A Study on Defining and Specifying the Scope of Mandatory Bargaining Subjects in American Labor Law: And its Implications for Taiwan
Date Issued
2015
Date
2015
Author(s)
Huang, Li-Chu
Abstract
The new Collective Agreement Act, which has been modified in 2008, has come into force since May the First, 2011. Article 6 of the new Collective Agreement Act officially introduced in the concept of the duty to bargain in good faith. However, it is questionable whether the employers and the unions are obligatory to discuss about all the subjects proposed on the bargaining table. Since there is a type of subject called “management prerogatives” which has long been thought that the employers could decide unilaterally. Therefore, it is unfavorable for the employers, if they were considered failing to fulfil the bargaining duty and committing unfair labor practice for refusing to bargain about such subjects. Under thecircumstances specifying the scope of the subjects which must be bargained is crucial to both unions and employers. The goals of this study, is to establish the system of mandatory bargaining subjects by inquiring into how the concept of collective bargaining subjects has been developing during the past eighty years under National Labor Relations Act. To fulfil this goal, in chapter 1, this study examines whether Subsection 1 of Section 2 of Article 6 and Section 1 of Article 12 of Taiwan’s new Collective Agreement Act are suitable regulations for the mandatory bargaining subjects; besides, reviews the developing opinions of Unfair Labor Practice Board in related cases. After figuring out the existent problems, in chapter 2, this study observes the legalization process of the duty to bargain and the bargaining subjects, the labor relations and collective bargaining system, along with the primary categories of bargaining subjects. In chapter 3 and 4, this study would like to goes on reviewing the leading cases of the U.S. Supreme Court and the National Labor Relations Board, in order to find out how the Board and the Court have built the distinction between mandatory and permissive bargaining subjects, as well as what standards and factors they have suggested to draw the line between the two subjects. This study then focuses particularly on employers’ management decisions, which have provoked intense debate in American labor law. The study also researches the evaluations and reflections made by American labor scholars about the distinction and ramifications of bargaining subjects, and the management prerogatives notion. Lastly, based on the observations of American labor law, the study tries to present the guidelines to define and specify the mandatory bargaining subjects, and adoption of the legal effects following the mandatory-permissive distinction compatible with the context of Taiwan’s legal system.
Subjects
subjects of collective bargaining
mandatory bargaining subjects
duty to bargain in good faith
National Labor Relations Act
collective bargaining
collective agreement
management prerogatives
Type
thesis
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