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The Commission's Fact Finding Report noted (pp. 29-61) that a variety of
employee participation processes and committees have been established in
America's workplaces. Many larger firms report using some form of employee
participation in their organizations. Information received by the
Commission since the Report confirms the diffusion of employee
involvement. Fifty-two percent of employees in the Workplace
Representation and Participation Survey reported that some form of
employee participation program operates in their workplace and 31 percent
indicate that they participate in an employee involvement program.
Employee involvement programs have diverse forms, ranging from teams
that deal with specific problems for short periods to groups that meet for
more extended periods. Many employers and union leaders testified before
the Commission that the programs enhance productivity, though their
effectiveness surely differs in different settings. Thirty- two percent of
workers involved in these programs view them as very effective while 55
percent view them as somewhateffective. Seventy-nine percent report that
the programs have given them greater say in their jobs. By a two-to-one
majority, employees at workplaces without employee involvement programs
say they would like a program of this sort at their workplace.
On the basis of the evidence, the Commission believes that it is in the
national interest to promote expansion of employee participation in a
variety of forms provided it does not impede employee choice of whether or
not to be represented by an independent labor organization. At its best,
employee involvement makes industry more productive and improves the
working lives of employees.
The evidence presented also shows that as practiced today some employee
participation programs may be in violation of Section 8(a)(2) of the NLRA.
The problem is that some programs designed to improve productivity and
quality also end up discussing interrelated issues of working conditions
and of how to share the gains produced by employee involvement. A related
problem is that some programs blur the traditional distinction between
supervisors or managers and workers, raising questions about the coverage
of employees under the NLRA. Indicative of the extent of this blurring of
traditional boss/worker lines, in the Workplace Representation and
Participation Survey 35 percent of workers said they perform some
supervisory duties as an official part of their job.
In view of the role of employee involvement plans in American industry,
the Commission supports some clarification of Section 8(a)(2) so that
employee involvement programs~such as those relating to production,
quality, safety and health, training or voluntary dispute resolution~are
legal as long as they do not allow for a rebirth of the company unions the
section was designed to outlaw. We want workers and managers participating
in these programs to be able to do so effectively, with gains for both,
without skirting or breaking the law.
In light of the increased supervisory and managerial role of employees
in American industry, the Commission also supports reducing the exclusion
of supervisors and managers from the coverage and protection of the NLRA.
We want to guarantee that workers engaged in collective bargaining or
considering unionization do not lose the protection of the law for their
union activity because of their involvement in supervisory or managerial
activities.
These considerations motivate the recommendations in this section.
- Facilitate the Growth of Employee Involvement
The Commission recommends that nonunion employee participation
programs should not be unlawful simply because they involve discussion
of terms and conditions of work or compensation where such discussion
is incidental to the broad purposes of these programs.
We believe that programs of the types referrred to above, which are
proliferating in the U.S. today, do not violate the basic purposes of
Section 8(a)(2). Therefore we recommend that Congress clarify Section
8(a)(2) and that the NLRB interpret it in such a way that employee
participation programs operating in this fashion are legal.
The Commission is concerned that in encouraging employee
participation in nonunion settings, it does not adversely affect
employees' ability to select union representation, if they so desire.
Thus, the Commission reaffirms the basic principle
thatemployer-sponsored programs should not substitute for independent
unions. Employee participation programs are a means for employees to
be involved in some workplace issues. They are not a form of
independent representation for employees, and thus should not be
legally permitted to deal with the full scope of issues normally
covered by collective bargaining. <Footnote: The law should
continue to prohibit commmittees like the one Polaroid Corp. disbanded
in June, l992 after the Labor Department suggested that it was -labor
organization.- Such joint groups are representative in character and
count among their primary functions handling employee grievances and
advising senior management about pay, work rules and benefits. They so
well beyond incidental involvement in issues traditionally reserved to
independent labor organizations. See Fact Finding Report, pp. 42, 60>
.
- Continue to Ban Company Unions
The law should continue to prohibit companies from setting up
company dominated labor organizations. It should be an unfair labor
practice under NLRA Section 8(a)(1) for an employer to establish a new
participation program or to use or manipulate an existing one with the
purpose of frustrating employee efforts to obtain independent
representation.
We believe this recommendation is consistent with current law.<Footnote:
See NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).>
Employees involved in employee participation committees or
processes should have the same protections in law from retaliation for
expressing their opinions on workplace issues as workers involved in
union activity under the NLRA. They should have the right to
communicate their views to employers or co-workers and be able to seek
outside expertise on issues, if they so desire. The Commission
believes that current law provides protection against reprisals for
such -concerted activities for the purpose of ... mutual aid or
protection-, as the NLRA calls it.<Footnote: See NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962).> But to the extent that doubts
exist about its scope, the Commission believes this protection should
cover a worker's activities related to an employee participation
program.
