[House Report 104-248]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-248
_______________________________________________________________________
TEAMWORK FOR EMPLOYEES AND MANAGERS ACT OF 1995
_______________________________________________________________________
September 18, 1995.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Goodling, from the Committee on Economic and Educational
Opportunities, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 743]
[Including cost estimate of the Congressional Budget Office]
The Committee on Economic and Educational Opportunities, to
whom was referred the bill (H.R. 743) to amend the National
Labor Relations Act to allow labor management cooperative
efforts that improve economic competitiveness in the United
States to continue to thrive, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Teamwork for Employees and Managers
Act of 1995''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) the escalating demands of global competition have
compelled an increasing number of employers in the United
States to make dramatic changes in workplace and employer-
employee relationships;
(2) such changes involve an enhanced role for the employee in
workplace decisionmaking, often referred to as ``Employee
Involvement'', which has taken many forms, including self-
managed work teams, quality-of-worklife, quality circles, and
joint labor-management committees;
(3) Employee Involvement programs, which operate successfully
in both unionized and nonunionized settings, have been
established by over 80 percent of the largest employers in the
United States and exist in an estimated 30,000 workplaces;
(4) in addition to enhancing the productivity and
competitiveness of businesses in the United States, Employee
Involvement programs have had a positive impact on the lives of
such employees, better enabling them to reach their potential
in the workforce;
(5) recognizing that foreign competitors have successfully
utilized Employee Involvement techniques, the Congress has
consistently joined business, labor and academic leaders in
encouraging and recognizing successful Employee Involvement
programs in the workplace through such incentives as the
Malcolm Baldrige National Quality Award;
(6) employers who have instituted legitimate Employee
Involvement programs have not done so to interfere with the
collective bargaining rights guaranteed by the labor laws, as
was the case in the 1930's when employers established deceptive
sham ``company unions'' to avoid unionization; and
(7) Employee Involvement is currently threatened by legal
interpretations of the prohibition against employer-dominated
``company unions''.
(b) Purposes.--The purpose of this Act is--
(1) to protect legitimate Employee Involvement programs
against governmental interference;
(2) to preserve existing protections against deceptive,
coercive employer practices; and
(3) to allow legitimate Employee Involvement programs, in
which workers may discuss issues involving terms and conditions
of employment, to continue to evolve and proliferate.
SEC. 3. EMPLOYER EXCEPTION.
Section 8(a)(2) of the National Labor Relations Act is amended by
striking the semicolon and inserting the following: ``: Provided
further, That it shall not constitute or be evidence of an unfair labor
practice under this paragraph for an employer to establish, assist,
maintain, or participate in any organization or entity of any kind, in
which employees participate, to address matters of mutual interest,
including, but not limited to, issues of quality, productivity,
efficiency, and safety and health, and which does not have, claim, or
seek authority to be the exclusive bargaining representative of the
employees or to negotiate or enter into collective bargaining
agreements with the employer or to amend existing collective bargaining
agreements between the employer and any labor organization, except that
in a case in which a labor organization is the representative of such
employees as provided in section 9(a), this proviso shall not apply;''.
SEC. 4. LIMITATION ON EFFECT OF ACT.
Nothing in this Act shall affect employee rights and responsibilities
contained in provisions other than section 8(a)(2) of the National
Labor Relations Act, as amended.
Explanation of Amendments
The provisions of the substitute are explained in this
report.
Purpose
The purpose of H.R. 743, the Teamwork for Employees and
Managers (TEAM) Act of 1995, is to amend the National Labor
Relations Act (NLRA) to protect legitimate employee involvement
programs against governmental interference, to preserve
existing protections against deceptive and coercive employer
practices, and to allow legitimate employee involvement
programs, in which workers may discuss issues involving terms
and conditions of employment, to continue to evolve and
proliferate.
Committee Action
H.R. 743 was introduced by Representative Steve Gunderson
on January 30, 1995, and its cosponsors include every
Republican Member of the Committee on Economic and Educational
Opportunities.
The Subcommittee on Employer-Employee Relations held a
hearing on removing impediments to employee participation in
the workplace on February 8, 1995. During this hearing, both
the general issue of the uses and benefits of employee
involvement structures and the specific legislative approach to
clarifying the legality of such techniques provided in H.R. 743
were discussed. Testimony was received from the Honorable Steve
Gunderson, Member of Congress, 3rd District of Wisconsin;
Elaine Jensen, Sylvia Williams, Paul Bohling, and William
O'Brien of the FMC Corporation of Chicago, Illinois; Mr.
Charles F. Nielson, Vice President, Human Resources,
accompanied by Mike Patterson, Shane Jackson, Robert Brooks and
Ricky Fulks--Process Operators, David Wiggins and Chris Karry--
Technicians, and Ms. Carolyn Manuel--Manufacturing
Superintendent, of Texas Instruments of Dallas, Texas; Rosemary
M. Collyer, Esquire, Crowell & Moring, Washington, DC; and
Judith A. Scott, General Counsel, International Brotherhood of
Teamsters, testifying on behalf of the AFL-CIO, accompanied by
Berna Price and Diane Verrette.
The Committee on Economic and Educational Opportunities
held a hearing on H.R. 743 on May 11, 1995. At that hearing,
testimony was received from Mr. Michael P. Morley, Senior Vice-
President and Director of Human Resources, Eastman Kodak
Company, Rochester, New York (testifying on behalf of the TEAM
Coalition, Washington, DC); Ms. Julie Smith, Team Advisor, TRW
Vehicle Safety Systems Inc., Cookeville, Tennessee; Ms. Vicki
J. McCormick, Human Resource Manager, EFCO Corporation, Monett,
Missouri--accompanied by Ransom A. Ellis, Jr., Attorney at Law,
Ellis & Black, Springfield, Missouri, and several EFCO
employees including J. Mark Hardwick-Senior Buyer, David
Szydloski-Foreman, David Burton-Project Engineer and Kevin W.
Brown-Material Coordinator; Mr. David M. Silberman, Director of
the AFL-CIO Task Force on Labor Law Reform, Washington, DC; and
Mr. David Brody, Professor Emeritus of History, University of
California--Davis, Davis, California.
The Subcommittee on Employer-Employee Relations favorably
reported H.R. 743, as amended, to the Full Committee on March
7, 1995, by a vote of 8-4 (1 voting present). On June 22, 1995,
the Committee on Economic and Educational Opportunities
approved H.R. 743, as amended, on a voice vote, and, by a vote
of 22-19, ordered the bill favorably reported.
Statement
introduction
H.R. 743, the Teamwork for Employees and Managers (TEAM)
Act will promote greater employee involvement in the workplace
by removing impediments under the National Labor Relations Act
(NLRA). These impediments, largely contained in section 8(a)(2)
of the Act, were originally targeted at ``company'' unions, but
actually sweep much broader to ban many cooperative labor-
management efforts. This legislation signals a new era in
employee relations and recognizes that the best workplaces for
employees and the most productive workplaces for employers are
ones where labor and management work together hand in glove.
The Committee has focused several of its legislative efforts on
decentralizing decisionmaking in a variety of areas within its
jurisdiction, and, in the employment arena, employee
involvement increases local decisionmaking by giving employees
a voice in how their workplace is structured. In workplaces
where employee involvement programs have been implemented,
employees are empowered and can play a role in reaching
decisions on many aspects of their employment and production
processes.
As this nation enters the twenty-first century, the
Committee believes it important that U.S. workplace policies
reflect a new era of labor-management relations--one that
fosters cooperation, not confrontation. Employees want to work
with their employers to make their workplaces both more
productive and a better place to work. A recent study of
employees' views in this area indicates that a majority of
workers want a voice in their workplace and feel that having a
say in their workplace would be effective only if management
cooperates. When asked to choose between two types of
organizations to represent them, workers chose, by a 3-to-1
margin, one that would have no power but would have management
cooperation, over one with power but without management
cooperation.\1\ Employee involvement gives workers the best of
both worlds by offering both empowerment and cooperation.
\1\ ``Worker Representation and Participation Survey,'' Richard B.
Freeman and Joel Rogers, Conducted by Princeton Survey Research
Associates, December 1994.
---------------------------------------------------------------------------
The TEAM Act would clarify the legality of employee
involvement structures by amending the NLRA to add a proviso to
section 8(a)(2) clarifying that it is not impermissible for an
employer to establish, assist, maintain, or participate in any
organization or entity of any kind, in which employees
participate, to address matters of mutual interest--including,
among others, issues of quality, productivity, efficiency, and
safety and health. The bill also specifies that such
organizations may not have, claim or seek authority to enter
into or negotiate collective bargaining agreements or to amend
existing collective bargaining agreements, nor may they claim
or seek authority to act as the exclusive bargaining agent of
employees. H.R. 743 specifies that the proviso does not apply
to unionized workplaces, thereby ensuring that employee
involvement cannot be used as a means to avoid collective
bargaining obligations. The amendment to section 8(a)(2)
contained in the bill is designed to provide a safe harbor for
cooperative labor-management efforts without weakening the
ability of workers to organize and elect union representation.
The legality of employee involvement and labor-management
cooperative efforts must be clarified, as these are the kinds
of management techniques that move U.S. businesses toward the
high performance workplaces necessary to enable them to compete
in the increasingly competitive global economy. The broad
definitions in the NLRA were written for a different era of
employer-employee relations and no longer make sense in today's
workplace. The hierarchical model of the workforce of the early
twentieth century, where each employee's and supervisor's job
tasks were compartmentalized and performed in isolation, is not
effective in the current globally competitive marketplace. The
labor law must evolve to adjust to the modern reality where job
responsibilities overlap and each employee must have a sense
of, and a voice in, the whole production process. The TEAM Act
accomplishes this evolution and the Committee fully supports
its enactment.
the importance of employee involvement
In the wake of the Industrial Revolution, American business
operated under the time-honored principle of the division of
labor. This theory was based on the belief that ``when a
workman spends every day on the same detail, the finished
article is produced more easily, quickly, and economically.''
\2\ Indeed, for most of this century, the accepted American
method of human resource management--named ``Taylorism'' after
Frederick Taylor, a turn-of-the-century engineer and inventor--
has been top-down decision-making aimed at minimizing ``brain
work'' at the shop-floor level. Employees simply did as they
were told by their supervisors, who also operated within
confined parameters set by their superiors.
\2\ Alexis De Tocqueville, ``Democracy in America'' 555 (George
Lawrence trans., Harper & Row 1988) (1848) (quoted in Michael L.
Stokes, Note, ``Quality Circles or Company Unions? A Look at Employee
Involvement After Electromation and Dupont,'' 55 Ohio St. L.J. 897, 901
(1994)).
---------------------------------------------------------------------------
Decades ago, when market forces were relatively static with
the United States in the dominant position, Taylorism ensured
the continuity and conformity necessary for American companies
to maintain their economic supremacy. The past twenty years,
however, have witnessed a dramatic transformation in the
fundamental nature of labor-management relations. This
transformation is due primarily to foreign competition, rapid
technological change, and other factors which have provided
strong incentives for altering workplace relationships.
By the late 1970s, managers began to view employees as a
source of ideas for ``developing and applying new technology''
and ``improving existing methods and approaches to remain
competitive.'' \3\ Rather than utilizing the majority of
employees to perform a single task, as had been the practice
under division of labor, companies began instituting a variety
of programs designed to more broadly involve employees in
solving problems and making decisions which once were
exclusively within the realm of management.\4\ These programs,
implemented in both union and nonunion workplaces, included
quality circles, quality of work life projects, and total
quality management programs. By involving workers to varying
degrees in most aspects of production, these programs have
frequently resulted in substantial productivity gains, as well
as increased employee satisfaction.
\3\ Neil DeKoker, ``Labor-Management Relations for Survival,'' in
``Industrial Rel. Res. Ass'n Proc. of the 1985 Spring Meeting 576,''
576 (Barbara D. Dennis ed., 1985) (quoted in Stokes, supra note 2, at
902).
\4\ Stokes, supra note 2, at 903.
---------------------------------------------------------------------------
Current forms of employee involvement
Employee involvement is not a set ``program'' that is
easily defined. Rather, it is a means by which work is
organized within a company and, as such, a way for employees
and employers to relate to one another regarding that
organization. Because of this, there is no single dominant form
of employee involvement. It usually includes some structured
method for addressing workplace issues through discussions
between employees and employer representatives. Indeed, two out
of every three employee involvement structures do not even have
a manual of procedure, thereby allowing the participants to
design their structure to meet their changing needs.\5\
\5\ See Edward E. Lawler III, Gerald E. Ledford, & Susan A.
