Contents Page: NZJER, 2009, 34(3)
Name

Title

Page
NumberGlenda Scholefield &Simon PeelManagers’ Attitudes to Teleworking

Keith Macky &Peter Boxall

Employee Well-Being and Union
Membership

14-25

Donna M. Anderson,
Kathryn Birkeland &Lisa Giddings

Employee Opinion on Work-Family
Benefits: Evidence from the U.S.

26-42

Bernard Walker &R.T. Hamilton

Grievance
Processes:
Research,
Rhetoric and Directions for New
Zealand

Jacopo Busnach
Ravenna

Secondary Boycotts and Ally Doctrine
in the U.S. Law of Strikes

65-82

Bernard Walker &R.T. Hamilton

The 2010 review of the NZ personal
grievance system: Commentary

83-91

Erling Rasmussen &Colin Ross

Chronicle: June–September, 200992-101

1-13

43-64

New Zealand Journal of Employment Relations 34(3):1-13

Managers’ Attitudes to Teleworking
GLENDA SCHOLEFIELD* and SIMON PEEL**
Abstract
This paper investigates managers’ attitudes to and perceptions of teleworking. Despite many
predictions that teleworking would become a significant mode of work, evidence suggeststhat the uptake of teleworking has been much less than might otherwise be anticipated. It issuggested that managerial resistance may play a part in this. This study surveyed 123
managers in marketing firms in New Zealand and followed this up with eight in depth
interviews. It is clear that while managers overwhelmingly report positive attitudes towards
the concept of teleworking they have significant concerns which affect their actual usage.
This paper contributes to our understanding of these contradictory attitudes on the part ofmanagers and suggests further avenues for research.
Keywords: Teleworking, managers’ attitudes, human resource management.

Introduction
It is more than 30 years since futurist Alvin Toffler pointed to the absurdity of “ship(ing)millions of workers back and forth across the landscape every morning and evening” (1970:
4). Since then, writers such as Charles Handy have predicted that one third of employees
would be working from home by the turn of the century. While in some workplaces
teleworking is not uncommon, at least in an ad hoc opportunistic way, as a new form of work
teleworking has not caught on nearly as much as has been predicted. While accurate figures
are difficult to attain, research shows that only six percent of the EU workforce teleworks(Sanchez, Perez, Carnicer & Jimemez, 2007) and the UK figure is lower at four percent(Lupton and Haynes 2000). This article explores the role that manager’s attitudes andperception play in teleworking adoption, and how these might go some way towards
explaining why teleworking has not enjoyed the widespread adoption that might have been
anticipated. It investigates managers as key stakeholders and decision makers in theutilisation of and effectiveness of teleworking arrangements. It suggests that while managers
may express support for and endorsement for the concept of teleworking, in practice there are
myriad reasons why they may not want to enable its use in practice.
Broadly speaking, teleworking is the concept of employees conducting their tasks by meansof communication technologies from a location other than the usual workplace. Other terms
have similar meanings and are often used interchangeably, although teleworking andtelecommuting have been mostly used in the literature (Baruch and Yuen, 2000). As westudy managers’ attitudes towards and perceptions of a particular mode of working, we use
the term ‘teleworking’ in alignment with by other researchers in the field (for example,
Sanchez et al., 2007; Morgan 2004). We define it as ‘paid employees who conduct their tasks
from home at least one day per week, using communication technologies to do so.’* Glenda Scholefield is post-graduate student at Unitec and Product Manager at ASB Bank.
**
Simon Peel is the Dean of Research at the Unitec Institute of Technology. speel@unitec.ac.nz

