Howard R. Rosenberg
In March 1993 the U.S. Secretaries of Labor and Commerce appointed a group of eleven academic, business, and labor leaders to investigate the current state of worker-management relations in the United States and formulate proposals for future improvements. The Commission on the Future of Worker-Management Relations, chaired by former Secretary of Labor John Dunlop, delivered a Fact Finding Report, dated May 1994, that provides the factual base and background for recommendations expected in a second publication this winter.
During its first year the Commission held several national hearings in Washington and regional hearings across the country, and it received scores of exhibits, letters, papers, articles, and studies that became part of its public record. Though the initial report reflects on workplaces throughout the nation's economy, its wealth of statistics and insights strike many chords familiar to an observer of agricultural operations and labor markets.
The report has four major chapters and a set of general conclusions.
Chapter I describes an economic and social environment markedly different from when the basic structure of laws regulating workplace relations was established. It summarizes the dimensions of and provides data describing the changing economy, workforce, labor market, and employee relations. Among significant trends and factors that the Commission notes are:
The overall picture is one of dramatic changes that affect the working lives of nearly all Americans and pose major challenges to worker-management relations. The Commission expresses serious concern about whether existing institutions and the web of regulations fit the needs of employers and employees.
Chapter II discusses employee participation and labor-management cooperation. It recognizes substantial growth in employee participation, which takes such various forms as quality circles, self-managed teams, safety and health committees, gain sharing plans, total quality management programs, information sharing forums, and employee ownership plans. Programs to involve workers in decision making have arisen in response to market competition pressures, technological changes, company restructuring, and needs to better utilize worker potential.
The Commission found both support and criticism of such efforts among managers and labor representatives. Where sustained and integrated with other practices, employee participation has generally improved economic performance, but it does not function well in all workplaces. Some programs are of quite limited duration, their viability thwarted by a variety of risks and obstacles. Many small firms have informal processes for employee participation that serve purposes similar to those of more structured arrangements in larger organizations.
Survey data suggest that 40 to 50 million workers would like to participate in decisions on their jobs but lack opportunity to do so. The Commission suggests four reasons why it is difficult to sustain and diffuse participation and cooperation efforts: insufficient trust; inability of employees to participate; economic pressures on employers; and government policies and legal constraints.
The Commission particularly notes that Section 8(a)(2) of the National Labor Relations Act (NLRA), which was designed to prohibit company unions, may critically impede growth of some employee involvement programs and give rise to challenges against joint worker-management committees. It suggests that consideration be given to revising or reinterpreting the NLRA to more clearly permit forms of labor-management cooperation that may be inconsistent with Section 8(a)(2). (A discussion of this issue, as applied to safety committees encouraged under other law, appeared in Labor Management Decisions, Fall 1993: "Might Your Farm Safety Committee Be a 'Labor Organization'?")
Chapter III has two parts. Part A reviews worker representation and collective bargaining under the NLRA. The Commission finds that representation elections have been highly conflictive, that the numbers of elections and certifications have diminished, that unfair reprisals against workers who organize have increased, and that a first contract is not achieved in roughly one-third of workplaces where unions win representation rights.
In Part B the Commission observes significant growth in contingent work arrangements, jobs that are not full-time and continuous with a single employer. Although various arrangements have long existed to match worker qualifications and availability with fluctuating demand for labor in certain industries, contingent work relations now encompass many more workers and take ever more forms. The term "contingent workers" includes part-time employees, some of whom are voluntarily part-time, some of whom would like full-time work, and some of whom hold multiple jobs. It also includes employees of temporary help agencies and some self-employed independent contractors. The growth of this sector poses a number of complex questions about the application and enforcement of employment laws.
Chapter IV examines employment regulation, litigation, and dispute resolution. The NLRA was the pioneering form of federal regulation of workplace relations. By the 1990s, however, a very different model of legal intervention, "employment law," has come to play a much more prominent role both on the job and in the courts. Employment laws and regulations have expanded at an especially rapid rate since 1960, creating a complex and expensive set of requirements for employers to administer.
American employees have been promised many legal rights and protections by both federal and state lawmakers. These include minimum wages, a safe and healthy workplace, security and accessibility of pensions and health benefits if they are provided, advance notice of plant closings and mass layoffs, unpaid family and medical leave, bans on wrongful dismissal, and employment opportunities and conditions unaffected by discrimination on account of race, gender, religion, age, or disability. Implementation and enforcement of these legal rights requires litigation in the ordinary courts or administrative proceedings before specialized agencies.
The United States relies on the civil court system to litigate employment disputes, while many other nations use specialized employment courts. Workplace litigation caseloads in the federal courts rose four-fold from 1971 to 1991, faster than in other areas of law. Administrative procedures for resolving employment cases are complicated by (1) the large number of agencies, enforcement regimes, and remedies available under the different statutes and (2) the varying scope of judicial review accorded agency decisions. Neither mediation and arbitration nor the newer, less formal systems of alternative dispute resolution are being used to their potential for dealing with issues that are now regulated by law.
General observations in the final chapter revisit the theme of diversity in worker-management relations across firms and industries, and emphasize the interdependence of the issues addressed in the report. The Commission concludes there is mismatch between parts of the legal framework regulating employment and the emerging workplace practices necessary for employers to be competitive and to meet workers' needs. It strongly suggests that reduction of workplace conflicts will be a primary aim of recommendations to be offered in the forthcoming second report.
Interested readers can obtain a free copy of the full report by sending a written request to the U.S. Department of Labor, 200 Constitution Avenue, N.W. - Room C2318, Washington, D.C. 20210. Members of the Commission on the Future of Worker-Management Relations are: Paul A. Allaire, Xerox Corporation; John T. Dunlop, Chair, Harvard University, and former Secretary of Labor; Douglas A. Fraser, Wayne State University, and former President, United Auto Workers; Richard B. Freeman, Harvard University, and National Bureau of Economic Research; F. Ray Marshall, University of Texas, and former Secretary of Labor; Thomas A. Kochan, Massachusetts Institute of Technology; Juanita M. Kreps, Duke University, and former Secretary of Commerce; Kathryn C. Turner, Standard Technology, Inc.; William J. Usery, Usery Associates, and former Secretary of Labor; and Paula B. Voos, University of Wisconsin.
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