Morhman, ``Employee Involvement in America'': A Study of Contemporary
Practice (American Productivity & Quality Center: Houston, TX), at 33
(1989).
---------------------------------------------------------------------------
Although employee involvement programs come in infinite
varieties, for discussion purposes they can be classified in
general terms into several categories. Five of the most common
forms of employee involvement include:
Joint labor management committees
In union settings, joint labor-management committees
provide union and management leaders with a forum for ongoing
discussion and cooperation outside the collective bargaining
context. In nonunion settings, the committees are composed of
employees (elected or volunteered) in addition to management
officials.\6\ While some of these committees have a special
focus, most are designed to address multiple issues at the
department or plant level and often serve as an umbrella under
which smaller employee involvement efforts operate.\7\
\6\ Edward E. Potter, ``Quality at Risk: Are Employee Participation
Programs in Jeopardy?'' (Employment Policy Foundation: Washington,
D.C.), at 19 (1991).
\7\ Congress has established a grant program, currently funded at
$1.5 million, to help selected labor-management committees carry out
joint programs; this program is administered by the Federal Mediation
and Conciliation Service.
---------------------------------------------------------------------------
Quality circles
Quality circles are small groups of employees which meet
regularly on company time with the goal of improving quality
and productivity within their own work areas. They typically
are comprised of hourly employees and supervisors who receive
special training in problem-solving techniques. Although
quality circles usually lack authority to implement solutions
without management approval, they provide workers with an
invaluable opportunity to influence the manner in which their
products are manufactured and designed.\8\
\8\ Potter, supra, note 6, at 21. Martin T. Moe, Note,
Participatory Workplace Decisionmaking and the NLRA: Section 8(a)(2),
Electromation, and the Specter of the Company Union, 68 N.Y.U. L.Rev.
1127, 1158 (1993).
---------------------------------------------------------------------------
Quality of Work-Life Programs
Quality of Work-Life (QWL) programs are also designed to
improve productivity, but focus primarily on improving worker
satisfaction. Unlike quality circles, which focus directly on
product improvement, QWL programs are premised on the belief
that making workers' jobs more meaningful will lead to gains in
productivity. Techniques employed by QWL programs are intended
to bring about fundamental changes in the relations between
workers and managers and can include changing the decision-
making, communication and training dimensions within an
organization. Joint labor-management committees are frequently
used to coordinate and monitor QWL programs.\9\
\9\ Moe, supra note 8, at 1158-59.
---------------------------------------------------------------------------
Self-Directed Work Teams
Self-directed work teams are groups of employees who are
given control of some well-defined segment of production. Such
teams are often responsible for their own support services and
personnel decisions in addition to determining task assignments
and production methods.\10\
\10\ Id.
---------------------------------------------------------------------------
Gainsharing
Gainsharing is the generic term used for a variety of
programs intended to address the problem of loss of sales and
jobs caused by declining productivity. A common feature of
these programs is the payment of bonuses to employees when
productivity is increased. Gainsharing programs are often
developed and administered by joint labor-management
committees, which also serve as clearinghouses for employee
suggestions for improving productivity.\11\
\11\ Moe, supra note 8, at 1160.
---------------------------------------------------------------------------
Again, it is important to note that the examples discussed
above are intended to provide illustrations of the various ways
in which employee involvement is utilized in today's modern
workplace. Many other forms are successfully utilized by both
small and large employers. More important to this discussion,
however, is the fact that employee involvement, regardless of
its form, seeks as its fundamental goal to unlock the
productive capabilities of American workers. And, while it may
be argued that some similarities exist between modern employee
involvement and the employer-dominated company unions of the
1930s, today's programs differ dramatically in intention, form
and effect from the offensive organizations the National Labor
Relations Act sought to abolish. Indeed, today's employee
involvement programs ``seek to engender labor-management
cooperation and improve worker productivity and morale by
granting employees greater involvement in the issues that most
affect their work lives.'' \12\
\12\ Id.
---------------------------------------------------------------------------
Employee involvement enjoys broad support
Notwithstanding the contentions of opponents of the TEAM
Act, employee involvement enjoys wide-spread and ever-
increasing support among employees, employers, academics and
policy-makers.
In testimony before the Committee on Economic and
Educational Opportunities, Ms. Julie Smith, a Team Advisor and
hourly employee at TRW Vehicle Safety Systems described her
company's use of employee involvement:
Our teams are involved in all aspects of the plant.
We are instrumental in redesigning work space and
manufacturing equipment when a new product line is
opened. We address health and safety issues, and
ergonomics. We develop methods of reducing scrap and
improving our effectiveness. We decide what changes
need to be made, we participate in driving the change
and making sure it happens in a timely manner. Our
ideas are listened to and we make a difference.\13\
\13\ Hearing on H.R. 743, ``The Teamwork for Employees and Managers
(TEAM) Act'' Before the House Committee on Economic and Educational
Opportunities, 104th Cong., 1st Sess. at 24 (May 11, 1995) (statement
of Julie Smith, Team Advisor, TRW Vehicle Safety Systems, Inc.).
But, perhaps more important than Ms. Smith's description of
the ways in which her company uses employee involvement is her
description of the ways she and her fellow employees have
---------------------------------------------------------------------------
responded to its use:
At Cookeville, we don't have time clocks. People come
to work to use their minds as well as their heads. We
look forward to starting our day, and when we go home,
we feel good about what we've done because we know that
we've had a direct influence on the decisions that
affect our work environment.\14\
\14\ Id. at 22.
Senior management has voiced similarly enthusiastic support
for employee involvement. This sentiment is perhaps best
reflected in the testimony of Howard V. Knicely, Executive Vice
President, TRW Vehicle Safety Systems before the Committee on
Economic and Educational Opportunities Subcommittee on
---------------------------------------------------------------------------
Employer-Employee Relations:
In my company, as in most others, technology is being
acquired in numerous ways--capital can be raised
wherever the financial market is most attractive.
However, the single most competitive advantage we have
that cannot be acquired or copied is a well-trained,
highly motivated, and involved work force. This is our
hope for the 90s. Employee involvement is and must be a
win-win strategy in all segments of our industrial
policy.\15\
\15\ Hearing on ``Removing Impediments to Employee Participation/
Electromation'' Before the Subcommittee on Employer-Employee Relations
of the House Committee on Economic and Educational Opportunities, 104th
Cong., 1st Sess. at 44 (Feb. 8, 1995) (statement of Howard V. Knicely,
Executive Vice President, TRW Vehicle Safety Systems, Inc.).
While some in academia have voiced concern about the
potential impact of H.R. 743, others have acknowledged the
fundamental changes in labor-management relations that brought
about its introduction and are extremely supportive of the
specific goals it seeks to achieve. As noted by Professor
---------------------------------------------------------------------------
Samuel Estreicher:
Competitive pressures on U.S. firms from a variety of
sources--the emergence of international product
markets, deregulation of air and truck transport and
telecommunications, technological advances that reduce
the advantages of local firms, and capital market
forces that require enhancement of shareholder values--
are undermining Taylorist conceptions of how best to
utilize front-line workers.\16\
\16\ Samuel Estreicher, ``Employee Involvement and the `Company
Union' Prohibition: The Case for Partial Repeal of Section 8(a)(2) of
the NLRA,'' 6 N.Y.U. L.Rev. 125, 135 (1994).
With regard to employee involvement and its relationship to
---------------------------------------------------------------------------
the modern workplace, Professor Estreicher notes:
Worker participation is a desirable goal whether or
not it increases the demand for independent
representation, as long [as] it does not prevent
workers from effectively choosing for themselves how
best to advance their interests in the workplace.
Because employee involvement programs can enhance
opportunities for worker participation and improve firm
performance without foreclosing other options, legal
restrictions should be lifted. (emphasis added) \17\
\17\ Id. at 158.
Similar recognition of the important role played by
employee involvement programs has also been voiced by any
number of prominent public policy-makers. In its final Report
and Recommendations, President Clinton's Commission on the
Future of Worker-Management Relations acknowledged that
``[e]mployee involvement programs have diverse forms, ranging
from teams that deal with specific problems for short periods
to groups that meet for more extended periods.'' \18\ Perhaps
more importantly, the President's Commission concluded,
\18\ Commission on the Future of Worker-Management Relations:
Report and Recommendations, Dep't of Labour and Dep't of Commerce,
December 1994.
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. (emphasis added) \19\
\19\ Id.
Similarly, Secretary of Labor, Robert B. Reich, has also
noted the fundamental changes taking place in today's modern
---------------------------------------------------------------------------
workplace:
High-performance workplaces are gradually replacing
the factories and offices where Americans used to work,
where decisions were made at the top and most employees
merely followed instruction. The old top-down workplace
doesn't work any more.\20\
\20\ Robert B. Reich, The ``Pronoun Test'' for Success, The
Washington Post, July 28, 1993, at A19.
In response to these changes, the Department of Labor has
recently issued a publication to American businesses which
---------------------------------------------------------------------------
underscores the benefits derived from employee involvement:
Highly successful companies avoid program failure by
assembling employees into teams that perform entire
processes--like product assembly--rather than having a
worker repeat one task over and over. In many cases,
teams of workers have authority usually reserved for
managers: They hire and fire; they plan work flows and
design or adopt more efficient production methods; and
they ensure high levels of safety and health.\21\
\21\ See ``Road to High-Performance Workplaces: A Guide to Better
Jobs and Better Business Results,'' U.S. Department of Labor, September
1994.
---------------------------------------------------------------------------
Employee involvement works
Employee involvement as a means of promoting the
competitiveness of American business is a central concept in
contemporary U.S. labor-management relations. Indeed, during
the past twenty years, employee involvement has emerged as the
most dramatic development in human resources management.
Evidence of the success--and, corresponding proliferation--
of employee involvement can be found in a 1994 survey of
employers performed at the request of the Commission on the
Future of Worker-Management Relations. The survey found that 75
percent of responding employers--large and small--had
incorporated some means of employee involvement in their
operations. Among larger employers--those with 5,000 or more
employees--the percentage was even higher, at 96 percent.\22\
It is estimated that as many as 30,000 employers currently
employ some form of employee involvement or participation.
\22\ The ``Nature and Extent of Employee Involvement in the
American Workplace,'' Survey conducted by Aerospace Industries
Associates, Electronic Industries Association, Labor Policy
Association, National Association of Manufacturers, and Organization
Resources Counselors, Inc., August 10, 1994.
---------------------------------------------------------------------------
The success of employee involvement can also be found in
the views of American workers. As noted previously, a survey
conducted by the Princeton Survey Research Associates found
overwhelming support for employee involvement programs among
workers, with 79 percent of those who had participated in such
programs reporting having ``personally benefitted'' from the
process. Indeed, 76 percent of all workers surveyed believed
that their companies would be more competitive if more
decisions about production and operations were made by
employees rather than managers.\23\
\23\ ``Worker Representation and Participation Survey,'' Richard B.
Freeman and Joel Rogers, Conducted by Princeton Survey Research
Associates, December 1994.
---------------------------------------------------------------------------
Clearly, employee involvement is more than just another
passing trend in human resources management. Over the last
twenty years, it has evolved--along with the global economy--
into a basic component of the modern workplace and a key to
successful labor-management relations. As such, American
business must be allowed to use employee involvement in order
to more effectively utilize its most valuable resource--the
American worker.
Electromation and aftermath signal need for clarification
On December 16, 1992, the National Labor Relations Board
(NLRB) issued a decision in Electromation, Inc.,\24\ a case
which many thought would provide the Board an opportunity to
clarify the legality \25\ of employee involvement structures
which are increasingly a part of modern work life.
Electromation involved several employee participation
committees, which were organized around various workplace
issues, established within a small, nonunion company. The
committees were established, unrelated to any organizing
effort,\26\ in response to employees' objections to several
changes in attendance and wage policies proposed by the
company. The so-called ``action committees'' were formed to
address several workplace issues: (1) absenteeism, (2) no-
smoking policy, (3) communication network, (4) pay progression
for premium positions, and (5) attendance bonus program. The
Board found that the company played the primary role in
establishing the size, responsibilities and goals of the
committees and in setting the final membership and initial
dates for meetings.
\24\ 309 NLRB No. 163 (1992).
\25\ The two provisions of the National Labor Relations Act most
directly at issue in the debate over the legality of employee
involvement structures are section 2(5) and section 8(a)(2). Section
2(5) defines a labor organization as ``any organization of any kind, or
any agency or employee representation committee or plan, in which
employees participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work.''
Section 8(a)(2) makes it an unfair labor practice for an employer ``to
dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it.''
\26\ Although the Teamsters Union began an organizing drive shortly
after the formation of the action committees, the NLRB determined that
the company did not establish them to interfere with the employees'
right to choose a union. In fact, the company disbanded the committees
once it learned of the organizing efforts to avoid charges that it was
tainting the election.