1New Zealand Journal of Employment Relations 34(3):1-13

The concept of teleworking became a popular topic for academic discussion following the1970’s world oil crisis, when alternatives to traditional commuting were suddenly of great
importance (Baruch & Yuen, 2000). Over the next two decades, interest in teleworking
reappeared in conjunction with various significant occurrences, for example the advent of the
new style of human resource management practices of the 1980s and the trend towards
flexible employment practices as one way to achieve competitive advantage (Lim & Teo,
2000; Haddon & Brynin, 2005; Sanchez et al., 2007). Teleworking became more viable withthe technological advances of the 1990s – particularly the fast-growing commercial anddomestic usage of the Internet and email (Siha & Monroe, 2006). Teleworking is attracting
even more attention in the twenty-first century, with issues such as traffic congestion,
pollution and work-life balance gaining prominence and contributing to its contemporary
relevance (Harpaz, 2002). With the ongoing fast-paced developments in technologies,
teleworking will become even more accessible and affordable (Roukis, 2006; Kowalski &Swanson, 2005; van Winden & Woets, 2004). For example, the number of Westernhouseholds with broadband Internet is rapidly expanding, particularly where purchasing
decision-makers are educated professionals (Dwivedi & Lal, 2007; Gill, 2006; Halal, 2004).
Trends indicate that employees and employers will increasingly prefer or insist on flexibility(Johnson, 2004; Rosendaal, 2003; Canny, 2002). Also, organisations today need to be
responsive to a dynamic market in order to be successful or even just to survive (Schoemaker& Jonker, 2005; O’Keeffe, 2002).
Given this, it could be expected that teleworking would become a common mode of
employment. However, the predictions of renowned futurists such as Alvin Toffler andCharles Handy of widespread use to teleworking have not come to pass (Ndubisi &Kahraman, 2005). In 2000, only six percent of the European Union workforce wasteleworking (Perez, Sanchez, Luis Carnicer & Jimenez, 2004). Even the United Kingdom’s
National Economic Development Office’s 1986 prediction that 10-15 percent of the country’s
workforce would be working from home by 1995 has proved to be greatly overestimated.
According to the 1997 British Labour Force survey, the actual figure in 1995 was only four
percent (Lupton & Haynes, 2000). However, evidence points to growth in teleworking in
more recent years. For example, the number of employees in the United States whose
employer permits them to work away from the office at least one day per month increased 63
percent between 2004 and 2006 (Telework Trendlines, 2007).
The study of teleworking is of considerable contemporary importance. In Western nations,where a service-based knowledge economy has overtaken the traditional manufacturingbased economy (Hill, 2005; Green, 2003), there is potential for teleworking to become morecommon. Yet, until as recently as the late 1990s, there were very few robust scholarly
studies conducted in the field, due at least in part to the lack of consensus on an exact
definition of the concept (Kowalski & Swanson, 2005; Mokhtarian, Salomon & Choo, 2005;
Harris, 2003). Of the research that has been done in the area, most has focused on theindividual teleworker (Bailey & Kurland, 2002). Although this has resulted in some valuable
insights, there remains a lack of research from a management perspective (Perez et al., 2004).
Lupton and Haynes (2000) state that it is somewhat of a mystery why teleworking has not
become widespread, as organisations benefit from increased productivity as well as saving on
many of the costs incurred in running an office. Robert and Borjesson (2006) point out thatfirms that support teleworking improve their environmental profile. Other advantages for
employers include being better-able to offer customer service outside of traditional business2

New Zealand Journal of Employment Relations 34(3):1-13
hours, attract and retain skilled staff in a tight labour market and respond to the changing
demographic such as the increase of women in the workforce (Morgan, 2004; Ahmadi,
Helms & Ross, 2000).
On the negative side of the equation is the lack of social interaction causing feelings ofisolation – and the risk of this resulting in decreased job satisfaction and company loyalty(Perez, et al., 2002b; Wicks, 2002; Ward & Shabha, 2001). Another disadvantage is the lackof company support for the employee. One survey found that over 30 percent of teleworker
respondents stated that the lack of support, including technical assistance, was a disadvantageof working from home. The same study identified that difficulty in maintaining focus athome was a problem for some, but that this appeared to be dependent on the particular homeenvironment (Mann, Varey & Button, 2000). However, many believe that if a teleworking
programme is implemented properly, the advantages far outweigh the disadvantages (forexample Carr, 2006; Madsen, 2006; Ammons & Markham, 2004).
While factors influencing teleworking adoption include employee demand as well asorganisational factors, it would not be possible to adopt a teleworking scheme without
managerial approval. Even in lieu of existing organisational backing, a manager who is keen
to implement teleworking for their staff will likely lobby the relevant decision-makers for
permission. As organisational support is vital for teleworking adoption (Perez, Sanchez &Luis Carnicer, 2003b) and managers’ roles are critical in the uptake and success ofteleworking. Given this fact, the present study investigates managers’ attitudes towards
teleworking. Teleworking research lends itself to the study of white-collar, relatively
autonomous work situations (Ahmadi et al., 2000). Morgan (2004) suggests that the biggest
barriers to teleworking adoption are negative attitudes and perceptions on the part ofmanagers. These opinions are then shared with other managers, thus perpetuating thenegative view of teleworking. For this reason, more research into managers’ attitudes ispotentially valuable. This study responds to the gap in the empirical research identified by
Bailey and Kurland (2001) in that it focuses on stakeholders, other than individual
teleworkers, who influence or are influenced by the adoption of distributed work
arrangements.

