"Using the Dunlop Report to Full Advantage: A Strategy for Achieving Mutual Gains" Commentary by Thomas Kochan
This section is from the document '/.labor/.e-mail/.IERN-L/95-01'.

From owner-iern-l@ube.ubalt.edu  Wed Jan 11 06:45:58 1995
Received: from ube.ubalt.edu by garnet.berkeley.edu (8.6.8/1.33r)
	id GAA20571; Wed, 11 Jan 1995 06:45:55 -0800
Message-Id: <199501111445.GAA20571@garnet.berkeley.edu>
X-ListName: International Employee Relations Network 
Warnings-To: <>
Errors-To: owner-iern-l@ube.ubalt.edu
Sender: owner-iern-l@ube.ubalt.edu
Received: from mitvma.mit.edu by ube.ubalt.edu (MX V4.0-1 VAX) with SMTP; Wed,
          11 Jan 1995 09:28:24 EDT
Received: from MITVMA.MIT.EDU by mitvma.mit.edu (IBM VM SMTP V2R2) with BSMTP
          id 2044; Wed, 11 Jan 95 09:23:34 EST
Received: from SLOANVM.MIT.EDU (NJE origin MAILER@SLOAN) by MITVMA.MIT.EDU
          (LMail V1.2a/1.8a) with BSMTP id 3867; Wed, 11 Jan 1995 09:23:34 -0500
Received: from SLOAN (TKOCHAN) by SLOANVM.MIT.EDU (Mailer R2.07) with BSMTP id
          6158; Wed, 11 Jan 95 09:21:45 EST
Date: Wed, 11 Jan 95 09:15:45 EST
From: TKOCHAN%SLOAN.BITNET@mitvma.mit.edu
Reply-To: IERN-L@ube.ubalt.edu
Subject: Copy of kochan"s paper on dunlop comm report
To: iern-l@ube.ubalt.edu




                      Using the Dunlop Report to Full Advantage
                       A Strategy for Achieving Mutual Gains

                                  Thomas A. Kochan
                        Massachusetts Institute of Technology
                                    January, 1995


       For a number of years many of us have been saying that the
changes underway in private sector workplace practices call for a
major updating and modernizing of national labor and employment
policies.  The final report and recommendations issued by the
Commission on the Future of Worker Management Relations (the Dunlop
Commission) have now opened the debate over how to do so.  As a
member of the Commission I support fully its findings and
recommendations. But, these recommendations are only a first step
in what is likely to be a long process of debate.  The Commission's
recommendations are not as far-reaching as some would prefer.
They go only part way toward the type of comprehensive overhaul of
the New Deal labor policy framework some of us, including myself,
have called for in our individual work (Kochan and Osterman, 1994).


       The recommendations also entail some risks.  The biggest risk
is that business groups, labor unions, the Congress, or the
Administration will endorse and attempt to enact only those
recommendations that are consistent with their ideological
leanings, despite the Commission's strongly stated view that its
recommendations are highly interdependent and should not be acted
on in isolation.  If this happens, the decades long stalemate over
labor policy will continue, perhaps until the frustration of
American workers and voters boil over and create the type of crisis
that finally forces their leaders out of their fixed and partisan
positions.

       There is an alternative.  It is for everyone to see the report
and recommendations for what they are, namely sensible and rather
simple starting points for building, over time, a fundamentally new
labor and employment policy needed to make America competitive at
high standards of living.  Employers committed to using employee
participation to improve productivity and quality can gain the
flexibility to do so free of the legal uncertainty that has been
hovering over some of these practices.  Moreover, employers can
further use employee participation and alternative dispute
resolution procedures to reduce litigation costs and the burdens of
government regulations.   Employees can gain what labor law
promises but has not delivered for many years--an effective right
to choose whether or not to be represented by a union at the
workplace and greater choice over the forms of participation and/or
representation that best suit their needs.  Employees also can gain
access to fair, low cost systems for resolving workplace problems
and disputes over the rights guaranteed them in employment laws.
Unions can expand the broad based labor-management partnerships
they have underway in many industries and have a fair chance to
organize workers who want collective bargaining,.  Further, unions
can develop new forms of representation for workers who need more
individualistic workplace and labor market services.