---------------------------------------------------------------------------
In order to determine if the company had committed an
unfair labor practice under the NLRA, the Board had to first
consider whether the action committees were ``labor
organizations'' under the Act. The Act's definition of ``labor
organization'' is quite broad and encompasses ``any
organization of any kind, or any agency or employee
representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work.'' \27\ The interpretation of this
definition by the courts has added to its breadth as the
Supreme Court has held that the term ``dealing with employers''
is not limited to collective bargaining situations, but is a
much broader concept.\28\ Working with this wide-ranging
definition, the NLRB determined that the committees were
``labor organizations'' within the meaning of the National
Labor Relations Act.
\27\ Section 2(5) of the NLRA.
\28\ See National Labor Relations Board v. Cabot Carbon Co., 360
U.S. 203 (1959).
---------------------------------------------------------------------------
The Board next turned to the question of the company's role
in the establishment and operation of the action committees and
considered whether the company had ``dominated'' or
``interfered with'' the committees. Under section 8(a)(2) of
the Act, it is an unfair labor practice by an employer ``to
dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support
to it.'' In this context, the NLRB found the company had
dominated the committees in violation of section 8(a)(2)
because of its primacy in setting the size, responsibilities
and goals of the committees, and in selecting the final makeup
and initial dates for meetings. The Electromation decision was
later affirmed by the Seventh Circuit Court of Appeals.\29\
\29\ Electromation, Inc. v. National Labor Relations Board, 35 F.3d
1148 (7th Cir. 1994).
---------------------------------------------------------------------------
The need for clarification of the legality of employee
involvement structures has since moved far beyond the specific
facts of the Electromation decision. The breadth of the
relevant provisions of the NLRA combined with the confusion
created by the four opinions in the decision have left the
myriad employers and employees attempting to establish
cooperative arrangements in the workplace in a legal never-
never land. Furthermore, since the Electromation decision, the
NLRB has considered charges involving the employee involvement
efforts of some of the leading companies in the country and has
consistently questioned the legality of these efforts: \30\
\30\ Much has been made by opponents of H.R. 743 of the relatively
small number of charges filed with the Board alleging a violation of
section 8(a)(2). First and foremost, the NLRB process is wholly
complaint driven and there is obviously a diminished incentive for
employees to challenge workplace structures which effectively meet
their interest in having greater involvement in workplace
decisionmaking. Furthermore, the relative absence of litigation should
not be the criteria by which the need for clarifying the legality of
employee involvement programs is judged. An obvious and primary problem
is the chilling effect that the Electromation decision has had on
legitimate employee involvement programs and on employers' plans to
expand such programs.
---------------------------------------------------------------------------
Donnelly Corporation: \31\ Named One of the 100 Best
Companies to Work for in America and recognized by the
U.S. Department of Labor (DOL) for its innovative work
system, the NLRB has nonetheless issued a complaint
against Donnelly charging that its employee involvement
structure violates section 8(a)(2). The irony is that
the genesis of the complaint was testimony that
Donnelly presented to DOL's Commission on the Future of
Worker-Management Relations (Dunlop Commission) on
``Innovations in Worker Management Relations.'' Dr.
Charles J. Morris, former editor of The Developing
Labor Law, heard the testimony, felt the Donnelly
system was a violation of section 8(a)(2), and thus
filed the initial charge.\32\
\31\ GR-7-CA-36843.
\32\ Although this charge was eventually dismissed, a Donnelly
employee then amended an unrelated unfair labor practice charge she had
filed to include the alleged section 8(a)(2) violation. A complaint was
issued on this second charge and a hearing is scheduled for October 26,
1995.
---------------------------------------------------------------------------
Polaroid Corporation: \33\ Also cited as One of the
Best 100 Companies to Work for In America, the Polaroid
Corporation has long had an institutional commitment to
employee involvement and has been a model for other
companies establishing cooperative efforts. Despite the
company's attempt in the early 1990's to reconstitute
its successful committees to comply with section
8(a)(2), a complaint was issued by the Board's General
Counsel challenging even the new structure which
removed all decisionmaking authority from the
employees. A hearing was scheduled on the complaint
this summer and Polaroid is awaiting the decision from
the Administrative Law Judge.
\33\ 1-CA-29966.
---------------------------------------------------------------------------
EFCO Corporation: \34\ The EFCO Corporation first
became involved in employee involvement programs in the
late 1970's with the establishment of an employee stock
ownership plan (ESOP). The company then moved to
utilize Total Quality Control techniques and an
extensive employee committee system. Four of the
committees--employer policy review, safety, employee
suggestion, and employee benefits--were challenged as
violating section 8(a)(2) by the Carpenters' Union
after an unsuccessful organizing effort.\35\ Although
acknowledging EFCO's commitment to employee
empowerment, the Administrative Law Judge nonetheless
found that the committees were ``labor organizations''
and that the company had illegally dominated them
because of its role in establishing the committees,
choosing initial members, participating in meetings,
and setting topics for discussion. EFCO plans to appeal
the ALJ decision to the full Board.
\34\ 17-CA-16911 (March 7, 1995).
\35\ The Carpenters' Union attempted to organize EFCO employees in
the summer of 1993, however, the union never filed a petition for an
election with the NLRB.
---------------------------------------------------------------------------
Keeler Brass Automotive Group: \36\ In the most
recent ruling on the legality of employee involvement
structures, a unanimous NLRB has ordered Keeler Brass
Automotive Group to disband a grievance committee
established for several of its plants. The Board,
reversing the decision by the Administrative Law Judge,
found that Keeler Brass had unlawfully dominated the
formation of the committee and had interfered with its
administration. In a concurring opinion, Chairman Gould
concluded that the committee was not capable of
independent action, despite the fact that the committee
was not created in response to union organizing efforts
or as a means to undercut independent action by
employees, participation on the committee was voluntary
and determined by election, and employees were the only
voting members of the committee.
\36\ 317 NLRB No. 161 (June 14, 1995).
---------------------------------------------------------------------------
Suffice to say that the Board's interpretation of the
interrelationship between the broad definition of ``labor
organization,'' which sweeps in many employee participation
programs, and the strict limits on the role of employers in
such organizations, makes it a very treacherous road to
navigate for companies who want to institutionalize some form
of labor-management cooperation.
THE CURRENT PROHIBITIONS IN THE NLRA ARE TOO BROAD
A brief examination of the history of the prohibition in
section 8(a)(2) demonstrates both why the stricture was
originally crafted so broadly and why such breadth interferes
with the preferred method of labor-management organization in
many U.S. businesses today. In 1935, when Congress passed the
National Labor Relations Act (NLRA), the so-called Wagner
Act,\37\ employer-dominated (company) unions had become a focal
point in the national debate over how to improve labor-
management relations. The precursor to the NLRA, the National
Industrial Recovery Act, passed in 1933, had temporarily given
employees ``the right to organize and bargain collectively
through representatives of their own choosing.'' \38\ However,
the Recovery Act proved to be of little value in ensuring those
rights, in part because it left the subject of employer-
dominated unions largely unaddressed.
\37\ Senator Robert Wagner was the prime sponsor of the bill which
became the National Labor Relations Act (NLRA).
\38\ National Industrial Recovery Act, 48 Stat. 195, 198 (1933)
(the rights established by the Recovery Act had only temporary effect,
because section 2(c) of the act contained a sunset provision).
---------------------------------------------------------------------------
Under the Recovery Act, employers could use company unions
as tools to avoid recognition of, and collective bargaining
with, independently organized unions. Employers often refused
to recognize independently formed unions on the ground that
employees were already represented, albeit by a company union.
As a result, employers could establish and bargain exclusively
with unions that were formed and operated largely at their
direction. The Recovery Act permitted such abuses of company
unions for various reasons. Primarily, the Act contained
inadequate enforcement mechanisms.\39\ Further, the Act did not
specifically prohibit company unions, although it prohibited
employers from requiring employees to join a company union as a
condition of employment.\40\ Lastly, the Act granted employees
the right to organize, but did not specify ``the kind of
organization, if any, with which employees should affiliate.''
\41\ Thus, consistent with the Recovery Act, an employer could
appear to be ``recognizing and cooperating with organized
labor'' while avoiding the dangers inherent in dealing with a
union not subservient to the employer's interests.\42\
\39\ Hardin, Patrick, ``The Developing Labor Law'' (3d ed. 1992),
vol. 1 at 25-26.
\40\ National Industrial Recovery Act, 48 Stat. 195, 198-99 (1933).
\41\ I. Bernstein, ``Turbulent Years'' 38 (1970).
\42\ Hardin, supra note 39, at 26.
---------------------------------------------------------------------------
Recognizing the inadequacies of the Recovery Act, section
8(a)(2) of the NLRA was specifically drafted to prevent
employers from using company unions to avoid recognizing and
collective bargaining with independently organized unions.
Senator Robert Wagner, sponsor of the bill which became the
NLRA, stated that ``[t]he greatest obstacles to collective
bargaining are employer-dominated unions, which have multiplied
with amazing rapidity since enactment of the recovery law.''
\43\ According to an article printed in the New York Times
during debate over the NLRA, the number of employees in company
unions had increased from 432,000 in 1932, before passage of
the Recovery Act, to 1,164,000 just one year later.\44\ Over 69
percent of the company unions in existence at that time had
been formed in the brief period following passage of the
Recovery Act.\45\ The magnitude of this problem following
passage of the Recovery Act is evidenced by the fact that more
than 70 percent of the disputes coming before the National
Labor Board (precursor to the NLRB) before enactment of the
NLRA concerned employers' refusal to deal with properly elected
union representatives.\46\
\43\ 78 Cong. Rec. 3443 (1934) reprinted in 1 NLRB, ``Legislative
History of the National Labor Relations Act,'' 1935, at 15 (1949).
\44\ Wagner, Robert. ``Company Unions: A Vast Industrial Issue,''
The New York Times, Mar. 11, 1934.
\45\ Id.
\46\ Wagner, Robert. ``Company Unions: A Vast Industrial Issue,''
The New York Times, Mar. 11, 1934.
---------------------------------------------------------------------------
Prior to passage of the NLRA then, employers did use
company unions as a tool to avoid collective bargaining with
independently organized unions and to control what collective
bargaining did take place. Section 8(a)(2) of the NLRA was an
important measure for ensuring that employers did not use
company unions as an obstacle to genuine collective bargaining.
However, the legislative history of the NLRA suggests that
while Congress strongly desired to eliminate barriers to
genuine collective bargaining, it did not desire to ban all
employer-employee organizations.
Senator Wagner stated in a discussion regarding the
advantages and disadvantages of company unions that ``[t]he
company union has improved personal relations, group-welfare
activities, and other matters which may be handled on a local
basis. But it has failed dismally to standardize or improve
wage levels, for the wage question is one whose sweep embraces
whole industries, or States, or even the Nation.'' \47\ He
further stated, regarding a bill containing provisions
virtually identical to section 8(a)(2) of the NLRA, that it did
``not prevent employers from setting up societies or
organizations to deal with problems of group welfare, health,
charity, recreation, insurance or benefits. All of these
functions can and should be fulfilled by employer-employee
organizations. But employers should not dominate organizations
which exist for the purposes of collective bargaining in regard
to wages, hours, and other conditions of employment.'' \48\
Thus, at the outset of debate over the NLRA Congress indicated
its disapproval of employer-dominated organizations which
existed for purposes of collective bargaining, but did not
signal its disapproval of employer-employee organizations in
general.
\47\ Id.
\48\ Hearings on S. 2926 Before the Senate Committee on Education
and Labor, 73rd Cong., 2d Sess. 9 (1934) (statement of Senator Wagner)
reprinted in 1 NLRB, Legislative History of the National Labor
Relations Act, 1935, at 39-40 (1949) (emphasis added).
---------------------------------------------------------------------------
Further debate over the proposed scope of section 8(a)(2)
confirms that Congress did not desire to ban all employer-
employee organizations. Senator Wagner stated several times
that ``[e]mployer-controlled organizations should be allowed to
serve their proper function of supplementing trade unionism . .
.'' \49\ The Senate Report on S. 2926, an earlier version of
the NLRA containing provisions virtually identical to 8(a)(2),
confirms this view. Regarding employers' use of company unions
as an obstacle to collective bargaining, the report on the bill
states that ``these abuses do not seem to the committee so
general that the Government should forbid employers to indulge
in the normal relations and innocent communications which are
part of all friendly relations between employer and employee. .
