Advances in Industrial and Labor Relations: Volume 27

This chapter presents an alternative model of industrial relations in which multiple spheres of labor policy coexist with varied political dynamics and contrasting outcomes. Despite evidence of wide public support for unionism and collective action, uneven patterns of voter participation, racial polarization, and political structures determine policies. Disparate historical trajectories also influence local variance. The unusual level of differentiation in US industrial relations ultimately derives from the constitutional regime: the absence of a nationally guaranteed right to vote and right to organize despite the 13th, 14th, and 15th Amendments.

The National Labor Relations Act (NLRA) creates rights for covered employees, defines conduct that violates those rights, and deems that conduct an unfair labor practice. But while given broad remedial powers under the Act, the Board's options were curtailed by the Supreme Court's limit on the use of deterrence as an express remedial justification. The Board was left with a strongly make-whole, i.e., ex-post, focus to undo the consequences of a violation.

Put differently, the current NLRA remedies reflect a pay-or-play philosophy. The goal is restoration after the fact, using ex-post remedies to give parties the benefit or status quo that they expected. An actor willing to pay may use a cost–benefit analysis and strategically choose to violate the Act, accepting the make-whole remedies later. But the Act created ex-ante statutory rights, not agreed-upon contractual terms. By statutory enactment, employees are given something of value deemed worthy of protection. Assigning value to compliance with the law in the first instance not only prevents sometimes irreparable harm but also reaffirms the inherent value of the right itself.

The impact of the Board's limited remedies is therefore a broad value-driven one. Without ex-ante deterrence, the available ex-post make-whole remedial options make a normative statement about individuals' rights under the Act: those rights may not be inherently worth enough to incentivize legal compliance. The make-whole focus can imply that financial compensation for the portion of harm that can be calculated and “undoing” some nonfinancial effects is sufficient. There is little drive to deter infringement before the fact. By examining the remedial philosophy behind contrasting approaches in the common law of torts and contract, this Article asserts that the current remedial strictures and framework undermine both the Act and the worth of its rights in the eyes of the public and the employees who hold them.

This study investigates the effects of organizational factors on firms' adoption and use of internal staffing strategies. In particular, we examine the different effects of firm- and branch-level factors on the adoption of internal development programs and the selection of entry-level employees. We find that firm-level factors, such as firm size and organizational prestige, are positively associated with the adoption of development programs. Branch-level factors, such as branch size and leverage ratio, are positively associated with entry-level hiring. This study offers new insight into the dynamics between different levels of organizational factors and their relationship with human resource management practices.

This chapter extends the concept of associational power into the context of online platform work. To do so, this chapter centers on platforms' underlying economic model – the multisided market – to better understand how workers may be able to collectively influence their terms and conditions of employment. In illuminating how labor's associational power functions in platform work arrangements, this model helps explain how collective action may function in the “gig economy” and provides a roadmap for future academic inquiry.

This chapter develops a model of associational power in the ride-hail industry which can be extended to markets defined by geographically specific platforms, like ride-hail, delivery, domestic work, and home healthcare workers.

This chapter finds that there is substantial promise for labor unions and other worker associations in the gig economy. Additionally, we find that even well-intended regulations can harm workers' power if the regulators do not grapple with the structure of digital platforms.

This chapter identifies the foundations of workers' associational power: network effects and multihoming. In contrast to traditional analyses of workers' power, labor's ability to withdraw its effort from a single employer is not the basis of its collective power. Instead, labor's power resides in its ability to withdraw its labor from a competitor and promise its exclusive labor to a single platform. Existing literature has explored the interaction between network effects and market power from the companies' perspective but has yet to extend this analysis to workers' perspective.

The pandemic forced the Equal Employment Opportunity Commission (EEOC) to transition to online video mediation (OVM) in place of its existing in-person mediation (IPM) model. Using measurements from their 2000 evaluation of EEOC IPM, plus new measures related to the elements of OVM, the authors surveyed 2,387 EEOC mediation participants during the pandemic, obtaining responses from 1,234 (53%).

OVM performed as well or better on the four measures of procedural fairness, overall mediation fairness, satisfaction with the results, and willingness to use the process again. Sixty-seven percent of the parties favored OVM over IPM. Responses to a closed-end survey that provided for additional open-end responses indicate that OVM is seen by the parties as having a more convenient location, lower costs, and greater flexibility. The results establish that OVM provides greater access to justice due to safe space and to the willingness of additional employers to engage in OVM.