Don't Just Sit ThereGet Involved

March 1, 1995
A recent study by Princeton, New Jersey-based Princeton Survey Research Associates found a majority of U.S. workers want a stronger voice in the workplace, but not necessarily through formal union representation. Instead, of those surveyed, 63% favor joint employee-management committees to solve workplace issues.

Sounds good. But unfortunately, Section 8(a)(2) of the National Labor Relations Act prohibits companies from playing a role in encouraging any cooperative work arrangement in a non-union setting in which terms and conditions of employment are discussed. In fact, broad interpretation of the statute by the courts has created an environment in which employers often are breaking the law if non-union employees are given a voice in workplace issues.

Despite their illegality, the Labor Policy Association in Washington, D.C., estimates that more than 30,000 employee-involvement structures exist, involving more than 80% of Fortune 1000 companies. But association watchdogs say that the National Labor Relations Board and the courts show no signs of bringing Section 8(a)(2) in line with today's workplace realities. In fact, an appeals court recently upheld an NLRB ruling against Electromation, Inc., in which the company was charged with violating the NLRA for having created employee-management committees. Fourteen additional employee-involvement cases are currently pending.

Situations such as these make it imperative for HR professionals to get involved in the way labor laws work, says Ed Potter, president of the Employment Policy Foundation in Washington, D.C., and co-author of the book, "Keeping America Competitive: Employment Policy for the Twenty-first Century."

"Business always has worked off of other agendas," he says, "be it from civil rights groups or unions. Given the realities of the global marketplace, business should be pursuing an agenda to make it more competitive."

The conservative landslide in Congress last November should make this task a little easier. "The AFL-CIO was ecstatic when Clinton and the Democrats came into office two years ago," says Martin F. Payson, a labor and employment attorney with Jackson, Lewis, Schnitzler and Krupman in White Plains, New York. "They saw it as an opportunity to push forward their agenda, including such things as anti-striker replacement, OSHA reform and enforcement of EEOC and civil rights legislation. This last election has thrown their agenda out the window. In my view, labor law reform is dead for the next two years."

Still, because current members of the NLRB, which are appointed by the president, are pro-labor, unions have retained a slight advantage. "The NLRB is working to make it easier for unions to gain representation rights and collective-bargaining agreements," Potter says. Furthermore, since March 1994, the NLRB has issued more Section 10J injunctions against companies for unfair labor practice than it did in the entire decade of the 1980s, adds F. Stuart Keene, president of PTI Labor Research Inc., in Houston, Texas. By comparison, the board has issued only one 10L injunction against a union.

What all this means is that despite the pro-business Congress now in Washington, HR executives shouldn't assume everything in the labor arena will be taken care of to the benefit of private enterprise. "Business can't stand on the sidelines any longer," Potter says. "I'm not saying business should work to get rid of certain laws—like Section 8(a)(2) of the NLRA—but that it should get involved in reengineering them."

Personnel Journal, March 1995, Vol. 74, No. 3, p. 44.