. . The object of [prohibiting employer-dominated unions] is to
remove from the industrial scene unfair pressure, not fair
discussion.'' \50\
\49\ 78 Cong. Rec. 3443 (1934) reprinted in 1 NLRB, ``Legislative
History of the National Labor Relations Act,'' 1935, at 16 (1949);
Wagner, Robert. ``Company Unions: A Vast Industrial Issue,'' The New
York Times, Mar. 11, 1934.
\50\ S. Rep. No. 1184, 73rd Cong., 2d Sess. (1934) reprinted in 1
NLRB, ``Legislative History of the National Labor Relations Act,''
1935, at 1104 (1949).
---------------------------------------------------------------------------
Senator Walsh, then Chairman of the Senate Committee on
Education and Labor, concurred in this view. Commenting on S.
2926, he stated that ``this . . . unfair labor practice seeks
to remove from the industrial scene unfair pressure by the
employer upon any labor organization that his workers may
choose, yet leaves fair discussion unhampered.'' \51\ Thus,
analysis of the legislative history of the NLRA suggests that
Congress strongly desired to prevent employers from using
company unions as an obstacle to collective bargaining, again
while leaving intact organizations intended to promote
employer-employee communication and cooperation.
\51\ 78 Cong. Rec. 10,559 (1934) reprinted in 1 NLRB, ``Legislative
History of the National Labor Relations Act,'' 1935, at 1125 (1949).
---------------------------------------------------------------------------
The broad language of section 8(a)(2) does not seem
consistent with a Congressional desire to prohibit only
employer-employee organizations which would inhibit recognition
of, and collective bargaining with, independent unions.
However, the Congress' experience with narrow interpretations
by the courts of labor relations legislation prior to enactment
of the NLRA may explain why Congress drafted section 8(a)(2)
broadly. Specifically, in the decades preceding enactment of
the NLRA, Congress had enacted various measures designed to
allow the development of organized labor and to ensure the
right to bargain collectively. These measures included the
Erdman Act, enacted in 1898; sections of the Clayton Act; the
Railway Labor Act; and the Norris-LaGuardia Act.\52\ Of these,
the Clayton Act and the Norris-LaGuardia Act were broadest in
their scope of coverage.\53\
\52\ Hardin, supra note 39, at 12-24 (providing a historical
background to the National Labor Relations Act).
\53\ The Erdman Act and the Railway Labor Act were limited in scope
to employees engaged in the operation of interstate trains. Hardin,
supra note 39, at 14, 20.
---------------------------------------------------------------------------
Congress designed sections 6 and 20 of the Clayton Act to
prevent courts and employers from using the Sherman Act as a
barrier to union activity and development. Under the Sherman
Act, federal courts were able to assert federal question
jurisdiction over labor disputes and frequently held that
organized labor activities, by obstructing the flow of goods in
interstate commerce, were in violation of the Act.\54\ Section
6 of the Clayton Act was designed to prevent application of the
Sherman Act to organized labor ``by providing that labor itself
is not `an article of commerce.' '' \55\ The section also
specified that labor organizations do not violate antitrust
laws by ``lawfully carrying out'' their ``legitimate
objectives.'' \56\ Section 20 of the Clayton Act was designed
to greatly restrict the ability of courts to issue injunctions
against organized labor activity. The first paragraph of
section 20 was intended to reduce the use of injunctions by
requiring that there be no adequate remedy at law and actual or
threatened injury before issuance of an injunction.\57\ The
second paragraph of section 20 lists and describes several
labor activities and provides that ``none of these activities
shall `be considered or held to be violations of any law of the
United States,' '' and prohibits enjoining those activities
even if the requirements of the first paragraph are met.\58\
Thus, Congress attempted to allow the development of organized
labor through language in the Clayton Act which specifically
prohibited various types of interference with organized labor.
\54\ Hardin, supra note 39, at 9-10, 16.
\55\ Hardin, supra, at 16.
\56\ Id.
\57\ Although both of these requirements were historically present
in equity, courts had largely disregarded them in labor-injunction
practice prior to passage of the Clayton Act. Hardin, supra note 39, at
16-17.
\58\ Hardin, supra note 39, at 17.
---------------------------------------------------------------------------
Despite the seemingly broad scope of sections 6 and 20 of
the Clayton Act, however, the Supreme Court interpreted both
sections very narrowly in Duplex Printing Press Co. v. Deering.
The Court interpreted the first paragraph of section 20 as
approving of existing labor-injunction practice rather than as
imposing more stringent requirements for the issuance of
injunctions against organized labor.\59\ Further, the Court
interpreted the phrase ``between an employer and employees''
contained in the first paragraph as limiting application of
both paragraphs to cases between an employer and its own
employees.\60\ Thus, the Court interpreted the Clayton Act as
having minimal impact on barriers to union development and
activity, despite statutory language which would suggest
otherwise.
\59\ Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921)
(construed in Hardin, supra note 39, at 18).
\60\ Id.
---------------------------------------------------------------------------
Given the Court's narrow interpretation of the Clayton Act,
and the failure of the Recovery Act to ensure the rights to
organize and bargain collectively, it is not surprising that
Congress drafted section 8(a)(2) of the NLRA broadly.\61\ Prior
to the period in which the NLRA was enacted, courts greatly
resisted any efforts designed to allow the growth of organized
labor and collective bargaining.\62\ Thus, in order to ensure
employees the rights to organize and bargain collectively,
Congress was compelled to expansively craft the prohibition in
section 8(a)(2) of the NLRA.
\61\ The definitional provisions in section 13 of the Norris-
LaGuardia Act were also drafted broadly, again demonstrating Congress'
tendency towards drafting pro-labor acts broadly in this period.
Hardin, supra note 39, at 23-24.
\62\ Hardin, supra note 39, at ch. 1.
---------------------------------------------------------------------------
As the previous discussion of the expansive use of various
forms of employee involvement and labor-management cooperation
indicates, a broad-sweeping prohibition of all employer-
employee organizations no longer serves the interests of giving
employees an effective voice in their workplace. While the
right to independent representation will always remain one of
the bedrock principles of the NLRA, as this nation approaches
the twenty-first century, nothing about modern employee
involvement interferes with that right. Like all aspects of
society, the workplace of today is very different than it was
sixty years ago. In 1935, organized labor was still in its
formational stages and much more at the mercy of employers
intent on derailing its development. The myriad labor
protections that are on the books today--from the Fair Labor
Standards Act to the Occupational Safety and Health Act to the
Worker Adjustment and Retraining Notification (WARN) Act to the
Family and Medical Leave Act--are testimony to the tremendous
influence and power of independent labor unions to protect
working men and women.
Likewise, working men and women have changed, and so
consequently have their needs in the workplace. The demands on,
and skills required of, workers in today's information-based
economy are very different than those prevalent in the
manufacturing-driven economy of the early twentieth century.
The workforce of today mirrors the demographic changes of the
United States as a whole and thus the interests and values of
workers are increasingly more diverse. The nature of work, for
both employees and managers, has also evolved tremendously in
sixty years from the perspective of both technological and
organizational developments. Workplace structures that have the
flexibility to meet the situational and differing needs of
employees, while also addressing the productivity demands of
employers, are at a premium in the modern working environment.
While formal representation through an independent labor
organization will remain the preferred form of organization in
many workplaces, clearly, there must be a place in this
nation's labor laws for cooperative arrangements between
employees and employers to address the challenges and demands
of working in a globally competitive marketplace.
The Team Act legalizes employee involvement: Company unions are still
prohibited
The TEAM Act clarifies that it shall not constitute or be
evidence of a violation of section 8(a)(2) of the NLRA for an
employer to establish, assist, maintain, or participate in any
organization or entity of any kind, in which employees
participate, to address matters of mutual interest, including,
but not limited to, issues of quality, productivity,
efficiency, and safety and health. This language creates a safe
harbor in the NLRA for a wide range of employee involvement
structures where managers and workers can discuss the myriad
issues that affect both the productive capacity of a company
and the quality of work life.
Some of the matters of mutual interest which employee
involvement structures address will unavoidably include
discussions of conditions of work. The processes by which a
company ``produces'' its product are inextricably linked to the
terms and conditions of individuals' employment in those
processes. Lawrence Gold, General Counsel of the AFL-CIO,
perhaps described this reality best when he argued before the
Board:
What is productivity? It's who does what, its whether
``A'' works certain hours, whether ``B'' gets relief,
whether a particular way of moving materials is sound
or unsound. People are affected by that, their jobs and
prerogatives, their seniority, their vacations. All of
that is the stuff of working life. And to say that you
can abstract productivity from working conditions is
something that I have a great deal of difficulty
with.\63\
\63\ Transcript of Proceedings Before the National Labor Relations
Board in Electromation, Inc. (Case No. 25-CA-19818) 61-62 (Sept. 5,
1991).
Indeed, the truth of the matter is that if employee
involvement structures were prohibited from discussing issues
related to conditions of work, their effectiveness would be
severely hampered. The phrase ``terms and conditions of
employment'' includes issues ranging from grievance procedures,
layoffs and recalls, discharge, workloads, vacations, holidays,
sick leave, work rules, use of bulletin boards, change of
payment from a weekly salary to an hourly rate, and employee
physical examinations.\64\ If it is even possible, requiring
employee involvement structures to narrowly focus on issues
unrelated to conditions of work limits their ability to be a
forum for employees and managers to develop comprehensive
strategies that contribute both to the economic well-being of
the company and to the pecuniary and non-pecuniary satisfaction
of the workforce.
\64\ See Hardin, supra note 39, at 885-86.
---------------------------------------------------------------------------
Despite the breadth of the language creating the safe
harbor, the TEAM Act retains several important protections in
section 8(a)(2). Importantly, the bill provides that employee
involvement structures may not have, claim, or seek authority
to be the exclusive bargaining representative of employees or
to negotiate, enter into, or amend collective bargaining
agreements. This is a very significant protection that
distinguishes employee involvement structures from the company
unions of yesteryear that section 8(a)(2) was designed to
prohibit. Even after enactment of H.R. 743, such company unions
would continue to be unlawful under section 8(a)(2).
For example, in National Labor Relations Board v. Lane
Cotton Mills,\65\ a violation of 8(a)(2) was found where the
employer established an in-house welfare association and
refused to bargain with a Textile Workers Organizing Committee
that had been elected by the employees. The employer's action
in this case would not fall within the safe harbor created by
the TEAM Act because management treated the welfare association
as the exclusive bargaining representative, conduct
specifically prohibited by H.R. 743.\66\ Similarly, in
Solmica,\67\ a company president suggested to his employees
that they could resolve their differences themselves, without a
union. The employees agreed and eventually signed a collective
bargaining agreement with the president. Again, this conduct
would continue to be a violation of section 8(a)(2) as the TEAM
Act would not permit employee involvement structures, no matter
how formal or informal, to negotiate collective bargaining
agreements.
\65\ 111 F.2d 814 (5th Cir. 1940).
\66\ See also, National Labor Relations Board v. Link-Belt Co., 61
S. Ct. 358 (1941), American Tara Corp., 242 NLRB 1230 (1979).
\67\ 199 NLRB 224 (1972).
---------------------------------------------------------------------------
While opponents of the TEAM Act have argued that many of
the 1930s ``company unions'' which prompted the enactment of
Section 8(a)(2) shared the beneficent characteristics of
today's employee involvement structures, a 1937 Bureau of Labor
Statistics study, entitled ``Characteristics of Company
Unions,'' 1935 [hereinafter BLS Survey] paints a substantially
different picture. The study of 126 company unions found that
64 percent of them had been formed in response to a strike or
local union activity. The remainder had either been intended to
improve plant morale (11.2 percent) or to appease public
opinion or respond to governmental encouragement of collective
bargaining (24.8 percent).\68\
\68\ ``BLS Survey'' at 84.
---------------------------------------------------------------------------
Even if some of the characteristics of company unions are
shared by today's employee involvement structures, there is a
critical distinction. Unlike company unions, legitimate
employee involvement structures do not pretend to serve the
same purpose as an independent labor union, which acts as the
exclusive representative of the employees for collective
bargaining and handling of grievances. Unlike the employee
involvement structures of today, company unions in the first
half of this century were being advanced as exclusive
alternatives to labor unions. However, as discussed previously,
they rarely possessed the essential characteristics of a
genuine collective bargaining representative.
Under H.R. 743, the decision to choose formal organization
and to secure independent representation remains in the hands
of the employees. Nothing in the TEAM Act interferes with that
choice. The safe harbor created in H.R. 743, while arguably
broad in terms of the types of employee involvement structures
to which it applies, is quite narrow in terms of the scope of
conduct related to such structures which is legitimized. The
bill states that ``it shall not constitute or be evidence of a
violation under this paragraph for an employer'' to establish
and participate in an employee involvement structure. [Emphasis
added.] H.R. 743 also specifically provides in section four
that ``Nothing in this Act shall affect employee rights and
responsibilities contained in provisions other than section
8(a)(2) of the National Labor Relations Act, as amended.''
