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Articles 61 - 90 of 147
Full-Text Articles in Law
Arbitration And Judicial Review, Theodore J. St. Antoine
Arbitration And Judicial Review, Theodore J. St. Antoine
Other Publications
A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …
Reforming Accretion Analysis Under The Nlra: Supplementing A Borrowed Analysis With Meaningful Policy Considerations, Matthew S. Miner
Reforming Accretion Analysis Under The Nlra: Supplementing A Borrowed Analysis With Meaningful Policy Considerations, Matthew S. Miner
University of Michigan Journal of Law Reform
Current accretion analysis utilizes a variety of factors to determine whether to merge a non-unionized group of employees with a unionized group of employees within the same firm. The present construction of the analysis; however, ignores employee views and potential manipulation of the doctrine. By failing to account for these two important factors, current accretion analysis neglects two key concerns of the National Labor Relations Act - preventing employer discrimination and fostering uncoerced employee action and choice. This Note advocates a better approach, which gives proper weight to employee views and considers employer motive to control against the possibility of …
Assesing The Family And Medical Leave Act In Terms Of Gender Equality, Work/Family Balance, And The Needs Of Children, Angie K. Young
Assesing The Family And Medical Leave Act In Terms Of Gender Equality, Work/Family Balance, And The Needs Of Children, Angie K. Young
Michigan Journal of Gender & Law
While recognizing that parental leave is only one aspect of the FMLA, this Article concentrates on the provision allowing leave to parents in order to care for their children. Before analyzing the FMLA in detail, it is helpful to explore what aims a parental-leave policy should have. The purpose of this Article is to propose and defend three goals that parental-leave legislation should strive to meet: equality of career opportunities for men and women, the right to participate in both work and family, and meeting the needs of children. After articulating what parental-leave legislation should aim for in theory, this …
Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine
Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine
Articles
One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …
How The Wagner Act Came To Be: A Prospectus, Theodore J. St. Antoine
How The Wagner Act Came To Be: A Prospectus, Theodore J. St. Antoine
Articles
The Wagner Act of 1935, the original National Labor Relations Act (NLRA), has been called "perhaps the most radical piece of legislation ever enacted by the United States Congress."' But Supreme Court interpretations supposedly frustrated the utopian aspirations for a radical restructuring of the workplace." Similarly, according to another commentator, unnecessary language in one of the Court's earliest NLRA cases "drastically undercut the new act's protection of the critical right to strike."'
The Continuing Relevance Of Section 8(A)(2) To The Contemporary Workplace, Michael C. Harper
The Continuing Relevance Of Section 8(A)(2) To The Contemporary Workplace, Michael C. Harper
Michigan Law Review
After embarking on his illustrious career as a legal academic, Theodore St. Antoine, through a multitude of roles, including those of scholar, teacher, administrator, pragmatic law reformer, and arbitrator, made innumerable contributions to the practice and development of many parts of American law. For most of us, however, as a scholar he will be associated primarily with the system of collective bargaining established and encouraged by the National Labor Relations Act (NLRA) and its progeny. During the first part of Professor St. Antoine's years as an academic, this system continued to flourish in America, as he, along with other legal …
Cooperation, Conflict, Or Coercion: Using Empirical Evidence To Assess Labor-Management Cooperation, Ellen J. Dannin
Cooperation, Conflict, Or Coercion: Using Empirical Evidence To Assess Labor-Management Cooperation, Ellen J. Dannin
Michigan Journal of International Law
Since the 1980s there has been strong interest in labor-management cooperation. That interest was reflected even in government attention, for example, through projects by the U.S. Department of Labor's Bureau of Labor-Management Cooperation. Under the leadership of Undersecretary Stephen Schlossberg, the Bureau's "Laws Project" examined the impact of labor law on labor-management cooperation. The Dunlop Commission issued a report strongly in favor of labor-management cooperation, and National Labor Relations Board (NLRB) Chair William B. Gould has spoken favorably of it. More recently, the government issued a report on state and local initiatives in this area.