The Study
This study investigated middle managers’ perceptions of teleworking using a mixed methodof a quantitative paper-based survey and qualitative in-depth interviews. In selecting
marketing managers, we chose a particular type of management context and a white-collar
office environment. Many marketing roles, such as conducting market research, preparing
communication briefs, writing advertising copy, designing promotional collateral, booking
media, analysing results and reporting, could feasibly be carried out from home by means ofcommonly available and relatively cost-effective technologies. We limited our sample tomanagers with a moderate number of direct reports who were full-time and employed under aconventional employment arrangement, rather than part-time, temporary or contract.
The first phase of data collection was a survey questionnaire which was intended to give a
broad view of marketing managers’ perceptions of teleworking. It consisted of 22 questions
as well as a section for open ended comments. It concluded with an opportunity to volunteer
for phase two of this study – an in-depth interview. The questionnaire was mailed tomarketing managers of companies with at least 25 staff across all industries from the two3New Zealand Journal of Employment Relations 34(3):1-13
largest cities in New Zealand – Auckland and Wellington. A pack including a covering
letter, questionnaire and post paid return envelope was mailed out to 628 managers. A total of
123 completed questionnaires were received which was a response rate of 20 percent. Of the
123 respondents, 42 managers volunteered to be interviewed, an indication of the level ofinterest in the subject of teleworking.
For the second phase of data gathering, eight managers were selected for in-depth interviews.
They were selected purposively based on a number of factors including having at least threefull-time, permanent direct reports, as coming from a mix of industry sectors, a mix of ages
and gender, whether teleworking was feasible for their direct reports, and a mix of those who
had adopted teleworking and those who had not. The interviews were semi-structured andwere conducted by the researcher face-to-face and audio recorded for subsequent verbatim
transcription.
There were a number of limitations concerning the sample that should be noted. The sample
targeted larger organisations despite the fact that New Zealand has a large proportion of small
and medium enterprises. The volunteer nature of the interview sample also meant that it was
likely that those managers with stronger views, either for or against, would be more likely toprovide their details and participate further in this study.

Survey Findings
The questionnaire respondents were 64 percent male and 36 percent female. The tables
below show other relevant sample information. The data on the age outlined in table one
show the relative youth of marketing managers. In addition, the bulk of respondents werefrom organisations with more than 50 employees and had marketing departments of between
one and nine employees as shown in tables two and three
Table 1: Age of the Marketing Managers
Under 25
25-34
35-44
45-54
2%
7%
41%
28%
Table 2: Number of Employees
Numbers of:
1-9
Employees in organisation
0
Employees in marketing unit
76%

10-19
0
17%

Table 3: Number of full time direct reports
0
1-2
3-5
6-8
11%
23%
33%
20%

55-64
22%

20-29
4%
1%

9-11
7%

65+
0

30-39
4%
2%

40-49
7%
1%

12-14
4%

15+
3%

50+
85%
1%

Table four (below) reports the answers to a series of yes/no questions. Of those with direct
reports, the majority stated that it was possible for them to telework, however, managers were
evenly split between those who reported that they currently had some form of teleworking
arrangement in place and those who reported that they did not. A larger number (62 percent)stated that they had considered allowing their reports to telework. Overall, the respondents
saw the advantages as outweighing the advantages.

4New Zealand Journal of Employment Relations 34(3):1-13

Table 3: Sample of survey questions
Yes
68%
48%
62%
38%

Is it possible for your reports to telework?
Do they telework now?
Have you considered allowing teleworking?
Overall, do the disadvantages outweigh the advantages?

No
32%
52%
38%
62%

Respondents were asked a series of questions and asked to indicate the extent of theiragreement or disagreement with each of them. These are shown in table five (below)
followed by a brief commentary.
Table 5: Sample of survey questions
Teleworking will:
Strongly
Agreeincrease company costs overall2%
improve employee satisfaction
36%
improve preferred employer status27%
improve environmental awareness 8%
and corporate social responsibility
create physical isolation that will 15%
have a negative impact on
performancecreate physical isolation that will 5%
have a negative impact on loyalty
and retention
affect the performance of the team 8%
negatively
create difficulty in performance 10%
managing teleworkers
make workers more distracted from 9%
their core work tasks, being at homeresult in workers working just has 21%
hard even though they are out ofsight of management and co-workers
allow the possibility of technological 20%
malfunctions that will have anegative impact on productivity
overall