Thus, the other protections in section 8(a) of the NLRA
which prohibit employer conduct that interferes with the right
of employees to freely choose independent representation remain
in full force. If employee involvement structures do not prove
to be an effective means for employees to have input into the
production and management policies that impact them, those
employees have every right, and every reason, to formally
organize. Section 8(a)(1)--which makes it an unfair labor
practice for employers to interfere with, restrain, or coerce
employees in the exercise of their rights, guaranteed by
section 7 of the NLRA, to organize and bargain collectively
through representatives of their own choosing--remains
untouched by the TEAM Act.\69\ Employee involvement structures
cannot be used to interfere with employees' ability to freely
exercise section 7 rights.\70\
\69\ Similarly, the TEAM Act does not alter the prohibition in
section 8(a)(3) making it an unfair labor practice for an employer to
discriminate against any employee on the basis of his or her membership
in a labor organization.
\70\ In Stone Forest Industries, Inc., 36-CA-6938 (March 17, 1995),
it was found that an employer's promise, the day before a union
election, to establish a Communications Committee to deal with employee
grievances was a violation of section 8(a)(1) because it was used as an
inducement to persuade employees to vote against the union.
---------------------------------------------------------------------------
H.R. 743 was amended in Committee to clarify that the
amendment to section 8(a)(2) contained in the TEAM Act does not
apply in cases in which a labor organization is the
representative of such employees as provided in section 9(a) of
the NLRA. This amendment was intended to mollify concerns that
H.R. 743 would permit employers to use employee involvement
structures as a means to avoid their obligation to bargain
collectively with a labor organization. As an initial matter,
the bill, as introduced, was not intended to alter in any way
an employer's obligation under section 8(a)(5) to bargain with
the duly elected representatives of employees.\71\ However, the
amendment adopted in Committee makes it absolutely clear that
the safe harbor created in the TEAM Act for certain employee
involvement structures does not immunize an employer from the
prohibition against directly dealing with employees who are
represented by a labor union. In fact, as a practical matter,
if employers and employees in a unionized workplace want to
initiate some type of employee involvement structure, the union
essentially has a veto power over the very establishment of
such a structure.
\71\ H.R. 743, either as it was introduced or as it was reported by
the Committee, is not intended to overrule or alter the NLRB's decision
in E.I. du Pont de Nemours & Co., 311 NLRB No. 88 (1993).
---------------------------------------------------------------------------
In sum, H.R. 743 creates a safe harbor in the NLRA for a
broad range of employee involvement structures which have an
infinite variety of organizational characteristics and which
deal with a broad spectrum of workplace issues. However, this
safe harbor exists only to the extent that an employer's
dominance or interference with respect to such structures is
being judged in the context of section 8(a)(2). The legality of
the establishment or use of such structures in the context of
any other potential violation of the Act remains unaffected.
conclusion
The Committee has placed the highest priority on the
enactment of H.R. 743. The workplace of today is simply not the
same as the workplace that was prevalent in the America of the
1930's when the National Labor Relations Act was enacted. This
nation must prosper in an increasingly competitive and
information-driven economy where, at every level of a company,
employees must have an understanding of, and a role in, the
entire business operation. Employee involvement in the modern
workplace has proven to be an effective strategy at increasing
both the value-added each employee brings to the production
process and the job satisfaction that each employee derives
from the workplace.
This nation's labor law must be relevant to the employer-
employee relationships of the twenty-first century. The
Committee feels strongly that the amendments to the NLRA
contemplated by the TEAM Act are crucial and that the bill
poses no threat to the well-protected right of employees to
select representatives of their own choosing to act as their
exclusive bargaining agent. Even with the changes to the NLRA
proposed in H.R. 743, an employee involvement structure may not
engage in collective bargaining nor may it act as the exclusive
representative of employees. The prohibitions in the NLRA
outlawing interference with employees' attempts to form a union
and preventing employers from avoiding bargaining obligations
by directly dealing with employees remain unaffected by the
TEAM Act.
The bill makes it clear that employers can work together
with their employees to confront and solve the myriad problems
and issues that arise in a workplace. To allow otherwise would
stand in the way of cutting edge human resource management that
offers business the opportunity to make an investment in the
human potential of the American workforce that will yield
untold dividends for this nation.
Summary
H.R. 743 would amend the National Labor Relations Act
(NLRA) to protect legitimate employee involvement programs
against governmental interference, to preserve existing
protections against deceptive and coercive employer practices,
and to allow legitimate employee involvement programs, in which
workers may discuss issues involving terms and conditions of
employment, to continue to evolve and proliferate.
Section-by-Section Analysis
section one
Provides that the short title of the bill is the ``Teamwork
for Employees and Managers Act of 1995.''
section two
Establishes the findings by the Congress related to the
escalating demands of global competition, the resulting need
for an enhanced role for employees in workplace decisionmaking,
the extensive use by employers of employee involvement
techniques, the positive impact of and support for employee
involvement, and the legal jeopardy for employers engaging in
employee involvement.
Also provides that the purposes of the Act are to protect
legitimate employee involvement programs against governmental
interference, to preserve existing protections against
deceptive and coercive employer practices, and to allow
legitimate employee involvement programs, in which workers may
discuss issues involving terms and conditions of employment, to
continue to evolve and proliferate.
section three
Amends section 8(a)(2) of the National Labor Relations Act
(NLRA) to provide that it shall not constitute or be evidence
of an unfair labor practice for an employer to establish,
assist, maintain, or participate in any organization or entity
of any kind, in which employees participate, to address matters
of mutual interest, including, but not limited to, issues of
quality, productivity, efficiency, and safety and health.
Provides that such organizations or entities may not have,
claim, or seek authority to be the exclusive bargaining
representative of employees or to negotiate, enter into, or
amend collective bargaining agreements. Also provides that the
amendment to section 8(a)(2) does not apply in cases in which a
labor organization is the representative of such employees as
provided in section 9(a) of the NLRA.
section four
Provides that nothing in the Act shall affect employee
rights and responsibilities contained in provisions other than
section 8(a)(2) of the NLRA.
Oversight Findings of the Committee
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives and clause 2(b)(1) of
rule X of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in the body of this report.
Inflationary Impact Statement
In compliance with clause 2(l)(4) of rule XI of the Rules
of the House of Representatives, the Committee estimates that
the enactment into law of H.R. 743 will have no significant
inflationary impact on prices and costs in the operation of the
national economy. It is the judgment of the Committee that the
inflationary impact of this legislation as a component of the
federal budget is negligible.
Government Reform and Oversight
With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of H.R. 743.
Committee Estimate
Clause 7 of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
H.R. 743. However, clause 7(d) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act of 1974.
Application of Law to Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. This bill would clarify the legality of employee
involvement programs in workplaces covered by the National
Labor Relations Act and as such has no application to the
legislative branch.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act requires a statement of whether the provisions of
the reported bill include unfunded mandates. This bill would
clarify the legality of employee involvement programs in
workplaces covered by the National Labor Relations Act and as
such does not contain any unfunded mandates.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirement of clause 2(l)(3)(B) of
rule XI of the House of Representatives and section 308(a) of
the Congressional Budget Act of 1974 and with respect to
requirements of clause 2(l)(3)(C) of rule XI of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 743 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 28, 1995.
Hon. William F. Goodling,
Chairman, Committee on Economic and Educational Opportunities, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 743, the Teamwork for Employees and Mangers Act
of 1995, as ordered reported by the Committee on Economic and
Educational Opportunities on June 22, 1995. CBO estimates that
enactment of H.R. 743 would have no significant effects on the
federal budget and no impact on the budgets of state and local
governments. Because enactment of H.R. 743 would not affect
direct spending or receipts, pay-as-you-go procedures would not
apply.
H.R. 743 would amend the National Labor Relations Act to
allow employers to establish or participate in organizations in
which employees participate, to address matters of mutual
interest, so long as these organizations do not seek authority
to negotiate or enter into collective bargaining agreements
with the employer. The bill could affect the workload and costs
of the National Labor Relations Board by increasing or
decreasing its investigations of employers' involvement in
employee organizations. We anticipate that such effects, if
any, would not be significant.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley.
Sincerely,
James L. Blum
(For June E. O'Neill).
Roll Call Votes
Roll Call No. 1 (by Mr. Sawyer): An amendment in the nature
of a substitute attempting to establish specific conditions
under which employee involvement structures would be
permissible and delineating specific situations where it would
be impermissible. Defeated by a vote of 16-24, with 1 Member
voting Present.
------------------------------------------------------------------------
Member Aye No Present
------------------------------------------------------------------------
Chairman Goodling........................ ........ X .........
Mr. Petri................................ ........ X .........
Mrs. Roukema............................. ........ ........ .........
Mr. Gunderson............................ ........ X .........
Mr. Fawell............................... ........ X .........
Mr. Ballenger............................ ........ X .........
Mr. Barrett.............................. ........ X .........
Mr. Cunningham........................... ........ X .........
Mr. Hoekstra............................. ........ X .........
Mr. McKeon............................... ........ X .........
Mr. Castle............................... ........ X .........
Mrs Meyers............................... ........ X .........
Mr. Johnson.............................. ........ X .........
Mr. Talent............................... ........ X .........
Mr. Greenwood............................ ........ X .........
Mr. Hutchinson........................... ........ X .........
Mr. Knollenberg.......................... ........ X .........
Mr. Riggs................................ ........ X .........
Mr. Graham............................... ........ X .........
Mr. Weldon............................... ........ X .........
Mr. Funderburk........................... ........ X .........
Mr. Souder............................... ........ X .........
Mr. McIntosh............................. ........ X .........
Mr. Norwood.............................. ........ X .........
Mr. Clay................................. X ........ .........
Mr. Miller............................... X ........ .........
Mr. Kildee............................... X ........ .........
Mr. Williams............................. X ........ .........
Mr. Martinez............................. X ........ .........
Mr. Owens................................ X ........ .........
Mr. Sawyer............................... X ........ .........
Mr. Payne................................ X ........ .........
Mrs. Mink................................ X ........ .........
Mr. Andrews.............................. X ........ .........
Mr. Reed................................. X ........ .........
Mr. Roemer............................... X ........ .........
Mr. Engel................................ ........ X .........
Mr. Becerra.............................. ........ ........ X
Mr. Scott................................ X ........ .........
Mr. Green................................ X ........ .........
Ms. Woolsey.............................. X ........ .........
Mr. Romero-Barcelo....................... X ........ .........
Mr. Reynolds............................. ........ ........ .........
------------------------------
Totals............................. 16 24 1
Roll Call No. 2 (by Mr. Miller): An amendment relating to
expedited relief in cases where discrimination on the basis of
union membership is alleged. Defeated by a vote of 16-23.
------------------------------------------------------------------------
Member Aye No Present
------------------------------------------------------------------------
Chairman Goodling........................ ........ X .........
Mr. Petri................................ ........ X .........
Mrs. Roukema............................. ........ ........ .........
Mr. Gunderson............................ ........ X .........
Mr. Fawell............................... ........ X .........
Mr. Ballenger............................ ........ X .........
Mr. Barrett.............................. ........ X .........
Mr. Cunningham........................... ........ X .........
Mr. Hoekstra............................. ........ X .........
Mr. McKeon............................... ........ X .........
Mr. Castle............................... ........ X .........
Mrs. Meyers.............................. ........ X .........
Mr. Johnson.............................. ........ X .........
Mr. Talent............................... ........ X .........
Mr. Greenwood............................ ........ X .........
Mr. Hutchinson........................... ........ X .........
Mr. Knollenberg.......................... ........ X .........
Mr. Riggs................................ ........ X .........
Mr. Graham............................... ........ X .........
Mr. Weldon............................... ........ X .........
Mr. Funderburk........................... ........ X .........
Mr. Souder............................... ........ X .........
Mr. McIntosh............................. ........ X .........
Mr. Norwood.............................. ........ X .........
Mr. Clay................................. X ........ .........
Mr. Miller............................... X ........ .........
Mr. Kildee............................... X ........ .........
Mr. Williams............................. X ........ .........
Mr. Martinez............................. X ........ .........
Mr. Owens................................ X ........ .........
Mr. Sawyer............................... X ........ .........
Mr. Payne................................ X ........ .........
Mrs. Mink................................ X ........ .........
Mr. Andrews.............................. X ........ .........
Mr. Reed................................. X ........ .........
Mr. Roemer............................... ........ ........ .........
