Theoretical Inquiries in Law 17 (1):63-100 (2016)

Abstract
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 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.
Keywords No keywords specified (fix it)
Categories No categories specified
(categorize this paper)
ISBN(s)
DOI 10.1515/til-2016-0004
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 51,707
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Workplace Privacy: Different Views and Arising Issues.Tomas Bagdanskis & Paulius Sartatavičius - 2012 - Jurisprudencija: Mokslo darbu žurnalas 19 (2):697-713.
The Politics of Free Speech.Scott D. Gerber - 2004 - Social Philosophy and Policy 21 (2):23-47.
Employer Wellness Programs Challenged in Court.Mark A. Rothstein - 2017 - Hastings Center Report 47 (1):4-5.

Analytics

Added to PP index
2017-12-14

Total views
8 ( #907,575 of 2,333,388 )

Recent downloads (6 months)
1 ( #587,782 of 2,333,388 )

How can I increase my downloads?

Downloads

My notes