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Organizing: Should the Employer Have a Say?

  • Pnina Alon-Shenker and Guy Davidov
Published/Copyright: February 14, 2016
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Theoretical Inquiries in Law
From the journal Theoretical Inquiries in Law Volume 17 Issue 1

Israeli courts were recently faced with the question whether an employer is allowed to voice objections to unionization during an organizing drive. Since the legislation fails to provide an answer to this question, it was up to the courts to come up with a solution. The National Labor Court in Histadrut v. Pelephone held that employers have no say and must refrain from any communications whatsoever with the workers regarding the decision whether or not to join the union. The Supreme Court later affirmed this decision. This Article explores this legal question and examines whether this decision was justified, and whether it should be adopted in other countries as well. It first discusses the justifications for the conflicting freedoms in this scenario — the workers’ freedom of association and the employer’s freedom of speech — to appreciate their relative strength in the circumstances. It then examines whether it is possible to achieve a certain balance. To this end, the Article critically reviews the legal mechanisms adopted by other legal jurisdictions (the United States, Canada and the United Kingdom) in this regard, shedding light on their effectiveness and the difficulties of organizing in practice in each jurisdiction. The main argument advanced in this Article is that the solution has to be purposive — to advance the goals of labor law, specifically freedom of association — and that the purposive analysis must be contextual. A rule prohibiting the employer from voicing opinions is surely an infringement of freedom of speech, and strong reasons are needed to justify it. Whether strong enough reasons exist depends on several contextual factors. Essentially, the question is whether it is possible, given the current context, to secure real freedom of association without such a rule. By context we mean two main things: first, the real-life current experience concerning the struggles of organizing; and second, the existence of alternative legal mechanisms that might address this problem.

Published Online: 2016-2-14
Published in Print: 2016-2-1

© 2016 by Theoretical Inquiries in Law

Articles in the same Issue

  1. Theoretical Inquiries in Law
  2. Research Article
  3. Introduction: Labor Scholarship in an Era of Uncertainty
  4. Research Article
  5. Reframing the New Deal: The Past and Future of American Labor and the Law
  6. Research Article
  7. The Right Not to Have Rights: Posted Worker Acquiescence and the European Union Labor Rights Framework
  8. Research Article
  9. Organizing: Should the Employer Have a Say?
  10. Research Article
  11. Workplace Democracy and Democratic Worker Organizations: Notes on Worker Centers
  12. Research Article
  13. Organizing Workers in Argentina, Brazil, Chile and Mexico: The Authoritarian-Corporatist Legacy and Old Institutional Designs in a New Context
  14. Research Article
  15. Organizing Workers in “Hybrid Systems”: Comparing Trade Union Strategies in Four Countries — Austria, Germany, Israel and the Netherlands
  16. Research Article
  17. Trade Union Ambivalence Toward Enforcement of Employment Standards as an Organizing Strategy
  18. Research Article
  19. Unionizing Subcontracted Labor
  20. Research Article
  21. The Untamed Politics of Urban Informality: “Gray Space” and Struggles for Recognition in an African City
  22. Research Article
  23. Informal Workers’ Aggregation and Law
  24. Research Article
  25. Active Industrial Citizenship of Domestic Workers: Lessons Learned from Unionizing Attempts in Israel and the United Kingdom
  26. Research Article
  27. Organizing in the Shadows: Domestic Workers in the Netherlands
https://doi.org/10.1515/til-2016-0004

Articles in the same Issue

  1. Theoretical Inquiries in Law
  2. Research Article
  3. Introduction: Labor Scholarship in an Era of Uncertainty
  4. Research Article
  5. Reframing the New Deal: The Past and Future of American Labor and the Law
  6. Research Article
  7. The Right Not to Have Rights: Posted Worker Acquiescence and the European Union Labor Rights Framework
  8. Research Article
  9. Organizing: Should the Employer Have a Say?
  10. Research Article
  11. Workplace Democracy and Democratic Worker Organizations: Notes on Worker Centers
  12. Research Article
  13. Organizing Workers in Argentina, Brazil, Chile and Mexico: The Authoritarian-Corporatist Legacy and Old Institutional Designs in a New Context
  14. Research Article
  15. Organizing Workers in “Hybrid Systems”: Comparing Trade Union Strategies in Four Countries — Austria, Germany, Israel and the Netherlands
  16. Research Article
  17. Trade Union Ambivalence Toward Enforcement of Employment Standards as an Organizing Strategy
  18. Research Article
  19. Unionizing Subcontracted Labor
  20. Research Article
  21. The Untamed Politics of Urban Informality: “Gray Space” and Struggles for Recognition in an African City
  22. Research Article
  23. Informal Workers’ Aggregation and Law
  24. Research Article
  25. Active Industrial Citizenship of Domestic Workers: Lessons Learned from Unionizing Attempts in Israel and the United Kingdom
  26. Research Article
  27. Organizing in the Shadows: Domestic Workers in the Netherlands
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