       These potential mutual gains will only be achieved, however,
if everyone focuses on these opportunities presented in the full
report, rather than on specific parts that challenge their prior
positions.  Some employers will not like, but need to face, the
finding that labor law is not working to protect individual
employee rights to join a union.  Some union leaders will not like,
but must face, the fact that many non-union employees want to
participate in cooperative efforts with employers without the
protections a union offers.  Women's groups and civil rights
advocates will need to recognize the only way to get justice on the
job today for all workers without long delays and insurmountable
legal costs is to develop fair private dispute resolution
procedures.

       Taking this perspective requires leadership with a vision of
the workplace of the future.  The report offers such as vision,
based on what workers, managers, and union leaders told us fit
their views of a high performance workplace today.  We therefore
suggest a set of ten goals for the Workplace of the 21st Century
(see Figure 1) and propose monitoring the nation's progress toward
achieving these goals.  Achieving them will require hard work from
a coalition of diverse voices in society.  The question is whether
current leaders in business, labor, the Congress, and the
Administration are up to this task.


       In this paper I'd like to address the question of "where do we
go from here?"  That is, given the difficult political climate for
labor policy making, how can the Commission's recommendations be
used to their maximum advantage to improve workplace relations and
performance?  I begin by summarizing the Commission's
recommendations and commenting on the opportunities and risks they
pose to the parties.  Then I outline steps that government
agencies, public-private groups, and the parties at the workplace
can take to promote further innovations in workplace relations.  I
conclude by sketching several possible scenarios for the future.


                 The Dunlop Commission's Finding and Recommendations

       The Commission was asked to address the following three
issues:

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

       What (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?

       What (if anything) should be done to increase the extent to
       which workplace problems are directly resolved by the parties
       themselves, rather than through recourse to state and federal
       courts and government regulatory bodies?

In the sections that follow I will use the three topics in our
Mission statement to summarize our findings and recommendations.

Employee Participation

       The Commission concluded that employee participation and
labor-management cooperation are in the interests of workers,
employers, and the national economy and therefore ought to be
supported by national policy.  This implied a need to address the
constraints imposed on employee participation by Section 8(a)(2) of
the National Labor Relations Act (NLRA).  At the same time, the
Commission was equally determined to not encourage or allow the
return of company dominated unions that this section of the law was
designed to eliminate.

       Various modifications of the doctrines governing Section
8(a)(2) were proposed to the Commission.  They ranged from
maintaining the status quo, to modest expansions in the issues that
employee participation groups could address legally, to allowing
expansion of employee participation subject to meeting certain
minimum standards (e.g. allowing employees to vote on or select
their representatives on teams or committees).  The Commission
concluded that a modest departure from current doctrines was the
best approach.  Instead of trying to draw a new line over
permissible and non-permissible subjects or individuals to be
involved, we recommended  clarifying the law and its interpretation
by the NLRB so that employee participation would not be judged
illegal solely because participants discussed terms and conditions
of employment as an incidental part of the process.  The ban on
company dominated unions would continue.

       We also endorse use of employee participation on certain
workplace topics regulated by public law such as workplace safety
and health, and encourage use of private dispute resolution
procedures for resolving alleged violations of worker rights,
provided that these processes meet certain guidelines or quality
standards.  Guidelines and standards are appropriate in these areas
because they involve rights and duties of employees and employers
contained in public law.  Therefore, we are delegating
responsibility for enforcing these rights to the parties at the
workplace.  In this way employers, employees, and unions have both
the opportunity and the responsibility to manage these issues
without having to rely solely on enforcement and litigation through
government agencies or the courts.

       The Commission made three other recommendations in this area
of the law.  First, we recommended strengthening and extending
protections against discrimination for participating in these
programs, speaking about them at the workplace, or requesting
assistance from outside organizations.  Second, changes in the
definition of supervisor were suggested to avoid having workers who
make supervisory decisions as a result of participation in new work
systems lose their right to collective bargaining as the Supreme
Court had ruled in cases involving university professors (Yeshiva)
and registered nurses (Health Care Corporation).  Third, we
recommended allowing pre-hire agreements where a company with an
existing bargaining agreement opens a new facility.  The purpose of
this recommendation was to allow companies and unions to do what
General Motors and the United Auto Workers did in creating the
Saturn Corporation, i.e., to negotiate a state-of-the-art labor
agreement before a plant opens or the workforce is in place,
subject to a subsequent vote or card check certification by the
workforce after the facility is in operation.