Slightly
Agree
18%
39%
49%
43%

Not
Sure
33%
15%
15%
24%

Slightly
Disagree
35%
7%
7%
19%

Strongly
Disagree
15%
3%
2%
6%

46%

13%

18%

9%

30%

21%

29%

15%

29%

14%

33%

15%

41%

6%

33%

10%

41%

21%

20%

9%

33%

30%

12%

3%

48%

15%

13%

5%

From the relative agreement or disagreement with the statements, we can see that 50 percent
disagree that it would lead to increased costs for the company with a large proportion unsure
whether this would be the case. A solid majority of respondents agreed that teleworking can
improve employee satisfaction and that a teleworking arrangement could improve thecompany’s preferred employer status. As for whether supporting teleworking would meanthat the company would be seen as more environmentally conscious and socially responsible,
respondents were divided although a slight majority agreed with only 25 percent disagreeing.

5New Zealand Journal of Employment Relations 34(3):1-13
A key question in the management of teleworking is whether a teleworker’s physicalisolation from the company and their co-workers will have a negative impact on theindividual’s performance. A majority agreed that the physical isolation of teleworking could
result in reduced performance. With regard to the impact on loyalty and retention, opinion
was divided. Opinion was also divided with regard to negative impact on the work teamalthough 48 percent disagreed with the statement regarding the negative effect.
The literature suggested that a potential concern with teleworking is that it might be moredifficult to manage the performance of teleworkers. Again, respondents were divided with aslight majority suggesting that it could be more difficult to manage teleworkers. As towhether teleworkers be more easily distracted from their core work tasks while working athome, the pattern of responses to this question was very similar to the earlier question
relating to negative impact on worker’s performance, with 50 percent agreeing, 29 percent
disagreeing and 21 percent unsure.
Previously, a majority of respondents indicated that teleworkers might be less productive andmight be more prone to distraction. When asked whether, despite being out of sight ofmanagement and co-workers, teleworkers would work just as hard, a majority of respondents
agreed that they would work just as hard. A larger majority agreed that technologicalmalfunctions at the teleworker’s home will have a negative impact on their productivity
overall.

Interview Findings
One-third of the respondents, 42 people, volunteered to participate in the second phase of thisstudy which consisted of an in-depth interview. Eight in-depth interviews were conductedwith five male and three female managers. Five had some sort of informal ad hoc teleworking
system in place and three reported no teleworking occurring. The interview transcripts wereanalysed and comments relating to the managers’ perceptions of aspects of teleworking werehighlighted.
When asked to identify the main benefits of teleworking respondents most commonly
identified the ability to focus on a project or task without distractions and interruptions. Other
benefits identified, by more than two respondents, were attracting and retaining staff in a tightlabour market and achieving better work life balance. When asked about the main
disadvantages, all respondents cited technological unreliability and access issues affecting
productivity. Other disadvantages offered by three or more respondents were home
distractions, lack of impromptu communication and face to face contact, lack of service, andissues with building team relationships.
Respondents were asked about the factors that might limit the actual use of teleworking. All
respondents stated that it would only work for certain personality types. Six out of eightsuggested that it would work occasionally but not routinely due to the impact on individual
and team performance. Other limitations cited by multiple respondents were that it would
only work well when there was a suitable work environment at home, clear goals and outputs,
a special project, regular contact, and appropriate technology. When asked why teleworking
is not more common, two or more respondents cited accessibility of office systems, the needfor a change of managerial mindset and increased trust, and the need for social contact. A
typical comment was that: “...there are certain roles which will work and certain roles

6

New Zealand Journal of Employment Relations 34(3):1-13
which won’t work... it’s not for everybody and it can’t be for everybody.” As the interviews
progressed, the reservations became more apparent, although most continued to indicate
throughout the interview that they supported the concept of teleworking. What emerged weremany statements that demonstrated concern about various facets of teleworking. For
example, when discussing whether performance management would be any more difficult,one interviewee replied:
I think possibly it could be – that you’re not seeing them day to day. When you’remanaging somebody… are they there, are they available, are they doing what people
have asked them? You know what people have asked them because they’re right there,
they’re in front of you, you’re getting that feedback all the time.
When asking whether teleworkers would be able to be as responsive as someone
working in the office, another interviewee stated:
No, probably not in all instances… are they refreshing their email every two or threeminutes to check that they’ve got a new email coming in? And in theory they should
be answering their phone and have their mobile on and everything else like that.
Many interviewees were concerned with the issue of home-based distractions:“…being at home, having the distractions, having the temptations, I’d say people
probably wouldn’t work quite as hard as they would do at work”.

