Outlawing Cooperation; C. Baird

Global Competition Meets the New Deal" (Briefing Paper No. 18, February 10, 1993). programs began in the late 1970s and have grown ever since. If American firms and their employees are to succeed and prosper in today's global marketplace, many believe that this new way of doing business must continue to take root and spread throughout the American economy. But in a decision issued on December 16, 1992, involving a small Indiana electrical parts manufacturer named Electromation, Inc., the National Labor Relations Board (NLRB) ruled that labor unions may use the 1935 National Labor Relations Act (NLRA) to thwart the development of em ployee participation programs in nonunion firms. In an era of declining union member ship, unions are seeking to use the law in this way because they are desperate to enroll new members. Whatever may have been the case in the 1930s,employers today recognize that good labor-management re lations are necessary for survival. As a result, a nonunion worker is often just as well off today as a union worker-often better off, in fact, because labor unions, for their survival, frequently promote an expen sive "us-versus-them" adversarial mental ity among workers. Where good labor management relations prevail, unions have a hard time gaining a foothold. At bottom, then, the Electromation case involves an attempt by the labor union movement to frustrate nonunion labor-management coop263 264 THE FREEMAN • JULY 1993 eration. If they succeed, workers will have a voice in their workplace only if they unionize.

Indeed, at the August 1991 annual meet ing of the American Bar Association, the chairman of a session on labor and employ ment law observed that the International Association of Machinists and the Union of Electrical Workers seem to "view employee involvement programs as little more than an attempt to increase employer control over the workplace, bind employees to the suc cess of the enterprise, deflect them from interest in their own solidarity, and under mine existing union structures." That view was reflected in a recent statement to the NLRB by Anton Hajjar, an attorney for the American Postal Workers Union: "A time less evil lurks behind this new, fashionable trend called employee involvement." The timeless evil, apparently, is the "company union. " Company Unions and the NLRA Before the 1930s, many employers had organized their workers into unions in an effort to deal better with labor-management issues. Many of those so-called company unions-for example, The Industrial As sembly of the Goodyear Tire & Rubber Company-were honest and successful at tempts by employers to improve labor management relations. In 1933, however, Congress enacted the NCiltional Industrial Recovery Act (NIRA), Section 7(a)of which compelled employers to allow their employ ees to join unions if they so wanted. Since the act did not specify that the unions had to be independent of employers, many em ployers formed in-house company unions, hoping thereby to comply with the law while avoiding having to deal with independent unions. Although these company unions were often called "employee representation committees, " some did not represent the interests of employees at all. Instead, they were used by employers as smokescreens, aimed at preventing workers from affiliating with independent unions. The NLRA put an end to all company unions, legitimate and illegitimate alike.

Section 8(a)2 of the NLRA states that it is 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. . . ." What is a labor organization? Section 2(5) of the NLRA says it is "any organiza tion 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, la bor disputes, wages, rates of pay, hours of employment, or conditions of work. " The term "employee representation committee or plan" was aimed specifically at those company unions whose chief purpose was to frustrate employees who wanted to affiliate with independent unions. Electromation Background What does this have to do with Electro mation? Actually, nothing at all. Neverthe less, organized labor claims that it does.

They seem to believe that any employee participation committee whose employee members are not union members is an illegal company union. To put the issue in an actual setting, let us examine briefly the facts of the Electromation case. At an employee Christmas party on De cember 23, 1988,John Howard, president of Electromation, which was then a nonunion firm, announced that since 1988 had been a year of substantial losses for the company, annual wage increases would be canceled for 1989, and the existing attendance bonus program would be altered to reduce costs. The party was not completely ruined be cause Howard then distributed unexpected Christmas bonuses to the employees. After a holiday break during which the company was shut down, Howard received a petition signed by 68 of the 187 employees who were affected by the Christmas an nouncements. The petitioners objected to the changes in the attendance bonus pro gram and requested that management consider alternative approaches to its financial problems. Eager to maintain the good willof his employees, and recognizing that engag ing employees in dialogue was a more pro ductive form of labor-management relations than authoritarian proclamations from the top, Howard set up a joint labor-manage ment committee to discuss the issues.

