From time to time Local 802 asks our legal counsel to comment on certain new practices in our field. Here is his legal opinion on labor-management committees, which have become more prevalent in the music industry, particularly in the symphonic field, in recent years. It should be noted that such labor-management committees differ from the purely union-created rank-and-file committees that Local 802 makes part of its common policy.
In recent years the NLRB and the courts have had occasion to deal with and largely to define the legality of labor-management committees. As a consequence, Congress has likewise been struggling with the appropriate function of such groups.
Since musicians in symphony orchestras, and elsewhere, deal with managements through such committees, it might be helpful to review the issues involved, the proper purposes and the legal limits of joint labor-management committees.
Section 8(a)(2) of the National Labor Relations Act (NLRA) makes it an unfair labor practice for an employer to “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support . . .”
The applicability of this section of the NLRA has been called into question when employers sought to emulate the European model of worker involvement in managerial concerns relating to productivity, efficiency, worker safety, absenteeism, etc.
In the two cases that brought the issue to the forefront, Electromation 35 F.3rd 1148 (1994) and E.I. DuPont DeNemours & Co., 311 NLRB 893 (1993), the employers established labor-management committees in response to perceived employee dissatisfaction with conditions in the plant. In Electromation the employees were unrepresented and in DuPont they were represented by a union.
In DuPont, the committees which were formed for “safety” or “PEP” (“personal effectiveness programs”) provided a parliamentary structure for meetings and goalsetting in which every group had a “facilitator” (chairperson) and a “resource” (adviser) who, between them, exerted extensive control over the group’s agenda and the conduct of the meetings, and one of whom was invariably a member of management. PEP required that all group members, including the managerial member, agree on any decision made by the group, whether the decision was to clarify policy, to propose a new way of handling a problem, or to decide on a problem-solving strategy. Thus, as the judge found, no employee proposals could leave the committee without the assent of the management members.
In addition, managers served on each committee; management decided which employees who volunteered for the committees would serve on them; the continuation of the safety committees was dependent on management, which could abolish them at any time; employee members served on the committees for indefinite periods, without rotations; and management provided all funds for the activities of the committees. Management also provided meeting places and equipment, paid the employee members for their time, and authorized the committees to use electronic mail to communicate with employees.
In Electromation, each committee was to consist of up to six employees and one or two members of management, as well as the company’s Employee Benefits Manager, who was in charge of the coordination of all the committees. The Manager’s role was primarily to facilitate the discussions between the company and its employees. Although the sign-up sheets also stated the goals of each action committee, no employees were involved in the drafting of any aspect of the memorandum or the statement of subjects that the committees were to consider.
The company also unilaterally decided that two employees who had signed up for more than one committee would be limited to participation on only one committee.
All committee meetings took place on company premises, generally on a weekly basis in a company conference room. Each committee elected a secretary to take notes. The company paid employees for their time spent in committee meetings and provided all necessary materials and supplies, such as files, pencils, paper, and telephones. Management expected that the employee members of the committees would “kind of talk back and forth” with the other employees in the plant, because “anyone [who] wanted to know what was going on, they [could] go to these people”. In order to keep other employees posted on the progress of the action committee work, at least one update memorandum was posted which described the activities of the action committees. The update memorandum was drafted by management without consultation with the employee members of each committee.
In both cases the committees were found to be in violation of Section 8(a)(2).
The cases do not stand for the proposition that all such joint committees are illegal. As stated by the Board in DuPont:
Nothing in the Act prevents an employer from encouraging its employees to express their ideas and to become more aware of safety problems in their work. In the case of the conferences, the Respondent informed the employees of the Union’s role and sought to prevent the conference from considering matters within the scope of the Union’s duties as the exclusive collective-bargaining representative of its employees. The Respondent sought suggestions and ideas from the employees, but did not structure the conference as a bilateral mechanism to make specific proposals and respond to them.
But the best statement of the various factors which causes these committees to be violative of the Act may be found in Electromation as follows:
The Supreme Court has explained that domination of a labor organization exists where the employer controls the form and structure of a labor organization such that the employees are deprived of complete freedom and independence of action as guaranteed to them by Section 7 of the Act, and that the principal distinction between an independent labor organization and an employer-dominated organization lies in the unfettered power of the independent organization to determine its own actions. The Electromation action committees, which were wholly created by the employer, whose continued existence depended upon the employer, and whose functions were essentially determined by the employer, lacked the independence of action and free choice guaranteed by Section 7. But, even assuming they acted from good intentions, their procedure in establishing the committees, their control of the subject matters to be considered or excluded, their membership and participation on the committees, and their financial support of the committees all combined to make the committees labor organizations dominated by the employer in violation of the Act.