Discussion
This section discusses a number of key themes emerging from this study. The starting point is
the finding that while managers indicated support for the concept of teleworking, they
identified significant areas of concern that limited their actual usage of it. The balance of the
discussion explores some of the reasons why there may be a gap between this overallfavourable attitude and managerial practice.
Managers in our study were largely supportive of the concept of teleworking. Sixty-two
percent of questionnaire respondents stated that they believed there were mainly benefits to
be gained for organisations implementing such an arrangement with benefits identified suchas improved employee satisfaction and preferred employer status. However, only around halfof those for whom teleworking was feasible for their staff actually had some form of anarrangement in place. Despite supporting the concept of teleworking, most had concerns
about how it might actually work in practice. The most common concerns were the risk thattechnological problems, physical and social isolation, and home-based distractions would
result in loss of productivity. These factors are often cited in the literature as potential
disadvantages of teleworking (Perez et al., 2002a; Wicks, 2002; Ward & Shabha, 2001;
Ahmadi et al., 2000; Mann et al., 2000). This indicates that there are similarities between
New Zealand managers’ and their European and North American counterparts’ attitudes
towards teleworking.
The interviews with managers added richness to this finding. Six out of the eight interviewees
stated that they were in favour of teleworking and indicated a range of benefits. Yet, while
all had direct reports for whom teleworking was feasible, only informal arrangements were inplace. The interviewees went on to identify significant disadvantages and many of the

7New Zealand Journal of Employment Relations 34(3):1-13
benefits had conditions or qualifiers attached. A common theme was that teleworking was
only suitable some of the time and therefore, several managers reported ad-hoc arrangementswith staff. 13 out of the 39 respondents who added comments to the questionnaire stated thatthey used teleworking on a ‘when required’ basis. The managers’ negative attitudes towards
many aspects of teleworking and overall lack of utilisation corroborates Grantham and Paul
(1995) and Lupton and Haynes’ (2000) proposal that managers’ negative attitudes are thesingle largest barrier to teleworking.
If most managers were in favour of teleworking overall, but identified more disadvantages
than benefits, why might this be? One explanation is social desirability bias. Respondents
may have wanted to portray themselves as modern, progressive, open-minded and flexible intheir management style, and thus open to alternative ways of working, masking theirantipathy towards the topic.
A major preoccupation on the part of managers (in the questionnaire and interviews) was thereliability and usability of information and communication technologies. For example:
I strongly believe that the success and effectiveness of teleworking is largely
dependent on having competent technology (often difficult to get!)”. “It would be
more prevalent but for the cost – and unreliability – of the technology.
Some writers have confidently asserted that since the 1990s teleworking has become apractical opportunity for many employees (Kowalski & Swanson, 2005). Nevertheless, someresearchers of the day decried the lack of high bandwidth and Intranet accessibility, andproposed that this was a large reason for the prevalence of teleworking being lower than
expected (Pliskin, 1997). A decade on, the interviewees observed similar hindrances, despite
the fact that New Zealand has one of the world’s highest levels of broadband internet andcellular telephone penetration (OECD, 2008). This raises the question of whether thesehindrances are real or whether they merely provide managers with an acceptable reason to
restrict the use of teleworking.
Another significant theme from this study is the importance of trust. While managers did not
speak directly of lack of trust, it emerged as a theme in the interviews and can be seen tounderpin questionnaire respondent’s beliefs that productivity would be less for teleworkers.
This supports Lupton and Haynes’s (2000) contention that trust is a major factor in the reason
teleworking has not become widespread – in fact, they go as far as to state that managerial
trust is the largest obstacle. Cascio (2000) states that trust is so important that even if every
other factor is ideal, without it, it is impossible for teleworking to be a success. Managerial
attitudes to teleworking are linked to company culture. According to Kowalski and Swanson(2005), if the organisation’s culture is not one established on trust, then the managerial trust
required for teleworking implementation is unlikely.
This study supports previous research which indicates that key factors in the lack ofteleworking adoption are managers’ perceptions concerning the need for and enjoyment ofsocial interaction and the prevalence of distractions in the home. The questionnaire asked
whether or not a teleworker’s physical isolation from the company and their co-workers
would have a negative impact on the individual’s performance. Although the term ‘social
interaction’ was not used in the question, it is the social interaction aspects of employmentthat physical isolation would have the greatest impact on, as work tasks and functional
communication are still able to be conducted from home. 61 percent believed that the8New Zealand Journal of Employment Relations 34(3):1-13
teleworker’s performance would be negatively affected due to being physically absent fromtheir workplace and colleagues. The pattern of responses indicated that managers were also
concerned about distractions in the home. However, some saw fewer distractions at home.
Cascio (2000) discusses a study that found teleworkers to be 40 percent more productive
while working away from the office, mainly because they have fewer distractions. Thus,
whether teleworkers are more or less productive may depend on the particular circumstancesand distractions of their home environment in contrast to the distractions to be found in theirworkplace.
There is much in the teleworking literature regarding environmental benefits but managers inthis study did not regard them as a key factor in decision making. This supports the Siha andMonroe (2006) contention that potential environmental benefits have played a relatively
small part to date in motivating organisations to adopt teleworking. They draw attention to
the growing number of United States government initiatives being put into place toincentivise teleworking adoption and suggest that governments in other nations will follow
suit. This level of government involvement will have the effect of creating moreorganisational and public awareness.