The committee consisted of four manage ment people, including Howard, and eight employees selected at random. It met twice, on January 11 and January 18, and discussed several topics of concern to both sides, including attendance, tardiness, sick leave, incentive pay, overtime, wages, and bo nuses. At the second meeting the committee members agreed to set up five joint labor management "action committees," each of which would specialize in an area of con cern: absenteeism and other infractions, a no-smoking policy, communications, pay scales for premium positions, and the atten dance bonus program. On January 19 all employees were asked to volunteer for specific committees and the company selected employee members at random from each list of volunteers. No more than six employees could be on any one committee, and no employee could serve on more than one committee. Each committee would have one or two manage ment members, and the employee benefits manager would serve on every committee.

The composition of the committees and the eligibilityrules were unilaterally set by man agement. The no-smoking committee was never organized and never met. The four other cOlnmittees were organized and did meet. Although employee committee members "talked back and forth" with, and sought advice from, other employees, they were not formal representatives of the other em ployees. They did not have to get the ap proval of all the other employees, or even a majority of the other employees, to take a particular stand at the committee meetings. They were merely the means by which management sought to discover the con cerns of employees. The action committees' role was purely OUTLAWING COOPERATION 265 advisory. Howard agreed that if the com mittees came up with workable solutions he would implement them, but there was no union-like collective bargaining in the sense that all sides had to agree before any policy could be implemented.

Electromation's management was serious about supporting the work of the commit tees. All committee meetings were held on company premises, the company paid the employee members for their attendance, and the company supplied the necessary materials, including telephones. Any disin terested observer would have to conclude that here was a company that appreciated its employees, valued their good will, and hon estly sought their advice. Shortly after the action committees were formed and got underway, however, the Teamsters Union undertook an organizing campaign at Electromation. President Howard and the rest of the management team did not know about this effort to unionize the firm until February 13 when the Teamsters officially requested that Electro mation recognize it as the exclusive bargain ing agent for the company's non-managerial employees. On February 21 President Howard pulled all management members off the four committees but told the employees they could continue to meet if they wished.

The employee members of the Absentee/ Infraction and the Communication Network Committees continued to meet. The Pay Progression Committee disbanded. The At tendance Bonus Committee wrote up the proposal they had been working on and then disbanded. Electromation's action committees were clearly not what the authors of the NLRA understood to be company unions. The company was not trying to thwart an at tempt by its employees to become union ized. Indeed, after President Howard be came aware of the Teamsters' organizing drive he did all he could to step out of the way. To any disinterested observer, Elec tromation was a nonunion firm that was trying to undertake cordial, effective labor management cooperation and comply with the NLRA.

266 THE FREEMAN • JULY 1993 ElectromationLegal Dispute To begin organizing workers in a non union firm, a union must first collect signa tures of support from at least 30 percent of the workers. After it does so, the union requests recognition from the employer. If the employer balks, the next step is for the NLRB to conduct a certification election among the employees, by secret ballot, to determine whether a majority wants the union to be their exclusive bargaining agent. Such an election was held at Electromation on March 31. The Teamsters lost by a vote of 95 to 82. The Teamsters then filed an unfair labor practice charge against Electro mation, alleging that the action committees had been illegal company unions used to prevent the workers from affiliating with a legitimate union. If a complaint of an unfair labor practice is accepted by the general counsel of the NLRB, the case is first heard by an admin istrative law judge (ALJ). On April 5, 1990, the ALJ assigned to the Electromation case, George F. McInerny, announced his deci sion against the company. He set aside the results of the March 31 election and ordered the parties to hold another one. After sev eral months, a second election was held, which the Teamsters won by convincing a majority of workers that, due to the ALJ's decision, the only way they could cooperate with management was through a union.

Electromation remains today a unionized firm. When the ALl's decision was handed down, prior to the second election, Electro mation appealed it to the NLRB. Notwith standing the outcome of the second election, Electromation continued to press its appeal in order to get a ruling on the labor management cooperation issues. Before rul ing, the NLRB invited the Teamsters, Elec tromation, the NLRB general counsel, and other interested but not directly involved parties to give testimony on two questions: (1) At what point does an employee com mittee lose its protection as a communica tion device and become a labor organiza tion? (2) What conduct of an employer constitutes domination or interference with an employee committee? The NLRB took oral testimony on September 5, 1991. In addition to the three main parties, ten other parties, including the AFL-CIO and the U.S. Chamber of Commerce, gave testi mony. The case had become the most hotly contested and widely discussed NLRB case in decades. On December 16, 1992, the NLRB issued its decision upholding the ALJ opinion.

