Decentring Labour Law: What's the Fuss All About?

I presented a paper last week at the CRIMT/CIRA conference at Laval entitled “Decentring Labour Law”, and then Harry Arthurs, Cynthia Estlund, and Kerry Rittich gave their comments on my paper and on the broader issues related to “decentring” regulation and New Governance.  It was a raucous session, to say the least, that was followed by a lot of probing comments by an engaged (and sometimes enraged) audience.
What’s the fuss?  Well, you decide. You can read the draft paper here, which is obviously more nuanced than what I am about to say.  But this is what I argue in the paper, in a very general nutshell:
1.   A ‘decentred’ approach to regulation argues that the state is very limited in its ability to achieve policy objectives through direct legal commands (like “pay the minimum wage”) backed by financial penalties.  That command is routinely ignored by bad employers who see it as conflicting with more important objectives, and who do not perceive much risk from non-compliance.
2.  Therefore, the state needs to “get inside the head” of employers, to figure out what sort of legal command will cause employers to see compliance with the minimum wage as consistent with their own economic objectives.
3.  A decentred approach to improving compliance with labour & employment laws would emphasize the potential power of harnessing non-state actors and of “injecting risk” into the decision-making matrix of firms.
4.  This means identifying what employers’ perceive as sources of “risk”, and then considering how that risk might be harnessed by regulation to provoke useful risk management processes.
5.  With this in mind, I proposed the following idea:  Since Employers fear unionization, the risk of unionization can be put to use by the state to encourage Ers to comply with labour & employment laws.  How?  Like this:

An employer that is found in violation of a labour or employment law statute would forfeit many of the legal rights Ers are now given in our legal system to try to persuade and block their employees from supporting unionization.
For example, the employer would: forfeit its right to argue against unionization (it would have to remain neutral during an organizing campaign); forfeit its right to exclude union organizers from non-working areas of the workplace (organizers would be entitled to speak to ees in the cafeteria and parking lots); provide the union with a list of employees names and a way to distribute literature to ees;  the unionization decision would be determined by a “card-check” and not a forced ballot; and the state would assign a labour relations officer to monitor the employer’s behaviour closely during the organizing campaign, among other things.

I argued that this model would have a number of benefits, including:

1.  It would scare the hell out of Ers and therefore cause them to pay greater attention to compliance with laws so as to avoid being subjected to the more favourable union organizing rules.
2.  It would encourage unions and employee advocacy groups to seek out employees working for law-breaking ers and to represent them in hearings about legal violations.  This harness the expertise of non-state actors in improving compliance with government laws.
3.  It would facilitate union organizing of “bad” employers who ignore employment statutes.
4.  It would help reduce the incidence of employers who obtain a competitive advantage by undercutting employment laws while their competitors play by the rules.

I also argue that this sort of proposal might get support from a broader range of politicians than simply those who always support collective bargaining laws.  The reason is that most politicians already believe that employees of “bad” employers should have access to unions in order to protect them from their abusive employers.  The suggestion I made that caused the most controversy was the claim that  most politicians and employers believe that unions are a reflection of poor management, and that “good” employers will eliminate the “demand for unionization”.
This is of course the fundamental presumption of human resource management, but it is a highly contested claim within the labour law world. My point was that, since politicians and employers already believe the idea that unions reflect bad management, the proposal that employees of “bad” employers should have easier access to the unionization option fits within their worldview.
An employer that ignores the legal rights of its employees has no business trying to persuade the employees that they are better off without a union.  Those workers have a strong claim to the need for union assistance and the state should make the route to unionization free from employer resistance.
What do you think about my proposal?
Do you think it would receive hostile response from employers?  From unions?