Donna Sockell

The legality of employee-participation programs in unionized firms

This paper focuses on the legal status of employee-participation programs, such as quality circles, that coexist with but are not controlled by unions — a situation occurring in U.S. industry with considerable frequency despite the objections of some union leaders. Although no cases have yet been heard on this precise question, the author relies upon an analysis of leading cases interpreting the scope of the exclusivity doctrine and the definition of labor organization, as well as the legislative histories of the National Labor Relations Act and the Labor Management Relations Act, to interpret the legal status of these programs. She concludes that if a union filed a 8(a)(5) charge against a unionized firm that is dealing with its employees in a nonunion forum, this charge would probably be upheld; moreover, as a remedy, the participation structure would probably be dissolved. She then suggests changes in public policy to protect participation programs that do not threaten the bargaining agent.

The Scope of Mandatory Bargaining: A Critique and a Proposal

This paper argues that the mandatory-permissive distinction in the scope of the duty to bargain collectively should be abandoned in favor of a policy of classifying all lawful subjects as mandatory. The author shows that in recent applications of the distinction by the NLRB and the courts, many subjects of interest to labor have been declared within the exclusive control of management. She argues that the rationales used by the Board and the courts in these decisions are not compelling, and the mandatory-permissive distinction is even less convincing when its current application is compared to the criteria of an ideal scope of bargaining.

The Mandatory-Permissive Distinction and Collective Bargaining Outcomes:

The authors use union contract and laboratory experiment data to assess whether the distinction between mandatory and permissive bargaining subjects affects collective bargaining outcomes. In general, the findings suggest that the distinction has an impact. The contract analysis suggests that bargaining differs across contracts that include permissive items and contracts that exclude permissive items. Further, an analysis of the potential impact of the distinction in a controlled setting indicates that unions negotiate less favorable nonwage bargaining outcomes when an issues legal status is permissive or unknown than when it is mandatory.