Category Archives: Collective Bargaining

Rejection of Collective Bargaining Agreements in Chapter 11 Bankruptcies: Legal Analysis of Changes to 11 U.S.C. Section 1113 Proposed in H.R. 3652 — The Protecting Employees and Retirees in Business Bankruptcies Act of 2007

Source: Carol A. Pettit, Congressional Research Service, RL34486, May 9, 2008

Introduced in the 110th Congress, the Protecting Employees and Retirees in Business Bankruptcies Act of 2007 (H.R. 3652) proposes a number of changes to the U.S. Bankruptcy Code. According to the sponsors, the changes are needed to remedy inequities in the bankruptcy process and to recognize that employees and retirees have a unique investment in their companies through their labor.

The bill contains many proposals for changing the Bankruptcy Code. This report focuses on the amendments and additions to 11 U.S.C. § 1113, which provides the procedures that are to be followed if a debtor in possession wants to reject a collective bargaining agreement (CBA).

The changes proposed for § 1113 may be intended to promote negotiation between the debtor and the authorized representatives of labor groups that have existing CBAs with the debtor company. They also appear to constrain court involvement in the process. This could lead to more agreed-upon modifications and fewer rejections of CBAs. Alternatively, it could prolong the negotiation process and put burdens on the debtor that would make liquidation more feasible than reorganization.

The bill prescribes the parameters of offers that may be made by the debtor in negotiations as well as the requirements that must be met before a court can approve rejection. It attempts to curtail what the sponsors have referred to as “excesses of executive pay” by making rejection of a CBA difficult if executives are to receive incentive pay and by requiring consideration of past concessions by the labor group in determining whether the labor group is being disproportionately burdened by proposed modifications to a CBA.

H.R. 3652 appears to propose changes to § 1113 that would resolve some differences between courts in interpreting the requirements for modification or rejection of a CBA. It also clearly states that rejection of a CBA is a breach of contract, even when approved by the court, and clarifies the damages that are available.

The bill provides an absolute right of all employees to strike if their CBA is modified or rejected. This contrasts with recent court decisions involving unions representing employees of financially distressed airlines in which the employees were enjoined from striking.

Regulating Unions and Collective Bargaining

Source: Kenneth Glenn Dau-Schmidt, Labor And Employment Law And Economics, Edward Elgar Publishing, 2008

From the abstract:
This article is a chapter for the forthcoming volume edited by Kenneth G. Dau-Schmidt, Seth D. Harris and Orly Lobel, “Labor and Employment Law and Economics” Edward Elgar Publishing (2008).

In this chapter, we present an outline of the economic analysis of the regulation of unions and collective bargaining. We begin with the simple model of the market for union services and analyze regulations that may increase or decrease either the demand or supply for union representation. In this way we provide an economic basis for evaluating government policies such as a prohibition on yellow dog contracts, a prohibition on discriminatory discharges, right to work laws and card check procedures for selecting a union, which may influence the demand and supply for union services and accordingly union density in the economy. Next we present simple expositions of the primary models of the impact of unions on wages and employment, including the monopoly model, the efficient contract or collective voice model and the median voter model. These models provide the basic framework for analyzing the impact of collective bargaining on equity, efficiency and voice. Finally, we discuss the concept of bargaining power and present two simple models of collective bargaining that depict the problem of strikes alternatively as a function of imperfect information and strategic behavior. These models provide a basis for evaluating government policies that are designed to change the relative bargaining power of labor and management such as allowing permanent replacements, allowing offensive lock-outs and allowing or prohibiting secondary boycotts. These models also allow us to evaluate the potential for government policies to promote cooperative labor relations and industrial peace such as requiring exchanges of information, good faith bargaining and appropriate bargaining units. The ultimate arbiter of the efficacy of various government policies is, of course, empirical work. Where appropriate, we cite the most important empirical work that is available on the examined problems.

Law Reform, Collective Bargaining, And The Balance Of Power: Results Of An Empirical Study

Source: Ellen Dannin, Michelle Dean, Gangaram Singh, WorkingUSA, Volume 11 Issue 2, June 2008
(subscription required)

From the abstract:
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.

Profiles of Significant Collective Bargaining Disputes in 2007

Source: Bureau of Labor Statistics

Twenty-one work stoppages that began in 2007 and two major work stoppages that continued from 2006 idled a total of 189,000 workers and resulted in 1.3 million workdays of idleness. This article profiles the issues involved in the three most significant stoppages of 2007 as measured by days of idleness and number of workers involved. The three work stoppages, in total, represent nearly half (47 percent) of the workers idled and 55 percent of the days idle for all major work stoppages involving 1,000 or more workers in 2007.