Mr. Engel................................ X ........ .........
Mr. Becerra.............................. X ........ .........
Mr. Scott................................ X ........ .........
Mr. Green................................ X ........ .........
Ms. Woolsey.............................. X ........ .........
Mr. Romero-Barcelo....................... ........ ........ .........
Mr. Reynolds............................. ........ ........ .........
------------------------------
Totals............................. 16 23 .........
------------------------------------------------------------------------
Roll Call No. 3 (offered by Mrs. Mink): An amendment
relating to application of the Act in the context of union
organizing campaigns. Defeated by a vote of 18-20.
------------------------------------------------------------------------
Member Aye No Present
------------------------------------------------------------------------
Chairman Goodling........................ ........ X .........
Mr. Petri................................ ........ X .........
Mrs. Roukema............................. ........ ........ .........
Mr. Gunderson............................ ........ X .........
Mr. Fawell............................... ........ X .........
Mr. Ballenger............................ ........ X .........
Mr. Barrett.............................. ........ X .........
Mr. Cunningham........................... ........ X .........
Mr. Hoekstra............................. ........ X .........
Mr. McKeon............................... ........ X .........
Mr. Castle............................... ........ X .........
Mrs. Meyers.............................. ........ X .........
Mr. Johnson.............................. ........ ........ .........
Mr. Talent............................... ........ X .........
Mr. Greenwood............................ ........ ........ .........
Mr. Hutchinson........................... ........ X .........
Mr. Knollenberg.......................... ........ X .........
Mr. Riggs................................ ........ ........ .........
Mr. Graham............................... ........ X .........
Mr. Weldon............................... ........ X .........
Mr. Funderburk........................... ........ X .........
Mr. Souder............................... ........ X .........
Mr. McIntosh............................. ........ X .........
Mr. Norwood.............................. ........ X .........
Mr. Clay................................. X ........ .........
Mr. Miller............................... X ........ .........
Mr. Kildee............................... X ........ .........
Mr. Williams............................. X ........ .........
Mr. Martinez............................. X ........ .........
Mr. Owens................................ X ........ .........
Mr. Sawyer............................... X ........ .........
Mr. Payne................................ X ........ .........
Mrs. Mink................................ X ........ .........
Mr. Andrews.............................. X ........ .........
Mr. Reed................................. X ........ .........
Mr. Roemer............................... X ........ .........
Mr. Engel................................ X ........ .........
Mr. Becerra.............................. X ........ .........
Mr. Scott................................ X ........ .........
Mr. Green................................ X ........ .........
Ms. Woolsey.............................. X ........ .........
Mr. Romero-Barcelo....................... X ........ .........
Mr. Reynolds............................. ........ ........ .........
------------------------------
Totals............................. 18 20 .........
------------------------------------------------------------------------
Roll Call No. 4 (by Mr. Green): An amendment relating to
access of labor organizations and cease and desist orders where
violations occur. Defeated by a vote of 18-20.
------------------------------------------------------------------------
Member Aye No Present
------------------------------------------------------------------------
Chairman Goodling........................ ........ X .........
Mr. Petri................................ ........ X .........
Mrs. Roukema............................. ........ ........ .........
Mr. Gunderson............................ ........ X .........
Mr. Fawell............................... ........ X .........
Mr. Ballenger............................ ........ X .........
Mr. Barrett.............................. ........ X .........
Mr. Cunningham........................... ........ X .........
Mr. Hoekstra............................. ........ X .........
Mr. McKeon............................... ........ X .........
Mr. Castle............................... ........ X .........
Mrs. Meyers.............................. ........ X .........
Mr. Johnson.............................. ........ ........ .........
Mr. Talent............................... ........ X .........
Mr. Greenwood............................ ........ ........ .........
Mr. Hutchinson........................... ........ X .........
Mr. Knollenberg.......................... ........ X .........
Mr. Riggs................................ ........ ........ .........
Mr. Graham............................... ........ X .........
Mr. Weldon............................... ........ X .........
Mr. Funderburk........................... ........ X .........
Mr. Souder............................... ........ X .........
Mr. McIntosh............................. ........ X .........
Mr. Norwood.............................. ........ X .........
Mr. Clay................................. X ........ .........
Mr. Miller............................... X ........ .........
Mr. Kildee............................... X ........ .........
Mr. Williams............................. X ........ .........
Mr. Martinez............................. X ........ .........
Mr. Owens................................ X ........ .........
Mr. Sawyer............................... X ........ .........
Mr. Payne................................ X ........ .........
Mrs. Mink................................ X ........ .........
Mr. Andrews.............................. X ........ .........
Mr. Reed................................. X ........ .........
Mr. Roemer............................... X ........ .........
Mr. Engel................................ X ........ .........
Mr. Becerra.............................. X ........ .........
Mr. Scott................................ X ........ .........
Mr. Green................................ X ........ .........
Ms. Woolsey.............................. X ........ .........
Mr. Romero-Barcelo....................... X ........ .........
Mr. Reynolds............................. ........ ........ .........
------------------------------
Totals............................. 18 20 .........
------------------------------------------------------------------------
Roll Call No. 5 (by Mr. Petri): Motion to favorably report
the bill to the House with an amendment in the nature of a
substitute and with the recommendation that the amendment be
agreed to and that the bill as amended do pass. Passed by a
vote of 22-19.
------------------------------------------------------------------------
MEMBER Aye No Present
------------------------------------------------------------------------
Chairman Goodling........................ X ........ .........
Mr. Petri................................ X ........ .........
Mr. Roukema.............................. ........ ........ .........
Mr. Gunderson............................ X ........ .........
Mr. Fawell............................... X ........ .........
Mr. Ballenger............................ X ........ .........
Mr. Barrett.............................. X ........ .........
Mr. Cunningham........................... X ........ .........
Mr. Hoekstra............................. X ........ .........
Mr. McKeon............................... X ........ .........
Mr. Castle............................... X ........ .........
Mrs. Meyers.............................. X ........ .........
Mr. Johnson.............................. ........ ........ .........
Mr. Talent............................... X ........ .........
Mr. Greenwood............................ X ........ .........
Mr. Hutchinson........................... X ........ .........
Mr. Knollenberg.......................... X ........ .........
Mr. Riggs................................ X ........ .........
Mr. Graham............................... X ........ .........
Mr. Weldon............................... X ........ .........
Mr. Funderburk........................... X ........ .........
Mr. Souder............................... X ........ .........
Mr. McIntosh............................. X ........ .........
Mr. Norwood.............................. X ........ .........
Mr. Clay................................. ........ X .........
Mr. Miller............................... ........ X .........
Mr. Kildee............................... ........ X .........
Mr. Williams............................. ........ X .........
Mr. Martinez............................. ........ X .........
Mr. Owens................................ ........ X .........
Mr. Sawyer............................... ........ X .........
Mr. Payne................................ ........ X .........
Mrs. Mink................................ ........ X .........
Mr. Andrews.............................. ........ X .........
Mr. Reed................................. ........ X .........
Mr. Roemer............................... ........ X .........
Mr. Engel................................ ........ X .........
Mr. Becerra.............................. ........ X .........
Mr. Scott................................ ........ X .........
Mr. Green................................ ........ X .........
Ms. Woolsey.............................. ........ X .........
Mr. Romero-Barcelo....................... ........ X .........
Mr. Reynolds............................. ........ X .........
------------------------------
Totals............................. 22 19 .........
------------------------------------------------------------------------
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 8 OF THE NATIONAL LABOR RELATIONS ACT
unfair labor practices
Sec. 8. (a) It shall be an unfair labor practice for an
employer--
(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7;
(2) to dominate or interfere with the formation or
administration of any labor organization or contribute
financial or other support to it: Provided, That
subject to rules and regulations made and published by
the Board pursuant to section 6, an employer shall not
be prohibited from permitting employees to confer with
him during working hours without loss of time or
pay[;]: Provided further, That it shall not constitute
or be evidence of an unfair labor practice under this
paragraph for an employer to establish, assist,
maintain, or participate in any organization or entity
of any kind, in which employees participate, to address
matters of mutual interest, including, but not limited
to, issues of quality, productivity, efficiency, and
safety and health, and which does not have, claim, or
seek authority to be the exclusive bargaining
representative of the employees or to negotiate or
enter into collective bargaining agreements with the
employer or to amend existing collective bargaining
agreements between the employer and any labor
organization, except that in a case in which a labor
organization is the representative of such employees as
provided in section 9(a), this proviso shall not apply;
* * * * * * *
MINORITY VIEWS
introduction
The Committee majority has reported out a bill which
represents a giant step backward in an old, tried and
discredited direction.
Despite the majority's claim to the contrary, the so-called
TEAM Act has nothing to do with teamwork, with workplace
cooperation, or with empowering employees. There is nothing in
the National Labor Relations Act (NLRA) or in any decision of
the National Labor Relations Board (NLRB) which prohibits teams
or workplace cooperation and the entire point of the NLRA is to
encourage employee empowerment. Moreover, as the majority
itself states, the types of work systems the majority heralds
are in fact proliferating at a rapid pace.
In the name of ``teamwork'', H.R. 743 actually would
legalize employer domination of employee organizations and of
systems of employee representation. In other words, this bill
would legalize virtually all of the insidious practices of the
1920's and 1930's--practices which section 8(a)(2) of the NLRA
[hereinafter section 8(a)(2)] was specifically enacted to
proscribe.
Employer-controlled employee organizations are every bit as
illegitimate--and every bit as inimical to freedom of
association--as the government-controlled and party-controlled
labor organizations which only recently were overthrown in
Eastern Europe. Such employer domination is, and ought to
remain, an unfair labor practice.
the team act has nothing to do with teamwork
We wish to make clear at the outset that we fully agree
with the majority that the ``workplace of today is simply not
the same as the workplace that was prevalent in the America of
the 1930's.'' We also agree that ``this nation must prosper in
an increasingly competitive and information-driven economy
where, at every level of a company, employees must have an
understanding of, and a role in the entire business
operation.'' And we could not agree more that to deal with the
globally-competitive economy of ``the twenty-first century . .
. it is important that U.S. workplace policies reflect a new
era of labor-management relations--one that fosters
cooperation, not confrontation.'' None of this, however, in any
way justifies the bill the majority has reported.
In the 1930's, and for many years thereafter, workplaces
were organized on the principle that workers are
interchangeable parts who perform best when they check their
brains at the door of the workplace and carry out rote tasks in
a manner desired by management. As Henry Ford put it, ``the
work of an individual must be repetitive''; ``our tasks are
exceedingly monotonous . . . but then, also, many minds are
monotonous . . . many men want to earn a living without
thinking.'' \1\
\1\ Henry Ford, ``Today and Tomorrow,'' p. 160 (1926).
---------------------------------------------------------------------------
In the past few years, management in many firms has
belatedly discovered that working men--and women--do not want
to ``earn a living without thinking'', but rather want to use
their capacities fully to contribute to the success of their
employer. Management has also belatedly discovered that those
who actually do the productive work of an organization are in
the best position to decide how their work can be most
efficiently and effectively accomplished. Where management has
come to accept these truths--as in non-union companies like
Texas Instruments and unionized companies such as Xerox,
Saturn, or Corning Glass--the workplaces operate very
differently than the mass production factories of the 1930's,
to the benefit of employees and employers alike.
The TEAM Act, however, has nothing to do with these changes
in work systems, because section 8(a)(2) has nothing to say
about them. Section 8(a)(2) does not mandate command-and-
control management or any other form of management. Nor does
section 8(a)(2) in any way restrict the adoption of Deming's
system or any other system of management.
The NLRB made that clear in General Foods,\2\ decided in
1977. In General Foods the Board squarely held that work teams
which are ``administrative subdivisions,'' of an employer,
reflecting management's judgment as to ``the best way to
organize the work force to get the work done,'' \3\ do not
violate section 8(a)(2). That is true, the Board went on the
hold, even if the teams hold meetings (or ``staff
conferences'') at which individual employees raise grievances
which ``involve conditions of employment'' and even if certain
``managerial functions'' are ``delegated'' to the teams.\4\ So
long as a team does not act as ``a bargaining agent''--or so
long as any such actions on the part of the team are ``de
minimis and isolated''--section 8(a)(2) is not implicated.\5\
\2\ 231 NLRB 1232.
\3\ Id. at 1234.
\4\ Id. at 1235.
\5\ Id.
