Organizing: Should the Employer Have a Say?
Theoretical Inquiries in Law, 2016, Forthcoming
32 Pages Posted: 18 Jun 2015 Last revised: 3 Dec 2015
Date Written: June 16, 2015
Israeli courts were recently faced with the question whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer to this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision whether or not to join the union. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario — the workers’ freedom of association and the employer’s freedom of speech — to appreciate their relative strength in the circumstances. It then examines whether it is possible to achieve a certain balance. To this end, the Article critically reviews the legal mechanisms adopted by other legal jurisdictions (the United States, Canada and the United Kingdom) in this regard, shedding light on their effectiveness and the difficulties of organizing in practice in each jurisdiction. The main argument advanced in this Article is that the solution has to be purposive — to advance the goals of labor law, specifically freedom of association — and that the purposive analysis must be contextual. A rule prohibiting the employer from voicing opinions is surely an infringement of freedom of speech, and strong reasons are needed to justify it. Whether strong enough reasons exist depends on several contextual factors. Essentially, the question is whether it is possible, given the current context, to secure real freedom of association without such a rule. By context we mean two main things: first, the real-life current experience concerning the struggles of organizing; and second, the existence of alternative legal mechanisms that might address this problem.
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