Overcoming Collective Action Problems: Enforcement Of Worker Rights, Louise Sadowsky Brock
Overcoming Collective Action Problems: Enforcement Of Worker Rights, Louise Sadowsky Brock
University of Michigan Journal of Law Reform
In a period of new employment laws, it is important to determine how those laws are enforced, why enforcement of those laws is sometimes limited and how enforcement can be improved. This Note discusses the ways in which the theory of collective action limits enforcement of three employee rights statutes: the Fair Labor Standards Act, the Occupational Safety and Health Act, and the Worker Adjustment and Retraining Notification Act. Enforcement mechanisms such as class action lawsuits, administrative agencies, employee participation groups, and labor unions represent potential methods of overcoming collective action problems. Each method has its benefits, and the three …
Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine
Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine
Articles
Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided …
Arbitration: Back To The Future, Theodore J. St. Antoine
Arbitration: Back To The Future, Theodore J. St. Antoine
Other Publications
A strong new ideological current is sweeping through much of the Western World. At one extreme it manifests itself as a deep distrust of big government. In more modest form, it is a sense of skepticism or disillusionment about the capacity of big government to deal effectively with the problems confronting our society. In continental Europe today there is much talk of the principle of "subsidiarity," the notion that social and economic ills should be treated at the lowest level feasible, usually the level closest to the people directly affected. In the United States there is much talk of "privatization," …
Hostile Environent Sexual Harassment Claims And The Unwelcome Influence Of Rape Law, Janine Benedet
Hostile Environent Sexual Harassment Claims And The Unwelcome Influence Of Rape Law, Janine Benedet
Michigan Journal of Gender & Law
This article considers the unwelcomeness requirement of the plaintiff’s prima facie case. In particular, it examines the discussion of unwelcomeness found in the decision of the Supreme Court in Meritor Savings Bank v. Vinson, and the content given to this element by the subsequent decisions of lower courts. Such an inquiry reveals several parallels between the approach of courts to sexual harassment claims and their traditional treatment of the criminal offense of rape. The same biases and erroneous assumptions that have hampered an effective response to the physical violation of women have permeated the application of the purported remedy …
The Prima Facie Case Of Age Discrimination In Reduction-In-Force Cases, Jessica Lind
The Prima Facie Case Of Age Discrimination In Reduction-In-Force Cases, Jessica Lind
Michigan Law Review
This Note proposes that courts require the plaintiff in a RIF case to show, as part of her prima facie burden, that the employer reassigned at least part of her job responsibilities to a younger individual of equal or lesser qualifications. Part I describes the analytical framework applied to most intentional discrimination cases the McDonnell Douglas framework. Part II explains that the RIF plaintiff cannot meet the specific requirements of the prima facie case as articulated in McDonnell Douglas because her firing occurs in conjunction with the elimination of her position. This Part then examines two approaches taken by the …
Due Process Review Under The Railway Labor Act, Christopher L. Sagers
Due Process Review Under The Railway Labor Act, Christopher L. Sagers
Michigan Law Review
This Note contends that the RLA prohibits due process review and further argues that such a result is constitutional. Part I examines the statutory language of the RLA itself and contends that it limits district court review to the three statutory grounds. Part II argues that the Supreme Court's opinion in Sheehan reaffirms this interpretation because the Court's language unmistakably conveys an intent to bar due process review. Part III explains that such a limitation does not violate the Constitution. The only constitutional provision that could be implicated in an RLA proceeding, the right of procedural due process, is protected …
Rearranging Deck Chairs On The Titanic: The Inadequacy Of Modest Proposals To Reform Labor Law, Charles B. Craver
Rearranging Deck Chairs On The Titanic: The Inadequacy Of Modest Proposals To Reform Labor Law, Charles B. Craver
Michigan Law Review
A Review of Agenda for Reform: The Future of Employment Relationships and the Law by William B. Gould IV
Are Trojan Horse Union Organizers "Employees"?: A New Look At Deference To The Nlrb's Iterpretation Of Nlra Section 2(3), Jonathan D. Hacker
Are Trojan Horse Union Organizers "Employees"?: A New Look At Deference To The Nlrb's Iterpretation Of Nlra Section 2(3), Jonathan D. Hacker
Michigan Law Review
This Note takes a different approach to interpreting section 2(3). Although this Note agrees that section 2(3) neither clearly includes nor clearly excludes trojan horse organizers, it also argues that the definition of employee under section 2(3) must be determined by looking to common law principles of agency. In other words, the question whether courts should defer to the Board's interpretation of section 2(3) does not turn on statutory ambiguity. Rather, courts have a continuing duty to ensure that the Board interprets employee consistently with common law agency principles. Nevertheless, the correct interpretation of employee under agency principles ultimately turns …
Collective Bargaining Or "Collective Begging"?: Reflections On Antistrikebreaker Legislation, Samuel Estreicher
Collective Bargaining Or "Collective Begging"?: Reflections On Antistrikebreaker Legislation, Samuel Estreicher
Michigan Law Review
The strike is a necessary part of collective bargaining. Workers should not ordinarily lose their jobs by pressing their disputes in this manner. But neither should strikes be viewed as a risk-free means of empowering unions to lock employers into uncompetitive contracts.
