Work teams and unions: keeping employee involvement legal.

The NLRB approaches the issue of union domination in a relatively structured manner by reviewing whether the employer contributes space, time, resources, and its own energies and efforts to the "dealing with" process. Management must not create the committee, select members, or place management members in a group to control, review, or manipulate group decisions. Employee involvement groups need to be independent of management control and support. They should not function in a representational capacity, but instead seek to use their personal knowledge only within the group. The NLRB has stated that it supports the growth of employee groups designed to increase company productivity, efficiency, and quality control. Purely social or educational groups are permissible, as long as they do not engage in a bilateral exchange with the employer or develop a pattern and practice of making proposals regarding working conditions.

A committee created by an employer made up of employees who are empowered to make decisions and take action would be deemed a labor organization, which cannot be dominated by the employer. Self-directed work teams would fall under this description. Teams with complete decision-making authority and the power to take action on the decisions they make without management approval or review would not be considered an unlawful labor organization. Management veto power over these groups, however, implies company domination. Thus, organizations are advised to structure committees with a majority-rule approach in which employee members outnumber management members, so management can never overrule the employee group decisions. Management must be willing to accept all group decisions, even the unpopular ones. (As an interesting twist, in a number of cases involving private colleges and universities in the 1980s beginning with Yeshiva, the courts have ruled that faculty committees that have similar or even less authority compared to autonomous work teams, were declared to be managerial employees and not subject to the NLRA. This argument has not been applied to work teams, but it would suggest that with enough empowerment, employees who collectively make decisions in a committee setting may be classified as managerial. In that case, the illegal company union argument would be moot.)

In conclusion, organizations forming employee involvement groups need to decide what level of employee involvement they are comfortable with initiating. The spectrum ranges from information gathering, in the form of brainstorming or just employees sharing a whole host of ideas and suggestion with no response from management, to committees to discuss permissible subjects, like productivity, efficiency, and quality, within the limits of the law, to the ultimate employee involvement program in the form of fully empowered self-directed work teams. This level of independent employee participation requires a high level of trust between labor and management. In any event, employees should be fully trained to understand the boundaries of permissible group interaction.

Newly started employee involvement groups will be suspect when a union organization drive has been initiated or is rumored to be initiated and will likely lead to the filing of ULP charges if the union drive fails. While the Board ruled that anti-union animus does not necessarily prove company domination, the reason the group was started at that time will lead to a more thorough investigation.

Under the current legislation, organizations are well advised to seek legal counsel before implementing employee involvement in their workplaces. Court rulings and case decisions continue to interpret the law shedding more and more light on how these implementations can be done within a legal framework. The numbers of challenged employee involvement programs remain relatively small, and the potential benefits of a successful program to the employer seem much greater than the risks. Proceed with caution, but, without question, proceed.

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Steven L. Thomas, Ph.D. (slt600f@smsu.edu) is an Associate Professor in the Department of Management at Southwest Missouri State University in Springfield Missouri.

Judy Best is the Vice President of Manufacturing Support at Universal Systems House.