Check But No Mate: Balancing the Rights of Employees and Employers Under the National Labor Relations Act—The Ongoing Saga

Prior to 1995, employers had enjoyed significant success in asserting management prerogatives over organized labor in cases heard under the National Labor Relations Act. However, at that time, the Supreme Court issued a landmark ruling which essentially leveled the playing field by affirming the rights of union organizers and supporters to employ an aggressive organizing strategy called “salting.” Employers have subsequently attempted to counter the effects of salting through the use of a variety of practices that potentially disrupt salting activities. These strategies have received mixed support with the courts and the National Labor Relations Board. This paper examines the current state of permissible union organizing and management behaviors under the National Labor Relations Act.     

How Right to Work Is Destroying the American Labor Movement: From the Ku Klux Klan to the Tea Party

This essay examines recent efforts to enact right to work laws and analyzes the impact of such laws on union development. The argument is that right to work is an invidious anomaly in federal collective bargaining policy, and Section 14(b) should be eliminated from the National Labor Relations Act. Proponents of right to work legislation claim that such laws promote economic development, but the evidence for that claim is unconvincing. Alternatively, supporters of the legislation assert that it promotes individual liberties in our market economy. Opponents of right to work challenge the normative dimension of right to work as an empty ideology that cannot withstand critical scrutiny. Right to work is inimical to the economic and social interests of American workers.     

Does the Change to Win Federation Represent U.S. Labor’s Third Moment? Evidence from National Labor Relations Board Certification Elections, 2003–2005

In the conclusion to Labor in the New Urban Battlegrounds, Daniel Cornfield contends that U.S. labor’s third “moment” is exemplified by the establishment of the Change to Win (CTW) Federation in September 2005 in which the federation’s affiliated unions focused on organizing service sector workers into multi-jurisdictional unions. Cornfield defines a “moment” as an era in which labor adopts innovative organizing strategies for representing workers in industries and/or occupations previously unorganized within the economy. Utilizing National Labor Relations Board (NLRB) certification election data from 2003–2005, this article investigates the organizing patterns, based on the jurisdictions and industries of fifteen unions, nine affiliated with the AFL-CIO and six that joined the CTW, to ascertain if the CTW’s creation initiated U.S. labor’s third moment. Analysis of the certification election data indicates that the CTW’s formation does not constitute the inauguration of third moment unionism in the United States.     

Unit determination: National Labor Relations Board rule making in the health care industry

This article reviews the events leading up to the National Labor Relations Board's (NLRB) historic decision to engage in substantive rule making over appropriate bargaining units in the health care industry. It describes the rule-making process and outcomes, and the reaction of hospital unions and management to the rules. Finally, the potential for the use of rule making for other issues facing the NLRB is analyzed. This analysis uses a cost/benefit framework from the agency's perspective to predict the likelihood of future rule making. The article concludes that rule making is sufficiently costly to make extensive use in other situations unlikely.The order of the author's names was determined randomly and should not be interpreted as implying an unequal contribution.     

Understanding organising activity among US national unions

It is well known that US aggregate union election activity under the National Labor Relations Board (NLRB) has fallen for several years. It is also well known that NLRB win rates have increased moderately during the Sweeney era relative to the later part of the Kirkland years. This article sheds new light on organising activity and win rates, by examining these data on a national union basis. The results show that several unions, including most of the largest nationals, experienced both increases in organising activity and increased win rates for the period of 1999 to 2004 compared with the years 1990–95 (the end of the Kirkland era). While explanations of variations in inter‐union organising success remain elusive, understanding and building on the experience of these ‘resurging unions’ holds the promise of union renewal more generally.     

Organizing College Athletes Utilizing the Civil Rights Unionism Model

In January 2014, Northwestern University (NU) football players filed a certification election petition with the National Labor Relations Board’s (NLRB) Chicago regional office. After the NLRB ruled that they were employees having the legal right to unionize, the football players voted at the end of April 2014 with NU immediately appealing the regional director’s ruling after the balloting. In mid-August 2015, the Washington D.C. NLRB declined jurisdiction in this case, ending the football players’ unionization attempt. Because of the NLRB’s appellate ruling, however, unionization of college athletes remains a distinct possibility. Since a majority of U.S. collegiate basketball and football players are black, this paper argues that the model of unionism that should be adopted in any unionization attempt of these college athletes is civil rights unionism which represents a continuation of the historic, collective struggle of Black athletes to obtain their rights on athletic fields and in classrooms.     

