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Might Your Farm Safety Committee Be a "Labor Organization"?

Valerie J. Horwitz and Howard R. Rosenberg

Although farms have long been among the most dangerous of workplaces, managers of farm labor today are finding more reasons than ever to do something about it. Skyrocketing, experience-rated workers' compensation premiums as well as laws that mandate effort to prevent injury and illness have especially raised safety consciousness within the agricultural community. A recommended element of programs designed to improve safety in operations, however, may introduce unwitting employers to risks in quite another realm.

Safety Committees

Part of many injury prevention programs is a safety committee. In 1990, California Senate Bill 198, requiring all employers to establish and document an Injury and Illness Prevention Program, added to the need for communicating with employees about safety. The California Labor Code [Cal Labor Code sec. 6401.7, as amended by S.B.198.] now specifically states that a joint employer-employee safety committee can be instrumental in meeting the obligation to communicate, and it even outlines the duties of such a committee. It also enables the Department of Industrial Relations (DIR) to adopt procedures for nonunion employers to select employee representatives to the committee. A related area of state law authorizes DIR to require certain employers in high-hazard industries to establish joint labor-management health and safety committees, in order to help control workers' compensation costs. [Cal. Labor Code sec. 6314.1]

The workplace safety committee (SC) is by no means a new invention. Cooperative management-employee groups have existed in unionized and nonunion companies for decades, and worker safety has been a common if not the central focus for them. [Various types of cooperative efforts that involve joint committees are discussed in Michael H. Schuster, Union-Management Cooperative: Structure-Process-Impact , The W. E. Upjohn Institute, 1984.] Currently, as in the past, safety committees serve in many firms as two-way communication devices, both disseminating company policies and developing plans for additional policy or procedures in the interest of safety.

While safety committees are generally formed with the aim of reducing workplace accidents and occupational illnesses, they may also yield ancillary benefits in morale, workforce stability, insurance loss control, and avoidance of facility down time. The best of safety committees in industry naturally evolve into forums for constructive discourse on an array of topics-such as the flow of work, capital expenditures, and equipment maintenance-that affect various dimensions of worklife, product quality, and operational cost. The worst, however, waste time, money, and morale after building up employee expectations that get dashed by management inaction on ideas duly rendered by the committee.

State and federal laws that require or encourage safety committees imply to employers that they are a good thing, even though beneficial results from them are by no means assured. And court decisions in recent cases reveal another, potentially steep, downside to SCs. They strongly suggest that existing public policies that promote formation of these committees may conflict with others that ensure employee rights to organize. With the best of intentions, an employer who establishes an SC may be creating and illegally dominating a labor organization.

The Makings of a Labor Organization

At what point does an employer-employee safety committee lose its status as a communication device and become a labor organization? This question has been visited several times in the past year by the National Labor Relations Board (the Board), and employers are likely to find the results confusing, if not alarming.

A group may meet the legal definition of labor organization even if it has no formal structure, elected officers, constitution, bylaws, regular meetings, initiation fees, or dues. [Electromation, Inc., and International Brotherhood of Teamsters, Local Union No. 1049, AFL-CIO, 309 NLRB No. 163 (1992)] Following almost identical language of the National Labor Relations Act (NLRA), the California Agricultural Labor Relations Act (ALRA) states that a labor organization is ". . . any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists, in whole or in part, for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work for agricultural employees." In deciding whether an entity is a labor organization, the national Board has been specifically considering two key standards drawn from this definition: (1) "dealing with" and (2) "employee representation."

"Dealing with" is the exercise of any bilateral mechanism in which a group of employees, over time, makes proposals to management and management responds. It thus includes, but is not limited to, collective bargaining, wherein workers and managers seek to compromise on their differences and put the results into a written contract. A pattern or practice of back and forth communication about proposals establishes the element of dealing; an ad hoc proposal and response, however, do not. A group that exists only for the purpose of brainstorming and makes no proposals is not dealing and is therefore not a labor organization. Nor is a group that merely provides information to the employer, or one that is used in connection with a suggestion box system.