       These recommendations pose both risks and opportunities.  The
obvious risk is that some employers will abuse the discretion
provided by setting up participation programs to defeat or
discourage efforts of employees to join independent unions.  Yet
survey data have consistently documented that a majority of workers
want to have greater influence and voice on their job and at the
same time want sufficient independence to choose their
representatives (Freeman and Rogers, 1994).  This set of
recommendations opens the door for considerable institutional
innovation with respect to employee participation.  My personal
view is that these recommendations will only achieve their intended
results if they give rise to a wider array of participation
processes.  How might this be done?

       One way would be for unions and professional associations to
offer the services and expertise needed to promote the various
forms of employee participation.   That is, I believe that the best
way for unions to represent workers effectively in the future is to
become "full service agents" by providing collective bargaining
representation, individual representation to workers in enforcing
their legal rights, promoting self-governance at the workplace, and
consultation and technical services to workers on matters such as
safety and health, new work systems, education, training, labor
market information, and other issues that are subject to employee-
management consultation.  The Commission's recommendations clearly
allow for development of these types of roles and organizations by
expressly noting that workers should have the right to draw on
outside assistance, or join and be represented by organizations of
their own choosing.

       A full service union or professional association would have
three ways of recruiting members.  First, it could continue to
organize workers for the purposes of collective bargaining.
Second, individual memberships with a variety of representational
and technical services such as those suggested above can be offered
to those who either do not want exclusive representation and
collective bargaining or who cannot convince the majority of their
peers to vote for collective bargaining.  This is akin to the
professional association model of representation.   Finally, unions
can also offer workers a full range of services including support
for participation in workplace affairs, collective bargaining over
wages, hours, and working conditions, and representation at the
strategic level of enterprise decision-making.  That is, they can
market their services as a complete representational package,
something that no non-union firm can match through management
designed employee participation or dispute resolution programs.

       These recommendations also provide employers with an
opportunity to expand employee participation without fear of
breaking the law simply because the issues discussed cross over
into conditions of work.  Employers and employees can go further
and extend participation to other areas of employment relations
that involve public rights such as workplace safety and health or
dispute resolution systems if these processes meet the general
guidelines established by the agencies responsible for enforcing
these statutory rights.  I believe that this is one of the most
important opportunities for institutional innovation encouraged by
the Commission's recommendations.

       Some of us on the Commission would have preferred to go a step
farther and, consistent with our prior writings, recommend creating
an American version of European works councils on either a
voluntary or mandated basis (Kochan and McKersie, 1989; Weiler,
1990; Rogers and Freeman, 1993; Kochan and Osterman, 1994).  The
problem was that, aside from some academics (Adams, 1985), there
was no constituency in favor of this! If there is to be anything
like works councils in the U.S., it is clear that they will need to
emerge incrementally and experimentally in the same fashion as
employee involvement programs and other workplace innovations
evolved over the past two decades or so.  While the Commission's
recommendations do not explicitly propose formation of councils
that reflect the full makeup of an establishment's workforce, they
clearly allow for experimentation with such bodies on selected
issues such as safety and health and other workplace regulations.


Worker Representation and Collective Bargaining

       The Commission was able to draw on considerable empirical
evidence generated by independent researchers and government data
in analyzing the current state of the law and practice concerning
the exercise of workers' rights to join a union and engage in
collective bargaining.  The evidence presented in these studies led
to the following key conclusions that then framed our
recommendations:

1.     Representation elections as currently conducted are highly
       conflictual for workers, unions, and firms.  This means that
       many new collective bargaining relationships start off in an
       environment that is highly adversarial.

2.     The probability has increased over time that a worker will be
       discharged or unfairly discriminated against for exercising
       legal rights under the NLRA.

3.     Roughly a third of the workplaces that vote to be represented
       by a union do not obtain a collective bargaining agreement.

