Category Archives: Collective Bargaining

Collective Bargaining in the Aftermath of COVID-19

Source: Henry E. Farber and Nicole Mormilo, Employee Relations Law Journal, Vol. 46, No. 2, Autumn 2020
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From the abstract:
The authors identify and explore issues stemming from COVID-19 that they expect to arise during labor negotiations. Those issues include: Management rights; Economics; Employer flexibility to adjust workforce; Benefits; Employee health and safety; and Force majeure clauses.

Breaking contracts over coronavirus: Can you argue it’s an ‘act of God’?

Source: Andrew Schwartz, The Conversation, March 31, 2020

The coronavirus pandemic has prevented countless people from fulfilling their contracts, from basketball players to babysitters. Could all of these people be sued for breach of contract, or are they excused due to this extraordinary event? What about payments made in advance, such as tickets bought for a concert that has now been canceled or a dorm room leased at a college that is now closed? ….

….Force majeure clauses are common in corporate contracts. They dictate which types of unexpected events will excuse performance and how to deal with payments already made or other losses. The precise wording of these clauses is key. Some might expressly mention pandemics or government orders, while others might not. Similarly, some clauses might call for full restitution, while others might provide for 50% refunds or no refund at all. Whatever the force majeure clause says will displace the ordinary rules of impossibility and restitution.

The contract between the NBA and its players, for example, includes a force majeure clause that specifically covers epidemics. It states that basketball teams can withhold part of their players’ salaries for each canceled game, and ESPN reported that the league was considering it. ….

The practice of preparation for complex negotiations

Source: Morten Lindholst, Anne Marie Bülow, Ray Fells, Journal of Strategic Contracting and Negotiation, OnlineFirst, Published February 21, 2020
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From the abstract:
Negotiators are routinely exhorted to prepare well, but what do they do in practice? This article draws on data collected as a team of negotiators prepared their strategy during the lengthy negotiations over a major power generation infrastructure contract. Using a framework that we developed using terms from the literature, the team’s preparation meetings were observed and then analysed for content, timing and changes in participation.

It is shown that the standard checklist notion of preparation needs to be reconsidered as a multilevel, dynamic concept that changes in character over time. Far from just a first stage, the team’s continued preparation occurred in feedback meetings after rounds of negotiation at the table, between negotiation sessions and immediately before the next round of negotiations, and progress was seen to hinge on the differentiation of the preparation. Consequently, this long-term study provides insight into a key element of any general theory of negotiation while also suggesting implications for practitioners working with negotiating teams.

Clean Slate for Worker Power: Building a Just Economy and Democracy

Source: Sharon Block and Benjamin Sachs, Labor and Worklife Program, Harvard Law School, January 2020

From the summary:
Since the founding of the country, concentration of power in the hands of a small minority has been recognized as a threat to the viability of American democracy. Today, the struggle to preserve democracy in the face of extreme wealth concentration is acute because we live in a historical moment when vast disparities of economic power have been translated into equally shocking disparities in political power.

With this report, we offer an intervention that promises to help stop the self-reinforcing cycle of economic and political inequality. By proposing a fundamental redesign of labor law, our aspiration is to enable all working people – including those who have been excluded by systemic racism and sexism – to create the collective economic and political power necessary to build an equitable economy and politics.

Inclusiveness
Labor law reform should expand protections of the law to address systemic racial and gender oppression.

Universal Representation
Pathways to worker power should track corporate power and be universal, providing multiple forms of voice for all workers without employer interference.

Sectoral Bargaining
We recommend creating a system of sectoral bargaining in which agreements are binding on all firms in the sector.

Alt-Bargaining

Source: Michael M. Oswalt, Law and Contemporary Problems, Vol. 82 no. 3, 2019

….The article proceeds as follows. Part II canvasses evolutions in organizing since the 1970s to show how innovations that start at the unionization phase don’t stay there. Corporate, comprehensive, and social movement advances all became mainstay bargaining strategies. While the present breakthrough, alt-labor, defies easy characterization, Part II tries based on its three exceptional relationships to law. Part III addresses the next question: when and how might alt-labor’s legal insights begin to reverberate in later stages of organizing. After identifying the existing echoes, I argue that time is now.

Part IV explores mechanics. Embedded in alt-bargaining’s three new legal orientations is a sophisticated understanding of interest formation that allows the campaigns to press for broad, “common good”-type community benefits with minimal outside conflict, minimal internal dissension, and—most critically— draw big crowds. In doing so, leaders use practices steeped in community-based activism that incorporate months of transformational political and relational education. As Gabe Winant has described, unions’ modern challenge is to get the nurse, custodian, fast-food worker—and, increasingly, Uber driver—to “understand their fates as intertwined.” The realities of “race, economic position, and social status,” can make the task feel intractable. Alt-bargaining’s approach suggests it’s not impossible.

Finally, Part V offers a vision of alt-bargaining’s ambitions, plus a slate of legal and structural reforms—especially the introduction of community “pool voting”—that might support them. Part VI briefly concludes…..

