The summer of union discontent portends a season of employer discomfort

The recent splintering of the unions of the Change to Win Coalition from the AFL-CIO has received a great deal of attention in the media. Few have watched these developments with greater interest than employers in a broad variety of employment settings. As union prospects in the manufacturing industries have dwindled, employers in the service industries such as healthcare have become especially sensitive to changes in the labor movement and the opportunities to organize. This Article explores the philosophical differences responsible for the AFL-CIO schism, the likely effect this division will have on union organizing efforts in the healthcare industry, and the negative consequences these organizing efforts could have on employee free choice within the industry. In addition, this Article outlines some of the steps healthcare employers can take to protect their ability to communicate freely and directly with their employees.     

Special report on labor and employment. Supreme Court upholds NLRB bargaining units rule

Providers should expect the number of union organizing campaigns to rise quickly in the wake of the Supreme Court's decision in AHA v. NLRB. Despite this increased activity, providers that offer good working conditions and maintain open lines of communication between employees and management, and that understand their legal rights in connection with such situations, will be much more likely to be effective in responding to union organizing activities.     

A proposal for a nonreinstatement rule in unfair labor practice cases involving patient abuse

Nursing home discharges of employees based on patient abuse raise a difficult issue when the motivating factor for the disciplinary action is union activism. A tension is created between the rights of employees to engage in protected concerted activity and the rights of patients to quality care. In 1974, Congress passed the Health Care Institutions Amendments, which granted to non-profit health care workers collective organizing and bargaining rights substantially similar to those which workers in other industries had enjoyed for decades under the National Labor Relations Act. Congress intended to give health care workers only that degree of parity, however, which is compatible with the provision of high quality patient care. The agency charged with enforcing the Act, the National Labor Relations Board (NLRB), has failed to distinguish employee misconduct in industrial settings from patient abuse in health care institutions when fashioning remedies for discriminatorily discharged union activists. The NLRB typically has ordered the reinstatement, with back pay, of the patient abuser as the patient's primary care-giver. This Article suggests that a front pay remedy is more appropriate to these cases because it protects the patient's right to be free from abuse without sacrificing employee unionization rights.     

论《劳动合同法》对当前我国高校工会职能的机遇与挑战

新的<中华人民共和国劳动合同法>的颁布实施,引发了现阶段我国高校工会职能的嬗变,使得高校工会在民主法治建设、维护权益建设、和谐劳动关系建设以及和谐校园建设等方面的职能更加凸显.这同时也给高校工会工作带来难得的机遇和挑战.通过建构和谐稳定的劳动关系来构建和谐校园,高校工会工作面临强化问题意识、强化创新意识、强化维权意识和强化服务意识等主要任务.     

雇主不当劳动行为的民事救济——基于我国和美国不当劳动行为救济制度之比较

我国《工会法》第52条规定的责令雇主承担不当劳动行为的民事责任,与美国《国家劳资关系法》第10(c)条的规定看起来很相似,相比之下,这一规范在美国劳动法的实践中很有效,在我国却极少被适用,解释方面也存在较大的分歧。美国是世界上最早创设不当劳动行为救济制度的国家,从《瓦格纳法》规定的雇主不当劳动行为的禁止规范及救济措施,到《塔夫托—哈特莱法》将适用对象扩大到工会和雇员,在雇用自由原则和劳资自治模式的背景下,其演变始终以保护雇员团结权的松紧程度和收放态度为线索。我国《工会法》现正处于第三次修改阶段,适时检讨第52条的解释和适用的障碍,还可以解决其与《劳动合同法》规范的竞合问题。     

论精细化思想在高校工会管理工作中的应用

精细化管理思想,从20世纪50年代由丰田公司提出之后,不仅成为全球企业提高管理质量和规范管理行为的重要思想,而且逐渐被引入到了公共组织管理领域,包括高校管理。高校工会所面临的员工群体比较特殊,在管理工作中引入精细思想的教育、规范和激励功能,可以提高高校教职员工的积极性以及建立和谐的校园人际关系。     

The Implications of the ASLEF Case

The decision of the European Court of Human Rights in ASLEFv United Kingdom (27 February 2007) will require the governmentto re-visit the law relating to the right of trade unions toexclude and expel individuals because of their membership ofpolitical organisations perceived by trade unions to be hostileto their interests. It is now clear—as was pointed outat the time—that the changes made by the Employment RelationsAct 2004 do not go far enough to meet obligations under theEuropean Convention on Human Rights (ECHR). However, the casealso raises much wider questions about the compatibility ofother statutory restraints on trade union autonomy with Article11 of the ECHR, notably ss 64–67 (on unjustifiable discipline)and 174–177 (on exclusion and expulsion as a whole, andnot only the measures relating to membership of hostile politicalparties). This article considers both the immediate and thewider implications of the ASLEF decision for British trade unionlaw, in the context of what appears to be a greater willingnessof the Strasbourg Court to listen more carefully to trade uniongrievances than in the past. The article also draws attentionto the role of litigation as a trade union strategy to recoverlost rights, and again emphasises the importance of InternationalLabour Organisation Convention 87 and the Council of Europe'sSocial Charter of 1961 (as well as the jurisprudence thereunder)as important sources in the construction of the ECHR, Article11.     

The Struggle against Violations of Labor Law - One of the Most Important Tasks of the Courts

In the last several years, the Central Committee of the CPSU and the Soviet Government have carried out a number of exceedingly important measures to expand substantially the labor rights of workers and office employees. The working day has been reduced, the wages of the lower income brackets in both manual and white collar employment have been increased, and there has been an extension of pregnancy and postnatal leave. In addition, a number of legal measures have been adopted to expand socialist democracy and to reinforce the role and significance of the trade unions as schools of management, schools of communism.     

