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Hastings International and Comparative Law Review

Abstract

Section 8(a)(5) of the National Labor Relations Act establishes a mandatory duty for statutory employers and collective bargaining agents of their employees to bargain with each other in good faith with respect to "wages, hours, and other terms and conditions of employment." In a recent decision, First National Maintenance Corp. v. NLRB, the United States Supreme Court narrowly circumscribed the scope of this duty, effectively removing from the collective bargaining arena many decisions significantly affecting workers (e.g., plant closings and "job security"). This Note examines the underlying policies and the actual statutory and case-law applications of worker participation mechanisms in Sweden, West Germany and the United States, focusing on each nation's accommodations of the worker participation interest, on one hand, and the managerial and ownership prerogatives on the other. It explains how the courts and legislatures in each nation have sought to expand the scope of workplace democracy and worker participation without infringing on the property right-based prerogatives of the owners and managers of a business. Ultimately, this Note determines that, although the labor law environments in the two European nations and the United States are too disparate for a direct transfer of a European solution to the United States, the use of the European accommodation of interests as a model would allow for a distinctive United States balancing of employer-employee interests that is less deferential to ownership interests and more favorably disposed to employee input.

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