The American system of labor relations is largely molded by a seminal piece of legislation: The 1935 National Labor Relations Act (NLRA or Wagner Act). The NLRA created an “adversarial” system of labor law, under which employee organizations like unions were essentially pitted against employers. Among other objectives, this system sought to protect workers from company- dominated unions and was created based on the nature of the workplace at the time—large businesses where employees often spent their entire careers and which faced little global competition.
The NLRA put in place numerous rules related to the composition of collective bargaining units and the interactions employers could have with employee committees and even individual employees. Many unions, and some businesses as well, have argued that these rules are too restrictive and over the years have introduced concepts such as members-only unions1 and the TEAM Act2 to loosen them. To date, however, none of these concepts has succeeded in shifting the boundaries established by the NLRA.
Over the past three years, a new approach has been advocated by the United Auto Workers union (UAW). Based on the model of employee engagement found in Europe, and particularly Germany, the UAW has suggested that a “works council” could be established at the Volkswagen plant in Chattanooga, Tennessee. This works council, it is argued, could create a “third way” for employee representation and engagement that avoids the constraints of adversarial unionism. The question, however, is whether a works council actually is a new model for engagement or instead simply a campaign tactic by the UAW. An examination of the legal and practical hurdles facing the establishment of a works council under U.S. law suggests the answer is the latter.
This paper will examine the legal restrictions the NLRA places on employer/ employee collaboration, analyze how works councils function in Europe, and describe the significant roadblocks U.S. labor law places in the way of establishing a works council.
