Statement of Theodore J. St. Antoine Before the Commission on the Future of Worker-Management Relations

Testimony_St_Antoine_040694.pdf: 205 downloads, before Oct. 1, 2020

Gilmer in the Collective Bargaining Context

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Gilmer in the Collective Bargaining Context

Published in cooperation with the American Bar Association Section of Dispute Resolutio

At-Will Employment: An Overview

The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine

Discrimination Bans Demonstrate Approaching Maturity of Employment Law

The pervasive message of this symposium sponsored by the Labor Relations Law Section, whether or not intended by the individual authors, is that American employment law is moving beyond adolescence and may be approaching maturity

The NLRB, the Courts, the Administrative Procedures Act, and Chevron: Now and Then

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency\u27s statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, but if a statute is silent or ambiguous on the precise issue, then the court will defer to an agency\u27s determination that is a permissible construction of the statute. More recently there has been a revival of interest in the earlier, more flexible Skidmore approach. That would call for considering a variety of factors, including whether the issue was one of pure law or the application of law to facts and the formality or informality of the agency\u27s decisional process. It has even been suggested that these deference tests could be reduced to a single inquiry: was the agency\u27s decision reasonable ? Empirical studies have indicated not only that the political backgrounds of NLRB members substantially affect its decisions but also that the political backgrounds of judges substantially affect the decisions of reviewing courts. Recent examples of hotly contested issues include registered nurses and university faculty members as employees entitled to organizing rights under the National Labor Relations Act; union access to employees on employer property that is generally open to the public, such as parking lots; \u27pure consumer picketing at retail stores; and the required posting of notices about organizing and bargaining rights at nonunion establishments. All these raise fundamental questions about federal neutrality in union management relations versus government encouragement of collective bargaining

Mandatory Arbitration: Why It\u27s Better Than It Looks

Mandatory arbitration as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even better, although successful plaintiffs get larger monetary awards in court. Perhaps most important as a practical matter, lower-paid employees generally cannot get access to court while they can secure a hearing in arbitration. For most such workers, arbitration may be the only realistic option. This Article will conclude that the primary concern should be to ensure due process in mandatory arbitration. That would mean guarantees such as a mutually selected arbitrator, no broad prohibition of class actions, a fair hearing reasonable costs, and the same remedies as provided by any applicable law

The Legal and Economic Implications of Union-Management Cooperation: The Case of GM and the UAW

\u27Cooperation\u27 sounds too much like \u27cooption.\u27 \u27Collaboration\u27 recalls the Nazis in occupied Europe. Words are important in labor relations. A word we like is \u27jointness.\u27 Another is \u27involvement.\u27 With comments like those, a top United Automobile Workers official recently pinpointed one of the most significant and controversial developments in contemporary industrial life-the substitution of a new union-management attitude of conciliation and togetherness for the parties\u27 traditional adversarial stance. In this paper I shall briefly trace the rise of participative management, as the process is often called, using the experience of General Motors and the UAW as my prime example. The phenomenon will then be placed in historical perspective, and contrasting assessments of its desirability and future potential will be discussed. Finally, I shall try to evaluate some of the more important legal and economic implications of jointness and employee involvement in management decisionmaking

Offshore Outsourcing and Worker Rights

For the workers in the Rust Belt of the United States, concentrated in Southern New England, Western New York State, Pennsylvania, Ohio, Michigan, Indiana, and Illinois, it doesn\u27t make much difference whether their jobs are outsourced or lost to North Carolina or Mexico or China. In any event the sources of income that have existed for generations are gone and the economic and psychic pains are much the same. Nonetheless, for purposes of national policy it plainly matters whether the work is moving to another part of the country or is leaving the United States entirely. I am going to focus on what has become a growing concern everywhere in this country-the flight of jobs abroad as business seeks the advantages of dramatically lower wage scales. That is known as offshore outsourcing or contracting

Interventionism, Laissez-Faire, and Stare Decisis: The Labor Decisions of the Supreme Court, October Term 1969

Following is the partial text of an address delivered at the August 10, 1970, meeting of the American Bar Association\u27s Section of Labor Relations Law by Theodore J. St. Antoine, Professor of Law, University of Michigan, and Secretary of the Section of Labor Relations Law of the American Bar Association. The portion of the address reproduced deals with the Supreme Court\u27s Boys Markets decision relating to injunctions against strikes in violation of no-strike contracts and the Court\u27s H. K. Porter decision involving the NLRB\u27 s authority to order a party to agree to a substantive provision in a collective bargaining contract