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.     

Bargaining for concessions: what information must the employer provide?

Employers faced with the current bleak economic situation increasingly are demanding concessions from the unions representing their employees. Unions faced with such demands are fighting back by requesting confidential information from their employers concerning the need for concessions. In recent years, the scope of the information to which a union may be entitled has been expanded greatly. This article examines recent decisions and suggests some alternatives for avoiding disclosure of information to the union.     

论中国的团结权立法及其实施

团结权是市场经济下劳动者最基本的权利,这一权利应该在劳动立法和法律实施中进一步完善。完善中国的团结权立法,应该坚持劳资权利对等的基本法律原则,任何一方不得享有特权。在现有的法律规定下,最突出的问题是如何保障劳动者组织工会的权利,而影响和侵害劳动者团结权的主要问题是雇主介入和控制工会的现象。     

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.     

论劳动者的罢工权

在法律上承认和规范劳动者的罢工权,防止非法罢工,不仅有利于劳动者劳动权益的维护,也有利于社会的稳定。罢工权不是孤立的,劳动法领域中的罢工权,是劳动者的一项劳动权利,是劳动者集体劳动权的重要组成部分,与劳动者组织工会的权利（团结权）、集体谈判的权利密不可分。劳动者享有法律所保护的合法罢工权。罢工基于维护劳动者的合法权益,局限于劳动关系领域,并要符合法律规定的程序。在法律上确立劳动者享有合法的罢工权后,如何保护依法罢工的劳动者的利益是法律必须面对和解决的重要问题,也是关系到劳动者罢工权是否能真正享有的保障。为了维护劳动者的权益,法律应当赋予劳动者罢工权,但当罢工影响到社会公共秩序的时候,罢工权就应该受到限制。     

The case of the two-percent assessment and the question of union susceptibility

In 1934, the Chicago Mafia, or Outfit, arranged to have a mob associate, George Browne, elected as the national president of the International Alliance of Theatrical Stage Employes (IATSE). Subsequently Outfit leaders used Browne to perpetrate a massive embezzlement scheme from this union. For 18 months IATSE members paid a two-percent assessment from their wages into a special fund. That money was later siphoned out in the form of cash payments that went mainly to Browne, a co-conspirator, and the Outfit. The amount taken would be equivalent to about twenty million dollars today. The episode previewed the schemes that organized crime groups later used to mulct union benefit funds from the Teamsters and other labor organizations in the post-World War II era. Such schemes depended upon the wide scale complacency of the leadership within the affected national unions. This article uses the history of IATSE’s two-percent assessment to analyze the reasons behind that complacency. In this way it addresses the question of why unions might be more susceptible to organized crime manipulation than other institutions.     

The Boycott of the Law and the Law of the Boycott: Law, Labour, and Politics in British Columbia

This article uses a critical theoryllegal mobilization perspective to study the 1987–92 trade union boycott of the British Columbia labour law. The problems encountered establishing a total boycott–one that would eschew all contact with the state–and the subsequent modification of the parameters of the boycott through a selective reliance on the law offer an important case from which to learn more about the role of law and legal rights in highly regulated organizations and how collectives mobilize the law. The author argues that legal rights are important to unions because of their ability to mediate the complexity of labour relations through a decentralization of authority. At the same time, mobilization of the law for this purpose accentuates localized identities and unequal resources that operate in tension with a boycott ethos, necessitating a deliberative politics to legitimize the law. By exploring the tension between these two forms of mobilization around law–one to reduce complexity, another to legitimize broad collective norms–the author analyzes and draws some conclusions about the reproduction of social unionism in British Columbia.     

Co-evolution of politics and corporate governance

In the OECD countries, there exists a negative cross-country correlation between an economy's degree of employment protection and its degree of corporate ownership dispersion. One explanation is that employees’ political rights influence corporate governance: systems characterized by strong employees’ rights tend to be balanced by strong and concentrated owners. In this approach, the separation between ownership and control is only possible when unions and social democratic parties are sufficiently weak. In this paper we argue that causation runs also in the opposite direction (from strong concentrated ownership to strong employees’ protection) and leads to multiple equilibria characterized by alternative co-evolution paths of politics and corporate governance. To empirically assess our theoretical arguments we estimate a simultaneous equation model for workers rights’ protection and corporate ownership structure determination by three-stage least squares in a sample of 21 OECD countries. We conclude by arguing that the relative relevance of each flow of causation has important economic policy implications.     

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.     

《劳动合同法》中工会的职权分析

维护职工合法权益既是工会的基本职权,也是工会的基本职责。在新的历史条件下,构建工会的职权体系是有效防范和化解劳资双方矛盾的一条切实可行的路子。我国新近颁布的《劳动合同法》赋予工会的职权可以概括为5个方面的内容,即协商权、异议权、签约权、起诉权和监督权。工会的这一职权体系是一个整体,但这些规定也存在一些问题和不足,尤其是关于签约权、监督权和起诉权的规定均需要进一步完善。     

The Labor Reform Act of 1977: a detailed analysis.

As a former General Counsel of the NLRB, Peter Nash enjoyed a vantage point from which to observe the procedures of the Board and evaluate how the provisions of the NLRA itself operated. Nou in private practice, he has made a detailed analysis of the labor reform legislation pending in Congress and strongly supported by organized labor. Writing from management's point of view, Mr. Nash concludes that the bills now pending are designed solely to assist unions in their organizing efforts; will not expedite the processing of Board cases; and contain harsh, unfair, and unnecessary deterrent remedies against employers.     

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。