Four Procedures for Determining Worker Entitlements

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Table of Contents

The Individual and collective bargaining In the Unionized Setting
Strengths of the Individual and Collective Bargaining
References

In order to research that either the four procedures for determining worker entitlements in American laws: individual bargaining, collective bargaining, legislative regulation and adaptation of the common law are comprehensive or not one has to study this list in details. With common law the Courts in nineteenth began reassessing the position of co-employees within the workplace. Judges increasingly were referring to negligent co-employees not as agents of a mutual employer, but as fellow servants of the injured persons. Despite the quaint language of its originator, Lord Abinger, in the case of Priestley v. Fowler, the “fellow servant” rule was a provocative legal statement about the relative position of workers in regard to their employers.

The fellow servant rule was an offshoot of an older rule of common law–the doctrine of common employment. The decisions stating the fellow servant rule were very well-crafted and broadly applied by judges such as Lemuel Shaw, the chief justice of the Massachusetts Supreme Court. The fellow servant rule, therefore, became the best-known branch of the doctrine of common employment, because it spoke to situations in which workers were employed in large-scale enterprises, such as the new railways of America. The doctrine of common employment and the fellow servant rule found voice in the United States initially in the Farwell case, which involved injury to a railway worker in Massachusetts soon after railroads began to be constructed there.

Besides the fellow servant rule, courts of law in the mid- nineteenth century made two other important exceptions to respondent superior-the legal rules known as the assumption of risk doctrine, and the doctrine of contributory negligence. Judges who argued for “assumption of risk” declared that the time for employees to state their fears about workplace safety was at the moment when they were hired. Prospective workers ought to be alert enough to the possibility that they might be injured in dangerous new enterprises such as railways, that they would mention that fear to employers, as a point of negotiation about wages.

In its broadest notion, a grievance is any employee complaint about the employment relationship. Some labor agreements describe a grievance in this manner. More commonly, nonetheless, a grievance is defined as a dispute that “relates in some manner to the proper interpretation or application of the collective bargaining agreement” (White, 1999, p-3). Such a definition narrows the incidence of grievances to unionized settings and to written contract language that specifically deals with grievances–although some labor agreements do not contain individual and collective bargaining and grievance like dispute resolution procedures are present in some non-union settings. Neal, (2001) offers the following definition:

The individual and collective bargaining is in part the judicial process of applying the terms of the agreement to particular situations, as it is most frequently pictured. It is also the mechanism through which the first-line representatives of union and management engage in an ongoing contest over the exercise of authority in the shop–a contest which may be relatively quiescent, at the one extreme, or almost brutal, at the other, but which is always present in some degree. The grievance process is also a device which strategic groups within the union can use to engage in fractional bargaining on their own behalf, sometimes challenging the authority of the union in the doing but more often able to cover their purpose in “grievances” which have at least the air of legitimacy about them. And lastly, the grievance process, in the hands of sophisticated practitioners, can be made an instrument for more effective administration within the shop. (p. 24)

Put more tersely, “the essence of the individual and collective bargaining is to provide a means by which an employee, without jeopardizing his job, can express a complaint about his work or working conditions and obtain a fair hearing through progressively higher levels of management” (Dell’Arringa, 2001).

The empirical reference of “collective bargaining negotiation” is apparent; doubts do arise in the interpretation of this term. “Negotiation” has a more restricted reference than “bargaining” in that although only certain exchange transactions are featured by negotiation, all may be viewed as instances of bargaining. In any exchange transaction –for example, an ordinary retail purchase–a bargain regarding the terms of exchange is struck, and, hence, a kind of bargaining may be said to have taken place. (US Graphical Federation, 1999) However, as in this instance, there need be no negotiation involved.

In order to conclude any transaction, the parties must exchange minimum information–namely, their terms and their subsequent acceptance or rejection of the other’s terms. However, they may be said to negotiate if they exchange further information relevant to the transaction. An analysis of negotiation is in large part an analysis of the content and functions of such additional information and of the tactical “moves,” agreement problems, and so forth, reflected in it.

Just as negotiation is only one aspect of the total collective bargaining relationship, that relationship itself is set into a larger context which is well defined by John T. Dunlop’s concept of an “industrial relations system.” An industrial relations system determines the “web of rules” governing the work place (including among these rules the terms of compensation). In Dunlop’s model, the workers and their organizations, managers and their organizations, and governmental agencies concerned with the work place and work community interact within three related environmental contexts: the technology, the market or budgetary constraints and power relations in the larger community, and their own derived status. In an industrial relations system such as that of the United Kingdom, the collective bargaining interaction between workers and their organizations and managers and their organizations is an important part of the rule-making procedure. Negotiation in turn plays a vital role in this bargaining interaction.