Conclusions
This research began with something of a mystery. That is, there has been a much lower
uptake of teleworking than was predicted decades ago. The fact that the mystery remains isdue to the lack of scholarly studies on the subject. As managers are the ones who maketeleworking possible, managers were the subject of this investigation. Although they may
state that they are supportive of teleworking, busy managers are unlikely to make thenecessary efforts to implement such an arrangement for their staff when, in reality, they havemixed feelings about the concept. This is especially so as many of their concerns involve
productivity, something of immediate importance to most managers.
Most managers in this study stated that they were in favour of teleworking. Three-quarters ofquestionnaire respondents and interviewees believed that employee satisfaction and preferred
employer status is improved. However, only around half of those for whom teleworking was
feasible for their staff actually had some form of an arrangement in place. Although the
majority of the interviewees stated that they were supportive of teleworking, they identified
many more disadvantages than benefits. Many of the benefits that were noted, had conditionsor qualifiers attached.
From a review of the literature, one might surmise that managerial trust and control issues
would be the two main factors affecting managers’ attitudes. In this study, technologicalissues, lack of social interaction and the prevalence of home-based distractions wereprevalent. However, trust can be seen to underpin performance concerns and the lack ofsupportive managerial attitudes and organisational culture are also factors. Overall, it issuggested that managers’ mixed feelings regarding the concept may be a key reason why
teleworking has not become widespread. These findings are not incongruent with the findingsof other studies in the area, most of which have been conducted in Europe and North
America. However, some limitations should be noted. Teleworking research is beset byissues of definition and interpretation, despite the best efforts of the research to clearly define
the domain of interest. It is likely that respondents continued to utilise their own definition of
teleworking, although this was less of an issue with the interviewees, where they could be

9New Zealand Journal of Employment Relations 34(3):1-13
reminded of the definition throughout the discussion. The possibility of social desirability
bias affecting managers’ responses was noted earlier.
There are many research opportunities in the field of teleworking. Future research could
consider one or more variable in the adoption and success of a teleworking arrangement. For
example, does it depend on the individual employee – the level of their need for social
interaction or their particular home environment in terms of its distractions? Or does it
depend on their manager’s perceptions of one or more of these factors? Do demographic
variables such as age and gender affect adoption? Further research is needed into other work
contexts.
With continued advances in telecommunications technology, it is likely that the managers’
concerns regarding these issues may become less prevalent, which means that the optimistic
predictions from the 1980s and 1990s may yet come true. Younger generations of managers
may shift company cultures in ways that favour teleworking. Associated negative side
effects, such as the lack of social interaction, will likely be overshadowed by growing publicconcern over environmental issues and related problems such as traffic congestion. In
addition, government and legislative encouragement could play a significant role. In New
Zealand the Employment Relations (Flexible Working Arrangements) Amendment Act 2007,
requires employees to be responsive to employee needs, which teleworking is one possible
response. Because of these and other forces, teleworking is likely to remain a significant areaof interest for researchers and practitioners alike.