---------------------------------------------------------------------------
Significantly, since General Foods, there has not been even
a single case to reach the Board which so much as questioned
the lawfulness of teams or any other system that ``moves as
much brain work as possible to front-line employees.'' \6\
\6\ Statement of Howard Knicely, Chairman of the Labor Policy
Association (LPA) and Executive Vice President of TRW, Inc., ``Hearings
on Removing Impediments to Employee Participation/Electromation,''
before the Subcommittee on Employer-Employee Relations of the House
Economic and Educational Opportunities Committee, 104th Congress, 1st
Sess., at p. 28, (February 8, 1995).
---------------------------------------------------------------------------
It is thus hardly surprising that employee involvement has
proliferated and is now practiced by as many as 30,000
employers according to the majority's estimate, including 96
percent of large firms. Indeed, within the confines of the
current law, employee involvement, in the majority's own words,
has become ``a basic component of the modern workplace''. This
is hardly evidence that suggests a need to change the law.
Equally important, employee involvement systems are
virtually never the subject of legal challenge. Indeed,
according to a study by Professor James Rundle of Cornell
University, from 1983 to 1993 the NLRB issued a total of just
17 orders requiring an employer to disband an employer-created
employee organization under section 8(a)(2); in all but two of
these cases the organization was created either to thwart a
union organizing drive or to bypass an existing union.\7\
\7\ Rundle, ``The Debate Over the Ban on Employer-Dominated Labor
Organizations'', in Restoring the Promise of American Labor Law, p.
161, (1994).
---------------------------------------------------------------------------
As David Silberman, Director of the AFL-CIO Task Force on
Labor Law, testified before the Commission, this legislation is
truly a ``solution in search of a problem.'' \8\
\8\ Testimony of David M. Silberman, Director, AFL-CIO Task Force
on Labor Law, Hearings on S. 295. The TEAM Act: The Employee
Involvement and Worker-Management Cooperation Act, before the Senate
Committee on Labor and Human Resources, 104th Congress, 1st Sess.,
(February 9, 1995).
---------------------------------------------------------------------------
the real facts about electromation
The majority contends that the NLRB's decision in
Electromation Inc.\9\ interferes with the adoption of these
forms of employee involvement. That is simply not true: as
Professor Charles Morris has written, Electromation is a case
``more significant for its hype than its type.'' \10\
\9\ 309 NLRB No. 163 (1992), enf`d. 35 F.3d 1138 (7th Cir. 1994).
\10\ Morris, ``Deja Vu and 8(a)(2)--What's Really Being Chilled,''
(April 30, 1994).
---------------------------------------------------------------------------
Electromation involved a traditionally-run, command and
control manufacturer of electrical components. The case arose
when new management of the company decided to cut expenses by
altering attendance bonuses and denying the employees a general
wage increase. These changes were announced at an employee
Christmas party. Within two weeks, a group of employees
submitted a petition to management protesting the loss of
benefits. At approximately the same time, some employees began
circulating union authorization cards.
Faced with a restive workforce, the comapny--in an effort
to preserve control--formed five ``Action Committees.'' The
company decided the scope of each committee's jurisdiction and
selected the employee members of the committee. The company
instructed those individuals to represent their fellow
employees with respect to those issues management chose to
address. When a majority of the employees signed written
authorization designating a union to serve as the employees'
representative, the company commenced an anti-union campaign.
As part of that campaign, the company pitted its Action
Committees against the union by suspending the operations of
committees--not ``disbanding'' them as the majority claims--and
informing the employees that ``due to the Union's campaign the
Company would be unable to participate in the committee
meetings and could not continue to work with the committees
until after the election.'' (Emphasis added.) \11\
\11\ On the same day at which the company so notified the
employees, the company held a meeting, which all employees were
required to attend, to hear a speech by the company president, John
Howard. As part of the speech, Mr. Howard held up a placard with a
drawing of a graveyard and a series of tombstones bearing the names of
``deceased employers'' in the area in which Electromation was located.
An Administrative Law Judge found that ``it is easy to understand how
employees ... could think that they heard Howard make ... threats,''
but that Howard was not, in fact, guilty of violating the law.
---------------------------------------------------------------------------
The National Labor Relations Board, composed at the time of
five Members appointed by Presidents Reagan and Bush,
unanimously ruled that the employer had violated section
8(a)(2). The Board found that the ``only purpose'' of the
Action Committees was ``to address employees' disaffection
concerning conditions of employment through the creation of a
bilateral process involving employees and management'' and that
the employer had dominated that process by controlling the
jurisdiction, composition and processes of the Committees. The
Board stated that the ``employees essentially were presented
with the Hobson's choice of accepting the status quo, which
they disliked, or undertaking a bilateral `exchange of ideas'
within the framework of the Action Committees, as presented by
the [employer].''
The NLRB summarized its conclusion as follows:
In sum, this case presents a situation in which an
employer alters conditions of employment and, as a
result, is confronted with a workforce that is
discontented with its new employment environment. The
employer responds that discontent by devising and
imposing on the employees an organized committee
mechanism composed of managers and employees instructed
to ``represent'' fellow employees. The purpose of the
Action Committees was, as the record demonstrates, not
to enable management and employees to cooperate to
improve ``quality'' or ``efficiency'' but to create in
employees the impression that their disagreements with
management had been resolved bilaterally. (Emphasis
added.)
Electromation chose to appeal to the United States Court of
Appeals for the Seventh Circuit. A panel of that court
unanimously affirmed the NLRB's decision. The court explained
that under the NLRA, ``the principal distinction between an
independent labor organization and an employer-dominated
organization lies in the unfettered power of the independent
organization to determine its own actions.'' And the court had
little difficulty sustaining the NLRB's conclusion that the
Action Committees:
which were wholly created by the Employer, whose
continued existence depended upon the employers, and
whose functions are essentially determined by the
employer, lacked the independence of action and free
choice guaranteed by Section 7 [of the NLRA].
The court stressed that its ruling ``does not foreclose the
lawful use of legitimate employee participation organization,
especially those which are independent, which do not function
in a representational capacity, and which focus solely on
increasing company productivity efficiency, and quality
control.'' (Emphasis added.)
Electromation chose not to seek review of the Court of
Appeals' decision either before the full Seventh Circuit or the
United States Supreme Court.
In sum, the Electromation ruling is a narrow one which
addresses only the issue of employer-created and controlled
employee committees that consider wages and working conditions.
Electromation does not address any other form of employee
involvement. As Edward Miller, a life-long management attorney
and former Chairman of the NLRB under President Nixon has
stated, the claim that Electromation invalidated employee
involvement is a ``myth''; it ``is indeed possible to have
effective programs . . . without the necessity of any changes
in current law.'' \12\
\12\ Edward Miller, ``Myths and Reality About U.S. Labor
Relations,'' at p. 6 (testimony submitted to the Commission on the
Future of Worker-Management Relations, October 8, 1993).
---------------------------------------------------------------------------
Moreover, the facts of the case illustrate the abuses that
would be possible without section 8(a)(2). While the motivation
of the employer in Electromation in creating the ``Action
Committees'' is unclear, there is every reason to believe that
the employer did so to fend off the workers' desire for
independent representation. Certainly the company used the
committees as pawns in its anti-union campaign. And in all
events, the Action Committees were tools of the employer to
deal with employee discontent and were not an independent voice
of the employees.
The Myth of Uncertainty and the Sawyer Amendment
Because the NLRB in Electromation took pains to confine its
decision to the question before it and not to utter broad
pronouncements, in dictum, on questions that might be raised in
other cases, the decision necessarily, and appropriately, is a
careful and limited one. But the issues left open by
Electromation in no way call into question the fundamental
principle that section 8(a)(2) speaks only to employer-
dominated representation and not to methods of work
organization.
The majority, nonetheless, claim that Electromation has had
a ``chilling effect . . . on legitimate employee involvement
programming and on employers' plans to expand such programs.''
But no empirical evidence--or even anecdotal evidence--is cited
by the majority to support these claims. To the contrary, the
data indicate that in the two and one-half years since
Electromation was decided, employee involvement has continued
to grow at a healthy pace, especially in small firms. For
example, studies conducted by Professor Paul Osterman of M.I.T.
and by the Labor Policy Association (LPA) done in 1994 both
found that two-thirds of the companies with employee
involvement programs had adopted them in the preceding five
years. In the LPA study 60 percent of the small businesses with
employee involvement programs had adopted them in the preceding
three years.\13\
\13\ ``The Nature and Extent of Employee Involvement in the
American Workplace,'' Survey conducted by Aerospace Industries
Associates, Electronic Industries Association, Labor Policy
Association, National Association of Manufacturers, and Organization
Resources Counselors, Inc., August 10, 1994; Osterman, ``How Common Is
Workplace Transformation and Who Adopts It?'', 47 Industrial and Labor
Rel. Rev. 173 (1994).
---------------------------------------------------------------------------
The business community's professed fear about the
``chilling effect'' of Electromation is a recent invention--one
that post-dates the November 1994 elections. Two months before
those elections, the Labor Policy Association and National
Association of Manufacturers testified before the Dunlop
Commission on the employee involvement issue. Each organization
stated that it did not see the need for--and did not propose or
support--legislative change at that time; rather, they
advocated ``a wait and see approach.'' \14\ Just two months
later, lobbyists from these organizations and their member
companies were swarming Capitol Hill claiming that the sky was
falling and that the TEAM Act was urgently needed.
\14\ Hearing Before the Commission on the Future of Worker-
Management Relations, September 8, 1994, Tr. at 105-07.
---------------------------------------------------------------------------
In a good-faith effort to meet the professed concerns about
Electromation's supposed chilling effect, at the Committee
markup many in the minority supported a substitute offered by
Representative Sawyer (D-OH). That substitute was designed to
create safe harbors for employers genuinely concerned about
their ability to create team systems for work organization. The
Sawyer substitute would have amended section 8(a)(2) by adding
a proviso permitting three specific types of practices: self-
managed work teams, supervisor-managed work teams, and
productivity/quality teams. In each case, these teams would
have been lawful, even if they held ancillary discussion of
conditions of work directly related to the work issues before
the team.
The majority's unanimous vote against the Sawyer substitute
belies any claim that H.R. 743 is truly concerned with teamwork
or employee involvement. Rather, the teamwork rubric is simply
a convenient and innocent-sounding means for obscuring the real
purpose and real effect of this legislation.
the real purpose of the team act
If, then, the TEAM Act has nothing to do with teamwork, and
is not necessary to dispel any uncertainty about the legality
of employee involvement, why is it being pushed so
aggressively? The answer is plain: the TEAM Act's real agenda
is to permit management to ``involve'' employees in ways that
do not threaten management prerogatives.
When all is said and done, there is only one form of so-
called ``employee involvement'' that section 8(a)(2) currently
prohibits. Under the law, employers may not ``involve'' their
employees in dealing with the employer on the terms and
conditions of their employment through employee organizations
or employee representation plans which are dominated by the
employer. That prohibition has proven to be an inconvenience
for some employers who wish to create the form--but not the
substance--of joint decisionmaking by employers and employees.
Remarkably, the proponents of the TEAM Act are not claiming
that it is designed to ``empower'' workers. In testimony before
the full Committee, the LPA stated that the legislation
``enables employers to give power directly to employees.'' But
there is nothing in the current law which in any manner, shape,
or form prohibits employers from transferring ``power'' to
employees. To the contrary, in E.I. Dupont & Co.,\15\ the NLRB
expressly ruled that the Act permits employers to grant a
committee or team ``the power to decide matters for itself
rather than simply make proposals to management.''
\15\ 311 NLRB 893, 895 (1993).
---------------------------------------------------------------------------
Moreover, the very last thing that the LPA or other backers
of the TEAM Act seek is a workforce with real power--a
workforce able to deal with employers on a more-or-less equal
footing in determining the terms and conditions of their
employment. And the ultimate point of the TEAM Act is to
legalize involvement schemes that will enable management to
preserve existing hierarchies and existing power arrangements--
that is, to preserve management's unilateral control over
determining terms and conditions of employment.
the team act means the return of company unions
Despite the majority's claims to the contrary, there is
nothing new about the TEAM Act. It represents a return to the
discredited practice of company unionism.
Under the TEAM Act, management would be entirely free to
create, mold, and terminate employee organizations, at will, to
deal with wages, benefits and working conditions. For each such
employee organization or plan it chooses to create, management
would have carte blanche to select the employees'
representatives, write the organization's bylaws, determine the
organization's governing structure and operating procedures,
and establish the organization's mission and jurisdiction. The
legislation contains no conditions to assure that such
organizations are either legitimate or democratic. Rather, the
legislation gives employers unfettered power to fashion
employee organizations to the employer's own liking and to
disband such organizations if and when doing so suits the
employers' pleasure.