Wage Bargaining Under the National Labor Relations Act

Sections 8(a)(3) and 8(a)(5) of the National Labor Relations Act (NLRA) prohibit the management of a firm from unilaterally increasing the wage during contract negotiations without the union's approval. We show how the management can strategically increase the wage during negotiations without violating the NLRA. Increasing the wage during negotiations will upset the union's incentive to strike and decrease the union's bargaining power, thereby shrinking the set of equilibrium contracts in the firm's favor. Indeed, as the union becomes more patient, the set of equilibrium wages converges to the best equilibrium outcome to the firm.     

The transition from individual to collective labour relations in China

The article discusses the current transformation of Chinese labour relations. The Labour Contract Law implemented in 2008 provided the legal framework for China's adjustment to individual labour relations; it also hastened the evolution of collective labour relations. The article discusses how two different aspects of the Chinese labour movement—top‐down and bottom‐up—have been interacting. Implications are drawn from the experience of the strike wave of the summer of 2010. It is argued that further legal intervention could facilitate the development of China's labour policy, but that the reform of collective labour law will require the strengthening of the collective rights of workers and the nurturing of institutions which can focus collective consciousness and organisation.     

Putting a Big Chill on a “Big Hurt:” Genuine Interest in Employment of Salts in Assessing Protection Under the National Labor Relations Act

As union membership has continued to decline steadily in the US, union organizers have become more creative and vigilant with their organizing strategies. Chief among these strategies has been “salting,” a process by which unions attempt to organize employees from the inside rather than the outside. The Supreme Court has ruled that, under the National Labor Relations Act, “salts” cannot be discriminated against solely on the basis of their status as salts. This paper examines employer responses to resist salting efforts, including a recent decision by the National Labor Relations Board, which redefines the landscape under which salting activities can be conducted and considered protected activity.     

Chapter 11 bankruptcy and the termination of collective bargaining contracts

In 1984 the Supreme Court ruled that employers can unilaterally break an existing collective bargaining contract upon filing a chapter 11 bankruptcy petition. This ruling changed both the contractual responsibilities of the employer to honor the collective bargaining agreement and the rights that workers have under the National Labor Relations Act. The purpose of this article is to show the conditions under which a Chapter 11 bankruptcy proceeding will lead to the termination of a labor contract. Our results suggest that (a) legal rulings that reduce the costs of bankruptcy will increase the number of contractual dissolutions and (b) a Chapter 11 bankruptcy is more likely to occur when a firm operates in a climate of uncertain expectations.     

Redundancy,values and public policy

Although the Industrial Relations Act marks the most significant break with the traditional “abstentionist” role of the law in British labour relations, it is true to say that during the last ten years the development of public policy has entailed a growing involvement of lawyers and the law in the world of work. As Professor Kahn-Freund has written:     

“Glorified Messengers for Management” or “Legitimate Unionism”? An Analysis of Local Independent Unions in the Post-Company Union Era

Local independent unions (LIUs), which have represented a sizable minority of union members, largely emerged from company unions once they had been declared illegal upon the upholding of the National Labor Relations Act. This paper constructs and analyzes three distinct patterns of the organizational transformation of company unions into LIUs to determine if these LIUs became autonomous and independent of management or remained controlled by the employer. It was discovered that, in a majority of the cases, these LIUs were legitimate unions that operated independently of employer domination.     

Faculty bargaining in private colleges and universities: Beyond Yeshiva

In 1980, the U.S. Supreme court inYeshiva University v. NLRB ruled that faculty members in some private colleges and universities are managerial employees, and, thus, are not entitled to the protection provided under federal labor law. Since then, the courts and the National Labor Relations Board have heard a number of cases arising out ofYeshiva. This article first reviews the status of managerial and professional employees under the NLRA, then examines how the law has been applied in the aftermath ofYeshiva. We conclude that while a few general principles have evolved, the courts have yet to establish clear criteria for defining “managerial” as applied to university faculty. We note that theYeshiva case has resulted in a substantive decline in collective bargaining among faculty in private sector higher educational institutions, and that the criteria arising out of the decision have the potential for restricting collective bargaining coverage outside academia.     