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13

New Zealand Journal of Employment Relations 34(3): 14-25

Employee Well-Being and Union Membership
KEITH MACKY* and PETER BOXALL**
Abstract
Using a random telephone survey of 645 New Zealand employees in unionised workplaces,
we compare union members with non-members on four dimensions of employee well-being:
felt work intensification in terms of work demands on time and role overload, job-induced
stress, work-life imbalance, and job satisfaction. We find no differences between unionists
and non-unionists in respect of overall job satisfaction, although two facet-level aspects ofsatisfaction do predict union membership – promotion opportunities and recognition levels.
Union members also report higher levels of work overload and pressure, greater stress, andgreater work-life imbalance compared to non-union members. These findings are discussed
in relation to theories of union belonging.
KEYWORDS: Unions; work intensification; job satisfaction; work-life balance; stress

Introduction
The relationship between employee well-being and union belonging is a controversial area of
research. Much of the prior research has focused on global or overall job satisfaction as theprimary well-being indicator when predicting union membership, although it is now
recognised that we must also look at job satisfaction at the facet-level (Guest and Conway,
2004; Friedman, Abraham and Thomas, 2006). There is also a need, as Wood (2008) argues,
to examine the relationship with union belonging of a much fuller range of the psychologicaland physiological indicators of employee well-being. In this vein, this paper’s objective is tocompare union members with non-members in respect of their reported levels of work
intensification, job-induced stress, work-life imbalance, and job satisfaction, both globallyand at facet level.
The context of the research is one of declining union membership in the Anglo-American
world, together with evidence of a growing intensification of work (Allan, Brosnan andWalsh, 1999; Green and McIntosh, 2001; Green, 2004). The data is gathered in New
Zealand, a country in which pro-union reforms of employment legislation in 2000 havehelped to halt union decline but have not stimulated union renewal (Boxall, Haynes andMacky, 2007). Union density remains around one in five of wage and salary earners(Charlwood and Haynes, 2008). The general aim of this paper is, therefore, to explore New*

Keith Macky is Associate Professor in the Department of Management at Auckland University of Technology(AUT). Private Bag 102 904, Auckland, NEW ZEALAND. +64 9 921 9999 x 5035. keith.macky@aut.ac.nz**

Professor Peter Boxall. Department of Management & International Business, University of Auckland. Private
Bag 92019, Auckland, NEW ZEALAND. +64 9 3737999 x 87355. p.boxall@auckland.ac.nz

Please address correspondence to first author

14

New Zealand Journal of Employment Relations 34(3): 14-25
Zealand workers’ experiences of work, and the relationship these may have with theirmotivations to join or not join a union.
We report a large-scale, random telephone survey of New Zealand worker attitudes
conducted in 2005. The paper is conventionally organised. We first set out the theoreticalbackground and establish our hypotheses. We then describe our data and variables, andreport our analytical strategy and results. The paper finishes with discussion and conclusions.

Union belonging: theory and hypotheses
The theoretical background to this research is an extensive body of literature that seeks to
explain why employees do or do not join unions (e.g. McClendon, Wheeler and Weikle,
1998; Guest and Dewe, 1988; Charlwood, 2002; Guest and Conway, 2004). Individual
motives for union belonging can be grouped into three broad, interconnected areas:
dissatisfaction-threat (e.g. Kaufman, 2004), utility-instrumentality (e.g. Peetz, 1998), andideological beliefs or feelings of group identity (e.g., Blackwood, Lafferty, Duck and Terry,
2003; Schnabel, 2003).
In brief, the dissatisfaction-threat model posits that employees join unions when theirinterests are threatened and/or aspects of the employment relationship are so dissatisfyingthat they seek to engage in collective voice. In the case of threats to their wages or working
conditions, union belonging is perceived as providing individuals with a more credibledefence through the exercise of collective voice and, potentially, industrial action. In theutility model, it is the perceived ability of a union to deliver benefits greater than the costs ofbelonging that is critical (Guest and Dewe, 1998; Guest and Conway, 2004). This model isinteresting in two ways. It describes workers who are far from dissatisfied or threatened but
who join a union on the rational calculus that it will enlarge their relative gains in theworkplace. However, it also connects to the dissatisfaction-threat model: research often findsthat dissatisfied workers are more likely to join a union when they perceive that the union
will be instrumental in resolving their problems (e.g. Kochan, 1979; Premack and Hunter,
1988). The third model sees union membership as stemming from an ideological position ora collective sense of identity among workers. But, again, there is a connection with thedissatisfaction-threat model because pro-union ideologies or collective identities are most
likely to develop when groups of workers share a history of disadvantage or injustice (e.g.
Kelly, 1998; Blackwood et al. 2003; Peetz and Frost, 2007).
The present study is motivated by a threat-dissatisfaction model of unionism. With regards toindividual experiences of work intensification, the threat that union membership might be
expected to mitigate is the intensification of work itself, as well as factors posited to cause
intensification such as organisational restructuring, downsizing, as well as the use of pay-forperformance and other performance-oriented HRM techniques (Gallie, 2005; Green, 2004;
Handel and Levine, 2004; White, Hill, McGovern, Mills and Smeaton, 2003).
If intensified work – through increased hours, role overload, and/or perceived increased
pressure from managers to work harder or longer – threatens employee interests or leads todissatisfaction, then the threat-dissatisfaction model suggests that employees experiencing
intensification would be more likely to be union members than not. On the other hand, if
unions are instrumental in reducing work intensification pressures for their members, thennon-union employees could be predicted to experience higher levels of intensification than
15