The Board determined that the action committees were' 'labor organizations" un der Section 2(5) of the NLRA because employees were involved in them and they were "dealing with" the employer on mat ters that unions usually bargain about in unionized companies. The Board found that The evidence . . . overwhelmingly dem onstrates that the purpose of the Action Committees, indeed their only purpose, was to address employees' disaffection concerning conditions of employment through the creation of a bilateral process involving employees and management in order to reach bilateral solutions on the basis of employee-initiated proposals. This is the essence of "dealing with" within the meaning of Section 2(5). In 1959, in NLRB v. Cabot Carbon Co., the U. S. Supreme Court declared that "dealing with" in Section 2(5) is not syn onymous with "bargaining with." There fore, the Board reasoned, the fact that Electromation did not engage in union-style bargaining with the committees did not mean that the committees were not labor organizations. In Cabot Carbon the com mittee in dispute dealt with "grievances,"

which are mentioned in the Section 2(5) definition of labor organization. In Electro mation the action committees dealt with attendance bonuses, pay scales, rule infrac tions, and labor-management communica tions. The first two issues obviously involve "rates of pay"; the latter two, according to the Board, involve "conditions of work. "In truth, it is hard to imagine that an employee participation plan would deal with anything but "conditions of work." Thus, according to the NLRB, all such plans run up against the proscriptions of Section 8(a)2 since all are labor organizations. Moreover, since Electromation initiated the committees and set the rules by which they would operate, it was guilty, according to the Board, of "dominating" the labor organizations in violation of Section 8(a)2. Finally, since Electromation provided the meeting places for the committees, supplied materials and telephones, and paid em ployee committee members for attendance, the Board concluded that it was guilty of "supporting" the labor organizations, again contrary to Section 8(a)2.

The NLRB admitted that there was no evidence that Electromation was acting to counteract the Teamsters' unionization drive. It also acknowledged that there were no grounds for thinking that the company had any anti-union motives for any of its actions or that the employees regarded the commit tees as union substitutes. But, the Board asserted, those points are irrelevant. Why? Section 2(5) literally requires usto inquire into the "purpose" of the employee entity at issue .... But "purpose" is different from motive; and the "purpose" to which the statute directs inquiry does not nec essarily entail subjective hostility towards unions. . . . If a purpose is to deal with an employer concerning conditions of em ployment, the Section 2(5) definition has been met regardless of whether the em ployer has created it, or fostered its cre ation, in order to avoid unionization or whether employees view that organiza tion as equivalent to a union.

Professor Charles J. Morris, who sup ported the union side in this case, asserts that' 'representation" is the key question in determining whether an employee partici pation plan is a Section 2(5) labor organiza tion. According to Morris, any nonunion worker-management cooperation is all right if each employee speaks for himself, while if a nonunion employee represents other em ployees on any committee, the committee is automatically a labor organization, subject to the prohibitions of Section 8(a)2. Yet in all OUTLAWING COOPERATION 267 but very small firms any practical employee participation plan would have to involve representation. Moreover, in nonunionized settings employers are likely to take the initiative in the formation and administra tion of such plans. The plans are motivated, after all, by the employer's concern with the bottom line. If accepted, Morris' view dooms virtually all employee participation plans in nonunion firms.

The NLRB tried to avoid condemning all nonunion employee participation plans in its Electromation decision. According to the Board, those that focus on improving "qual ity" and "efficiency" are acceptable, whereas those that deal with subjects about which unions usually bargain are not. Mem bers Devaney and Oviatt wrote separate concurring opinions in which they tried to amplify that distinction. Member Rauda baugh, in his concurring opinion, correctly pointed out that the term "conditions of work" in Section 2(5) precludes any such distinction. Raudabaugh concurred in the decision because he thinks the law, as written, makes all employee participation plans Section 2(5) labor organizations. The only way around that result, he concluded, would be for Congress to change the law. He noted, however, that it might be possible to uphold an employee participation plan, even though it is a labor organization, by a liberal inter pretation of the restrictions in Section 8(a)2.