The Board draws a clear line on this issue in a case involving the DuPont company, in which employer representatives and employees both sat on a committee, and any proposal made by the committee had to be by consensus. The Board stated:

[W]here management members of the committee discuss proposals with employee members and have the power to reject any proposal, we find there is "dealing." The mere presence of management members on a committee would not necessarily result in a finding that the committee deals with the employer. For example, there would be no "dealing with" management if the committee were governed by majority decision-making, management representatives were in the minority, and the committee had the power to decide matters for itself, [or] if management representatives participated on the committee as observers or facilitators without the right to vote on committee proposals. If a committee exists for the sole purpose of imparting information, [or] planning educational programs there would be no dealing.

The second key attribute of a labor organization is that it is designed or perceived to be representative of non-member employees. The Board has found employee representation to exist when employees felt they could use the members of the committee as a liaison with management, or management regarded the views expressed by committee members as representative of non-member employees.

In one case, an employer wrote and handed out to committee members a summary of committee meeting discussion, and then encouraged them to discuss it with other employees in order to "benefit from their thoughts and ideas." [Salt Lake Division, A Division of Waste Management of Utah, Inc. and International Brotherhood of Teamsters, Local No. 222 AFL-CIO, 310 NLRB No. 149 (1993)] This clearly reflected management's attitude that the committee represented the other employees. In another case where the element of representation was found, employee committee members had made continual efforts on behalf of the whole workforce to increase safety incentive bonuses, and they even sent a message through electronic mail inviting co-workers to contact the committee about any safety situation. [E.I. DuPont de Nemours & Co., 311 NLRB No. 88 (1993). This was especially gregarious, as there was already a collective bargaining agreement in effect, and employees were being discouraged from going to the union with safety concerns]

In contrast, representation was not found to exist in a situation where the employer held a safety conference at which it sought suggestions and ideas from the employees, but did not respond directly to proposals. In announcing the conference, the employer had informed employees that 30 volunteers would attend the first meeting, and that another safety conference would be held in the near future for all employees. Neither session was to be representational in nature. In its decision, the Board referred to "committees of the whole," suggesting that if every person in the workforce is involved directly, no one is being "represented." [DuPont, supra]

Employer Domination

If a safety committee is legally a labor organization, the employer's relationship with it is specially constrained by law. The NLRA and the ALRA expressly prohibit employers from dominating or interfering with the formation of any labor organization or contributing financial or other support to it. They make it unlawful for employers to create, administer, and essentially determine the structure, function, or survival of a labor organization.

The very illegality of an employer dominating a unit within its own organization may seem curious, especially in workplaces where joint safety committees are more effective than unions could be in actually providing for employee safety. But existing law still follows the orientation of Senator Wagner, author of the original NLRA, who stated that, "Genuine collective bargaining is the only way to attain equality of bargaining power....The greatest obstacles to collective bargaining are employer-dominated unions. Such a union makes a sham of equal bargaining power....Only representatives who are not subservient to the employer with whom they deal can act freely in the interest of employees."[Legislative History of the National Labor Relations Act of 1935, 15-16 (GPO 1949)]

Existence of domination is determined by the totality of circumstances under which a committee operates, not by any single act or omission. A violation may be found regardless of whether the employer shows animosity toward unions or has a specific motive to interfere with workers' rights. While not at all necessary to a finding of unlawful domination, the presence of a union representing employees can easily factor into it.

In the DuPont case, the Board saw a strong anti-union sentiment in the actions of management. Employees had been represented by a union at the time of the violation. The company formed six safety committees and one fitness committee over a 30-month period, during which the union took increasing interest in employee safety. Toward the end of this time, the union unsuccessfully proposed the establishment of a joint management-labor safety committee to discuss or bargain all health and safety issues, to investigate injuries and accidents, and to determine how to avoid future mishaps. DuPont rejected the proposal and failed to make any counter offer on the idea of a joint safety committee.

