New Guidelines from the National Labor Relations Board Regarding Participative Management Initiatives and Employee Committees

A recent decision by the National Labor Relations Board (“NLRB” or “Board”) has opened the door to increased cooperation between managers and employees by setting a precedent for how companies can structure shared governance entities such as employer-employee management committees without fear of violating the National Labor Relations Act (“NRLA” or “Act”). Beginning in the 1980s, due in large part to the influence of Japanese management approaches, employer-employee communication committees, participative management groups, quality circles, and similar approaches have become increasingly popular tools for increasing employee access to and involvement in workplace management decisions. The utility and effectiveness of these approaches is evident from their continued use and popularity among both employers and employees. Despite strong support for these techniques, employers have had to exercise caution in implementing them due to federal court and NLRB interpretations of the NLRA. Those precedents created a confusing and oftenchanging array of requirements for employers to meet when using these approaches to avoid running afoul of the Act. In a case called Crown Cork & Seal Co., the Board greatly expanded the prospects for use of these techniques by adopting a more flexible standard for the parameters under which these approaches can be used without violating the Act. Specifically, the Board’s decision recognized that an employeremployee committee that performs certain traditional management functions can be lawful under the Act even where an employer reserves the right to rescind decisions of the committee. The decision was generally favorably viewed by both employer representatives and labor organization representatives as an important step in enhancing the potential for increased cooperation in the workplace. This article examines Crown Cork & Seal and cases prior to it and provides suggestions for steps employers can take to increase employee participation in management decisions.