DAVID L. GREGORY, St. John's University - School of Law
Email: gregoryd@stjohns.edu
FRANCIS CAVANAGH, affiliation not provided to SSRN
Email: francis.cavanagh03@stjohns.edu

After the English coalminers' strike, circa 1984, the world changed. Prime Minister Margaret Thatcher crushed the miners and Scargill, as fully-indeed, perhaps more so-as her fellow conservative President Ronald Reagan crushed the striking air traffic controllers in the United States at the beginning of his first term in 1981.

In this essay, we reflect on the past quarter century of ADR in labor management relations in the United States and in the United Kingdom, critically assessing the trajectory and the evolution of ADR in labor management matters, with particular reference to the ADR of discharge and discipline grievances of unionized workers. With this platform context for the past two decades, we ruminate on the similarities and contrasts, such as they may be, in the daily working realities of labor-union-represented workers in the U.S. and in the U.K., paying particular attention to the resolution of grievances in labor management relations. We also offer some preliminary thoughts on the likely future of ADR in labor management relations in the U.S. and the U.K.

The two centerpieces anchoring this essay are the Advisory Conciliation and Arbitration Service, established via the Employment Protection Act of 1975, and the heightened due process and progressive discipline protections and standards in the Employment Act of 2002.

HARRY G. HUTCHISON, George Mason University - School of Law
Email: hhutchis@gmu.edu

In Chamber of Commerce et al v. Edmund G. Brown, the Supreme Court offers one theory of judicial invalidation that protects employers' freedom of speech claims and reinvigorates federal preemption doctrine within the meaning of the National Labor Relations Act (NLRA). Prescinding from an architectonic conception of freedom of speech that is supported forcefully and explicitly by the First Amendment, the Court relies on preemption doctrine to invalidate two provisions of a California statute because the enactment constitutes regulation, which intrudes into a zone that is protected and reserved for market freedom. The Court properly upholds its previous stance permitting employers to speak directly to their employees about unionization, but supporters of this decision might do well to withhold their applause. This is so because the Supreme Court, consistent with precedent, has been reluctant to substantiate such rights energetically. The Chamber of Commerce Court breathes life into this pattern.

In addition to examining labor law preemption principles, I inspect the often-contestable conception of neutrality in light of the existence of scholarship advocating an expansion in state labor law innovation aimed at reducing employer rights. The penultimate purpose of such innovation seems clear enough: to increase the level of unionization in the United States and to restore collective action to its previously ascendant status. It is doubtful that this objective can be seen as a "neutral" one. Instead, this goal is delineated by the declining importance of labor unions in the United States and the mounting appeal of paternalistic intrusions into the market. In light of this goal, employers, when confronted with either legislative or judicial assertions of neutrality, should be forgiven for suffering from a prevenient sense of doom. This impression is often made tangible via partisan enactments and adjudication.

With the advent of postmodern discourse and the possibility that courts have become captive to progressive rhetoric that is not found within the Constitution, I argue that the Supreme Court should reconsider its reliance on the NLRA and preemption doctrine as the primary vehicle to vindicate employers' rights and should instead return to the Constitution itself as a basis for its defense of what has become increasingly difficult to defend: the free speech rights of employers and employees within a labor-management context. This approach is exemplified by recapturing the Supreme Court's understanding of Virginia Electric as an independent ground for relief. This case, decided before the Wagner Act was amended adding explicit protection of employers' speech, stands for the proposition that employer and labor union "attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty."

Ultimately however, I argue that even a return to First Amendment principles will not be enough to protect employers' freedom of expression rights. Indeed, it is unlikely that a liberal democratic state can sustain its ostensibly neutral stance on anything, including union organizing unless it recaptures what is arguably missing in American society: a shared understanding of essentials, such as truth. It is not possible to live in a democratic society that papers over deeply antagonistic world-views, except temporarily. This quandary implies that endless elucidation may be the looming destination of all debates including the employer free speech wrangle.

MICHAEL C. DUFF, University of Wyoming College of Law
Email: mduff1@uwyo.edu

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on the broad crediting of employee witnesses to establish unlawful employer conduct. How can NLRB attorneys win credibility-based cases heard before judges who may be predisposed to disbelieve witnesses based on the witnesses' unauthorized status? Third, after Hoffman bargaining units under the NLRA, which are certified when a union gains the support of a majority of employees in a work setting, can be severely impacted by the absence of a discharge remedy. How can the structural integrity of the NLRA be maintained if employers may simply discharge union-represented, unauthorized workers, without real remedial consequence, until the union's majority support, and with it the employer's obligation to bargain, is destroyed? Assessing the NLRB's peculiar, post-Hoffman investigative policy of assiduously avoiding immigration issues, the article contrarily recommends active engagement with the problems identified, and chides the agency's failure to embrace new paradox in the expanding immigrant workplace as a serious abdication of its mission.

KATERINA LEWINBUK, South Texas College of Law
Email: klewinbuk@stcl.edu

This article offers a general examination and analysis of Russian labor law, including its historic origin and current status and it also examines existing enforcement mechanisms. The article also provides a comparison of Russian labor law and enforcement to the labor regulations and enforcement in four other countries: the United States of America, the United Kingdom, Australia, and Mexico. The article concludes that Russia's failure to comply with and enforce its labor regulations is deeply rooted in the culture's historic distrust and disrespect for the law that was typical during the Soviet times and continues into the current legal framework. It further offers a rather positive prediction for the future development of Russia's labor law and legal culture.