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University of Michigan Law School




In this article I evaluate the claims of the critics of the current section 8(a)(2). I do so, as I believe would Professor St. Antoine, 14 with an eye toward the historical development of new production systems in America and the concomitant development of personnel policies to fit those systems. I consider the purposes for which firm managers seemed to establish and control employee advisory committees before passage of the NLRA and the purposes for which managers seem to establish and control such committees in today's economy. I conclude that these purposes have not substantially changed. Managers before passage of the Act, like today's managers, sometimes used employee-involvement programs to enhance employee morale both by identifying the concerns of employees and by providing employees with a process that created at least the perception of some influence at the workplace. 15 Similarly, just as managers before passage of the Act used employee-involvement committees directly to avert having their employees choose to be represented by independent unions, so have managers in the modem economy.16 Moreover, today's managers, like managers in earlier stages of American industrialization, often use employee committees to achieve greater control over employees and their use of time, rather than to enrich employee skills and responsibility and thus autonomy.17 I therefore question the contention that any changes in industrial relations or work processes should cause Congress to strike a different policy balance than that set in section 8(a)(2).

My skepticism concerning the claims of the critics of section 8(a)(2) is compounded by an analysis of the kind of employee involvement, participation, and influence on managerial policy that is allowed in the nonunion workplace under current section 8(a)(2) doctrine. This analysis, to which I turn first to frame the historical review, suggests that the doctrine only minimally constrains employers hoping to enhance productivity either by amplifying employee voice or by expanding utilization of employee skill and responsibility. Given the threats to NLRA-protected employee rights that historical developments indicate are still posed by at least the forms of employee participation constrained by the doctrine, the case for diluting section 8(a)(2) thus seems particularly weak.

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