Tuesday, February 19, 2013
Orly Lobel (San Diego) and Anne Lofaso (West Virginia) have just posted on SSRN their chapter Systems of Employee Representation: The US Report in Systems of Employee Representation at the Enterprise: A Comparative Study (Bulletin of Comparative Labour Relations Series, Roger Blanpain, Hiroya Nakakubo and Takashi Araki Editors) (Kluwer 2012). This is a terrific addition to the 8(a)(2) literature. Here's the abstract:
Although employee-representation systems coexist with a collective-bargaining framework in continental Europe for many years, US labor advocates have looked upon those representations systems with suspicion. The reasons for this suspicion are historical: US employee-representation systems have their roots in company-dominated unions that the National Labor Relations Act was designed to prohibit. The National Labor Relations Board, the independent agency created by the New Deal Congress to administer the NLRA, has interpreted that legislation’s prohibition to essentially make unlawful most, if not all, employer-initiated employee-representation systems and many other types of employee-representations systems. While Congress’s and the Board’s efforts to prohibit employer-dominated employee-representation systems have been noble and are grounded in values designed to preserve employees’ right to workplace participation to the greatest extent, these efforts have, in fact, muffled employee voice. The problem arises in part from differences in two competing values: employee voice and employee self-organization. The article, part of a comparative study of systems of employee representation around the world, argues that while at first blush, those values appear to be co-extensive, in reality, employee voice, which focuses on employee participation and industrial democracy, is a broader concept than self-organization, which focuses on employee autonomy. That section of the NLRA that prohibits company-dominated unions values self-organization, or worker autonomy, over employee voice, or participation. Other sections of the NLRA, such as its exclusivity principle, whereby the union that the majority selects or designates is the exclusive employee representative, further serve to stifle employee voice. Against a backdrop of understanding the instrumental and principled rationale for employee-representation systems, the article asks which types of systems function well within the US legal framework, which systems do not fit within this framework, and to what extent the framework needs to change to accommodate greater participation in contemporary markets.