Legal and Ethical Implications of Corporate Social Networks

Corporate social networking sites provide employees and employers with considerable opportunity to share information and become friends. Unfortunately, American and international laws do not directly address social networking site usage. The National Labor Relations Act, civil rights laws, and various common law doctrines such as employment at-will and defamation provide the pattern for future social networking laws. Ethical considerations such as productivity, security, goodwill, privacy, accuracy, and discipline fairness also affect future laws. Corporate policies on corporate social networking should balance the employer’s and employee’s interests. Existing laws and ethical issues associated with social networking should impact social networking policies related to configuration, communication, discipline, and evaluation of policies. Corporate social networking policies should be business-related, ensure user notification of monitoring, maintain adequate records, and provide for reliable, consistent, and impersonal evaluation of monitoring effectiveness.     

农村劳动力转移与城镇化如何协调发展

本文在实地调查基础上分析了农村劳动力转移与城镇化进程的协调关系.认为,改革开放前的30年是不发展的协调;改革开放后的20多年是发展中的初步协调;现在应着力解决走向成熟协调的十个突出问题:建立最低工资制;八小时工作制;劳动环境和劳动保护;农民工住房;农民工养老保障;农民工医疗;农民工培训;农民工子女教育;工资拖欠;进城交通成本.本文还认为,我国大多数农区大多数农户,其所经营的农业实际早已破产.为什么规模庞大的中国农业还能维持再生产?为什么规模庞大的中国农民还能维持生计?主要靠2亿多农民进城做工和在乡镇企业做工.他们给农户每年带来约一万亿元的收入,支撑中国农业和农民生活的真正秘密正在于此.改革开放以来,我国经济的快速发展使综合国力大大增强,已经开始具有全面建设较低水平社会保障制度的能力.     

The Arbitration of Labor Disputes in China Today: Definition and Implications

Over the past 12 years China has strongly encouraged the use of a formalized arbitration process to resolve, among other conflict areas, labor disputes. Using a formal resolution process is meant to calm labor unrest by giving employees both individual and collective voices in workplace issues. Ultimately, China recognizes that, as did the United States with passage of the National Labor Relations Act, giving employees voice quells potential social revolution and helps business by making use of employee ideas while attracting the best employees. This paper discusses some history of the Chinese labor dispute resolution process and its specific provisions promulgated in two laws and a set of regulations. Strengths and weaknesses of the process are enumerated and the importance of the process to foreign investors, employers, and employees is laid out.     

Contingent work in the UK and Sweden: evidence from the construction industry

This article explores the use of contingent forms of employment in two diverse country contexts—the UK and Sweden—and investigates the influence of changing regulatory and economic conditions over a period that covers the current economic downturn. Drawing on quantitative and qualitative data for the construction sector, the article addresses three questions. How do employers balance their flexibility preferences in the context of regulatory constraints? How has the global recession influenced employer behaviour? And to what extent can the Swedish experience be explained by convergence on other country models? While the UK employment model encourages employers to externalise the risk of unpredictable market conditions through the use of contingent contracts, the more supportive welfare regime in Sweden underpins a resilient preference of employers for open‐ended employment contracts. Ongoing changes in labour market regulation pose challenges to the strongly regulated Swedish model, yet we find only a shared direction of travel with the UK rather than convergence in the use of contingent employment.     

Managing Employee Social Networking: Evolving Views from the National Labor Relations Board

With the development of social networking internet sites such as Myspace, Facebook, and Twitter, a new set of concerns has arisen for employers. A growing number of employers has asserted a right to regulate employee use of the internet and social networking sites despite the fact that such policies may be seen as an intrusion on workers’ privacy interests. This paper explores the conflict between the employees’ interest in internet use and employer efforts to regulate and control these activities. A number of National Labor Relations Board cases and supporting reports, as well as, arbitration decisions are examined in order to explore the critical issues that have emerged regarding employee use of social networking. Based on an analysis of the cases and literature, guidelines are provided for effective employer social networking policies. A high quality policy and an understanding of the changing standards are critical for successful management of employee social networking.     

Labour management during recessions: Japanese manufacturing enterprises in the 1990s

In the first half of the 1990s Japan experienced a prolonged recession. How have Japanese firms reacted to the changed economic context? Using identical surveys administered in 1991 and 1995 this article examines changes in labour management and strategy and concludes, despite some significant modifications, that the basic configuration of Japanese labour management has remained intact.