4.     About one third of unorganized workers would vote to be
       represented by a union if an election were held at their
       workplaces.

       Given this record, the only conclusion one could reach is that
the law is not delivering on its promise--to provide workers' the
right to choose whether or not to be represented by a union for the
purposes of collective bargaining.

       A large number of recommendations were presented to the
Commission on how to remedy problems with the law.  These ranged
from those that would stay within the basic framework of exclusive
representation and collective bargaining to those that would allow
for different forms of representation including works councils,
minority and/or members' only unionism, worker  representation on
corporate boards of directors, etc.  Specific recommendations
proposed increased penalties for violations of law, suggestions for
reducing delays, stronger protections against employee discharge,
speedier procedures for reinstating employees whose rights are
violated, and arbitration of first contracts.

       The Commission took a relatively conservative approach to
changes in this area of labor law by recommending strategies to
reduce conflict, encourage prompt elections, require the NLRB to
obtain injunctions to reinstate workers who are fired illegally,
and create a dispute settlement process including, as a last
resort, binding arbitration of first contract disputes.

       One of the most significant recommendations in this area is
the dispute settlement procedure for first contracts that includes,
as an option, binding arbitration.  The Commission calls for
creation of a tripartite First Contract Advisory Board by the
Federal Mediation and Conciliation Service (FMCS) that would decide
on whether an impasse in first contract negotiations should be
referred to the parties for direct action (strike or lockout) or to
arbitration for a binding decision.  The goal of this settlement
procedure is to encourage the parties to reach agreements and avoid
a spillover of the conflict and efforts to defeat the union into
the first contract negotiation process.  Making this process work
will require that the tripartite advisory board functions as a
neutral group of labor relations professionals and not as narrow
partisan advocates.

Workplace Regulation, Litigation, and Dispute Resolution

       The third item on the Commission's agenda opens up a wide
range of possibilities for workers, unions, and employers to
develop workplace systems for resolving disputes and adapting
regulations to fit the varying circumstances of different
workplaces.  As the Fact Finding report noted, the Commission
generally believes that the tools of our field--mediation,
arbitration, employee participation, and other alternative dispute
resolution procedures--could be more fully used to resolve issues
that now end up in the courts or backlogged in enforcement
agencies.

       These recommendations also offer a way to separate employment
relationships with effective workplace institutions that can take
on some of the regulatory functions from those without such
institutions and therefore need to remain subject to the standard
approach to regulation and enforcement.

       The Commission recommended that OSHA establish guidelines for
effective workplace safety and health programs that include
employee participation.  Workplaces with these types of programs in
place and that demonstrate adequate levels of safety performance
would not be subject to OSHA's normal inspection and penalty
procedures.  In contrast, the workplaces without such self-
governance programs and/or that have not demonstrated adequate
performance would continue to be subject to standard enforcement
procedures.  Other regulatory agencies are encouraged to develop
similar approaches tailored to their particular regulatory issue.

       We also recommend experimentation with private voluntary
procedures including arbitration for resolving disputes involving
workers' statutory rights.  A set of "quality standards" covering
issues such as the right to outside representation, the
qualifications of neutrals, cost sharing arrangements, arbitrator
selection, arbitration procedures, the standards for agency and
judicial review, etc. are also suggested for these systems.

       A number of difficulties need to be addressed in implementing
these recommendations.  One is overcoming the high level of
skepticism and criticism that some arbitration arrangements have
come under recently.  This is one reason for specifying clear and
stringent quality standards for arbitration.  A second and more
difficult problem is how to overcome the skepticism of womens' and
civil rights' organizations that have worked over the years to
strengthen individual rights and gain access to federal courts to
enforce these rights.  Three major concerns were raised by these
groups:  (1) Private arbitration might reduce the deterrent effect
of the threat of lawsuits and jury awards, (2) private dispute
resolution systems will freeze or reinforce the power imbalance
that currently exists between individual workers and employers, and
(3) employers should not be allowed to implement these systems
unilaterally and make them a term and condition of employment.

