Recrafting a Trojan Horse: Thoughts on Workplace Governance in Light of Recent British Labor law Developments

In June of 2000, Britain established a statutory union recognition procedure applicable to all private and public employers with more than twenty workers.For a country with a history of voluntarism in labor-management relations, the creation of a legal mechanism by which unions could compel recognition from employers was a major change. The Labour Party government modeled its new approach to a considerable extent on our National Labor Relations Act (NLRA).3 Unions seeking statutory recognition must apply through a government agency; disagreements over proposed unit size or scope are to be resolved early by the agency; the union must show majority support to succeed; this support can be demonstrated through nonelectoral means but upon agency review a supervised election may be ordered; and any such election is preceded by a campaign period of several weeks during which rules against employer threats and intimidation are enforced by the agency. In addition, paralleling a philosophy ascribed to our Taft-Hartley Amendments, Britain\u27s new recognition procedure reflects a commitment to employee freedom of choice. Workers may decide either to join a union that seeks legal recognition or to refrain from doing so. The public policy value attached to having union recognition and collective bargaining enforced through a government agency derives primarily from that arrangement being freely chosen by the employees, not from the preferred status of collective bargaining. Domestic criticism of the NLRA has persisted with some intensity since the early 1980s. Union leaders and many labor relations scholars in the United States believe that the statute as written and enforced has played an important role in the steady decline of union organizing and collective bargaining among private sector employees. British union leadership, aware of such widespread misgivings, had reason to fear the arrival of this gift from across the Atlantic The concern was that an American-style union recognition system, based on adversarial representation campaigns and government-supervised elections, would invite if not encourage many of the same problems of excessive delay, employer abuse, and protracted and bitter litigation that have become entrenched under the NLRA. The British statutory procedure is now in its seventh year of operation, and American-style problems have yet to materialize on any substantial scale. Although the number of employees organized through statutory recognition awards has been lower than anticipated, there has been a surge in voluntary recognition agreements negotiated in the shadow of the law. Further, the statutory procedure itself seems to have been well received by both labor and management, with only eight instances of judicial review sought for the first 600 agency determinations. It remains early in the life of this new approach-NLRA implementation in its seventh year (1941) hardly resembled or even foreshadowed the changed legal circumstances that emerged in ensuing years and decades. Further, there are culture-specific factors involved in British experience with workplace governance that caution against easy transplantation, even as concepts borrowed from the NLRA are likely to evolve very differently in British legal soil. Still, initial developments under this recognition procedure may offer some guidance as we contemplate ways to reinvent our own statutory approach to labor-management relations. This article briefly addresses two aspects of the new British procedure, with an eye toward what they might contribute in the American setting. Part I discusses the multi-stage recognition arrangement, and why it has stimulated both sides to seek voluntary recognition agreements at various points. Part II examines the Central Arbitration Committee (CAC), the agency that administers and enforces the statute, focusing on how the CAC\u27s decisionmaking framework and its method of appointment have contributed to an efficient and non-partisan adjudication process. In each part, the article suggests ways in which elements of the British experience might relate to the American context. A threshold question is whether to bother with such an inquiry as part of a symposium addressing the future of governing the workplace. Both the United States and Britain have experienced a steady erosion in union membership since the 1970s, and there is reason to believe that union density may continue to decline, especially in the private sector. Given that collective bargaining agreements have been supplanted by statutes and regulations as the principal source of employee protections in the United States, why discuss ways to promote or preserve such collective agreements when examining possible new directions for workplace governance? Paul Weiler wrestled with this question nearly two decades ago, and as in so many other respects he was ahead of his time. Professor Weiler recognized that collective bargaining was unlikely to regain its former position of pre-eminence for reasons that went well beyond the inadequacies of the NLRA legal regime. He pointed unflinchingly to American workers\u27 general perception of the labor market as delivering decent wages and employment conditions under a loosely competitive structure, and to workers\u27 general reluctance to embrace traditionally hierarchical union organizations as an alternative to individual bargaining with their employers.9 At the same time, Weiler made a powerful case for why the nonunion labor market operates to distort workers\u27 perceptions and expectations regarding the economic advantages associated with their jobs.\u270 Absent some form of ongoing workplace representation, employees often are denied benefits in a market-oriented system. They also are left unable to remedy employer misconduct much of the time in a rights-based regime. Weiler\u27s proposed solution included a different kind of employee participatory mechanism-mandated by statute at the workplacespecific level and charged with addressing a range of distributional decisions inside the firm. 2 Political realities in the United States may well preclude such a distinctive statutory approach, although a version of Weiler\u27s proposal has been developing in Britain with assistance from the European Community. 3 Meanwhile, labor organizations authorized to speak for employees as a group remain relevant in the American setting for the economic and participatory reasons Weiler elegantly recounted. Accordingly, for present purposes I accept that unions should and will continue to play a role in overcoming certain market-based barriers to improved working conditions, in monitoring the effective delivery of statutory rights, and in offering employees a meaningful voice to address their employer\u27s resource allocation policies. I further assume (with guarded optimism) that incremental reform of our labor law statute may become possible within the foreseeable future. Against this background, I focus on two aspects of Britain\u27s recent statutory experience with union recognition that warrant attention when considering revisions to our own statutory scheme