining makes apparent that its outcomes depend on factors that often have little to do with the gravity of the offenses with which defendants are charged or to which they plead guilty, (5) Indeed, there seems little reason to believe that plea bargaining yields penalties for sanctions that consistently or systematically give offenders what they deserve. Moreover, plea bargaining may sometimes induce factually innocent defendants to plead guilty, while permitting individuals who are guilty of crimes to avoid punishment for them. Add to this the evidence that those who accept guilty pleas receive sentences that are lighter by some twenty-five to seventy-five per cent than those who, after trials, are convicted of the same offenses, and it is clear why retributivists might view the practice with considerable unease. (6) Some will respond to the preceding points by noting that they say more about the dubious character of retributivism than the suspect credentials of plea bargaining. But one need not be a pure retributivist to be troubled by the apparently tenuous relationship that exists between plea bargaining and ensuring that citizens receive the sentences that those among them who have committed crimes deserve. Even those who regard desert as only a limiting principle in a comprehensive justification of legal punishment, one that also gives a prominent role to crime reduction, might worry about the extent to which plea bargaining seems at odds with that principle. I shall not, in what follows, attempt to determine the precise weight that a desert principle should be given in a fully developed account of legal punishment, though I will assume it should be accorded significant weight. I shall instead elaborate the tensions between it and the practice of plea bargaining, recognizing that how troublesome those tensions will turn out to be depends on how seriously we take the notion that punishment should be responsive to citizens' criminal deserts. In the first section, I discuss the guiding principles and presuppositions of retributive justice. The latter concern the broader social conditions that must be satisfied if legal punishment is to function meaningfully as a mechanism for censuring citizens for their blameworthy conduct. The former concern the more specific features a criminal justice system must incorporate if it is to perform the tasks retributivists expect of it. In the second section, l refer to these presuppositions and guiding principles in elaborating the tensions that exist between retributive justice and plea bargaining. …

The Impact of Arizona's Mandatory Drug Treatment Law on Prosecutorial Plea Bargaining in Drug Cases

Passage of mandatory drug treatment laws continues, but research has yet to examine whether imprisoned low-level offenders (e.g., possession, use, and paraphernalia offenders) may be the product of negotiated plea arrangements. We examine the extent to which prosecutors adjust drug offense seriousness through plea bargaining practices in response to the passage of Arizona's mandatory drug treatment law. A sample of incarcerated drug offenders in Arizona was constructed and data were collected from prosecution and sentencing case files in four counties. Findings show plea bargaining practices play a significant role in the classification and imprisonment of low-level drug cases. Incarcerated marijuana offenders were not first- or second-time offenders, nor were they treated more harshly than other drug offenders. Imprisoned low-level offenders have serious and extensive criminal histories, yet the effect of prior record in plea bargaining outcomes is different pre- and post-mandatory drug treatment. Policy implications regarding plea bargaining practices of drug offenders are discussed.

Negotiations and Change: From the Workplace to Society (review)

Reviewed by: Negotiations and Change: From the Workplace to Society Rob Hickey Negotiations and Change: From the Workplace to Society. Edited by Thomas A. Kochan and David B. Lipsky. Ithaca, NY: Cornell University Press, 2002. 353 pp. $35 hardback. Some forty years after the original publication of A Behavioral Theory of Negotiations by Walton and McKersie, Thomas Kochan and David Lipsky examine the current state of research, teaching, and theory of negotiations. The edited volume, Negotiations and Change: From the Workplace to Society, includes a diverse collection of chapters that explore the evolution and application of negotiations theory both in the workplace and broader civil society. While several authors provide new and interesting advances to the field, many chapters drift away from the strengths of Walton and McKersie's original work, replacing analysis of complex processes in negotiations with normative prescriptions for integrative bargaining. Indeed, in the concluding chapter, the authors for whom this volume is dedicated provide a powerful reminder to those who would prefer to see all labor-management negotiations pushed into the integrative box. Too often in the lexicon of those who teach negotiations, the ideal outcome is touted as "win-win." Such an image of the process is not faithful to the reality of most situations. Major conflicts of interests do exist, deadlocks do develop, and the parties are often prone to utilize coercive forms of power. . . . The point is that a more nuanced view of the process is necessary, and that the mixed-motive nature of the engagement holds the potential for breakdowns as well as breakthroughs. (306) Much has changed in the practice of bargaining, and in the way we teach, research and think about negotiations. An assessment of where the field has been, our current understanding of the negotiations process, and possible future directions is long overdue. Where the book avoids the simplistic traps that claim distributive bargaining is bad and integrative bargaining is good, the authors provide interesting insights and challenging new directions for the study of negotiations. However, the recurring normative tone that extols unions to abandon their bad old conflict-ridden ways, and encourages managers to weather the turbulence into the integrative Promised Land, detracts from an otherwise fine collection. The book is divided into five sections. In the first part, Kochan and Lipsky begin by summarizing the conceptual foundations of Walton and McKersie's book, and outlining the four sub-processes of negotiations presented in A Behavioral Theory of Negotiations. The second section explores [End Page 90] the process of workplace change and tacit negotiations. Janice Klein has a particularly interesting chapter on the changing role of front line supervisors. Part three takes a step back to look at the broader trends of transformations in labor-management relations. Beaumont and Hunter provide a refreshing dose of reality in their examination of labor-management partnerships in Britain, in the chapter, "Can Partnership Square the Circle?" Section four follows the practice and theory of negotiations outside of the traditional labor-management context, including environmental and public policy arenas. In the final section, Walton and McKersie provide their own assessment of where the study and practice of negotiations has come and where it may be headed. Largely missing from the volume, but again raised by Walton and McKersie in the final chapter, is the critical role that power plays in the process of negotiations. The interactions between labor and management, between environmentalists, industry and politicians, or other groups in society all involve disparities in power and differences of interest. These differences, the potential for conflict, and the process of resolution are what make the study of negotiations so rich and challenging. Power is critical, whether we are analyzing the negotiations process at the broader level of transformations in labor-management relations, or the more micro level of workplace change and team-based production methods. This is equally true in other segments of society. Polluting industries have little reason to explore integrative solutions with environmentalists unless there is the potential to cause companies economic harm through successful legal or regulatory action. Power is never absent from the process of negotiations. We should not try to relegate the role of power to the undesirable...

The Ethics of Plea Bargaining in International Criminal Trials

The paper argues that contemporary theoretical and philosophical concerns relating to the practice of plea bargaining in international trials for crimes such as genocide should be seen in the broader context of the perceived legitimacy of international trial justice. The paper questions the capacity of international trial structures to deliver a form of truth which contributes to justice suggesting that the legitimacy of the truth available is conditioned by ideology and normative practice. The paper suggests that the key to transforming international trial justice lies in promoting the link between trial ideology and the perceived moral legitimacy of its outcomes through the exercise of judicial discretionary power.