       The Commission's recommendations attempt to address these
concerns while strongly endorsing and encouraging experimentation
with high quality dispute resolution systems.   We stress the
principle that employees should have a voice in the design and
oversight of workplace dispute resolution procedures.  Liberalizing
employee participation to insure the legality of employee
participation in the design and operation of voluntary dispute
resolution systems should provide such an opportunity.  Encouraging
unions and professional associations to expand the services they
provide to individual workers in this area should as well.

       We explicitly recommend against allowing employers to impose
binding arbitration unilaterally as a condition of employment.
Instead we propose beginning on a voluntary basis.  The EEOC and
enforcement agencies in the Department of Labor explore ways to
encourage use of procedures that meet the recommended quality
standards and that provide for employee participation.

       Another area of employment regulation that the Commission
recognized as needing attention concerns the definitions of
employer and employee in contingent work settings.  Ambiguity over
who is the employer to be held responsible for meeting the
requirements of employment and labor laws for contingent workers
sometimes results in a breakdown in coverage for some, often low
wage employees.  Moreover, the economic incentives to misclassify
workers as independent contractors to avoid responsibilities under
labor, employment, and tax laws results in significant revenue
losses as well as a gap in the legal and financial protections
these laws are designed to provide.

       The Commission lacked adequate data for addressing the full
range of issues associated with the growth of contingent work.
Therefore we made only modest recommendations in this area and
urged these issues be studied more thoroughly as more data become
available.  Our recommendations are to move to a standard
definition of the terms employer and employee for the purposes of
labor and employment law.  This is also an area where the NLRB
needs to reexamine its doctrines and we recommended it do so as
well.

                                Blueprint for Action

Congress

       Given these recommendations, how can we best move forward to
sustain and diffuse the positive innovations at the workplace and
tackle the major obstacles limiting their potential?  The obvious
first step is to enact the changes in law and to authorize the
administrative experimentation suggested in the recommendations.
A comprehensive bill would include the following elements:

       1.    Changes in the NLRA needed to implement the
             recommendations on employee participation, representation
             election procedures, and first contract dispute
             resolution.

       2.    Clear directives to OSHA, other Department of Labor
             regulatory agencies, and the EEOC to experiment with
             alternative dispute resolution and self governance
             programs that conform to the quality standards suggested
             in the report.  This directive should also encourage
             federal agencies to initiate coordinated experiments with
             state agencies that regulate the same issues.

       3.    Directives to all regulatory agencies to move to a common
             definition of employer and employee for the purposes of
             enforcing labor and employment laws using an economic
             realities test as the basis for these definitions.

       4.    Authorization and funding of the National and local
             forums and the supporting research and analysis group
             called for in the recommendations.

       Although not included in the Commission's recommendations,
some employers and some members of Congress (particularly
Congressman Richard Gephart) have expressed an interest in
establishing a Workplace Excellence Award modeled after the
Baldrige Award for quality.  Such an award has proven helpful in
focusing the private sector's attention.  If the Congress decides
to create a Workplace Excellence Award, I would urge that the goals
for the Workplace of the 21st Century presented in the Commission's
report serve as the award criteria.  Such an award would both
encourage workplaces to monitor their performance on the full range
of goals listed in the report and would continue to call attention
to the interdependent nature of these workplace issues.

       While each of these legislative changes is needed in its own
right, piecemeal efforts to patch up the current law will do more
harm than good.  There are both technical and fairness reasons for
this judgement.

       The technical reasons are pointed out in the report.
Increasing flexibility for employee participation requires that
workers be given the opportunity to decide on their own whether or
not to join a union.  The current law fails on this account.  The
changes in labor law designed to reduce conflicts and delay in
organizing efforts and to improve the effectiveness of the
negotiation of initial agreements are needed to ensure workers'
rights are realized in practice.  Moreover, clarification of the
law governing employee participation is necessary to open the door
to self-governance and experimentation with private voluntary
dispute resolution procedures in which employees have an active
voice and role in shaping and running.  Likewise, true self-
governance requires that workers have a choice over the forms of
participation and/or representation that best suit their
circumstances.

       So one can easily see the technical interrelationships among
these recommended changes in the law.  But there is a more
important and subtle reason that reflects the present climate of
labor-management relations in the country.  Any effort to pick and
choose only those changes in the law that suit one party's narrow
self determined interest will intensify the polarization that the
full set of recommendations is designed to reduce.  Trust at the
workplace cannot be built in a national environment of political
stalemate and polarization between leaders of business and labor.


