ADMINISTERING LABOR CONTRACTS USING TRANSACTION-COSTS ECONOMICS

Labor contracts are rules of governance between workers and employers over time. The efficiency of the transaction and the relationship can be affected by the provisions of the contract. It is argued that the characteristics of the firm and the workers determine what kinds of contracts and governance of the provisions of contracts are most efficient. Among other results, it is argued that collective bargaining, together with grievance procedures and arbitration, is the most efficient form of labor contracting and governance for large firms with skilled work forces.     

Formal and Informal Aspects of Labor Dispute Resolution in Japan

Labor conflict resolution machineries have concentrated on collective dispute settlement in Japan. Grievance procedures stipulated in labor contracts have not been working effectively. The center of gravity of labor-management relations has shifted from collective bargaining with labor unions to individual labor contracts with individual workers both in the unorganized sector and the non-union members within the organized sector. Similarities and differences between Japan and the United States are examined. Vague demarcation between rights and interest disputes as well as between collective and individual disputes characterize the dispute settlement machineries in Japan.     

A Revised Role for Trade Unions as Designed by New Labour: The Representation Pyramid and 'Partnership'

A key objective of British unions is to develop their representative role so as to establish their relevance to the workforce and thereby reverse the overall decline in trade union membership. To many, the legislative reforms undertaken by New Labour since 1999 offer some hope that this can be achieved. These reforms seem to provide a pyramid of representation, whereby trade unions can establish their relevance when they 'accompany' individual employees in grievance and disciplinary proceedings, and when they act as recipients of information and consultation. By attracting members in this fashion, there would seem to be the promise that unions can reascend to the position of recognized and effective parties in collective bargaining. However, this paper suggests that a barrier to the achievement of this objective is the particular conception of 'partnership' adopted by New Labour, which deviates from that of the TUC. This 'partnership' is essentially individualistic in character, procedural in form, and unitary in specification. These characteristics are reflected in the relevant statutory and regulatory provisions and are therefore likely to inhibit the progression of a trade union to recognition in collective bargaining.     

Will physician unions improve health system performance?

In the public debate over the extension of collective bargaining rights to independent physicians, union proponents' primary argument has been that patients would benefit from allowing physicians to bargain collectively with health plans. This article examines the likely effects of physician unions on the U.S. health care system. Specifically considered are likely effects on economic efficiency, quality, access, and cost. Under none of these criteria are physician unions likely to improve health system performance, particularly when compared with available alternative strategies for dealing with problems identified by union proponents.     

Plans established or maintained pursuant to collective bargaining agreements under section 3(40)(A)--Pension and Welfare Benefits Administration. Notice of intent to form a negotiated rulemaking advisory committee

The Department of Labor (Department) intends to form a Negotiated Rulemaking Advisory Committee (Committee) in accordance with the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act. The Committee will negotiate the development of a proposed rule implementing the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 1001-1461 (ERISA). The purpose of the proposed rule is to establish a process and criteria for a finding by the Secretary of Labor that an agreement is a collective bargaining agreement for purposes of section 3(40) of ERISA. The proposed rule will also provide guidance for determining when an employee benefit plan is established or maintained under or pursuant to such an agreement. Employee benefit plans that are established or maintained for the purpose of providing benefits to the employees of more than one employer are "multiple employer welfare arrangements" under section 3(40) of ERISA, and therefore are subject to certain state regulations, unless they meet one of the exceptions set forth in section 3(40)(A). At issue in this regulation is the exception for plans or arrangements that are established or maintained under one or more agreements which the Secretary finds to be collective bargaining agreements. If adopted, the proposed rule would affect employee welfare benefit plans, their sponsors, participants and beneficiaries, as well as service providers to plans. It may also affect plan fiduciaries, unions, employer organizations, the insurance industry, and state insurance regulators.     

The influence of collective bargaining on large police agency salaries: 1990–2000

Collective bargaining between police management and unions is an important process that determines many aspects of police work, particularly the monetary benefits for line officers like salary and fringe benefits. Working with limited budgets, police administrators who engage in collective bargaining are obligated to negotiate with union representatives over wage benefits while attempting to maintain adequate financial resources toward other police operations. Though students of policing learn that police unions try very hard to increase economic reward for their members there is limited research on the effectiveness of their efforts. Since economic benefits are the primary focus of police unions, it is important; therefore, to evaluate the impact that collective bargaining has on salaries earned by police personnel. This study examines this issue by combining four waves of the Law Enforcement Management and Administration Statistics for the period 1990–2000. Pooled time series analyses reveal that large organizations that engaged in collective bargaining had higher minimum wages for officers during the period. As predicted, collective bargaining did not affect minimum chief’s salaries.     

Labour Constitutions and Occupational Communities: Social Norms and Legal Norms at Work

This paper considers the interaction of legal norms and social norms in the regulation of work and working relations, observing that, with the contraction of collective bargaining, this is a matter that no longer attracts the attention that it deserves. Drawing upon two concepts from sociology – Max Weber's ‘labour constitution’ and Seymour Martin Lipset's ‘occupational community’ – it focuses on possibilities for the emergence, within groups of workers, of shared normative beliefs concerning ‘industrial justice’ (Selznick); for collective solidarity and agency; for the transformation of shared beliefs into legally binding norms; and for the enforcement of those norms. If labour law is currently in ‘crisis’, then a promising route out of the crisis, we argue, is for the law to recover its procedural focus, facilitating and encouraging these processes.     