Employee involvement systems are somewhat more frequent under
collective bargaining than in other settings. In the Workplace
Representation and Participation Survey, 33 percent of unionized
employees reported that they were involved in a participation program,
compared to 28 percent of nonunion employees. In its Fact Finding
phase, the Commission heard testimony that employee participation is
most effective in a union setting when union and management work
together as joint partners. All who testified agreed that it is
important for union and management representatives to continue to work
together in this fashion to extend the scope, coverage, and
effectiveness of employee participation in the future.
In view of this experience, in organized workplaces it is important
that employers not be permitted tobypass collective bargaining
representatives to institute employee involvement committees or
processes. Issues normally dealt with in collective bargaining should
not be discussed in employee involvement programs without the consent
of the elected labor organization. The Commission recommends that it
should be an unfair labor practice under NLRA Section 8(a)(1) for an
employer to bypass the union or to introduce or manipulate an employee
participation program to subvert the collective bargaining process. We
believe this recommendation is consistent with current law.
The recommendations clarifying Section 8(a)(2), the distinction
between employee involvement programs and unions, the protections
afforded workers in participation programs, and the functions of these
programs compared to unions will by themselves improve the climate for
these programs to proliferate. The safeguards against company-
dominated unions under Section 8(a)(2), and the recommendations
obtained in Section III for reducing conflict and delay in
establishing unions where employees so desire should mutually
reinforce one another, so that the law eases the creation of employee
involvement programs without harming employee freedom to unionize.
This balance is essential.
- Reduce the Scope of the Supervisory and Managerial Exclusions
Congress should simplify and restrict the supervisory and
managerial employee exclusions of the NLRA to ensure that the vast
numbers of professionals and other workers who wish to participate in
decision-making at work are not stripped of their right to do so
through collective bargaining if they so choose.
Each of the two exclusions embodies a core principle that must be
preserved. Employees whose primary function is to carry out the
employer's labor relations policy by hiring, firing, and disciplining
employees are clearly supervisors and should continue to be excluded
from the Act. Employees near the top of the firm's managerial
structure who have substantial, individual discretion to set major
company policy and whose primary function is to develop such policy
are clearly managerial employees and should also continue to be
excluded.
These two principles should be incorporated into a single,
simplified -managerial employee- definition that includes statutory
supervisors and managers but not (1) members of work teams and joint
committees to whom managerial and/or personnel decision-making
authority is delegated or (2) professionals and para-professionals who
direct their less skilled co-workers.
One aspect of employee involvement is the diffusion of supervisory
and managerial decision-making power throughout the workforce. Both
work teams and joint committees often decide matters traditionally
left to full-time supervisors or managers. The Commission believes
that this development should be encouraged.
Unfortunately, the labor law has not accommodated this change in the
real world of work. The law continues to draw rigid distinctions
between supervisors and managers on the one hand, and -employees-
covered by the NLRA on the other. Supreme Court jurisprudence has
contributed to this problem.<Footnote: See NLRB v. Bell Aerospace
Co., 416 U.S. 267 (1974); NLRB v. Yeshiva University, 444 U.S. 672
(1980); NLRB v. Health Care & Retirement Corp. of America, 114
S.Ct. 1778 (1994).>
The Court created the managerial employee exclusion, which is not
found in the Act itself, and applied it not only to senior managers
but also to buyers of parts and materials. <Footnote: NLRB v. Bell
Aerospace Co., 416 U.S. 267 (l974> Then, in NLRB v. Yeshiva
University, <Footnote: 44 U.S. 672, (l980)> the Court greatly
expanded the scope of this managerial employee exclusion by holding
that the faculty of Yeshiva University could not be an appropriate
bargaining unit because the professors (or at least the bulk of them
who participated in faculty decisions) were all managers. Since, like
many university and college faculties, they voted on matters such as
curriculum, class size, and academic standards, the professors
exercised -authority which in any other context unquestionably would
be manageri- al.- <Footnote:444 U.S. at 686.> The case means
that rank and file employees who participate in work teams or joint
committees can lose their right to form an independent union. Indeed,
the NLRB interpreted Yeshiva so as to strip union members of their
collective bargaining rights ~ and their union~ because they
negotiated an employee participation agreement with their employer. <Footnote:College
of Osteopathic Medicine & Surgery, 265 N.L.R.B. 295 (1982).>
More recently, in NLRB v. Health Care & Retirement Corp. of
America, <Footnote:__ U.S. __, 114 S.Ct. 1778 (1994).> the
Supreme Court expanded the statute's supervisory employee exclusion.
