Work teams and unions: keeping employee involvement legal.

In a case involving Polaroid Corporation, an employee committee made up of employees and management, and funded by management, was created as an employee voice on pay and working conditions and to handle grievances. After the determination that the committee was a labor organization, management decided to replace it with a newly formed committee in which employees could influence decisions on company-wide pay, benefits, and personnel policy. Management believed the new group would be legal because it did not develop collective recommendations. However, in 1994, the NLRB determined that Polaroid's new group was also an employer dominated labor organization based on the way officers in the committee were elected. The new council had been carefully selected to represent all groups, but members were still chosen by management. An additional problem was that committee members, although advised that they did not "represent" other employees, sought to collect the view of other workers and resolve problems as a group, by presenting solutions to management.

In a 1995 NLRB decision in Keeler Brass Automotive the NLRB, in finding the employer illegally supported an employee committee admitted the difficulty of the issue declaring that the difference between unlawful domination and permissible cooperation is often one of degree, and that the distinction is difficult to make. In the Magen Medical case, the NLRB ruled that a committee was illegal where an employer had heavy involvement in the formation of the committee, but then completely abandoned the role, allowing employees to established their committee as they saw fit. The committee would otherwise be a legitimate organization.

In another case, EFCO Corporation, management in a non-union work environment put out a notice asking for volunteers to serve on newly forming committees. The initial goals were to have representation from every area of their plant. The Human Resource Department selected the members for the first committee, and then turned over further selection of committee members and the succession of committee members to the committee. No one from management was permitted to attend committee meetings unless they were specifically invited. The goal of these committees, according to the EFCO president, was establishment of self-directed work teams on the production floor and employee committees empowered to share management decision making authority" with management divorced from the committees. However, the NLRB ruled that four of the EFCO committees were unlawfully dominated and assisted by the Company. None of those committees demonstrated shared management decision making or codetermination of company operations by the workforce because EFCO's Safety Directory had continued to set the agendas for the meetings, and the committees had never exercised any real authority to enact policies.

Thus, where the employees either initiate the organization of employee committees and suggest their functional and operational structure, or where the employer merely suggests the establishment of such committees, but the employees are free to devise their own operational construct, determine the subjects to be treated, select their own members, schedule and hold their own meetings without the presence of management and formulate their own proposals, the desired employee participation may be achieved without transgressing Section 8(a)(2).

The committees at Dillon Store met quarterly with representatives of their employer for a question and answer session, after which the employer posted a written summary of the questions and responses. The NLRB administrative law judge noted that communication was the primary purpose of the committee and that the response to questions asked could often simply be found in an employee policy or handbook. The NLRB affirmed those findings that "some communications are dealings," however, and that these communications involved "bilateral" activity. Since the employer participated in the formation and administration of the committee, including paying employees for meeting times, the committee was held to be an employer-dominated organization and was ordered disbanded.

In the Keeler Brass case, the NLRB ruled that the company had dominated the committee by selecting its setting eligibility rules for members and approving the candidates. The company also conducted the election, counting ballots and soliciting employees to vote for particular committee members.

In DuPont, the Board considered other unfair labor practice that can occur when a company established an employee involvement program where the employees are already represented by a union. In cases such as this, the union is recognized legally as the exclusive representative of all the employees. Under Section 8(a)(5), it is a violation for the company to deal directly with its employees, bypassing the legally recognized employee representative, the union. Even unilateral proposals or changes cannot be implemented without bargaining with the union. The Board held that the employer's actions attempted to bypass the union, by implementing committee proposals without allowing the union an opportunity to bargain for them. The Board ordered the employer to cease and desist these illegal activities and disestablish the committees.

From all these case decisions, no "bright line" test distinguishes whether the employer's influence over a group is extensive enough to constitute domination. The NLRB does, however, seem to consider several factors:

1. The relationship of the employer to the committee following the initial establishment of the committee;

2. The nature of the collective bargaining negotiations between parties;

3. What control, if any, the employer had over the commit tee membership;

4. Whether the committee had a constitution and bylaws;

5. The nature and place of committee meetings;

6. Whether the employees were compensated for their time and attendance at such meetings; and

7. Whether supervisory personnel attended such meetings and, if so, what part they played.

In general, the more severe the employer's actions in dominating the group, they greater the likelihood of sustaining an unfair labor practice charge. Penalties can range from simply stopping any unlawful influence the employer may be exerting over the employee group to completely disbanding the group.

Employment Involvement Programs Implemented

These various case decisions and court rulings clearly suggest that employee involvement programs formed to deal with the employer concerning conditions of work, grievances, rates of pay, or hours of employment, in which the employer dominates, interferes, and/or supports the employee involvement program create legal problems for employers. The current law seems to support two different models for employee involvement programs in workplace decisions, with the difference based on whether the employer is unionized or not. The union model permits discussion of both work organization issues and the terms and conditions of employment, while the non union model permits discussion of work organization issues, like productivity, quality, and efficiency.

Unionized workplaces simply need to first seek the support and cooperation of all recognized unions in their organization before implementing employee participation programs. The chances of achieving the benefits of a successfully implemented program increase with the

full support of the union. With union representation within the employee involvement program, employees are likely to more fully participate in the program, trusting that their rights are protected while they are working on the company's behalf to solve business problems. Unions are unlikely to charge employers with unfair labor practices for including them fully in the planning and implementation of these programs. In no event can a company use employee involvement programs to avoid dealing with a union.

Within the non-union workplace, discussions on issues normally reserved for collective bargaining such as wages, hours, and other terms and conditions of employment put the employer at risk. Although the NLRB encourages groups formed to discuss productivity, efficiency, and quality, it may be difficult to prevent employee committees from moving back to the forbidden subjects. For example, one of the distinct goals of any TQM effort is developing cost-savings measures. As companies attempt to implement cost-cutting measures, it becomes difficult to avoid issues regarding absenteeism and monetary incentives, clearly an area protected for union negotiation. The NLRB recognizes that distinguishing between a lawful employee participation program and a statutory labor organization is not easy because it may be difficult to separate issues of operations and efficiency from those issues defining a labor organization.

Courts and the NLRB have established some clear boundaries where employee involvement programs are acceptable. Current law allows employers to:

1. Set up "suggestion box" procedures and set up groups of employees for "brainstorming" or sharing information.

2. Deal directly with non-union employees individually about all terms and conditions of employment.

3. Hold staff meetings about issues of quality or customer care.

4. Set up a method of production delegating significant managerial responsibilities to employee work teams.