Moving from Interest-Based to Results-Focused Bargaining

Source: John R. Stepp and Gary I. Bergel, Perspectives on Work, Vol. 11 no. 2, Winter, 2008
(subscription required)

More than two decades ago Roger Fisher and William Ury published Getting to Yes, ground-breaking research on how to conduct negotiations to yield superior outcomes for all parties. … Known by a variety of names (including Mutual Gains Bargaining and Win-Win Bargaining), Fisher and Ury’s methodology, which they refer to as Interest-Based Negotiations (IBN), has been promoted as a more effective alternative to the typically adversarial methods used in traditional labor negotiations. In the zeal to tone down the adversarial and dysfunctional aspects of traditional bargaining, however, some IBN devotees have removed components of traditional bargaining that we believe to be legitimate and productive, while they have added or emphasized features that seemingly elevate form over function, leaving labor and management bargainers frequently frustrated and disappointed. …we are convinced that a synthesis of traditional contract negotiations and IBN is much more effective than either approach by itself. This synthesis, which we refer to as Results-Focused Bargaining (RFB), uses the interest-based methodology as the foundation and borrows selectively from more traditional methods of negotiating. This article examines IBN’s shortcomings and the RFB alternative, with a focus on transformational negotiations.

Airline Negotiations and the New Concessionary Bargaining

Source: Gary Chaison
Journal of Labor Research
Fall 2007

The author asks whether the highly confrontational collective bargaining in the airlines is uniques to that industry or a sign of a deepening crisis in union-management relations nationally. First, airline labor relations are reviewed in the context of extremely contentious negotiations, intense industry competition, complex and fragmented bargaining structures, frequent bankruptcies, and unpredictable external shocks. Next, concessionary bargaining in the airlines is discussed, and a new and extreme form of concessionary bargaining is identified. The emergence of the new concessionary bargaining in the airlines and its spread to the automobile sector is then interpreted as the early signs of a fundamental transformation of collective bargaining. The implications of the new concessionary bargaining are then described at the workplace, company, union and societal levels.

NLRB General Counsel Seeks Tougher Remedies in First Contract Bargaining Cases

Source: Ellen Dannin and Anne Lofaso, Labor Law Journal, Vol. 58 no. 3, Fall 2007

Following an interview conducted by CCH with NLRB General Counsel Ronald Meisburg on a remedies initiative in first contract bargaining cases, Ellen Dannin, Professor of Law, Penn State Dickinson School of Law and Anne M. Lofaso, Associate Professor of Law, West Virginia University College of Law commented on the initiative.

Ensuring employee free choice is a high priority for National Labor Relations Board General Counsel Ronald Meisburg. That means focusing on the need for success in first contract bargaining. Concerned by statistics and anecdotal evidence showing that about half of all refusal to bargain charges are filed during first contract bargaining and that the merit rate for those charges is higher than the merit rate in all other types of unfair labor practice charges, Meisburg has instructed the Regions to seek the following additional remedies on a regular basis in cases where bad faith bargaining tactics or other violations substantially delay or hinder negotiations in first contract bargaining cases: requiring bargaining on a prescribed or compressed schedules, such as is granted in contempt situations; periodic reports on bargaining status; minimum six-month extension of the certification year; reimbursement of bargaining costs.

Union Dues Objections: A Twisted Path to Endless Litigation

Source: Ronald Miller, Labor Law Journal, Vol. 58 no. 3, Fall 2007

It’s been thirty years since the U.S. Supreme Court decided Abood v. Detroit Board of Education, holding that requiring nonunion members of a bargaining unit in the public sector to provide financial support for the collective bargaining activities of a union in the form of agency fee payments did not violate the nonmembers’ First Amendment rights. However, three recent decisions, including one by the Supreme Court, make it clear that implementing an agency fee program that meets constitutional muster is still a troubling issue in a number of respects.

Exclusive Representation and the Wagner Act: The Structure of Federal Collective Bargaining Law

Source: Raymond Hogler Labor Law Journal, Vol. 58 no. 3, Fall 2007

Conditions for collective bargaining in the United States are poor and deteriorating. A large body of labor law scholarship documents the weakness of legal protections and processes designed to promote unionism in this country. Professor Morris’s theory about minority union bargaining is offered as a means of strengthening unions in a hostile environment. This article argues that the strategy is a risky one because it invites a resurgence of company unions, which threatened to overwhelm the modern American labor movement at its inception in the 1930s. A better option would be for labor to attack the root source of its contemporary decline. The three pillars of collective bargaining as envisioned by Wagner are independent unions, exclusive representation, and organizational security. The malignancy of right to work laws has destroyed one of those pillars. Morris’s vision of going back to the future would eliminate the other two.

Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship?

Source: Martin H. Malin and Charles Kerchner, Harvard Journal of Law and Public Policy, Vol. 30 no. 3, Summer 2007

From the abstract:
The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teachers in charter schools. This development prompts the question whether unionization and charter schools are compatible.