Such was not the case in Electromation, according to Raudabaugh, because among other things the company set up the action committees in response to employee com plaints; thus, they had to be considered union substitutes. If Electromation had ini tiated the committees without any employee prodding, "to accomplish its own entrepre neurial interests," Raudabaugh would have upheld them as permissible because they would not be union substitutes. Polaroid, Too Electromation is not the only nonunion firm to have faced this problem. On June 19, 1992, the Polaroid Corporation dissolved an 268 THE FREEMAN • JULY 1993 employee participation committee that had been at the center of good labor-manage ment relations in that nonunion firm for 40 years. Polaroid took the action in response to a declaration by the U.S. Department of Labor that the committee was a labor orga nization under the NLRA. Members of the committee were elected and acted as repre sentatives of employees and, as in the Elec tromation case, the company supported the committee. Polaroid wanted to avoid the difficulties that Electromation was going through. As reported by the Bureau of National Affairs: Bill Graney, chairman of the [Polaroid] committee for the past three years, said there was "a lot of anger" among em ployees that officials in Washington made a decision based" on some archaic laws. "

The committee could only remain in ex istence if it were completely independent of management, but "what made this work was that we were all in this together." Many at Polaroid-management and employees alike-are afraid that unions may see the dissolution of the committee as an opportunity to undertake an organizing campaign. Indeed, because of the Electro mation decision, nonunion workers every where will now be faced with the Hobson's choice confronting Polaroid workers union representation or no representation at all. Congress, the Courts, and the Law Congress could of course change the law that has led to this result. In fact, in June 1991, in response to Judge McInerny's de cision, 33 Congressmen introduced a bill called the American Competitiveness Act that would have amended Section 8(a)2 by adding a statement "that nothing [in the NLRA] shall prohibit the formation or op eration of quality circles or joint production teams composed of labor and management, with or without the participation of repre sentatives of labor organizations. " The bill got nowhere in the 102nd Congress. On January 31, 1992, nine Congressmen, led by Wisconsin Representative Steve Gunder son, submitted a legal brief to the NLRB in which they asked the Board to reverse the ALJ's decision in Electromation and uphold the legality of the company's action com mittees. If the Board did not do so, the Congressmen said, they would lead a new effort in the House to amend the NLRA. On December 21, 1992, in response to the Electromation decision, Representative Gunderson announced that he would intro duce an amendment to Section 2(5) early in the 103rd Congress. His amendment would change "dealing with" to "collective bar gaining with. ' , Although the Gunderson amendment would probably settle the issue, most ob servers believe that there is little chance that any such amendment would make it through the 103rd Congress. Now that the NLRB has decided against Electromation, the only hope left for nonunion labor-management cooperation would seem to rest with the federal courts. Thus, on December 28, 1992, Electromation announced that it would ap peal the NLRB decision to the Seventh Circuit Court of Appeals.

Electromation doubtless wishes it were in the jurisdiction of the Sixth Circuit Court of Appeals, which has overturned earlier NLRB decisions against employee partici pation committees. In 1982, for example, that court upheld the legality of a represen tation committee composed of employees elected by their peers; the committee had communicated employee concerns and sug gestions to management on all manner of issues. Similarly, in 1989 the same court upheld the legality of an elected "Presi dent's Advisory Committee," which was charged with communicating employee views to management. Unfortunately, other circuit courts, including the Seventh Cir cuit, have been less hospitable to such arrangements. The Supreme Court has not taken up the issue since 1959. Today, however, the cir cumstances and issues in employee partic ipation plan cases are different from those in the 1959 Cabot Carbon case. Moreover, the composition of the Court has changed. It is impossible to predict, therefore, just how the Court will decide Electromation if the case reaches it.

At his confirmation hearings to become the new Secretary of Labor, however, Rob ert Reich was asked about the Electroma tion decision. He avoided any specifics but said that he thought the decision was narrow and should not impair labor-management cooperation. If it does have that effect, Reich said that he "will be seeking legisla tion" to remedy the situation. We can only wait to see what kind of legislation the Clinton administration will seek. For its part, Congress is not opposed to all employee participation arrangements. Sen ator Edward M. Kennedy, for example, promoted the Occupational Safety and Health Reform Act of 1992, which would have forced companies with eleven or more employees, union and nonunion alike, to create joint labor-management health and safety committees. Kennedy plans to rein troduce the bill in the 103rd Congress. And many unions support the bill even though such committees would be no different in principle from the Electromation action committees the unions so bitterly oppose.