Retiree health and welfare benefits: controversy over their duration

As the cost of providing health-care benefits skyrockets, employers have begun to reduce or even to terminate health-care and life insurance benefits for retirees, often with little awareness of the possible repercussions. Retiree groups and unions have countered these actions with claims based on such theories as the "status benefits" argument--that retirement benefits should be viewed as earned compensation for years of service--or the "vested rights" view--that retirement rights may not be altered without the pensioner's consent. Crucial to these conflicts are the terms of the collective bargaining agreement. Case law indicates that employers can never feel themselves fully protected even if the agreement contains provisions explicitly stating the benefits' scope and duration. The authors demonstrate this point in their review of recent retiree benefits cases. They then explore in detail the problem of contract and document ambiguity, and offer guidelines for ascertaining intent. They conclude with a discussion of strategies for litigating retiree benefits cases.     

The legality of employee attitude surveys in union environments

Employee attitude surveys are becoming an increasingly popular tool for employers. A host of legal implications, such as the circumstances under which they can be used, what they can ask, and whether or not they are a subject of mandatory bargaining, arise when surveys are conducted by companies that have an incumbent union or by companies that are involved in union-organizing campaigns. The following article describes the survey process, outlines some of the inherent advantages and pitfalls, and examines the legal questions raised when surveys are used by nonunion employers, by employers with incumbent unions, and by employers who are involved in union-organizing-campaigns. It concludes with recommendations for employers that undertake attitude surveys.     

UNIONIZATlON BEHIND THE WALLS

Inmate militancy has evolved from rioting to nonviolent forms of protest and, more recently, to union organizing activities. Prisoners' unions have been opposed by state officials. and a number of tactics have been employed to weaken them Although no constitutional or statutory provisions deal specifically with the right of prisoners to unionize, that right probably depends upon the union's ability to demonstrate that it does not threaten institutional security and would not significantly alter the existing power structure. Prisoners' unions could represent a more participatory and open form of bargaining than currently exists in prisons     

What Space for Unions on the Floor of Rights? Trade Unions and the Enforcement of Statutory Individual Employment Rights

The recent development of statutory individual employment rightsalters the balance between legal regulation and collective bargaining.Union influence in the workplace has declined and workers aremore reliant on individualised procedures culminating in claimsto employment tribunals. There is potential, though, for unionsto play a role in enforcing statutory employment rights, todemonstrate the efficacy of representation to potential membersand to augment collective bargaining agenda. Union engagementwith the law is explored in this article through detailed casestudies conducted in two unions. Findings highlight sustainedcommitment to strategic legal challenges, but also some substantialobstacles to the broader use of the law to mobilise workersand potential members.     

Symptoms of corruption and union denial

Labor Racketeering is often the result of collusion between employers and employee representatives in which in exchange for something of value the employee representative ignores his obligation to union members. Given the limited investigative resources of unions, proving the receipt of a bribe is most often beyond their ability. However, the artifacts of racketeering such as inexplicable substandard contracts or lax contract enforcement remain evident. The harm to the members remains the same. As a consequence, in disciplining union employees, unions should sanction them for involvement in the creation of these artifacts as if bribes were proven. Charles A. Carberry is the Chief Investigator for the Independent Review Board (IRB), the body that pursuant to the Civil RICO settlement between the International Brotherhood of Teamsters (IBT) and the government investigates corruption and supervisors resulting disciplinary actions against union members. The views expressed herein are Mr. Carberry’s and not necessarily those of the IRB.     

The Family and Medical Leave Act of 1993--Wage and Hour Division, Department of Labor. Interim final rule; request for comments

This document contains interim regulations implementing the Family and Medical Leave Act of 1993 called ("FMLA" or "the Act"). The Act is effective on August 5, 1993, six months from the date of its enactment. Where a collective bargaining agreement is in effect on August 5, 1993, the Act is effective when the collective bargaining agreement terminates or February 5, 1994, whichever is earlier. The purpose of these regulations is to set forth the requirements of Title I and Title IV of the Act. Title I applies to covered private employers and public agencies (except for most of the Federal Government, which is governed by Title II). Title IV of the Act primarily concerns the relationship between FMLA and other laws, as well as collective bargaining agreements and other employer plans and programs.     

