Neutrality Agreements: Bargaining for Representation Rights in the Shadow of the State

Abstract

This paper examines the recent arrival of neutrality agreements in Canada. These are agreements between unions and employers that define the conditions under which union organizing will take place at facilities controlled by the employer. The history of neutrality agreements in the U.S. is reviewed, as is the emergence of these agreements in Canada. Neutrality agreements are a model of private ordering that operate without direct guidance from the state, yet their form and application are influenced by state law. The author examines neutrality agreements from the perspective of decentred regulatory theory, in which regulation is used by the state to steer the private creation of norms that are consistent with state policy. Using Ontario's labour laws as an example, the author explores the role of law in the emergence, form, and likely contribution of neutrality agreements to Canadian industrial relations.

Keywords: labour law, neutrality agreements, Ontario, unions, collective bargaining, decentred regulation, reflexive law, third way