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12 Harv. L & Pol'y Rev. Online 1 (2017)
Does Federal Labor Law Preemption Doctrine Allow Experiments with Social Dialogue

handle is hein.journals/hlpron12 and id is 8 raw text is: 





       Does Federal Labor Law Preemption Doctrine Allow

                    Experiments with Social Dialogue?


                               Wilma B. Liebman*


        This article was prepared for a workshop conducted  at the Harvard Law  School
        on September  19, 2017, in cooperation with the Economic Policy Institute, to
        examine whether federal  labor law preemption doctrine would  allow experiments
        in labor law reform at the state and local level of government to enable more
        workers to engage in collective bargaining and collective action. The ultimate
        question posed was whether  modiying  NLRA   preemption  would  be a net positive
        or negative for workers and collective bargaining. The focus of this article is
        whether works  councils - looking to European and  German  examples  -provide  a
        possible modelfor experimentation  at the state or local level. The article also
        explores two alternative models.



I.     Introduction

While  the term social dialogue is largely foreign on our side of the Atlantic, it
nonetheless captures what is sorely missing in our labor relations - and, indeed, broader
political - culture.' In the United States, the institutional context for social dialogue is
the 1935 National Labor  Relations Act (NLRA)   collective bargaining framework,

including its § 9 principles of exclusivity and majoritarianism and §§ 2(5) and 8(a)(2)



* Chairman, National Labor Relations Board (NLRB) (2009-2011); Member, NLRB (1997-2009); Visiting
Professor, Rutgers University School of Management and Labor Relations (2015-2017). I thank Marcha
Isabelle Chaudry for her excellent assistance with this article, and Lynn Rhinehart and Matthew Ginsburg
for their insightful comments.
1 Social dialogue is defined by the International Labor Office to include all types of negotiation,
consultation or simply exchange of information between, or among, representatives of governments,
employers and workers, on issues of common interest relating to economic and social policy. It can exist
as a tripartite process, with the government as an official party to the dialogue or it may consist of bipartite
relations only between labour and management ..., with or without indirect government involvement....
The main goal of social dialogue itself is to promote consensus building and democratic involvement
among the main stakeholders in the world of work. Successful social dialogue structures and processes
have the potential to resolve important economic and social issues, encourage good governance, advance
social and industrial peace and stability and boost economic progress. Social Dialogue, INTERNATIONAL
LABOR ORGANIZATION, http://www.ilo.org/ifpdial/areas-of-work/social-dialogue/lang--en/index.htm (last
visited Oct. 2, 2017).

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