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine
Articles
The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.
The Making Of The Model Employment Termination Act, Theodore J. St. Antoine
The Making Of The Model Employment Termination Act, Theodore J. St. Antoine
Articles
Courts in about 45 states have ameliorated the harshness of employment at will, but the common-law modifications still exhibit serious deficiencies. Legislation is needed. The Model Employment Termination Act proposes a balanced compromise. It would protect most employees against discharge without good cause and it would relieve employers of the risk of devastating financial losses When liability is imposed. Arbitration procedures under the Model Act would also be simpler, faster, and cheaper than existing court proceedings.
Labor Law Successorship: A Corporate Law Approach, Edward B. Rock, Michael L. Wachter
Labor Law Successorship: A Corporate Law Approach, Edward B. Rock, Michael L. Wachter
Michigan Law Review
In this article, we take an approach fundamentally different from that of the labor law commentators. We start from a broader perspective than is common: successorship is as important an issue for corporate law as it is for labor law. Given that the two principal inputs to the firm are labor and capital, it would be surprising if the laws for labor law successorship were completely different from the laws for corporate law successorship. To the extent that differences exist, those differences should hinge upon differences between the employees' and the creditors' relationships with the firm.
The Constitutionality Of Employer-Accessible Child Abuse Registries: Due Process Implications Of Governmental Occupational Blacklisting, Michael R. Phillips
The Constitutionality Of Employer-Accessible Child Abuse Registries: Due Process Implications Of Governmental Occupational Blacklisting, Michael R. Phillips
Michigan Law Review
This Note discusses the due process implications of permitting employer access to state child abuse registries when disclosure affects registry members' employment.
Life-Cycle Justice: Accommodating Just Cause And Employment At Will, Stuart J. Schwab
Life-Cycle Justice: Accommodating Just Cause And Employment At Will, Stuart J. Schwab
Michigan Law Review
The goal of this article is to articulate a coherent framework for understanding the default rules for employment termination. While most observers see chaos here, I find a certain logic in the leading cases. The courts have been boldest when job protection is most appropriate, and they have hesitated precisely when at will plays its most useful role.
