Summary of Final Report of the Dunlop Commission
Date: Thu, 12 Jan 1995 12:32:43 +0001 (EST)
From: Roy Adams 
To: iern-l 

Thanks to Clive Gilson and to Cornell University here is a summary of the 
main aspects of the Dunlop Report
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Report and Recommendations:

Executive Summary 

The Commission on the Future of Worker-Management Relations
was appointed by Secretary of Commerce Ronald H. Brown and
Secretary of Labor Robert B. Reich to address three
questions:

1.  What (if any) new methods or institutions should be encouraged, or
required, to enhance work-place productivity through labor-management
cooperation and employee participation? 

2.  Wha t (if any) changes should be made in the present legal framework
and practices of collective bargaining to enhance cooperative behavior,
improve productivity, and reduce conflict and delay? 

3.  What (if anything) should be done to increase the extent
to which work-place problems are directly resolved by the
parties themselves, rather than through recourse to state
and federal courts and governmental bodies?"

Over its twenty months of work, the Commission heard testimony and
evaluated the experi ences of many employers and employees, and received
advice for answering its charge from many groups and individuals.  This
testimony, and various survey and other evidence, guides the
recommendations and suggestions that we offer to the Secretaries, and to
the nation. 

As reported in the Commission's May 1994 Fact-Finding Report, there is a
solid base of experience on which to build more cooperative and productive
workplace relations in the United States -- the innovative partnerships in
collect ive bargaining and the array of employee involvement programs
operating in many workplaces across the country. There are also
disconcerting patterns -- increased earning inequality, difficulties for
contingent workers, increased litigation, rigid and complex regulations,
and conflict in union organizing campaigns. 

Our recommendations build on the positive experiences with productive and
cooperative worker-management relations, support their adoption in
additional employment settings, and encourag e further experimentation and
learning.  At the same time we face squarely and propose remedies for the
problems of too much conflict, litigation, inequality, and regulatory
complexity. 

We take an integrated approach to modernizing American labor and
employment law and administration for the future.  Taken together, these
recommendations give workers and managers the tools and flexibility to do
what they say they want to do and are capable of doing to improve
workplace performance.  We recommend flexibility in employee participation
while insuring respect for workers' rights to choose unions, if desired. 
We encourage the development and use of fair systems for resolving
disputes quickly closest to their source without going to court or to a
government agency.  We propose to modernize labor law to deliver through a
prompt and simplified process what the law promises:  a free choice for
workers on whether or not to join a union of their choosing.  Our
proposals define employees and employe rs in ways consistent with economic
reality.  We encourage continued learning and dialogue among private and
public sector leaders to improve the quality of policy making on
employment issues. 

The Commission could not address all the problems or proposed solutions
presented to us.  This does not imply that those left out are unimportant
or not valid.  Instead, some need to be left to other groups and to
further discussion.  Moreover, the recommendations we offer here are
presented as starting poi nts for improving the workplace experiences and
results for all Americans. 

The full set of recommendations are contained in the separate sections of
this report.  Here we present fifteen key conclusions and recommendations
as they relate to each of our three charges. 

1.  New Methods or Institutions to Enhance Workplace Productivity

The evidence presented to the Commission is overwhelming that employee
participation and labor-management partnerships are good for workers,
firms, a nd the national economy.  All parties want to encourage expansion
and growth of these developments.  To do so requires removing the legal
uncertainties affecting some forms of employee participation while
safeguarding and strengthening employees' rights to choose whether or not
they wish to be represented at the workplace by a union or professional
organization. Accordingly we recommend: 

(1) Clarifying the National Labor Relations Act (NLRA) and its
interpretation by the National Labor Relations
 Board (NLRB) to insure nonunion employee participation programs are not
found to be unlawful simply because they involve discussion of "terms and
conditions" of work or compensation as long as such discussion is
incidental to the broad purposes of these programs.  At the same time, the
Commission reaffirms the basic principle that these programs are not a
substitute for independent unions.  The law should continue to make it
illegal to set up or operate company- dominated forms of employee represe
ntation. 

(2) Updating the definitions of supervisor and manager to insure that only
those with full supervisory or managerial authority and responsibility are
excluded from coverage of the law.  We further recommend that no
individual or group of individuals should be excluded from coverage under
the statute because of participation in joint problem-solving teams,
self-managing work groups, or internal self- governance or dispute
resolution processes. 

(3) Reaffirming and extending protection s of individuals against
discrimination for participating in employee involvement processes and for
joining or drawing on the services of an outside labor or professional
organization. 

These recommendations are linked to those that follow in important ways. 
In addition to eliminating the legal uncertainties associated with many of
the forms of employee participation underway today, these changes allow
and encourage use of worker-management participation in applying
government regulations to the workplace and resolving disputes through
private resolution procedures.  Moreover, these changes remove the threat
that workers might lose the protections of collective bargaining by taking
on supervisory or managerial responsibilities.  These changes, therefore,
should open up workplaces to a variety of new experiments with employee
participation and labor-management partnerships and bring the benefits of
these innovations to more workers and workplaces. 