论劳动规章制度集体协商——以杭州市工资集体协商为视角

集体协商制度是协调劳动者与雇主之间利益,维护劳动者合法权益的重要机制,其在我国的产生和发展已成为趋势。经过多年的探索和实践,尽管我国的工资集体协商制度已初见成效但也存在诸多问题。因此,规范企业的劳动规章制度并实现劳动者意思参与,可以尝试在企业内部实行劳动规章集体谈判制度。     

Managed care liability and the capitated provider

While there have been no reported cases as yet on the subject of ERISA preemption of claims arising from utilization review decisions by providers, it will unquestionably be a significant issue facing providers that participate in capitated arrangements. If preemption is determined not to be available, providers will be exposed to risks from which health plans are currently shielded. Providers conducting utilization review should be following this issue as it develops, but should also be obtaining insurance for this risk to the extent it is available (e.g., it will not be available for punitive damages). Providers should also consider negotiating provisions in their contracts with health plans to the effect that any utilization review conducted by the provider is on behalf of the health plan and that the provider's utilization review activities will be covered under the health plan's liability insurance.     

Why Do Labour Lawyers Ignore the Question of Social Justice in European Contract Law?

Abstract: Over recent years, a heated debate about social justice in European contract law has been taking place. Great emphasis is placed on ideological assumptions. For example, the over‐individualistic interpretation of European private law, its market‐led orientation and the insufficient attention paid to the idea of the protection of the weaker party. This discussion considers the traditional conflict between the meta‐principles of market‐oriented efficiency and solidarity‐based action. The whole debate, it seems to me, now calls for a more rules‐based approach. In endeavouring to validate such an approach, this article starts by illustrating the various facets connected to the theme of ‘European contract law’. Then as a preliminary step, I shall briefly examine the question as to why labour lawyers have remained silent and take no part in the discussion on European social contract law. There is ample reason to believe that the contrary is necessary. It has been generally acknowledged that labour contracts are not outside private law—individual contract law in particular—and that it represents one of the most important examples of long term incomplete contracts. The idea of labour law as autonomous is dead and it appears simple to promote the reintegration of labour law into modern social contract law. In the context of the debate on European contract law, three different strategies can be envisaged to achieve this end. The first strategy tests the degree to which provisions under the contractual regime, not all of which are legally binding, effectively meet the needs of the weaker party in the contractual relationship, in terms of his/her security—what might for short be termed the social validity of the contract regime—(the Principles of European Contract Law, the EU rules affecting contract law, etc which are analysed and proposed in the various workshops that are currently examining them), from the specific point of view of labour law. A second strategy is to codify European or Community labour law. Lastly, another strategy is to introduce an intermediate category of long‐term social contracts. What makes this last trend particularly significant for the future is that today globalisation is progressively diminishing the income earned from labour contracts and in this sense creating insecurity. In a globalised economy, where levels of remuneration are lower than in the past, the individual's sense of security must be ensured also in the context of other social or long‐term contracts (outside the workplace), which enable people to obtain other sources of finance (such as consumer credit, for example), or to make arrangements necessary for living (such as tenancy contracts). A need exists for consumers to be granted similar rights to those which historically have been granted to workers. To take just one example: if the borrower under a consumer credit agreement loses his/her job for objective reasons, or falls ill and is therefore temporarily unable to pay the instalments under the agreement, why should there not be a mechanism which limits the credit‐providing institution from terminating the credit arrangement?     

平台用工劳动权益保护的立法进路

我国互联网平台工人数量多达数千万,且增长迅速。平台工人面临身份不明确、工作时间长、收入不稳定、职业伤害保障缺失、算法运行不合理等突出问题。由于平台用工的特殊性,现有劳动法及其司法实践难以为平台工人提供有效保护。近年来,越来越多的国家,包括美国、法国、意大利等对平台工人进行了专门立法。我国有必要出台平台工人权益保护专门立法。平台工人权益保护立法的基本思路是确保符合"劳动者"标准的工人得到劳动法保护,并为一般平台工人提供基本劳动权益保障。立法应通过劳动关系举证责任转移规则,使平台工人身份得到正确归类。平台工人的基本权益内容应根据所有工人应享有的基本权益、平台用工的灵活性以及平台主要依靠算法运行的特点而设计,应赋予平台工人平等就业、职业安全卫生、工资、工时、加入工会和集体协商等方面的权利,以及与算法相关的权利。     

家庭雇佣型家政工人工伤保险制度研究

家政工作存在风险是客观的,世界上一些国家和地区采取集体协商和国家指引的方式将家庭雇佣型家政工人排除在工伤保险之外的做法,不仅对该群体有失公允,而且难以有效化解家政工人与其雇主之间的诸多矛盾。考虑到家政工人的特殊性,建议我国未来家政工人工伤保险政策以工作时间作为权衡家政工人享受工伤保险权益的核心标准,将每周工作达到3天或者达到24小时的家政工人纳入工伤保险范畴,强制要求家庭雇主为该类家政工人购买工伤保险,同时,许可每周工作时间不到3天或者不到24小时的家政工人以自我雇佣者身份自行参加工伤保险。     

Amendment to the interim final rules for group health plans and health insurance coverage relating to status as a grandfathered health plan under the Patient Protection and Affordable Care Act. Amendment to interim final rules with request for comments

This document contains an amendment to interim final regulations implementing the rules for group health plans and health insurance coverage in the group and individual markets under provisions of the Patient Protection and Affordable Care Act regarding status as a grandfathered health plan; the amendment permits certain changes in policies, certificates, or contracts of insurance without loss of grandfathered status.