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Using Empirical Evidence to Assess Labor-Management Cooperation Michigan Journal of International Law Volume 19 Issue 3 1998 Cooperation, Conflict, or Coercion: Using Empirical Evidence to Assess Labor-Management Cooperation Ellen J. Dannin California Western School of Law Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Comparative and Foreign Law Commons, and the Labor and Employment Law Commons Recommended Citation Ellen J. Dannin, Cooperation, Conflict, or Coercion: Using Empirical Evidence to Assess Labor- Management Cooperation, 19 MICH. J. INT'L L. 873 (1998). Available at: https://repository.law.umich.edu/mjil/vol19/iss3/4 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. COOPERATION, CONFLICT, OR COERCION: USING EMPIRICAL EVIDENCE TO ASSESS LABOR-MANAGEMENT COOPERATION Ellen J. Dannin* INTRODUCTION ...................................................................................... 874 I. ARGUMENTS CONCERNING LABOR-MANAGEMENT COOPERATION.. 875 A. Changing the Form and Function of Unions....................... 876 B. Allowing Employers to Choose the Form of Unionization.. 887 C. Employees PreferLabor-Management Cooperation........... 889 U1. NEW ZEALAND'S EXPERIENCE WITH A LABOR-MANAGEMENT COOPERATION REGIME ................................................................. 890 A. Are the United States and New Zealand Comparable?....... 890 B. The Employment ContractsAct (ECA) in the Laboratory...894 1. Union Focus on Productivity Issues ............................. 898 2. Labor-Management Cooperation .................................. 909 3. New Forms of Organization ......................................... 917 C. Assessing the ECA as a Model for US. Labor Law Reform ............................................................... 936 1. Whether Productivity Improvements Have Motivated New Zealand Employers to Embrace Unionism ........... 936 2. Union Membership under the ECA .............................. 938 3. The Social Impact of the ECA ...................................... 940 4. How Value-Added Unions Fare versus Traditional Adversarial Unions ..................................... 943 I. TRANSLATING THE NEW ZEALAND EXPERIENCE TO THE UNITED STATES ............................................................................ 945 A. HistoricalExperience-Old Debates in New Forms ........... 946 B. CurrentExperience .............................................................. 952 C ONCLUSION ........................................................................................ 955 * Professor of Law, California Western School of Law; BA. University of Michigan; J.D. University of Michigan. This research is supported in part by a grant from the Fund for Labor Relations Studies and support from California Western School of Law, University of Waikato, and Victoria University of Wellington. The Dan Long Library, Wellington, New Zealand, and Brian Easton have assisted by providing primary documents. I would like to thank Jim Atleson, Jack Getman, Ali Hebshi, Richard Lempert, and Deborah Malamud for their suggestions. Michigan Journalof InternationalLaw [V1ol. 19:873 INTRODUCTION Since the 1980s there has been strong interest in labor-management cooperation. That interest was reflected even in government attention, for example, through projects by the U.S. Department of Labor's Bureau of Labor-Management Cooperation. Under the leadership of Undersec- retary Stephen Schlossberg, the Bureau's "Laws Project" examined the impact of labor law on labor-management cooperation.' The Dunlop Commission issued a report strongly in favor of labor-management co- operation,2 and National Labor Relations Board (NLRB) Chair William B. Gould has spoken favorably of it! More recently, the government issued a report on state and local initiatives in this area. Currently, the concept of labor-management cooperation is receiv- ing strong support from some scholars, politicians, and employer groups as a way to improve U.S. competitiveness. That support is exemplified by the introduction of the Teamwork for Employees and Management (TEAM) Act in Congress to facilitate the development of labor- management cooperation by amending § 8(a)(2) of the National Labor Relations Act (NLRA).' 1. The author was a member of the Laws Project in 1987 and worked on one of its published reports concerning the interaction of the duty of fair representation and labor- management cooperation. See BUREAU OF LABOR-MANAGEMENT RELATIONS AND COOPERATIVE PROGRAMS, U.S. DEP'T OF LABOR, Labor-Management and the Duty of Fair Representation, in U.S. LABOR LAW AND THE FUTURE OF LABOR-MANAGEMENT COOP- ERATION, SECOND INTERIM REPORT 39 (1987). 