A Moral/Contractual Approach to Labor Law Reform

52 Pages Posted: 7 Mar 2011 Last revised: 14 Feb 2012

Zev J. Eigen

Littler Mendelson

David Sherwyn

Cornell University

Date Written: February 13, 2012

Abstract

When laws cease to operate as intended, legislators and scholars tend to propose new laws to replace or amend them. This Article posits an alternative: offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons and are focused on union election win rates and less on the election process itself, (3) it is an area of law already statutorily regulating parties’ reciprocal contractual obligations, and (4) moral means of self-regulation derived from contract are more likely to be effective when parties have ongoing relationships like those between management and labor organizations. The Article explains how the current law and proposed amendments fail because they focus on fairness as a function of union win rates, and then outlines a plan to leverage strong moral contractual obligations and related norms of behavior to create as fair a process as possible for employees to vote unions up or down.

Keywords: reform, labor, employment, contract, union, management, labor relations, arbitration, employee, employer, free choice act, card check, neutrality, ethics, morals, moral, contractual, dispute, resolution, collective, bargaining, negotiation, ADR, EFCA, NLRA, NLRB

JEL Classification: K10, K12, K30, K31

Suggested Citation

Eigen, Zev J. and Sherwyn, David, A Moral/Contractual Approach to Labor Law Reform (February 13, 2012). Hastings Law Journal, Forthcoming; Northwestern Public Law Research Paper No. 11-32; Northwestern Law & Econ Research Paper No. 11-03. Available at SSRN: https://ssrn.com/abstract=1832283

Zev J. Eigen (Contact Author)

Littler Mendelson

2049 Century Park E
Suite 500
Los Angeles, CA 90067
United States

HOME PAGE: http://www.littler.com/people/dr-zev-j-eigen

David Sherwyn

Cornell University ( email )

School of Hotel Administration
Ithaca, NY 14853
United States

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