The Administration

       The Clinton Administration will need to take equally strong
steps to implement these recommendations.  Every agency regulating
some aspect of the workplace should be required to develop a plan
for acting on the recommendations to encourage fair and efficient
private resolution of disputes and self-regulation and governance
procedures.  Together with Congress, the Adminstration should
provide the investment funds needed to initiate and test self-
regulation and dispute resolution procedures appropriate for each
agency and area of law.  But to provide further incentives, the
Administration and the Congress should make it clear to individual
agencies that their budgets will suffer significantly if they fail
to develop and implement appropriate plans consistent with the
general principles outlined in the Commission's report.

       The Administration can go considerably farther than the report
suggests by working with corresponding state government agencies
that share jurisdiction over workplace issues to insure that
workers and employers face only one common set of legal
requirements and that those that choose to experiment or adapt self
regulatory and dispute resolution systems are not constrained or
sidetracked by state regulations.  At a minimum, the Department of
Labor might designate one or more of its regions as laboratories
for federal-state partnerships in experimenting with this approach.
Indeed, the history of workers' compensation, safety and health,
unemployment insurance, and child labor all suggest that the models
for future national policy are likely to come from innovations at
the state level.  All of these now widely accepted federal laws
were built on models provided by state-level experiences.  Perhaps
it is time for individual states to propose this type of
experimental approach to the federal government.


The Labor Movement

       The labor movement has an important choice to make.  It can
oppose the Commission's recommendations because of its view that
the expanded flexibility recommended for employee participation
will be used to further undermine union organizing efforts.  Or it
can voice its concern with this particular recommendation but
accept this challenge provided the other recommendations are also
implemented.  If the labor movement uses the Commission's report to
fashion a positive image and strategy it will have a fair chance to
reverse its long term membership losses by marketing its full
service representational capabilities.  If, however, labor leaders
oppose these changes and stay with a more limited strategy, unions
risk further declines in both their public image and membership.

Representatives of Business

       The business community also has an opportunity to take a new
approach by joining a broad based coalition in support of
modernizing the full range of labor and employment laws.  Or it can
continue to stonewall every effort to face the facts regarding the
most egregious violations of worker rights documented in the
Commission's findings and to rely on its newly won political
influence to block any changes in public policy that improve the
positions of workers and their representatives.  Labor policy need
not continue as a zero sum game, but it surely will unless the
voices of employers who are already engaged in workplace
innovations and who respect worker rights prevail over those
committed to a more oppositional course.

Forums for Ongoing Dialogue and Learning

       The Commission recommended creating several new institutions
to promote on-going dialogue and analysis of employment issues
including  a National Forum for the Workplace, a National Labor-
Management Committee, a group to provide research support on
workplace issues, and comparable forums at local and sectoral
levels.  These institutions could turn out to be either a waste of
effort or constructive means of fostering continued learning and
the gradual development of a more analytical approach to labor and
employment policy making and evaluation.  If the representatives
participating in these discussions use them to continue to advocate
their narrow rhetorical positions not only will no useful purpose
be served, but again real harm could be done by serving as an
obstacle to experimentation with truly new ideas and approaches to
addressing workplace issues.

       Alternatively, if guided by a clear sense of purpose, these
discussions might encourage local, state, and regional
experimentation with different approaches to the workplace issues.
Moreover, by including women and civil rights representatives in
these forums the voices of the workforce of the future are
represented and the traditional labor versus business lines of
demarcation and political battle might be blurred somewhat.  If
used for these purposes, these forums may make significant
contributions to labor and employment policy and practice.

       The research group that supports these discussions can help to
open dialogue on a wider range of ideas and alternative
institutional approaches than would be considered if left to
business and labor.  While the researchers need to be responsive to
the priorities established by the Forum and the Labor-Management
Committee, they need to retain sufficient independence to do
objective work and sufficient discretion to support research that
examines options that none of the interest groups involved would
find acceptable today.  Exploration of new ideas or alternatives
that lie beyond the limits of acceptability is critical if we are
to ever get beyond the incremental modifications of existing
practices.