To define exactly the way in which analysis of negotiation fits into analysis of bargaining generally, and into analysis of industrial relations systems even more generally, would require a volume addressed to “the economics of collective action”–a study far beyond that intended here. However, enough can be said in short compass to provide the orientation necessary to understand this inquiry. Some conflict of interest between labor and management is inherent in an industrial relations system. In collective bargaining more income for one side generally means less for the other (although collective bargaining is by no means a zero sum game in either the technical or the general sense). The power “pie” is as important as the source of conflict.5 In pursuit of its objectives; each side may use various pressures in operating upon its opposite number.

Classification of types of social power is important, but need not detain us here. A few examples will suffice. The environmental context provided by technology and by market organization will importantly condition, in any particular collective bargaining relationship, the economic power that may be brought to bear by refusal to deal, for instance. The ideological content of community mores provides a source of “ethical,” “moral” power which may be harnessed by the disputants. In laying hold of power weapons, the parties are constrained by government, by the rules of law (both common and statutory) that define the “allowable area of economic conflict.” Collective bargaining negotiation is a social-control technique for red fleeting and transmuting the basic power relationships, which underlie the conflict of interest inherent in an industrial relations system. It is a technique for directing, controlling, and exploiting power in the formulation of the web of rules governing the work place.

The Individual and collective bargaining In the Unionized Setting

As an introduction to discussing the mechanics and functions of the individual and collective bargaining, it is important to recognize the significant roles that attitudes, beliefs, and perceptions play in all individual and collective bargaining. As Bach (1999) notes, “The mechanics of the process are far less important than the participant’s attitude toward the procedure” (p. 150). Keller (2000), who offers a generalized framework for the analysis of individual and collective bargaining, also emphasizes the importance of the attitudes and perceptions of the parties. Their summary is worth quoting at length:

All industrial situations contain conditions and events that can be potentially dissatisfying to employees (latent issues). A grievance begins with some sort of “triggering event” which transforms a latent issue into a conscious one.
This event creates a “cognitive” or psychological reaction in the mind of the employee affected.
Assuming one decides to act on the feelings of dissatisfaction, several choices are possible. One may seek out fellow employees to see if they have the same sense of grievance (potential allies). If they do, a process of building a sense of group cohesion around the grievance may begin. The other typical action is to confront someone who is seen as being able to correct the grievance.
Once the grievance is made manifest the parties involved usually engage in mutual probing to establish how strongly the other feels about the issue, what the other “really” wants and intends to do about it, etc. This position clarification stage may be as perfunctory as a single question or it may involve lengthy meetings or “behind the scenes” investigation.
Once a management representative has received a grievance and obtained some clarification of the grievant’s position on the matter he is the one that must now make several decisions. He can choose to ignore the matter; try to handle it himself; consult with colleagues; ask for a superior’s advice; or turn the matter over to a superior for a decision.
Once a first decision on the grievance is reached and communicated a “reaction phase” begins. Assuming the decision is unsatisfactory; the grievant can choose to live with the dissatisfying situation, to seek out allies or agents for support, or to pursue the matter further on his own.
The person on the management side who receives the grievant’s reaction to the initial management response must go through the same cognitive process.
The final conclusion may involve a compromise, “total victory” for one side or the other, or a solution in which both parties are better off than previously. The outcome also contains an aftermath: it will affect the attitudes of each side about the overall continuing relationship between them. The whole issue then rejoins the latent pool from which it originally arose. (Keller, 1999)

Strengths of the Individual and Collective Bargaining

The strengths of the grievance process have been frequently discussed in the literature.

Carley (2000) identifies the following strengths and benefits of the individual and collective bargaining:

An orderly channel to reduce pressures and anxieties of employees;
A mechanism for equitable and just interpretation and application of negotiated terms;
A communication outlet to promote understanding of the negotiated agreement by both sides;
A built-in substitute for a test of economic strength that can provide ongoing consideration of agreement disputes without upsetting the flow work; and
A force against arbitrary, capricious, and discriminatory actions by management. (Millward, 1999)

Martin (1999) adds to this list of benefits:

Individual and collective bargaining are commended not only for providing a peaceful means of resolving day-to-day workplace disputes and for enabling workers to participate in decisions that affect their work lives, but also for the benefits that they provide to management. (Ferner, 2000) These include a virtual guarantee of uninterrupted production during the life of the labor agreement, the use by management of union resources and personnel to police the labor agreement, and a systematic source of information about problem areas in the workplace–information that can be used for subsequent evaluation and corrective action.