2.  Changes in Collective Bargaining to Enhance Cooperation and Reduce
Conflict and Delay

The evidence reviewed by the Commission demonstrated conclusively that
current labor law is not achieving its stated intent of encouraging
collective bargaining and protecting workers' rights to choose whether or
not to be represented at their workplace.  Rectifying this situation is
important to insure that these rights are realized for the workers who
wish to exercise them, to de-escalate workplace conflicts, and to create
an overall cl imate of trust and cooperation at the workplace and in the
broader labor and management community.  Accordingly, the Commission
recommends: 

(4) Providing for prompt elections after the NLRB determines that
sufficient employees have expressed a desire to be represented by a union. 
Such elections should generally be held within two weeks.  To accomplish
this objective we propose that challenges to bargaining units and other
legal disputes be resolved after the elections are held. 

Beyond the r eversal of the Supreme Court's decision in Lechmere so that
employees may have access to union organizers in privately-owned but
publicly-used spaces such as shopping malls, access questions are best
left to the NLRB.  The Commission urges the Board to strive to afford
employees the most equal and democratic dialogue possible. 

(5) Requiring by statute that the NLRB obtain prompt injunctions to remedy
discriminatory actions against employees that occur during an organizing
campaign or negotiatio ns for a first contract. 

(6) Assisting employers and newly certified unions in achieving first
contracts through an upgraded dispute resolution system which provides for
mediation and empowers a tripartite advisory board to use a variety of
options to resolve disputes ranging from self-help (strike or lockout) to
binding arbitration for relatively few disputes. 

(7) Encouraging railroad and airline labor and management representatives
to implement their stated willingness to seek their own sol utions for
improving the performance of collective bargaining in their industries. 

These changes are essential to de-escalating the level of conflict, fear,
and delays that now too often surround the process by which workers decide
whether or not to be represented on their jobs.  We distilled our
recommendations down to these basic and simplified changes in the law and
procedures from an extensive array of proposals offered to the Commission
in this area.  Therefore, it is vitally important to mo nitor the effects
of these recommendations over time to see if they are adequate to achieve
the goals stated in our national labor law and shared by the American
public. 

3.  Increase the Extent to which Workplace Prob- lems are Resolved by the
Parties. 

The Commission's findings and recommendations regarding workplace
regulations, litigation, and dispute resolution fall into three
categories:  (1) encouraging development of high quality private dispute
resolution procedures,
 (2) encouraging experimentation with workplace self-regulation procedures
in general and with specific reference to workplace safety and health, and
(3) protecting the employment rights and standards of contingent workers. 

The Commission endorses and encourages the development of high quality
alternative dispute resolution (ADR) systems to promote fair, speedy, and
efficient resolution of workplace disputes.  These systems must be based
on the voluntary acceptance of the parties involved.  The courts and
regulatory agencies should hold these systems accountable for meeting high
quality standards for fairness, due process, and accountability to the
goals and remedies established in the relevant law.  The Commission also
encourages experimentation with internal responsibility systems for
adapting workplace regulations to fit different work settings. 
Accordingly, we recommend: 

(8) Encouraging regulatory agencies to expand the use of negotiated rule
making, mediation, and alternative dis pute resolution (ADR) procedures
for resolving cases that would otherwise require formal adjudication by
the agency and/or the courts. 

(9) Encouraging experimentation and use of private dispute resolution
systems that meet high quality standards for fairness, provided these are
not imposed unilaterally by employers as a condition of employment. 

(10) Encouraging individual regulatory agencies (e.g., OSHA, Wage and Hour
Division, EEOC, etc.) to develop guidelines for internal responsibility
sys tems in which parties at the workplace are allowed to apply
regulations to their circumstances. 

America's workplaces must be made safer and more healthful and workers'
compensation costs need to be reduced. Workplace safety and health is an
ideal starting point for experimenting with internal responsibility
systems for meeting public policy objectives, given the long-standing and
widespread experience with employee participation and labor-management
committees in safety and health matters and t he shared interests all
parties have in improving safety and health outcomes.  Evidence presented
to the Commission shows that properly structured joint committees and
participation plans can significantly improve safety and health
protection.  Accordingly, we recommend: 

(11) Developing safety and health programs in each workplace that provide
for employee participation.  Those workplaces that demonstrate such a
program is in place with a record of high safety and health performance
would receive preferential status in OSHA's inspection and enforcement 
activities. 

