Unions and Urinalysis

Many private employers seem to be busy deciding whether and how to test employees for drug use. Presumably most of these decisions are made by management acting alone. However, in unionized workplaces—one out of five private sector employees are represented by unions—federal labor law prescribes a different method. That method features collective bargaining by unions and management to set the rules, the use of a private third-party neutral to resolve disputes which arise under those rules (arbitration), and relatively little involvement by the government (the National Labor Relations Board, legislatures, and the courts). This system that labor law prescribes for dealing with the problem of drug testing is complex. Part I of this article describes that system, with a focus on the prominence of private standards and methods compared to the minor impact of public law and processes. Part II comments on this system, addressing two related questions: First, is the labor law system a wise one for resolving the issue of drug testing in unionized workplaces? The short answer is yes, although the role of public law should be increased. Second, are there lessons for the non-unionized sector? The short answer is that some features of the system used in unionized settings could be used in non-unionized settings, but only with modifications. Throughout, the article focuses on the issue of whether to test employees for drug use, although it touches on related issues, such as discipline for drug use, as well

Beyond Words: An Empirical Study of Context in Contract Creation

This article reports on an empirical study into how judges interpret contracts. In general, the study demonstrates that key participants do look to context for guidance on issues of contract creation. Part II summarizes the modem legal perspective on these questions, as stated in the Restatement (Second) of Contracts, as posited in the scholarly debate about relational contracts, and as exemplified in case law regarding employment contracts. Part III describes a study designed to capture the thinking on these questions of participants in an employment contract. Part IV presents the results obtained from respondents who represented the parties to the contract, namely the employee and the company\u27s human resources manager, as well as results from another important group of respondents-lawyers assigned to represent the employee or the company. Part V summarizes the numerical results and discusses the implications of the study

The Scope of Bargaining in Minnesota Public Sector Labor Relations: A Proposal for Change

This article surveys and analyzes the law on the scope of bargaining under the Minnesota Public Employment Labor Relations Act (PERLA) and suggests ways to make it more certain and responsive to public policy. Part II sets out the conflicting policy considerations to be accommodated in defining the scope of bargaining. These considerations form the basis for Part Ill\u27s criticism of the present law under PELRA and guide the recommendations for change made in Part IV

The Scope of Bargaining in Minnesota Public Sector Labor Relations: A Proposal for Change

This article surveys and analyzes the law on the scope of bargaining under the Minnesota Public Employment Labor Relations Act (PERLA) and suggests ways to make it more certain and responsive to public policy. Part II sets out the conflicting policy considerations to be accommodated in defining the scope of bargaining. These considerations form the basis for Part Ill\u27s criticism of the present law under PELRA and guide the recommendations for change made in Part IV

Reconciling Differences: The Theory and Law of Mediating Labor Grievances

While grievance arbitration is the most common method of resolution of disputes arising under collective bargaining agreements, the author proposes that there is also a place for grievance mediation. The author compares mediation to arbitration and negotiation, and describes the strengths and weaknesses of mediation. She explains how mediation clauses in labor agreements could be enforced under section 301 of the LMRA, to protect rights created by those agreements, and proposes that mediation clauses be a basis for injunctions against strikes during the term of an agreement in certain situations. However, the author suggests that courts and the National Labor Relations Board should still have primary responsibility for enforcing non-waivable statutory rights. The author discusses the legal standards for review of arbitration and mediation in Title VII cases, in which the courts generally do not defer to prior findings. She then analyzes the Board\u27s deferral doctrines in depth, and suggests that agreements to mediate should be given deference by the Board when the rights at issue are waivable. The author concludes that, under that standard, mediation could help maintain the relationships necessary for effective collective bargaining without sacrificing protections guaranteed by the law

Navigating the Murky Waters of Untruth in Negotiation: Lessons for Ethical Lawyers

This article answers the following questions: What does the law-both general principles applicable to truthfulness in negotiation and professional responsibility rules- say about this dilemma? What do we know about the practice of truthfulness in lawyer negotiations? What have social scientists learned about deception in negotiations over the last few decades? Finally, what lessons can be drawn for lawyers seeking to behave ethically, as well as for those interested in assisting lawyers navigate the “murky waters of untruth

Time and Money: One State\u27s Regulation of Check-Based Loans

This article, which is part narrative and part essay, describes one professor\u27s experience working on “check cashing” (or “check-based loans”) cases at the Appalachian Research and Defense Fund in eastern Kentucky. Parts I and II describe the typical check-based loan transaction and its effects on low-income consumers. Part III recounts how the law of check-based loans has developed in Kentucky, during the professor’s time there and since. Part IV sets forth some observations about language and legal process, suggested by the preceding narrative

Recalling Atticus Finch: Conversations with Practicing Lawyers

This article discusses the skills, values, and attitudes that are key to practicing law. Input from practicing attorneys shows that while some traits are essential for all practice areas, other traits are specifically necessary for certain types of attorneys