In the meantime, management allowed the committees it had formed to handle not only matters clearly within the scope of mandatory collective bargaining but also other issues that the union was already working to resolve. Almost every committee established cash incentive awards for safe practices. One committee secured $10,000 from the employer to sponsor events for employees. Another arranged for improvements in handling welders' protective clothing, and it got a new, better ventilated welding shop created after the employer had denied the union's repeated attempts to achieve the same end.

The company had initiated all seven committees, provided the meeting places, equipment, and supplies, and paid all expenses of the committees. Members of management participated in all of them. Management decided from what departments to invite employees, and it chose from among those willing to serve. Employees received their regular wages for time spent in the meetings, and their terms of service were indefinite. Use of electronic mail was permitted to distribute committee literature and notices, but not for any union literature or notices. The committees could have been changed or abolished at any time at the will of the employer.

Based on these facts, the Board held that the committees were labor organizations unlawfully dominated by the employer. By dealing directly with the committees, bypassing the union that was certified to represent workers, the company violated the employees' right to representation of their own choosing. DuPont was ordered to completely disband the seven committees and meet any union request to bargain over plant safety and fitness facilities. The union was also given the power to have rescinded the safety awards program that the company had implemented without bargaining.

In the case of Waste Management of Utah, no union was certified when the employer formed its joint committees, but one had filed for a representation election. The general manager presided over six meetings to solicit participation in one of three employee committees he was creating, to deal respectively with Routing and Productivity, Safety, and Benefits. While he said that the purpose was to get input from which to correct some past mistakes, the timing of his committee formation effort, two months after the filing for election, was later found to be specifically in response to the union organizing campaign.

In their first month, the committees met and proposed a safety bonus program, an attendance bonus program, a new vacation and holiday policy, and accident and injury review guidelines. A manager then told employees that these proposed programs would be put into effect without any union involvement, and that they might be lost if the union was voted in. These remarks were later construed as an unlawful inducement to reject the union. The union was indeed defeated, and it subsequently filed objection to the election. Shortly afterward, the general manager announced that the programs formulated by the committees could not be put into effect, due to union objections to the election. He urged those employees with "pull" to try to get the union to drop its objections.

The Board found that management had made unlawful promises, intimidated employees, and unfairly influenced the election. It required the employer to disband the Safety and Benefits Committees, to recognize the union, and to reinstate any or all of the committees' programs that had been retracted because of objections to the election. In addition, the employer was ordered to pay employees, with interest, the monetary equivalent of any loss occasioned by those retractions.

In a third case, Electromation, the unlawful domination took place before any union was even known to be organizing for a representation campaign. The employer had been experiencing serious employee relations problems. Convinced that unilateral management action was not about to rectify the situation, the company president decided to involve employees in developing solutions through "action committees." Employee sign-up sheets were posted, and committees began to meet shortly thereafter. The employer and participating employees regarded the committees as representative of the entire workforce.

When a union subsequently made a demand for recognition, the president informed the committee coordinator, who in turn told committee members that management could no longer participate, but that the employees could continue to meet if they wanted. After another month, the president told employees that because of the union's campaign, the company would not be able to either participate in any committee meetings or to otherwise work with the groups until after the election, which was to be held within two weeks.

Specifically basing its decision in this case on events prior to the union's presence, the Board held that the formation and management of the committees had been an unfair labor practice. The subject matter and representational nature of these committees were important factors in the ruling. Three of the five committees focused on subjects of mandatory collective bargaining in unionized settings (absenteeism/infractions, pay progression, and attendance bonus), and all the committees were viewed as representing employees who were not on any committee. The company had dominated and assisted them by organizing them, creating their nature and structure, and determining their functions. While committee discussions were not regularly dominated by management, the meetings took place on company property, supplies and materials were provided by management, and members were paid for time spent on committee work.

