While we are tinkering with labor laws...

There is a lot of talk currently about the “Employee Free Choice Act” introduced in this Congress*. Some opponents see it as little more than a boost to unions trying to organize workers at companies like Walmart and Southwest Airlines. Some supporters think union organizers need help to reach employees at non-union companies.

If there are going to be changes, then let’s make the changes for both sides fair and with one central theme: helping American businesses of all sizes compete better in the world marketplace. If Congress is truly interested in fairness, there should be some accommodation in any new legislation for after a bargaining unit is in place.

Many industries have embraced work teams as a way to improve quality, raise productivity and support employee morale. But some businesses have faced opposition from union leadership and even threats to pursue claims at the National Labor Relations Board when they seek to include front-line employees in their efforts to improve business processes.

It is time to plainly overrule the Electromation and DuPont rulings that joint employer-employee committees are illegal when a union has been recognized. Times have changed since the Wagner Act. Employees are more sophisticated and the workplace is more challenging. We are no longer simply facing unsafe machinery or inhumane hours. Now there is competition from places with no limitations on how management and labor can cooperate as well as places where there are no employee protections. Both sides want to win that competition, so let’s put a new structure in place:

a. Expressly exempt employee teams and committees organized and tasked with improving operational efficiency from the scope of the Wagner Act even if they sometimes address working conditions. If “working conditions” can be used to block these teams, then they are almost pointless because evaluating the way work is assigned, monitored, graded and performed will to some extent bring into question an aspect of the environment in which the work is carried out.

b. Expressly encourage employer-employee cooperation and collaboration in areas of quality assurance, operational efficiency, process optimization and workplace innovation (and exempt such efforts from the Wagner Act) in the interests of helping bolster American competitiveness in all work places. We have to move past the historical animosities that were present and codified in the labor movements and resulting legislation dating back to the 1930s. Manufacturing industry unions would do well to understand information industry workers and how nimble, innovative and collaborative teams of workers from multiple disciplines and perspectives can drive success in the marketplace.

c. Expressly permit communications from management to the bargaining unit members in general that explain its rationale for positions and actions when there is a good faith reason to believe the local union leadership is not accurately conveying such information to the members. There are too many situations where an employer is forced to negotiate with those who pretend to represent their bargaining units, but only serve their own personal interests in reality. When an employer has a good faith reason to believe the local leadership is not acting in good faith as a representative of its membership, the employer should be able to require evidence of support of the leadership’s position on the matter.

d. Clearly codify which types of votes must be by secret ballot and continue protection for those most important votes: whether to organize and whether to disband. Secrecy and anonymity are quintessential to the American notion of balloting. If unions want to vote with a show of hands on business in a meeting, that is one thing, but voting on whether or not to organize or disband a union should always be by secret written ballot that is subject audit by the NLRB if there are questions of integrity of the vote.

e. If we are making unionization easier, we need to also make de-certification of the local union easier. There are too many situations where an employer is forced to negotiate with those who pretend to represent their bargaining units, but only serve their own personal interests in reality. When an employer has a good faith reason to believe the local leadership is not acting in good faith as a representative of its membership, the employer should be able to require evidence of support of the leadership’s position on the matter. We must discard the old practice of allowing tyranny by a minority of employees. Let’s supersede state laws permitting mandatory union membership. If employees want to unionize, they can; but if they do not want to become union members, it is un-American to force them to do so.

Who says we have to keep a system where one side’s gains are necessarily the other side’s losses. Without the employers, there is little need to have unions, so driving them out of business is hardly a worthwhile effort. Without the productive, skilled employees, there is little management can do to improvise, respond to international competition and succeed in the long term. Not all labor advocates are “power-hungry disgruntled slackers.”

A lot has changed since the 1930s and 1940s. Our labor laws need to be updated as much as the attitudes of union and business leaders do. I challenge both sides to abandon the Marxist us-versus-them attitudes and seek innovative, progressive changes that are both pro-employee and pro-business. This is an important opportunity to plan far into the future, rather than try to improve the past.

For a great summary of the history of this struggle, see the article by Steven Thomas and Judy Best in the Summer-Fall 2001 issue of Entrepreneur Magazine “Work Teams and Unions: Keeping Employee Involvement Legal.”

* The AFL-CIO is clearly in favor of this act; while the U.S. Chamber of Commerce and most state Chambers of Commerce are definitely against it.