Workplace relations and the economy have changed substantially
since the 1930s, but federal labor law has not evolved with these
changes. The National Labor Relations Act (NLRA) still reflects a
top-down, adversarial view of management-labor relations that is
foreign to many workers today.
Private-sector union membership has fallen over the past
generation as many workers have concluded that traditional unions
do not meet their needs. In response, the labor movement is pushing
the Employee Free Choice Act. Instead of taking away workers' right
to vote on joining a union by secret ballot, Congress should
restore employers' and employees' right to explore innovative
labor-management relations. Most workers want a voice in their
workplace even if they do not want a traditional union.
Employee involvement (EI) programs enable workers to participate
cooperatively in workplace decisions, but the NLRA prohibition on
creating "company unions" is so broad that it bans any EI programs
that give workers a real voice. The Act forces workers to choose
between a traditional union and no formal representation at
Congress should modify the NLRA to prohibit only
employer-dominated unions while allowing workers to participate in
work councils and EI programs. This would enhance workers' voice in
the workplace and allow employers and employees to seek
labor-management relations that fit into the 21st century
A Changed Economy
Congress passed the National Labor Relations Act in 1935 and has
not substantially modified it since 1947. The Act assumes an
adversarial relationship between workers and employers, with the
gains of one coming at the expense of the other. Also underlying
the NLRA is the assumption that employers and employees use a
top-down management structure where managers dictate to employees
exactly what to do and the employees simply follow those directions
without providing feedback.
That economy no longer exists. Businesses today rely on feedback
and communication from employees. Employers do not simply give
top-down orders, but incorporate bottom-up communication and
employee discretion. The line between workers and management has
increasingly blurred, and most workers want cooperative-not
adversarial-relations with their employers.
Unions Have Not Modernized
Traditional unions are less relevant to workers in the modern
economy than they were a generation ago because they have not
modernized. Polls show that nonunion workers want to stay that way
by a proportion of more than three to one.
Collective bargaining assumes a hostile relationship between
workers and management that few workers want. Workers believe that
they and their employers are on the same side. Consequently, as
demand for union membership has fallen, private-sector union
membership has decreased sharply over the past generation. In
1974, 24.2 percent of private-sector workers belonged to unions.
Today, that figure has fallen to 7.5 percent.
The labor movement has responded to the decline in union
membership by lobbying Congress to pass the misnamed Employee Free
Choice Act (EFCA), which would end secret-ballot elections for
joining unions. Under EFCA, unions could add members with a public
card-check process. The elimination of the secret ballot enables
the coercion of workers.
EFCA addresses the wrong problem. Union membership is not
declining because secret-ballot elections make it too difficult for
workers to join. Union membership is declining because few workers
want to join unions.
Workers Want a Voice
The fact that few workers want to join traditional unions does not
mean that they do not want a voice in workplace relations. Surveys
show that workers want to participate in decisions in the workplace
and want to be heard by their supervisors, but they do not want hostile
relations with management.
Employee Involvement Programs
What many employers and employees would like are employee
involvement programs or work groups in which workers and
supervisors can meet to discuss workplace issues. These programs
are innovative and can take many forms. Examples include
self-directed work teams, safety committees, and production
committees. The essential element is advancing
employee interests through employee involvement. Polls show that 60
percent of workers prefer EI programs to improve working conditions
over either more government regulations or labor unions.
Examples of effective EI programs that advance worker interests
abound. For instance:
- Webcor Packaging, Inc., a manufacturing company in Flint,
Michigan, formed a plant council made up of five elected employees
and three appointed managers to look at ways to improve work rules,
wages, and benefits. The council members took suggestions from all
employees and made recommendations to management based on those
- Employees at Electromation, Inc., in Elkhart, Indiana, opposed
a plan to change the attendance bonus the company offered. In
response, the company met with randomly selected employees and
formed action committees to solve various workplace problems. The
company asked committee members to meet with other workers and
promised to implement the solutions if they were not
Law Prohibits Most Employee Involvement
These EI programs gave workers a say in the workplace and improved
working conditions. They were also illegal.
The government forced Webcor and Electromation to disband their
EI programs. Section 8(a)(2) of the National Labor
Relations Act prohibits employer-dominated labor organizations. The
National Labor Relations Board (NLRB) defines a labor organization
as an organization in which employees participate that exists in
part to deal with employers over grievances, labor disputes, wages,
hours of employment, or other working conditions.