Outside and Inside the Limits

Labor relations laws are not intended to present obstacles for employers wishing to implement employee involvement mechanisms that do not impair the right to freely choose a bargaining representative. [Electromation, supra., Member Delaney's concurrence] In the Electromation ruling, the Board stated that paying employees for their committee meeting time, and providing supplies and meeting space is not a violation unless such assistance is in furtherance of employer domination. In several other instances the Board has explicitly held joint management-employee committees to be perfectly lawful in formation and administration. [Summarized in Board Member Delaney's concurring opinion in Electromation, supra]

In General Foods, the Board found that employee teams created as part of a job enrichment plan were not labor organizations. [General Foods, 232 NLRB No. 1232 (1977)] Each team, acting by consensus, assigned job rotations and scheduled overtime for its own members. Every non-management employee was on a team. The teams' authority derived not from "dealing" with the employer, but from being delegated goal-setting and self-regulation responsibility, like any other job duty.

In John Ascuaga's Nugget, the Board held that an "Employee Council" initiated by the employer to resolve employee grievances and consisting of both management and non-management employees, was not a labor organization. [John Ascuaga's Nugget, 230 NLRB No. 275 (1977)] The Board found that the council did not "deal with" the employer by acting as the employees' advocate. Instead, the council performed a managerial function of adjudicating employee grievances. The committee decided by majority rule, management was in the minority on the committee, and the decisions of the committee were final and binding, not proposals to management.

In Mercy-Memorial Hospital, a similar grievance committee involving employees and managers was found to not be a labor organization, because the committee was created simply to give employees a voice in resolving the grievances of fellow employees, not to present, discuss, or negotiate with management. [Mercy-Memorial Hospital, 231 NLRB No. 1108 (1977)] The committee by itself decided the validity of each complaint brought by employees.

Finally, in Sears Roebuck & Co., the Board held that a communications committee formed by management was not a labor organization, even though it discussed matters relating to wages and benefits. [Sears Roebuck & Co., 274 NLRB No. 230 (1985)] The committee had been clearly designed as a management tool to increase company efficiency, rather than as an employee representative or advocacy body. Management presented issues and questions to the committee, and the committee responded. The most significant factor in this case was the member selection structure. The committee was composed of one employee from each department; through a rotation system, every employee had a chance to attend two committee meetings. Thus, the entire workforce could participate directly, and the committee was not representational.

Implications for Farm Safety Committees

Employers who want to utilize safety committees without running afoul of the NLRA or ALRA are well advised to consider the principles shown in these recent Board decisions. There is no one specific thing for employers to do or avoid doing to make its relationship with joint committees surely lawful. The intent to intimidate employees or illegally dominate a worker organization is not necessary to the effect of actually doing so. But safety committees generally do not expose the employer to risk of unlawful domination if they do not "deal with" management, do not represent the workforce to management, or are able to exist, make decisions, and take actions without management control.

An employer whose safety committee is found to be a dominated labor organization may be required to disband it, and in some circumstances even to recognize a union that lost representation rights because of such a committee. Furthermore, if a safety committee is disbanded on this basis, and it has helped create some type of bonus package related to safety, the employer may have to honor the terms of the plan and pay its prescribed benefits to employees anyway.

What are the chances that any agricultural employers in California will be found unlawfully dominating labor organizations that they thought were safety committees? Farms are not covered by the NLRA, under which the cases cited here were decided, but the state ALRA was designed to provide agricultural workers with protection comparable to that of the national law. [Cal. Labor Code sec. 1140 et.seq.] Additionally, the ALRA itself directs the ALR Board to follow applicable precedents of the NLRB, and state courts are bound by precedent to look at administrative and judicial interpretations of the NLRA as guidelines for the appropriate interpretations of the ALRA. [Pasillas v. ALRB (1984, 1st Dist.) 156 Cal. App. 3d 312]

It may not be likely but remains possible for a farm employer to be charged with illegal labor relations through the operation of its own safety committee. The three outlaw cases reviewed in this discussion had unions in or around them, and few farms in California currently do. The Electromation ruling, however, carries a distinct message that employer domination of a labor organization does not depend on the presence of a union.

Legislation or judicial decisions that resolve conflicts between legally requiring safety committees and prohibiting employers from dominating them is overdue. Meanwhile, farm managers who use safety committees ought to be mindful of the recent case findings.

 

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