Employers and unions are also grappling with the question of how to deal with employee participation programs. A UPS program is typical. Under this program, hourly employees in self directed teams establish priorities on how to do their jobs. UPS argues that employee involvement and teamwork can produce higher productivity. The Teamsters union (which represents the company’s drivers and other hourly workers) is suspicious that the program is merely a tactic for subverting the union’s influence on its members.
To understand the problem, it’s useful to know that one goal of the National Labor Relations Act was to outlaw unions. Two years before passage of the NLRA, the National Recovery Act (1933) tried to give employees the right to organize and to bargain collectively. This triggered an increase in unions that were actually company supported organization aimed at keeping legitimate unions out. This helped lead to passage of the National Labor Relations Act.
The problem is that, because of how the courts often interpret the NLRA, courts might view participative programs like UPS’s as sham unions. After all, the NLRA defines a labor organization.
Any organization of any kind, or any agency or employee representatives 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.
Whether a court views an employer’s participation program as impermissible revolves around two main criteria. One is dominance. For example, if the employer formulates the idea for the committees, creates them, controls the development of their constitution or governing rules, or maintains control over the committee functions, they could be viewed as unfairly dominated by the employer. Second is the program’s actual role. If the committees focus just on issues such as quality and productivity improvement, courts are more likely to view them as outside the scope of the National Labor Relations Act. Being involved in union type matters such as wages, working conditions, and hours of work may be more questionable. For example, the NLRB recently ruled that one company had let its worker committees essentially supervise themselves (within certain parameters),and that because the plant manager rarely overruled the committees, it cannot be doubted that each committee exercises as a group that in the traditional plant setting would be considered to be supervisory. The court hearing this case therefore found that because each of the 87 committees had final decision making authority and because the committees limited their activities to job related matters such as deciding how to do their jobs, the committee structure did not violate labor law.
For now, employers can take these steps to avoid having their employee participation programs viewed as sham unions:
1. Involve employees in the formation of these programs to the greatest extent practical.
2. Continually emphasize to employees that the committees exist for the exclusive purpose of addressing issues such as quality and productivity. They are not intended as vehicles for dealing with management on mandatory bargaining type items such as pay and working conditions.
3. Don’t try to establish such committees at the same time non organizing activities are beginning in your facility.
4. Fill the committees with volunteers rather than elected employee representatives, and rotate membership to ensure broad employee participation.
5. Minimize your participation in the committees’ day-to-day activities, to avoid unlawful interference or, worse, the perception of domination.