Indeed, Peggy Taylor, associate director of the AFL-CIO's Department of Legislation, said that such health and safety committees could be on the "cutting edge" of labor management cooperation. Apparently unions do not want to be seen to be against health and safety so they are willing to give up that turf, at least in nonunion settings, in exchange for monopoly representation priv ileges on all other matters. In union settings, however, they claim monopoly representa tion privileges even on matters of health and safety, as we will next see. The ProblemExtendsto UnionizedFirms The NLRA can be used to restrict labor management cooperation even in unionized firms. On December 22, 1989, for example, an ALJ held that the Du Pont Company violated the law at its Deepwater, New OUTLAWING COOPERATION 269 Jersey, plant because it instituted, domi nated, and supported a "design team" con sisting of management and employee mem bers. On January 30, 1990, the NLRB upheld the ALJ. The job of the team was to improve workplace safety, promote innova tion, foster better communications, and make the plant more competitive. The union complained that all of this was being done without going through the union. According to the NLRB, cooperation with the union is permitted, but cooperation with workers without union involvement is not.

That was not the end, however, to Du Pont's labor-management cooperation trou bles. On May 11, 1992, another ALJ de clared that seven more committees at Du Pont's Deepwater plant functioned as illegal company unions. Six of the committees dealt with safety issues while the seventh dealt with employee physical fitness pro grams. This ALJ affirmed the finding in the earlier case: Where there is a union, labor management cooperation must be union management cooperation, even in the op eration of voluntary physical fitness programs. The Electromation case, recall, con cerned labor-management cooperation in nonunion settings. Putting the unions' posi tions in the Electromation and Du Pont cases together, we must conclude that, to them, labor-management cooperation in nonunion settings, except concerning health and safety, is always wrong; and labor management cooperation in unionized set tings must always be union-management cooperation. Quite simply, unions want to have a government-enforced monopoly on speaking for workers. In union settings they demand those monopoly privileges even in the areas of health and safety. In nonunion settings they are apparently willing to allow labor-managementcooperation on health and safety issues only, but on nothing else.

A Common Sense Approach As the NLRB was weighing the Electro mation case, Edward E. Potter, president of the Employment Policy Foundation, had 270 THE FREEMAN • JULY 1993 urged the Board to take a "common sense" approach. Since the clear intent of the authors of Sections 2(5) and 8(a)2 was to prohibit employers from resisting indepen dent unions by forming sham ones, those provisions should not be used to prohibit anything else, he argued, such as labor management cooperation that is not based on animosity toward unions. In cases like Electromation, Potter continued, the Board should take into account the intent of the employer in forming employee participation committees. If there is no anti-union intent, no violation of the NLRA should be found. Potter further argued that the Board should consider the perceptions of employees who participate in such plans. Employees are not stupid. They know when they are being conned for anti-union purposes. If employ ees do not feel they are being coerced or exploited for anti-union purposes, Potter concluded, they probably are not. The Elec tromation, Polaroid, and Du Pont employ ees involved in such committees were not being victimized by their employers, and they knew it.

Whether the intentions of the authors of a statute ought to be binding on agencies and courts that interpret it is hotly debated in legal circles. Moreover, the intentions of the authors are not always clear. The author of the main Electromation decision wrote, for example, that "the legislative history re veals that the provisions outlawing com pany dominated labor organizations were a critical part of the Wagner Act's purpose of eliminating industrial strife.... " He then went on to quote Senator Robert Wagner, the principal author of the act: Genuine collective bargaining is the only way to attain equality of bargaining power .... The greatest obstacles to collective bargaining are employer-dominated unions, which have multiplied with amaz ing rapidity since the enactment of [the National Industrial Recovery Act]. Such a union makes a sham of equal bargaining power.... [O]nlyrepresentatives who are not subservient to the employer with whom they deal can act freely in the interest of employees. For these reasons the very first step toward genuine collective bar gaining is the abolition of the employer dominated union as an agency for dealing with grievances, labor disputes, wages, rates, or hours of employment.