The Workforce

       Ultimately, the American workforce will need to demand that
their elected representatives and leaders at the workplace take a
mutual gains approach to these issues.  Workers should insist on
exercising their rights to participation, independent
representation, and access to fair procedures for resolving
workplace disputes.  They should likewise insist on sharing
equitably in the gains produced by their efforts to improve the
economic performance of their workplaces and enterprises.  The
Worker Representation and Participation Survey done for the
Commission (Freeman and Rogers, 1994) provided a clear picture of
what American workers want on their jobs today.  American workers
reported that they want more involvement and greater say in their
jobs, they would like this involvement to take the form of joint
committees with management and would prefer to elect members of
those committees rather than have managers select them.  They
prefer cooperative committees to potentially conflictual
relationships.  A sizable minority are in workplaces where they and
their fellow workers want to be represented by a union.

       The Commission's recommendations only provide a starting point
for responding to these expectations.  Clearly, the first necessary
steps are to deliver on the promise of labor law to provide workers
with a real choice over whether or not to be represented by a
union.  Clarifying the law to insure that it no longer limits
sensible and modern forms of employee participation and labor-
management cooperation is an equally necessary starting point.  But
if we are to fully respond to what workers are saying, further
experimentation with new institutional forms are needed as well.
Workers, not labor and management representatives, appear to be
calling for institutions that resemble representative councils
similar to the European style works councils.

       The Commission did not recommend creation of these types of
councils because of opposition from business representatives and
lack of strong endorsement by labor.  But clearly, there is room
for experimentation that, over time, might produce an acceptable
and effective American version of a workplace council.

                       Making the Most of the Recommendations

       If taken together and implemented in a coordinated fashion,
the package of legislative, administrative, and private actions
could improve the climate for employment relations, and produce the
mutual gains expected by the workforce and needed by the national
economy.  But, if history is any guide, the process of creating a
new labor policy will take a long time.  Although there is no clear
consensus over labor policy, some small steps have been taken to
open and broaden the debate and to include some new voices in the
process.  Even assuming the appropriate legislation is enacted it
will undoubtedly also take time for experimentation at the grass
roots level to develop the same empirical base of experience and
the political constituency for new forms of workplace governance.


       In summary, the New Deal labor policy framework has been
opened up for debate.  Some appropriate and necessary repairs to it
were suggested that allow workers to exercise the rights it
promises and allow employers and employees to gain maximum value
from employee participation.  Opportunities to develop new models
of governance are provided for those willing to take advantage of
them.

                                  Future Scenarios

       While it is impossible to predict the future given the range
of choices facing these different parties, at least three future
scenarios can be envisioned, depending on what Congress, the
Administration, and leaders of labor, business, women, and other
civil rights groups do with the Commission's recommendations.

Scenario 1:  Continued Political Stalemate

       Unfortunately, the most likely outcome of the forthcoming
debates over labor policy is continued stalemate. The conservative
dominance in Congress makes it more difficult for the
Administration to carry forward a comprehensive modernization of
labor policies called for by the Commission's recommendations.  The
labor movement is also wary of opening up labor law in what it
views as a hostile Congress.  Instead, debate may be sidetracked
over efforts to dismantle certain aspects of New Deal labor
policies without reconstructing them in a fashion appropriate to
the modern workplace.

       If the stalemate over labor policy continues, we can expect
continued union membership declines, increased polarization of
labor and management at the national level, more resistance by
union leaders and workers to innovation within individual
enterprises, and further growth in the gap in income and working
conditions between those with and those without individual labor
market power derived through education.  As a result, the gap
between worker expectations and workplace reality will widen for
many workers.

       The growth in employment litigation is likely to continue as
these frustrations mount. In this environment, anti-union and anti-
government sentiments will intensify among employers and the cycle
of conflict and distrust will only escalate.  This scenario
therefore essentially puts off the task of modernizing labor
policies to a later date, perhaps only when these pent up worker,
labor, and employer tensions reach their boiling point.  The
question in my mind is not if but when this point will be reached.