The Court effectively read out of the Act a requirement that, in order
to be deemed a supervisor, an employee must carry out one of several
functions -in the interest of the employer.- The NLRB had used the
statute's in the interest of the employer- test to separate out
workers who direct others based on superior skill, experience and the
like from true supervisors ~ those whose main function is to direct
the work of others (or hire, fire, and so forth) for the employer. The
Court declared that all -acts within the scope of employment or on the
authorized business of the employer are in the interest of the
employer.- <Footnote: 114 S.Ct. at 1782.> In practice, this
could mean that any employee who responsibly directs co-workers is a
supervisor denied protection of the labor law.
The Health Care case could adversely affect professionals in
particular. Congress has specified that professionals are to enjoy the
protections of the NLRA. Yet, as Judge Richard Posner has pointed out,
-most professionals have some supervisory responsibilities in the
sense of directing another's work ~ the lawyer his secretary, the
teacher his teacher's aide, the doctor his nurses, the registered
nurse her nurse's aide, and so on..- <Footnote:NLRB v. Res-Care,
Inc., 705 F.2d 1461, 1465 (7th Cir. 1983).> In the Supreme Court's
view, incidental direction of co-workers would appear to make one a
-supervisor- who lacks collective bargaining rights. As Justice
Ginsburg noted in dissent, - [i]f any person who may use independent
judgment to assign tasks to others or direct their work is a
supervisor, then few professionals employed by organizations subject
to the Act will receive its protections.-<Footnote:114 U.S. at
1792-93.>
These Supreme Court cases fail to take into account the degree to
which supervisory and managerial tasks have been diffused throughout
the workforce in many American firms. As a result of the Court's
interpretations, thousands of rank-and-file employees have lost or may
lose their collective bargaining rights. The Commission believes the
law can and should accommodate the desires of professionals and other
employees to participate at work ~ whether they desire to do so via
independent representation or otherwise. <Footnote: The Commission
also advocates relaxing the restrictions placed on the ability of
plant guards to participate in collective bargaining by Section
9(b)(3) of the NLRA, which precludes guards or a local union of guards
from affiliating -directly or indirectly with an organization which
admits to membership ... employees other than guards.- While separate
bargaining units and locals are appropriate, preventing affiliation
with an established international union or federation of unions is an
unnecessary limitation.
Another problem is that the scope of the -guard- definition has
grown in NLRB jurisprudence over the years, to the point that elevator
operators, concierges, and doormen are often held to be guards.>
- Authorize Pre-hire Agreements
When an employer wants to move or open new operations, it should be
allowed to negotiate a contract with a union interested in
representing those who will work at the new operations, as long as the
negotiations are conducted at arm's length. The employer should be
allowed to recognize the union. In order to ensure that the employees
covered under the new agreement support it, the union should be
required to demonstrate majority support by the end of the first year
of the new operations, or else the agreement and the union's status as
representative would expire at that time. The parties would be allowed
to verify the union's majority status either by card check or
representation election. The agreement should not serve as a contract
bar.
Section 8(a)(2) continues to serve the vital function of precluding
-sweetheart- deals between employers and unions that do not represent
a majority of employees. Such deals frustrate employee free choice by
taking out of workers' hands the decision about whether to have
independent representation. The policy of generally disallowing
employer recognition and support of non-majority unions remains valid.
However, the Commission is concerned that this policy may operate
in an unduly mechanical way. The problem is that the rule against
employer support of non-majority unions limits the ability of an
employer and a union to cooperate when the employer plans to move or
open new operations. The occasion of new or relocated operations often
presents an opportunity for innovative cooperation between employers
and unions around issues of work organization, employee compensation
and productive efficiency.
Such agreements not only improve labor-management relations, they
also help all of us by facilitating the diffusion of high-performance
work techniques. In addition, advance negotiations can increase rather
than decrease the quality of employee choice about collective
bargaining. In effect, a pre-negotiated contract between the employer
and an independent union gives the employees an opportunity to try out
the union's representation before voting on whether to accept or
reject it.
Unfortunately, this kind of cooperative advance planning is
severely restricted by Section 8(a)(2). The NLRB has interpreted the
measure as prohibiting employer recognition of a union as part of
prospective bargaining in most circumstances. What is more, the
Board's interpretation forbids advance negotiation of contract terms
altogether~even without recognition~if the employer and union have no
previous relationship.<Footnote: Majestic Weaving Co. of N.Y., 147
N.L.R.B. 859 (1964).> We urge the Board to reconsider its approach
here, and we recommend that Congress address this issue as part of its
next effort to reform our labor laws.
- Conclusion
Employee participation will have to expand to more workplaces if
the American economy is to be competitive at high standards of living
in the 21st century. Participation must also expand to include more
workers and a broader array of issues if it is to meet the
expectations and address the vital concerns of the nation's work
force. The recommendations presented in this section could modernize
labor law to encourage continued innovation in employee participation.