2. See COMM'N ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS, REPORT AND RECOMMENDATIONS 2-4 (1994); see, e.g., COMM'N ON THE FUTURE OF WORKER- MANAGEMENT RELATIONS, FACT FINDING REPORT (1994); Arthur J. Martin, Current Critical Issues in Labor and Employment Law: Company Sponsored Employee Involvement: A Union Perspective, 40 ST. LOUIS L.J. 119, 129-30 (1996) (describing the history of the Dunlop Commission). 3. See William B. Gould, Labor Policy by and beyond the NLRB: Globalization, Cor- porate Reorganization, and the American Workforce, in BUREAU OF NATIONAL AFFAIRS, INC. Remarks by NLRB Chairman William B. Gould to the Commonwealth Club of California, 152 DAILY LAB. REP. (BNA), Aug. 4, 1997, at E-I. 4. See WORKING TOGETHER FOR PUBLIC SERVICE: REPORT OF THE U.S. SECRETARY OF LABOR'S TASK FORCE ON EXCELLENCE IN STATE AND LOCAL GOVERNMENT THROUGH LABOR-MANAGEMENT COOPERATION (1996). 5. See Teamwork for Employees and Management (TEAM) Act, S.295, 105th Cong. (1997); As TEAM ACT Moves through Congress, Employers Pursue Employee Jnvolvment, EMPL. REL. WKLY. (BNA), Mar. 17, 1997, at 255; NAM Offers Agenda for Helping Workers That Stresses Worker Involvement of TEAM, LAB. REL. WK., Mar. 5, 1997, at 229. The TEAM Act was approved in March 1997 by the Senate Labor and Human Resources Com- mittee. President Clinton vetoed a virtually identical bill in 1996 and threatened that he would veto its successor if it was sent to the White House. See Steelworkers: House Demo- crats Criticize GOP Study of US. Labor Policies, DAILY LAB. REP. (BNA), July 16, 1997, at DI 1; Michael H. LeRoy, "Dealing With" Employee Involvement in Nonunion Workplaces: Empirical Research Implications for the TEAM Act and Electromation, 73 NOTRE DAME L. Spring 19981 Cooperation,Conflict, or Coercion The TEAM Act and the impact of labor-management cooperation are hotly debated issues.' As with most proposed legislation, it is impos- sible to know how the TEAM Act would function if it were to be enacted. No social science experiment can be run to gauge its operation and predict its likely effect. There are simply no social laboratories complete with control groups and replicability. Even if there were, the best of such experiments could not capture the complex ways in which law interacts with society. In this arena comparative law is not based on a superficial reading of statutes or cases, but, rather on an in-depth examination of society's laws and values. As a result, it is possible to use the experience of a comparable country as if it were a laboratory in which the experiment has been run. In this case, New Zealand's six year experience under the Employment Contracts Act 1991 (ECA) is particularly useful. The ECA has created the conditions under which labor-management cooperation has been used as a replacement for collective bargaining. Thus, analyz- ing the ECA can be used as a means of gaining a clearer understanding of the likely ways in which the TEAM Act would function were it to be enacted. I. ARGUMENTS CONCERNING LABOR-MANAGEMENT COOPERATION Proponents of labor-management cooperation make several interre- lated arguments concerning the use of cooperation as a replacement for the NLRA. First, these proponents contend that the form and function of unions must change so that unions will engage in cooperative efforts rather than take adversarial positions. Second, we must alter the pur- poses of labor law from supporting a narrow focus on increasing wages to promoting win-win bargaining and employer productivity and com- petitiveness. Third, employers must be given the opportunity to affect or choose the form of unionization that will best serve the needs of the en- terprise. Finally, since employees would prefer labor-management cooperation to adversarial unions, labor-management cooperation would reverse the decline of unionization. Each of these claims is hotly con- tested. Unfortunately, the argument on both sides is infused with passion but has so far suffered from an inability to rely on empirical evidence. This article will first sketch the arguments on each of these points made in the United States and compare them to arguments made in sup- REV. 31, 79-82 (1997) (providing the history of 8(a)(2) and recent efforts to amend it); see also PAUL WEILER, GOVERNING THE WORKPLACE: THE FUTURE OF LABOR AND EM- PLOYMENT LAW 283-95 (1990). 6. See discussion infra Part I.A. Michigan Journalof InternationalLaw [Vol. 19:873 port of the enactment of New Zealand's ECA. It will then examine the empirical evidence available from New Zealand's experience, which provides
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