The growth of various forms of contingent work poses opportunities for
good job matches between workers with differing labor force attachments
and employers needing flexibility in response to changing market
conditions.  At the same time, some contingent work arrangements relegate
workers to a second class status of low wages, inadequate fringe benefits,
lack of training and, most importantly, loss of protection of labor and em
ployment laws and standards.  This is a very complex set of developments
for which adequate data are not yet available to do more than address the
most obvious problems.  Our recommendations are therefore cautious in this
area, recognizing the need to continue to monitor and evaluate the labor
market experiences of all forms of contingent work and to derive policy
recommendations as these data and analyses become available.  Accordingly,
we recommend: 

(12) Adopting a single definition of employer
for all workplace laws based on the economic realities of the employment
relationship.  Furthermore, we encourage the NLRB to use its rule-making
authority to develop an appropriate doctrine governing joint employers in
settings where the use of contract arrangements might otherwise serve as a
subterfuge for avoiding collective bargaining or evading other
responsibilities under labor law. 

(13) Adopting a single definition of employee for all workplace laws based
on the economic realities of the employment relationship.  The law should 
confer independent contractor
status only on those for whom it is appropriate - entrepreneurs who bear
the risk of loss, serve multiple clients, hold themselves out to the
public as an independent business, and so forth.  The law should not
provide incentives for misclassification of employees as indpendent
contractors, which costs federal and state treasuries large sums in
uncollected social security, unemployment, personal income, and other
taxes. 

Imple menting the recommendations in this report would open up employment
policy and practice to a period of experimentation and opportunities for
further learning.  To channel this learning into constructive policy
making we recommend: 

(14) Creating a National Forum on the Workplace involving leaders of
business, labor, women's, and civil rights groups to continue discussing
workplace issues and public policies. In addition, we recommend
establishment of a national Labor- Management Committee to discu ss issues
of special concern to the future of collective bargaining and
worker-management relations.  We encourage development of similar forums
in communities, states, and industries to further promote grass roots
experimentation and learning. 

(15) Improving the data base for policy analysis of workplace
developments, evaluation of labor-management experiments in the private
sector, and for assessment of the economic condition of contingent
workers.  This requires amalgamation of existing data sets within the NLRB
and Department of Labor, and among these and other agencies as well as
coordination of research on workplace topics for the National Forum and
other interested parties. 

The Challenges Ahead

>From the views presented to us emerged a vision of the Workplace of the
21st Century that is shared widely across all sectors of society and the
workforce.  These goals appear at the end of this Executive Summary. 
Achieving some of them requires updating and modernizing labor and emplo
yment law; others can be addressed through changes in administrative
processes to give more power and flexibility to the parties at the
workplace to govern their relationships and solve problems closest to the
source.  All will require leadership and sustained commitment to learning
and experimentation on the part of individual workers and the labor and
management leaders who shape employment practices.  We urge that progress
toward achievement of these goals be assessed systematically on a continu
ous basis and the results shared widely with the American public. 

We can summarize the challenges facing America to improve the quality and
performance of workplace relations quite simply.  They are to sustain the
momentum underway in the most innovative workplaces, to bring these
innovations to and share their benefits among more workers and managers,
and to overcome the countervailing forces that stand in the way of
achieving the goals of the 21st Century workplace. We see three such
countervai ling forces, two of which are reflected directly in the charges
to this Commission and in our recommendations. 

The first of these countervailing forces is the high level of conflict and
tension surrounding the process by which workers decide whether or not to
be represented by a union for the purpose of collective bargaining.  Our
recommendations should result in a significant de-escalation of these
conflicts and a restoration of workers' promised rights in this area, and
thereby improve the over all climate for cooperative labor-management
relations. 

The second countervailing force is the frustration that managers
experience in trying to respond to complex workplace regulations and
mounting litigation, and that workers experience in trying to enforce
their legal rights on the job.  Our recommendations provide workers and
managers with the tools and flexibility to replace the command and control
system of regulation and the litigious system for enforcing rights with
opportunities for grea ter self-governance and private, high quality,
dispute resolution. 

The third force limiting the momentum toward higher quality workplaces was
highlighted in our Fact Finding Report but its solution lies well beyond
the mandate of this Commission.  We refer here to the widening earnings
inequality and stagnant real earnings that have characterized the American
labor market over the past ten to fifteen years. While the Commission
makes no direct recommendations focused on this serious problem, a n umber
of our recommendations should contribute to reducing this growing
disparity.  Among these recommendations are our support for increased
training at the workplace; increased opportunities for employee
participation to enhance productivity, quality, and worker development;
protections against the use of contractors or contingent workers to evade
responsibilities under labor and employment law; and changes to provide
workers the opportunity for representation and collective bargaining if
they w ant it. 

The recommendations of this Report are designed to contribute to the
achievement of the goals and relationships required for the 21st Century
workplace. 
 




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Roy J. Adams		Ph:  905-525-9140, ext 23965
McMaster University	Fax: 905-527-0100
Hamilton, Canada	
L8S 4C7
      "NO REGULATION WITHOUT REPRESENTATION"
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