That passage seems to substantiate Potter's view that Sections 2(5)and 8(a)2were aimed at sham unions used to thwart the desires of employees to unionize, not at labor-man agement cooperation in nonunion settings. Yet the author of the main Electromation decision thought the passage justified the Board's conclusion that the term "labor organization" should be interpreted broadly to include more thanjust sham unions. In his view, the statute was written broadly to include anything any employer could think of. Ironically, in reading Wagner's intent to prohibit sham unions as entailing a prohibi tion of any nonunion labor-management cooperation, the Board has ensured an ad versarial relation between labor and man agement and so has undermined the larger aim of the act-the elimination of industrial strife. In his opinion concurring in the judgment, Dennis Devaney took issue with the Board's main decision on the question of legislative intent: [T]he definition of "labor organization"

[in Section 2(5)]is intended to bring under the purview of Section 8(a)2's strictures the phenomenon of the company-imposed sham bargaining agent, without reference to other types of employer-employee communication with purposes other than bargaining. Devaney concurred in the judgment against Electromation because, as he read the record, the company did, through the action committees, engage in bargaining on terms and conditions of employment. Despite the NLRB' s sweeping prohibi tion of nonunion labor-management coop eration, other federal legislation implies that the federal government enthusiastically sup ports such cooperation in all firms, whether they are unionized or not. Indeed, a Bureau OUTLAWING COOPERATION 271 When the state degenerates from the defender of personal freedom to the dispenser of special privilege, it carries with it into corruption the once proud and independent voluntary associations. It destroys the healthy, pluralistic society, the society in which multitudes of private and voluntary associations strive in a peaceful and competitive way to improve the positions of their members.

-Sylvester Petro, "The Perversion of Pluralism" of Labor-Management Relations and Coop eration has been created in the U.S. Depart ment of Labor. Its official purpose is "to promote cooperative labor-management ef forts and enhance the quality of working life, while improving the productivity and com petitiveness of American industry." Another example is the Malcolm Baldrige National Quality Improvement Act of 1987. Under this law the Department of Com merce gives Malcolm Baldrige National Quality Awards to companies that have devised and implemented outstanding qual ity management systems based on employee involvement. It is not a little ironic that in its Electromation decision the NLRB has come out against nonunion labor-management cooperation and, by implication, that it penalizes many of the very plans that the Malcolm Baldrige Award is designed to honor. Free Choice? After the Electromation decision came down, the AFL-CIO issued a statement praising the Board for "guaranteeing em ployees the right to choose their own rep resentatives." That view was echoed by Charles J. Morris: Employers who really believe in the right of workers to exercise a free and demo cratic choice in the selection or rejection of their representative will applaud the board's decision for it upholds the prin ciple of free choice. The Board in Electro mation is simply sayingas the Act requires, that employees ought not to be coerced in their choice of representation by either a labor union or by their own employer.

However genuine this concern for free choice, the Electromation decision hardly respects such a choice. For even if we assume that workers should be prohibited from dealing directly with their employer when a majority among them want to have a union, as the NLRA requires, the Team sters lost the initial certification election when a majority of the employees voted to handle labor-management issues without a union. The union could not accept that outcome, however, and so fileda complaint. Armed then with the ALJ' s broad reading of the NLRA, the union convinced a majority of Electromation' s workers that their con cerns could be addressed only through a union. Thus was the' 'free choice" of Elec tromation's workers-majority and minor ity alike-respected. Conclusion It is impossible to say for all time what the best and most effective forms of labor management cooperation are, other than to say that that determination should be left to the parties themselves to make. Those forms that seem best today may not be best tomor row. The discovery of what works, and what works better, is an ongoing process. That process is stifled, however, when labor management cooperation is forced into the one-size-fits-allstrait jacket of NLRA union ism. When that happens, both business and labor pay the price, as history amply demon strates. The global marketplace cannot be resisted. It is here and growing. If we do not change our ways of doing business to meet this new reality, we will all pay the price. As in so much else, freedom is not only right but efficient as well. It is the foundation for prosperity in our changing world. D THEFREEMAN IDEASON LIBERTY STORE SETS by David Montague I 'm a r~tail merchandiser. I fight for shelf space In grocery stores.