The only limitations that H.R. 743 would place on an
employer-dominated employee organization would be to require
such an organization to function as a non-exclusive--rather
than as an exclusive--representative and to foreclose such an
organization from negotiating binding agreements. These
conditions serve to further advance the interest of employers
by assuring that any understanding arrived at with an employer-
created organization will never be legally binding on the
employer but rather may be repudiated at the whim of the
employer.
In sum, H.R. 743 returns to employers everything that they
had prior to 1935 that enabled them to create and dominate
employee organizations. The inexorable effects will be to
encourage the return of employer-dominated employee
organizations and employee representation plans--that is, of
company unions.
The majority contends that its bill will not have such an
effect, but in order to make that claim, the majority is forced
to redefine ``company unions'' into something quite different
from what they were in fact. The majority pretends that the
company unions of the 1930's were ``sham organizations'' which
entered into sham collective bargaining agreements. That
pretense is convenient for the majority because it enables the
majority to claim that it has safeguarded against the return of
these practices by prohibiting employer-created organizations
from signing contracts.
In point of fact, however, as the noted labor historian Dr.
David Brody testified before the Committee, this is not what
company unions were all about.\16\ Indeed, a study by the
Bureau of Labor Statistics in 1935 found that the overwhelming
majority of company unions did not enter into any collective
bargaining agreements, at all. Rather, company unions, as Dr.
Brody explained, were employer-controlled systems of in-plant
representation. And that is precisely what H.R. 743 would allow
once again.
\16\ Statement of David Brody, Professor Emeritus of History,
University of California at Davis ``Hearing on H.R. 743, the Teamwork
for Employees and Managers [TEAM] Act,'' Before the Committee on
Economic and Educational Opportunities, 104th Congress, 1st Sess., at
p. 42, (May 11, 1995).
---------------------------------------------------------------------------
The majority could not be more wrong in suggesting that
Senator Wagner had intended to ban all employer-dominated
employee organizations, and that the language of the current
statute was drafted more broadly than needed to achieve Senator
Wagner's ends. Senator Wagner specifically considered a
proposal to prohibit employer-dominated, employee organizations
which ``bargain'' with an employer and specifically rejected
that proposal as too limited. Leon Keyserling, Senator Wagner's
chief aid, explained that if that proposal had been adopted,
``then most of the activity of employers in connection with the
company unions we are seeking to outlaw would fall outside the
scope of the Act.'' The very point of the Act, Keyserling
explained, is to cover employer-dominated employee
organizations ``whether they merely `adjust' or exist as a
`method of contact' or `engage in genuine collective
bargaining.' '' \17\
\17\ Memorandum of Leon Keyserling, quoted in David Brody, Section
8(a)(2) and the Origins of the Wagner Act in ``Restoring the Promise of
American Labor Law,'' p. 41 (1994).
---------------------------------------------------------------------------
Thus despite the majority's pious claims to the contrary,
this legislation is an open invitation to employers to recreate
the company unions as they existed in the 1920's and 1930's.
Former NLRB Chairman Miller puts it well: ``While I represent
management I do no kid myself. If Section 8(a)(2) were to be
repealed I have no doubt that in not too many months or years
sham company unions would again recur.'' \18\
\18\ Miller, supra n. 12, at 7.
---------------------------------------------------------------------------
Company Unions are Illegitimate and Antithetical to Freedom of
Association
There are two fundamental reasons why Congress decided to
prohibit employer-domination of employee organizations when it
enacted the National Labor Relations Act in 1935 and when it
reenacted that law, as part of the Taft-Hartley Act in 1947.
Those reasons remain just as true and powerful today.
First, employer-dominated employee organizations are
inherently illegitimate. Although employers and employees have
many interests in common, in the nature of things they have
differing interests when it comes to determining how much they
will be paid, what benefits they will receive, and what their
other terms of employment will be. Against that background,
elementary notions of representational fairness demand that the
individuals who speak for the employees should be
``independent'' of the employer in the sense that they are
accountable to, and only to, the employees they represent.
Section 8(a)(2) of the NLRA guarantees employees the right to
such an independent voice. And the NLRA contains another
provision which parallels that section and assures that
employers can pick their own representatives without union
interference.
As Senator Wagner said in 1935:
I cannot comprehend how people can rise to the
defense of a practice so contrary to American
principles as one which permits the advocates of one
party to be paid by the other. Collective bargaining
becomes a sham when the employer sits on both sides of
the table or pulls the strings behind the spokesman of
those with whom he is dealing. . . . [T]o argue that
freedom of organization for the worker must embrace the
right to select a form of organization that is not free
is a contradiction in terms.
Second, as Senator Wagner also noted, employer-dominated
employee organizations are ``one of the great obstacles to
genuine freedom of self-organization.'' It is difficult enough
under our labor laws for employees who want an independent
voice on the job to organize a union of their own, given the
depth of management opposition they face. Organizing would
become next to impossible, however, if on top of everything
else employers were permitted to offer a safe and cost-free
company union as an alternative to the risks and costs involved
in creating an independent representative.
That is why employers chose to create employer-dominated
representation systems in the 1920's and 1930's. As John Common
wrote in his seminal ``History of Labor in the United States,''
``every investigator, whether pro-employer, pro-labor, or
neutral seems to agree that the company unions have interested
a majority of the employers because of their potentialities in
combating unionism.'' \19\ And that is why Congress enacted
section 8(a)(2) of the NLRA in 1935. As Dr. Brody has written,
``abhorrence of company domination is a corollary to the
principle of freedom of association central in our labor law.''
\20\
\19\ Commons, 3 ``History of Labor in the United States'' at 354
(1935).
\20\ Testimony of David Brody before the Commission on the Future
of Worker-Management Relations, January 19, 1994, Tr. at 120.
---------------------------------------------------------------------------
While much has changed in the ensuing sixty years, the
fundamental judgments that Congress made in enacting section
8(a)(2) of the NLRA remain as valid today as they were in the
1930s. The TEAM Act ignores the lessons of history by allowing
for a return to systems of employer-dominated representation
which are illegitimate and inimical to freedom of association.
Working Men and Women Do Not Desire Employer-Dominated Representation
The majority claims that the TEAM Act would further the
desire of working men and women. The evidence on which the
majority purports to rely proves precisely the opposite.
The majority cites the Worker Representation and
Participation Survey directed by Professors Richard Freeman and
Joel Rogers and administered by Princeton Survey Research
Associates. But as Professors Freeman and Rogers have stated,
their Survey found ``that virtually all employees wanted both
cooperative relations with management and, within those
relations, a significant measure of independence and control
over how their interests are represented.'' In other words,
``American workers want both cooperation and independence in
workplace relations, and they see no necessary conflict between
the two.'' \21\
\21\ R. Freeman and J. Rogers, ``Worker Representation and
Participation Survey: Second Report of Findings'' at 4, 11 (June 1,
1995).
---------------------------------------------------------------------------
Specifically, in the Survey, only a small minority of
workers (11%) believe that management should be free to pick
the employee members of labor-management committees or to
select the leaders of employee organizations (12%). Yet that is
precisely what the TEAM Act would let management do.
Similarly, in the Survey only 17 percent of respondents
favor a system of ``involvement'' in which management makes the
final decisions; 81 percent of respondents favor a system in
which decisions are made jointly through the agreement of
employees and management. And 56 percent of workers favor the
use of outside arbitrators to resolve disagreements. Yet the
TEAM Act would institutionalize a system of management control.
Scholars Overwhelmingly Oppose the TEAM Act
Shortly before the mark-up, the Committee received a letter
from Dr. Hoyt Wheeler, the president-elect of the Industrial
Relations Research Association. That letter was signed by more
than 400 professors of labor law and industrial relations and
other neutral parties in the labor-management community. The
letter states:
The stated purposes of this bill--promotion of
legitimate employee involvement and genuine worker-
management co-operation--are vital to the national
interest. However, enactment of the TEAM Act would
frustrate the realization of these goals by encouraging
illegitimate forms of employee involvement and
discourage the legitimate expression of worker voice.
For the past sixty years, it has been the policy of
our labor law to encourage collective bargaining by
protecting the right of workers to freely associate and
select representatives of their own choosing. A
cornerstone of that policy has been the prohibition,
contained in section 8(a)(2) of the National Labor
Relations Act, on employer domination of employee
organizations and employee representation plans. That
section was central to the NLRA and was enacted because
prior to the NLRA's enactment, employer control of
employee organizations and representation plans had
been used widely and effectively to impede workers from
organizing independent labor unions.
The proposed TEAM Act would negate the original
purpose of section 8(a)(2) by permitting without
limitation a revival of the very practices against
which section 8(a)(2) was aimed. The legislation
contains no safeguards to guarantee that employer-
created representation plans function democratically
and independently of the employer. Nor is there
anything in the bill which would prevent employers from
manipulating the employer-controlled organizations in
order to thwart genuine employee voice. As a result, we
are persuaded that passage of the TEAM Act would
quickly lead to the return of the kind of employer-
dominated employee organization and employee
representation plans which existed in the 1920's and
1930's.
Employee involvement and worker-management
cooperation can and should be fostered by means which
do not further limit employees' freedom of association.
The proposed TEAM Act represents a step backwards
towards the discredited approaches of the 1920's and
1930's and away from true employee involvement and
genuine worker-management co-operation. H.R. 743 and S.
295 should not be enacted into law.
In addition, Dr. John Dunlop, former Secretary of Labor in
the Ford Administration and chairman of the Commission on the
Future of Worker-Management Relations (Dunlop Commission), has
publicly stated that the members of that Commission--including
three former Secretaries of Labor, several scholars of labor
relations, the chief executive officer of Xerox and a
representative of the small business community--unanimously
oppose enactment of H.R. 743.
Given the polarization within the labor-management
community between business and labor, the opinion of these
scholars and Commission members, who have no ax to grind, is
particularly impressive.
the team act is one-sided
In addition to being unnecessary and ill-conceived, the
TEAM Act is entirely one-sided. The bill addresses the one
complaint that employers have about the National Labor
Relations Act. But this bill--like the rest of the majority's
legislative agenda--does nothing to address the concerns or
advance the interests of employees.
The failure of the NLRA to protect workers' rights to
organize and bargain collectively is, by now, well-documented,
but that failure is of no moment to the majority. The only
issues that make it onto the majority's legislative radar
screen are those raised by the already powerful.
At the Committee mark-up, the minority offered an amendment
which simply sought to assure that workers who are illegally
discharged for attempting to organize an independent labor
organization in lieu of an employer-dominated organization
created under the TEAM Act would receive the same kind of
expedited hearing that the NLRA already provides in cases
involving secondary boycotts. Notwithstanding the majority's
claim that the right to organize is the ultimate safeguard
against employers abusing the privileges being granted to them
by the TEAM Act, the majority voted down this simple amendment
which would have effectuated that right.
The majority also voted down a modest amendment designed to
assure that employers who violate the expansive limits of the
TEAM Act--an act not easily accomplished--would be subject to
stronger remedies than merely the current law's slap on the
wrist.
Conclusion
The National Labor Relations Act is a complex law. It seeks
to foster and protect a system of labor-management relations
whereby employees, through collective activity, are able to
balance the inherently disproportionate economic power
otherwise vested in management and thereby achieve binding
contracts covering terms of employment reflecting the mutual
needs of both labor and management.
Section 8(a)(2), however, stands for a simpler, more
fundamental principle--representatives should be exclusively
responsible to those they represent. Stripped of all the
rhetoric, H.R. 743 stands for the proposition that employers
should be able to choose and control who shall speak for
employees on matters in which the interests of employers and
employees are inherently divergent and sometimes at odds.
The principle that representatives should be exclusively
responsible to those they represent is essential to the system
of labor-management relations envisioned by the National Labor
Relations. Act. More importantly, it is the bedrock principle
of republicanism, our system of government, and basic fairness.
That a party that calls itself the Republican Party should
proffer legislation that would grant to employers the right to
choose both who will represent the interests of workers and how
they will do so is not simply ironic, but tragic. To use an
analogy from American history, it is akin to saying that
allowing the British Parliament to choose which Americans would
represent the interests of American colonists (and on what
issues they would be able to speak) would have provided
adequate and sufficient representation for Americans. That such
a gross contradiction of core concepts of fairness is likely to
produce cooperation, or anything other than animosity, is no
more likely today than it was in 1776.
William (Bill) Clay.
Dale E. Kildee.
George Miller.
Major R. Owens.
Matthew G. Martinez.
Bobby Scott.
Tim Roemer.
Lynn C. Woolsey.
Gene Green.
Jack Reed.
Pat Williams.
Patsy T. Mink.
Donald M. Payne.
Tom Sawyer.
Eliot L. Engel.
Carlos A. Romero-Barcelo.
Mel Reynolds.
Xavier Becerra.