BOOK REVIEWS
| DOI | http://doi.org/10.1111/j.1467-8543.1966.tb00922.x |
| Date | 01 March 1966 |
| Published date | 01 March 1966 |
BOOK
REVIEWS
Labour Relations and the Law,
edited by Otto Kahn-Freund. Stevens
&
Sons,
IN
his admirable Introduction to this volume
-
a product of a Colloquium
on Labour Law which took place at the Institute of Advanced Legal
Studies of the University of London in December,
1962
-
Professor Kahn-
Freund, who organized the Colloquium and edited the papers, remarks that
the purpose was not ‘to stimulate a discussion of the harmonization of
collective labour law’, but rather to promote a ‘considerable amount of
mutual clarification (and self-clarification) on the principles of substantive
law applied within the various systems’. Having been privileged to attend
the Colloquium, this reviewer can testify that the discussion did result in
considerable mutual clarification on a number of points. A more leisurely
rereading of the papers has the principal effect,
I
think, of stimulating the
reader to ponder various features
of
his own country’s industrial relations
syitem in the light of facts presented about corresponding practices in other
nations. For this reason, and also because space does not permit even a
cursory outline of the individual papers included in the volume, this review
will be devoted to some comments on a few aspects of labour relations law
in the United States that are illuminated by the various contributions to the
Colloquium.
Of the numerous significant contrasts between the laws regulating
labour relations in the United States and those in the other countries
included in this volume’ only a few can be mentioned here. Professor
Kahn-Freund calls attention in his Introcluction to the unique arrange-
ments in the United States whereby a given union
is
accorded the status
of exclusive statutory bargaining representative for employees in an
‘appropriate’ bargaining unit. He correctly explains that this development
must be understood against the background
of
a
society
in
which
L
inion
-’
practice
is
hardly influenced by the idea
of
working
class
solidarity and
in
which the
intense
competition between unions extends into the field
of
collective
bargaining
in
a
way
unknown
even
in
those
countries
(such
as
Belgium, France, Italy and the Netherlands) whose unions
are
divided by
political and religious differences.
London,
I
965, 23
I
pp.,
60s.
1
The countries included are Great Britain
(0.
Kahn-Freund,
K.
W.
Wedderburn)
;
Eire
(J.
B.
McCartney)
;
Belgium (AndrC Lagasse)
;
France (AndrC Brun)
;
Germany (Thilo Ramm)
;
Italy
(Gino Guigni)
;
Netherlands (Marius
G.
Levenbach)
;
Switzerland (Alexandre Berenstein)
;
and
the
United States (Gerald
A.
Brown) Although not covered by a paper in this volume, Swedish
law was discussed in the Colloquium
on
the basis
of
a separate book, Law
of
Collective
Bargaining
in
Sweden,
by Folke Schmidt.
I
06
BOOK
REVIEWS
107
These facts also explain why most American unions, as opposed to those
on the Continent, place such
a
high premium upon union security agree-
ments. American workers have traditionally resisted organization and
have been difficult to keep organized; consequently, unions have employed
the union security device to protect their exclusive representative status
against the eroding effects of employer hostility, rival unionism, and
employee indifference.
Another and more dramatic difference between collective bargaining
in the United States and in the countries referred to in this volume involves
the practice of ‘extension’
of
collective agreements. Professor Kahn-Freund
notes that this problem does not arise in Sweden, where the contracting
organizations include a high proportion of all employers and employees,
or in the United States, where collective agreements are normally con-
cluded between individual employers and unions which represent both
organized and unorganized employees in the bargaining unit. It is also
true that in the United States the very strong tradition of establishing
substantive terms of employment by private bargaining rather than by
legislation precludes acceptance of the extension principle even in the case
of vacations, paid holidays, and other standard ‘fringe’ benefits. Indeed,
the only non-waivable conditions of employment established by law in the
United States relate to minimum wages and maximum hours of work. In
a rare lapse, Professor Kahn-Freund implies that in the United States
there is ‘an overall minimum wage covering all workers’. The fact
is,
of
course, that the Fair Labor Standards Act contains numerous exemptions
and exceptions which operate to exclude millions of workers from coverage.
Ironically, the great majority of these workers are unorganized and thus
most in need of the Act’s protective provisions.
One of the greatest anomalies of American labour relations law,
especially striking when compared with the corresponding laws of other
countries, is the extensive amount and relative ineffectiveness of anti-strike
legislation. This
is
especially true in respect to the laws governing so-called
‘national emergency’ disputes. Few countries have as detailed statutory
procedures for preventing strikes in such disputes as are contained in our
Taft-Hartley and Railway Labor Acts
;
yet almost no government finds
itself
so
helpless to act promptly and decisively after these procedures have
been exhausted without producing a settlement. At the conclusion of the
80-day ‘cooling-off’ period prescribed by the Taft-Hartley Act, for example,
the parties are free to engage in strike and lockout, and the only remedy
left to the government under the statute is a report by the President to the
Congress, which may pass
a
law dealing with the situation.
Conditions of this kind may, at first blush, cause the American student
of labour relations to ponder the advisability of adopting the stricter laws
regulating strikes and lockouts in some European countries. The great
lesson to be learned from this Colloquium, however, is that the labour laws
of each nation are but reflections of social, economic, and political philoso-
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