Ferner (1999) identifies the following benefits of the individual and collective bargaining: improving conflict management, communication, adjudication and due process, institutional strength enhancement, and personal objective management. Conflict management is perhaps the most widely recognized benefit of an individual and collective bargaining. Without such a conflict resolution mechanism, workplace disputes in unionized settings presumably would be “resolved” through tests of economic strength. Nevertheless, it is also possible, as Lane (1995) observes, “employees who do not enjoy such a ‘voice’ opportunity might ‘exit’ the organization entirely, and in most instances the former is preferable to both employees and employers.” (p. 9)

So in the light of the above study, one can conclude that the list of four procedures for determining worker entitlements in American laws: individual bargaining, collective bargaining, legislative regulation and adaptation of the common law are comprehensive.

References

Andersen, S.K., Due, J., Madsen, S. (1999), “Denmark. Negotiating the restructuring of public service employment relations”, in Bach, S., Bordogna, L., Della Rocca, G., Winchester, D. (Eds), Public Service Employment Relations in US. Transformation, Modernization or Inertia? Rutledge, New York.

Bach, S. (1999), “US. Changing public service employment relations”, in Bach, S., Bordogna, L., Della Rocca, G. (Eds), Public Service Employment Relations in US. Transformation, Modernization or Inertia? Rutledge, New York.

Bercusson, B. (1993), “US labor law and sectoral bargaining”, Industrial Relations Journal, Vol. 24 No.4.

Carley, M., Marginson, P. (2000), Negotiating US Works Councils: A Comparative Study of Article 6 and Article 13 Agreements, US Foundation for the Improvement of Living and Working Conditions.

Child, J, Faulkner, D, Pitkethly, R (2000), “Foreign direct investment in the USA 1985-1994: the impact on domestic management practice”, Journal of Management Studies, Vol. 37 No.1, pp.141-66.

Dell’Arringa, C. (2001), “Reforming public sector labor relations”, in Dell’Arringa, C., Della Rocca, G., Keller, B. (Eds), Strategic Choices in Reforming Public Service Employment. An International Handbook, Palgrave, Basingstoke.

US Graphical Federation (1999), Declaration by the EGFs Annual Meeting in Ischia on 16/17 October 1999 Concerning the Co-ordination of Collective Bargaining at the US Level, EGF, Brussels.

Farnham, D., Horton, S. (Eds.) (2000), Human Resources Flexibilities in the Public Services: International Perspectives, Macmillan, New York.

Ferner, A, Varul, M. (2000), “Vanguard’ subsidiaries and the diffusion of new practices: A case study of German multinationals”, British Journal of Industrial Relations, Vol. 38 No. 1, pp.115-40.

Ferner, A. (1995), “Public sector industrial relations in US: common trends and the persistence of national variability”, Industrielle Beziehungen, Vol. 2 No.2.

Harzing, A.W (1999), Managing the Multinationals: An International Study of Control Mechanisms, Edward Elgar, Cheltenham.

Keller, B., Bansbach, M. (2000), “Social dialogues: an interim report on recent results and prospects”, Industrial Relations Journal, Vol. 31 No.4.

Kim, H. (1999), “Constructing US collective bargaining”, Economic and Industrial Democracy, Vol. 20.

Lane, C (1995), Industry and Society in US., Edward Elgar, Cheltenham.

Martin, A., Ross, G. (1999), The Brave New World of US Labor, Berghaham Books, New York, NY/Oxford.

Millward, N, Forth, J, Byron, A (1999), “Changes in employment relations, 1980-1998”, in Cully, M, Dix, G (Eds),US at Work – As Depicted by the 1998 Workplace Employee Relations Survey, Rutledge, New York..

Neal, A. (2001), “Public sector industrial relations – some developing trends”, International Journal of Comparative Labor Law and Industrial Relations, Vol. 17 No.2.

Treu, T. (1997), Employees’ Collective Rights in the Public Sector, Kluwer, The Hague.

White, G. (1999), “The remuneration of public servants: fair pay or new pay”, in Corby, S., White, G. (Eds), Employee Relations in the Public Service, Themes and Issues, Rutledge, New York.

Winchester, D., Bach, S. (1999), “US. The transformation of public service employment relations”, in Bach, S., Bordogna, L., Della Rocca, G., Winchester, D. (Eds), Public Service Employment Relations in US. Transformation, Modernization or Inertia, Rutledge, New York.

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Four Procedures for Determining Worker Entitlements

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