"Take This Job And Shove It": The Rise Of Free Labor, Jonathan A. Bush
"Take This Job And Shove It": The Rise Of Free Labor, Jonathan A. Bush
Michigan Law Review
A Review of The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870 by Robert J. Steinfeld
Employment-At-Will—Is The Model Act The Answer?, Theodore J. St. Antoine
Employment-At-Will—Is The Model Act The Answer?, Theodore J. St. Antoine
Articles
Over the last quarter century, the most significant development in the field of labor and employment law has been a nationwide movement toward a revision of the at-will employment doctrine. Courts in over forty-five jurisdictions have used one or more of three main theories to carve out exceptions to the previously allpervasive principle. Unfortunately, though one can applaud the values embodied in these decisions, there are serious deficiencies in the common law modifications. The purpose of this Article is to outline those defects and to demonstrate that the interests of employees and employers alike would be better served by new …
The Law And Arbitration: The Model Employment Termination Act, Theodore J. St. Antoine
The Law And Arbitration: The Model Employment Termination Act, Theodore J. St. Antoine
Articles
The Model Employment Termination Act(META), which the Uniform Law Commissioners have recommended for adoption by all state legislatures, could provide the most significant legal change of this quarter century in the American workplace. In addition, if the annual case load of grievance arbitrations in this country now stands at somewhere around 65,000, the Act holds the potential for at least quadrupling that figure. Our colleague Jack Stieber has calculated that there are 60 million U.S. employees who are not protected by union contracts or civil service laws, and are thus subject to the employment-at-will doctrine. They can be fired for …
Defining "Disability": The Approach To Follow, Theodore J. St. Antoine
Defining "Disability": The Approach To Follow, Theodore J. St. Antoine
Articles
The definition of "disability" has once again become a central issue in workers' compensation law. I am partly responsible. A decade ago I served as the Governor's Special Counselor on Workers' Compensation. In my Reportto the Cabinet Council on Jobs and Economic Development, I stated: "If I could write on a clean slate, I would prefer to see the Michigan definition brought even closer into the mainstream of American law by declaring that 'disability' means a 'limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work …
Which Side Are You On?: Trying To Be For Labor When It's Flat On Its Back, John Edward Connelly
Which Side Are You On?: Trying To Be For Labor When It's Flat On Its Back, John Edward Connelly
Michigan Law Review
A Review of Which Side Are You On?: Trying to Be for Labor When It's Flat on Its Back by Thomas Geoghegan
Germany's Legal Protection For Women Workers Vis-À-Vis Illegal Employment Discrimination In The United States: A Comparative Perspective In Light Of Johnson Controls, Carol D. Rasnic
Michigan Journal of International Law
This article will review the major German laws affecting women in the workplace, including clarification of the rationales of the German Bundestag (parliament). Comparative remarks regarding U.S. law and an analysis of Johnson Controls will place the two bodies of law in juxtaposition. Finally, an explanatory historical overview will allow the reader to draw his or her own conclusions as to the preferred view of the legal status of the working woman.
The Model Employment Termination Act: Fairness For Employees And Employers Alike, Theodore J. St. Antoine
The Model Employment Termination Act: Fairness For Employees And Employers Alike, Theodore J. St. Antoine
Articles
The Model Employment Termination Act (META), which state legislatures are expected to consider in the near future aims to prevent the unfair firing of Amer~ ican workers. At the same time, the Act aims to prevent devastating financial blows to American business. For both employees and employers, META offers streamlined dispute resolution procedures that would be simpler, less costly, and less time-consuming than the civil courts. The essence of the proposal is compromise-not as a matter of political expediency but as a practical, balanced accommodation of the competing worthwhile interests of employers and employees. Workers are entitled to be free …
Collective Bargaining In The Federal Public Sector: Disclosing Employee Names And Addresses Under Exemption 6 Of The Freedom Of Information Act, Trina Jones
Michigan Law Review
This Note examines the application of FOIA and the Privacy Act to union requests for employee names and addresses under the Fed. LM Statute. Part I briefly explores the importance of employee names and addresses to collective bargaining. This Part also examines the increasingly significant role of public sector unions due to the growth in federal public sector employment and the decline of private sector unionization. Part II analyzes the various circuit court decisions supporting disclosure in the federal public sector. Part III examines Reporters Committee and Department of the Treasury and discusses the potential policy implications resulting from the …
The Government And Union Democracy, Theodore J. St. Antoine
The Government And Union Democracy, Theodore J. St. Antoine
Articles
The desirability of union democracy is generally regarded today as a self-evident proposition. In this Symposium Clyde Summers treats it as a "fundamental premise." But there have always been reputable scholars who would support the thesis, in greater or lesser degree, that "democracy is as inappropriate within the international headquarters of the UAW as it is in the front office of General Motors."