While the proposals in this Section and those that follow are needed
in their own right, they are also closely interrelated. This is
because the increased flexibility for employee participation proposed
here poses both new risks and new opportunities for workers and
employers. The risks of reducing employee opportunity to choose
independent representation are addressed by the changes presented in
Section III. The increased flexibility for employee participation
should be accompanied by corresponding changes in the law needed to
ensure that workers have ready access to independent representation
and collective bargaining. Expanding the issues open to employee
participation also opens possibilities for greater experimentation
with employee involvement in alternative dispute resolution and
self-governance processes on issues now subject to -command and
control- regulation and court litigation. We turn, then, to these
issues.
Statement of Douglas A. Fraser
Section 8(a)(2) stands as a bulwark against forms of representation
which are inherently illegitimate because they deny workers the right
to a voice through the independent representatives of their own
choosing and put the employer on -both sides of the table,- to quote
Senator Wagner's words from l935.* Thus, I place great importance on
the fact that the Commission has not proposed any wholesale revision
or exemption to Section 8(a)(2).
Nonetheless, I cannot join the majority's recommendation that
-Congress clarify Section 8(a)(2)- by somehow providing that -employee
participation programs should not be unlawful simply because they
involve discussion of terms and conditions of work or compensation
where such discussion is incidental to the broad purposes of these
program.-
The prudent course would be to allow the administrative and
judicial processes to address the issue of -incidental discussion- in
the first instance. If problems were to develop~if, in fact, the law
in practice were shown to substantially interfere with the kind of
incidental discussions the majority seeks to protect ~ Congress could
then take up the subject against a far clearer legal and factual
background.
In dissenting from the recommendation to amend Section 8(a)(2), I
wish to make clear that I do not minimize the value of encouraging
-employee participation- and -labor- management cooperation.- But to
my mind, the kind of - participation- and -cooperation- that should be
encouraged is democratic participation and cooperation between equals.
I agree with Peter Pestillo, the Executive Vice President of Ford
Motor Company, that -A strong alliance requires two strong members.
There should be no quibbling about that.- And I likewise agree with
Morton Bahr, the President of the Communication Workers of America,
that:
- to effectively participate in workplace decision-making,
front-line workers must first have their own organizations, educated
leadership, and significant resources in order to have the
confidence and preparation to participate as equals and without
fear. {Sept. l5, l993 Tr. at 63}
Because I am deeply committed to the principal of work place
democracy, I cannot join in any statement that proclaims that you
can have fully effective worker management cooperation programs
without having a truly equal partnership based upon workers having
an independent voice. I must therefore dissent.
Dissenting Opinion of Douglas A. Fraser (January 3, 1995)
Section 8(a)(2) stands as a bulwark against forms of representation
which are inherently illegitimate because they deny workers the right
to a voice through the independent representatives of their own
choosing and put the employer on -both sides of the table,- to quote
Senator Wagner's words from l935.* Thus, I cannot join in the
majority's recommendation that "Congress clarify Section 8(a)(2)"
by somehow providing that "employee participation programs should
not be unlawful simply because they involve discussion of terms and
conditions of work or compensation where such discussion is incidental
to the broad purposes of these programs."
Given the legal and factual uncertainties that exist as to the
scope of 8(a)(2), and the danger that any statutorily- created
exception would be an invitation to abuse, at the very least the
prudent course would be to allow the administrative and judicial
processes to address the issue of "incidental discussion" in
the first instance. If problems were to develop -- if, in fact, the
law in practice were shown to substantially interfere with incidental
discussions of terms of employment -- Congress could then take up the
subject against a far clearer legal and factual background.
In no event, should employer-dominated employee representation
plans be permitted merely because they are limited to dealing with
specified subjects such as safety and health or training.
Employer-dominated representation is undemocratic regardless of the
particular subjects with which the employer-controlled representative
deals.
In dissenting from the recommendation to amend Section 8(a)(2), I
wish to make clear that I do not minimize the value of encouraging
-employee participation- and -labor-management cooperation.- But to my
mind, the kind of - participation- and -cooperation- that should be
encouraged is democratic participation and cooperation between equals.
I agree with Peter Pestillo, the Executive Vice President of Ford
Motor Company, that -A strong alliance requires two strong members.
There should be no quibbling about that.- And I likewise agree with
Morton Bahr, the President of the Communication Workers of America,
that:
-
to effectively participate in workplace decision-making,
front-line workers must first have their own organizations,
educated leadership, and significant resources in order to have
the confidence and preparation to participate as equals and
without fear. [Sept. l5, l993 tr. at 63]
Because I am deeply committed to the principal of work place
democracy, I cannot join in any statement that proclaims that you
can have fully effective worker management cooperation programs
without having a truly equal partnership based upon workers having
an independent voice. I must therefore dissent.
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