This bans virtually any work council or EI program that gives
workers a real voice in the workplace. The law gives workers an
all-or-nothing choice: They can speak with their employers through
a labor union, or they cannot speak at all. The law forbids
anything in between. Any form of two-way discussions between
workers and management over working conditions outside of
collective bargaining is illegal.
Employee Involvement No Threat to Choosing
Congress passed this ban to prevent companies from creating and
negotiating with employer-dominated "company unions" to fight off
organizing drives. However, the employee involvement programs that
modern employers want to create would not interfere with workers'
ability to choose a union. Employers do not negotiate and sign
collective bargaining agreements with action teams. EI programs
complement the roles of traditional unions; they do not replace
unions or prevent workers from organizing.
Some in the labor movement fear that employees and employers
would turn to work councils and EI programs instead of unions,
undermining attempts to organize. The experiences of other
countries show that this fear is misplaced. Canada permits EI
programs and has a union density over twice the American rate.
German law requires companies to provide their workers with work
councils, and unions often recruit new members from these
Employee Free Choice
Employee involvement programs would weaken unions only to the
extent that workers prefer them to unions. That possibility should
not prevent employees and managers from forming work councils.
Congress should not make nonunion workplaces as unpleasant as
possible in order to compel workers to unionize. Labor unions exist
to serve workers, not vice versa. Any competition with EI programs
would force traditional unions to innovate and modernize to better
suit workers needs.
Workers should have the right to freely choose how to work with
their employers. Congress should not force workers to choose
between unions and no representation at all. By an 85 percent to 10
percent margin, workers prefer employee organizations run by
employees and management together to organizations run by employees
alone. Congress should not deny workers that
What Congress Should Do
Current law forces workers to make an all-or-nothing choice
between no voice at work and speaking through a labor union, but
the economy has changed since the 1930s, and many workers do not
want the adversarial labor relations that unions offer. As a
result, union membership has fallen. Rather than deprive workers of
the right to choose to join a union in privacy, Congress should
give employees free choice about how to express themselves in the
Congress should modify the National Labor Relations Act to
define a labor organization as an organization that negotiates
collectively bargained contracts with workers. If Congress did so,
the NLRA ban on employer-dominated labor organizations would
continue to ban company unions used to defeat organizing drives but
would allow workers to choose to work with their employers through
employee involvement programs and work councils.
These cooperative programs would allow employers and employees
to innovate and adapt workplace relations to the modern economy.
They would also attune employers to employees' desires and improve
working conditions. Most workers want the option of having employee
involvement programs, and Congress should permit them.
James Sherk is
Bradley Fellow in Labor Policy in the Center for Data Analysis at
The Heritage Foundation.
Barry Hirsch and Jeffrey Hirsch, "The Rise and Fall of Private
Sector Unionism: What Next for the NLRA?
, Vol. 34 (2007), p. 9.
Richard Freeman and Joel Rodgers, "What Workers Want," ILR Press,
Updated 2006, pp. 56-58.
Zogby International poll of 803 employed Americans conducted August
22-25, 2006, for the Public Service Research Foundation, with a
margin of error of plus or minus 3.5 percent. 74 percent of
non-union workers say they would not "personally like to be a
member of a labor union," while 20 percent would. Complete poll
results ARE available from the author upon request.
Ibid. Workers choose an organization that cooperates with
management to discuss views but has no power to make decisions over
one that has more power but is opposed by management by a 63 to 22
Henry S. Farber and Alan B. Krueger, "Union Membership in the
United States: The Decline Continues," National Bureau of Economic
Research Working Paper No. 4216, 1992.
Hirsch and Hirsch, "The Rise and Fall of Private Sector
Unionism," p. 16.
Freeman and Rodgers, "What Workers Want," p. 101.
Steven C. Bahls and Jane Easter Bahls, "Labor Pains: Employee
Focus Groups May Seem Like a Good Idea, But They Could Land You in
Court," Entrepreneur, December 1997.
Ibid. Webcor was forced to disband their program in 1997,
and Electromation was forced to abandon its program in 1994.
Hirsch and Hirsch, "The Rise and Fall of Private Sector
Unionism," p. 24.
Freeman and Rodgers, "What Workers Want," pp. 56-57.