A New Approach to Contracts

Source: David Frydlinger, Oliver Hart, Kate Vitasek, Harvard Business Review, September-October 2019

…. Companies understand that their suppliers are critical partners in lowering costs, increasing quality, and driving innovation, and leaders routinely talk about the need for strategic relationships with shared goals and risks. But when contract negotiations begin, they default to an adversarial mindset and a transactional contracting approach. They agonize over every conceivable scenario and then try to put everything in black-and-white. A variety of contractual clauses—such as “termination for convenience,” which grants one party total freedom to end the contract after a specified period—are used to try to gain the upper hand. However, these tactics not only confer a false sense of security (because both firms’ switching costs are too high to actually invoke the clauses) but also foster negative behaviors that undermine the relationship and the contract itself.

We argue that the remedy is to adopt a totally different kind of arrangement: a formal relational contract that specifies mutual goals and establishes governance structures to keep the parties’ expectations and interests aligned over the long term. Designed from the outset to foster trust and collaboration, this legally enforceable contract is especially useful for highly complex relationships in which it is impossible to predict every what-if scenario. These include complicated outsourcing and purchasing arrangements, strategic alliances, joint ventures, franchises, public-private partnerships, major construction projects, and collective bargaining agreements. A growing number of large organizations—such as the Canadian government, Dell, Intel, AstraZeneca, and the Swedish telecommunications firm Telia—are successfully using this approach. In this article, we look at the theoretical underpinnings of formal relational contracts and lay out a five-step methodology for negotiating them. ….

A Seat at the Table: Negotiating Data Processing in the Workplace. A National Case Study and Comparative Insights

Source: Emanuele Dagnino, Ilaria Armaroli, A Special Issue of the Comparative Labor Law & Policy Journal on “Automation, Artificial Intelligence, and Labour Protection” guest-edited by Valerio De Stefano, Forthcoming, Date Written: June 13, 2019

From the abstract:
It is already a common understanding that datafication is one of the most important trends in our society and, as a consequence, in the economic environment. Datafication and big data are not only the core of the two most debated new business and technological models – platform economy and Industry 4.0 (or smart manufacturing) – but have also permeated more traditional organizations, entering all their departments (marketing, production, sales, finance). In the latest years, datafication is becoming ever more a reality in work organization and human resource management, considerably impacting on the way work is organized, managed and performed. Stemming from this background, this paper wants to analyze the topic of data processing in the employment context focusing on the specific role that collective representation can play. Although there are some interesting antecedents in research regarding the role of workers’ representatives in this context, the topic has received very limited attention as far as the new wave of digitalization is concerned, and almost no interest in its double — individual and collective — dimension. By contrast, we believe that ongoing technological and organizational changes raise new challenges and open a new room for intervention for workers’ representatives. In this sense, they are expected not only to limit the quantity and fix the typologies of data collected and processed, against the risk of workers’ surveillance, but also to co-decide over purposes and procedures of data processing, for the self-determination and concrete participation of workers. Negotiating the algorithm, in our opinion, starts here. In order to achieve the above-mentioned purposes, a case study analysis is developed and focused on the Italian context. Firstly, we focus on the legal framework to shed light on the prerogatives and powers formally attributed to workers’ representatives in the field of data protection and workplace monitoring. Emphasis will be placed on the changes made by the so-called Jobs Act reform from September 2015. Secondly, we examine a set of 1,161 company-level collective agreements concluded in Italy between late September 2015 and 2018 to investigate the actual role played by labor representation in this field. Moreover, we provide some insights into other national contexts, with a view to comparing the results of our analysis with the negotiated outcomes achieved in other countries, in an attempt to better understand the institutional determinants of varieties of actors’ orientations and collective solutions.

Related:
Introduction: Automation, Artificial Intelligence, and Labour Protection
Source: Valerio De Stefano, Comparative Labor Law & Policy Journal, Vol. 41, No. 1, 2019

From the abstract:
The Comparative Labor Law and Policy Journal is publishing a collection of articles on “Automation, Artificial Intelligence, and Labour Protection” edited by Valerio De Stefano (KU Leuven). This collection gathers contributions from several labour lawyers and social scientists to provide an interdisciplinary overview of how new technologies, including smart robots, artificial intelligence and machine learning, and business practices such as People Analytics, management-by-algorithm, and the use of big data in workplaces, far from merely displacing jobs, profoundly affect the quality of work. The authors argue that these issues depend, and can be affected by, policy choices – since they are not just the “natural” result of technological innovations – and call for adequate regulation of these phenomena. Contributing authors are Antonio Aloisi, Ilaria Armaroli, Fernanda Bárcia de Mattos, Janine Berg, Miriam Cherry, Emanuele Dagnino, Valerio De Stefano, Elena Gramano, Matt Finkin, Marianne Furrer, Frank Hendrickx, Parminder Jeet Singh, David Kucera, Phoebe Moore, Jeremias Prassl, and Uma Rani. This article introduces this collection and gives an overview of the issues discussed by the authors.

Steward’s Corner: Legal Rights in a Contract Campaign

Source: Robert M. Schwartz, Labor Notes, May 16, 2018

In today’s dysfunctional economic climate, straightforward bargaining frequently comes up empty.

Employers come to the table with lengthy lists of takeaways and refuse to compromise. Claiming impasse at the earliest opportunity, they threaten to carry out their final offer or impose a lockout. To cope with these realities many unions are turning to militant contract campaigns. Creative and aggressive tactics can demonstrate members’ solidarity, resolve, and willingness to act…..