Scenario 2:  Congressional Stalemate and Administrative
Experimentation

       Even if Congress remains stalemated over the basic provisions
of labor law, the Administration could experiment with some of the
ideas suggested in the Commission's report.  For example, the NLRB
can use its rule making authority to address some of the problems
associated with joint employer and contingent work settings.  OSHA
might experiment with self-enforcement systems with a variety of
different forms of employee participation and labor-management
committee arrangements.  Other Department of Labor offices could
step up their efforts to encourage and defer to alternative dispute
resolution processes and take a more outcome oriented approach to
workplaces that have active self-governance systems in place.  The
EEOC could likewise step up its experimentation with ADR systems
and high quality private dispute resolution procedures.  The labor
movement could continue to encourage expansion of labor-management
partnerships in settings where unions now represent workers and
incrementally negotiate expansions of the issues and the workers
brought under the umbrella of these partnership arrangements.
Employers might support continued experimentation and some
employers might even take steps to integrate their employee
participation, union-management partnerships, and dispute
resolution systems into a comprehensive approach to workplace
governance.  Some states might step forward and provide models for
future national policies.

       This scenario would produce both some continued incremental
innovation but at the same time result in a corresponding growth in
battles between workers and managers in those employment settings
where either management or union representatives remain committed
to traditional views of each other and of their respective roles in
employment relationship.  Thus, there would be few macro-economic
benefits and considerable macro-economic and social risks
associated with this approach.  Whether islands of innovation could
survive and expand or get swamped in the larger sea of conflict
would remain to be seen.

Scenario 3:  A Coalition for Mutual Gains

       However unlikely it now seems, it is possible to envision what
could happen if a broad based coalition took full advantage of the
starting points provided in the Commission's report by enacting the
necessary legislative changes, taking the required administrative
actions, and promoting continued innovation in America's
workplaces.  One major benefit would be a significant improvement
in the climate for labor-management relations at national and
workplace levels.  It would open the door to experimentation with
new approaches to participation, representation, and workplace
governance.  Whether this would be enough to reduce the gaps in
earnings and expectations that now exist in American workplaces is
still unclear.  Whether it would usher in an era of more continuous
learning and change in public policy also remains to be seen.  But
this is the best chance we have to achieve these results.

       While obviously I believe Scenario 3 offers the best hope for
achieving results that are mutually beneficial to workers,
employers and the American economy, at the moment it seems the
least likely of the three scenarios.


                                      FIGURE 1
                        GOALS FOR THE 21ST CENTURY WORKPLACE


             Expand coverage of employee participation and
             labor-management partnerships to more workers
             and more workplaces and to a broader array of
             decisions.

             Provide workers an uncoerced opportunity to
             choose, or not choose, a bargaining
             representative and to engage in collective
             bargaining.


             Improve resolution of violations of workplace
             rights.

             Decentralize and internalize responsibility
             for workplace regulations.

             Improve workplace health and safety.

             Enhance the growth of productivity in the
             economy as a whole.

             Increase training and learning at the
             workplace and related institutions.

             Reduce inequality by raising the earnings and
             benefits of workers in the lower part of the
             wage distribution.

             Upgrade the economic positions of contingent
             workers.

             Increase dialogue and learning at the national
             and local levels.



                                     References
Adams, Roy, "Should Works Councils be used as Industrial Relations
Policy," Monthly Labor Review, July 1985, 25-29.

Freeman, Richard B. and Joel Rogers, "Worker Representation and
Participation Survey," Princeton, NJ:  Princeton Survey Research
Associates, 1994.

Kochan, Thomas A. and Robert B. McKersie, "Future Directions for
Labor and Human Resource Policy," Relations Industrielles, 44, 224-
243.

Kochan, Thomas A. and Paul Osterman, The Mutual Gains Enterprise.
Boston:  Harvard Business School Press, 1994.

Rogers, Joel and Richard B. Freeman, "Who Speaks for Us?  Employee
Representation in a Nonunion Labor Market," in Bruce Kaufman and
Morris Kleiner (eds) Employee Representation:  Alternatives and
Future Directions  Madison:  WI:  Industrial Relations Research
Association, 1993, 13-80.

Weiler, Paul, Governing the Workplace  Cambridge:  Harvard
University Press, 1990.