Employee participation in the new millennium: Redefining a labor organization under section 8(a)(2) of the NLRA

The 104th and 105th Congress considered an amendment, called the TEAM Act, to relax the National Labor Relations Act's restrictions on employee participation in nonunion work groups. Although these bills generated controversy, neither version proposed a substantial change in policy. The greatest change would have permitted these groups to address safety and health issues - leaving pay, grievances, and conditions of work as prohibited subjects for group discussion. This Article proposes a much broader scope of activities for these employee groups. Support for this idea is drawn from recently published research on company unions in Canada. Canadian public policy permits these employee groups but also prohibits employers from using them to deny certification to labor unions. A recently published case study on an Imperial Oil company union shows its transformation to a certified labor union. That study, and the Canadian experience in general, show that nonunion participation groups do not necessarily impede union organizing, as proponents of the American status quo suggest. This Article concludes by proposing that Section 8(a)(2) of the NLRA be amended to permit employers to form nonunion work groups that address a wide range of employment issues, including pay, grievances, and conditions of work. Enactment of such a policy would offer American employees a clear choice between nonunion and union forms of employee representation. Paradoxically, by promoting more workplace democracy, this policy change could reverse a forty-five year decline in union organizing.