New Zealand Journal of Employment Relations 34(3): 14-25
union members. As with the argument about the relationship between union membership andjob satisfaction (Guest and Conway, 2004), we need to consider both possibilities. Therefore,
because union membership may be associated with either higher or lower levels of work
intensification, we formulated the following non-directional hypothesis:

Hypothesis 1: Employee experiences of work intensification will differ between union
members and non-members.
Beyond work intensification, the threat-dissatisfaction model of union belonging can also be
applied to three other measures of employee well-being used in the present study – job
satisfaction, stress, and work-life balance. In the case of job satisfaction, the connection with
union membership is well established and with union members tending to be less satisfied
with their jobs than non-union members. That said, an influential paper analysing the British
Workplace Employee Relations Survey 1998 concluded that while union membership was not
random, unobserved individual characteristics lead employees to both join unions and reportdissatisfaction with their jobs (Bryson, Cappellari and Lucifora, 2004). In other words,
suggesting that the oft observed relationship between job dissatisfaction and union
membership was spurious.
Consistent with the need to study employee well-being in a more comprehensive way (Wood,2008), the present paper explores whether these individual motivations might include otheraspects of the experience of work and, in particular, perceptions of job-induced stress andwork-life imbalance. There is a clear relationship between work intensification and suchvariables (e.g. Eby, Casper, Lockwood, Bordeaux and Brinley, 2005; Green, 2002;
Landsbergis, Cahill and Schnall 1999; Sparks, Cooper, Fried and Shirom, 1997; White et al.
2003; Macky and Boxall, 2008), suggesting that intensification typically creates greaterlevels of stress and work-life imbalance. Such effects logically threaten employee interests.
The threat-dissatisfaction model, then, implies that employees experiencing poorer wellbeing outcomes from their jobs would be more likely to be union members. However, as
argued in respect of hypothesis 1, we must allow for the reverse: if collective action via
union membership serves to mitigate factors in the work environment that impact on
employee well-being, then it is also feasible that union members would report better levels ofwell-being at work than non-members. Once again, a non-directional hypothesis wastherefore formulated:
Hypothesis 2: Employee psychological well-being, in terms of job satisfaction, job-induced
stress, and work-life imbalance, will differ between union members and non-members.

Data and variables
The study utilises data collected from a random CATI survey (response rate = 34.2%) of
1004 New Zealand employees aged 18 or over and who had worked for at least 6 months foran employer with 10 or more employees. Conducted in late 2005, the telephone interviews
took, on average, thirty minutes to complete.

16

New Zealand Journal of Employment Relations 34(3): 14-25
The analyses are based on the 645 respondents who reported having a union at their place ofwork that they could join. Of these, 350 people (54.3%) were members of that union at thetime of the survey (thus creating a dichotomous dependent variable coded 0 non-member, 1
member). These respondents were mainly permanent (92.2%) rather than temporary
employees, nearly two thirds were female (62.9%), with a mean age of 44.44 years (SD =11.33), and they had a median tenure with their current employer of 5 years (range = 6months to 40 years). Most respondents (80.6%) met the New Zealand Department of
Statistics’ definition of a full-time employee (30 hours or more a week). The median typical
weekly take-home pay was NZ$625 (range = $65 – $2000).
Work Intensification was measured by three variables. Firstly, hours worked over a defined
period of time is a common approach to the measurement of work intensification (e.g.,
Gallie, 2005; White et al. 2003). For this study, the mean usual hours worked per week was
39.39 (SD = 13.13) with a range from 4 to 95 hours. While the range is large, the mean,
median and mode measures of central tendency are all nearly identical and the frequency
distribution approximates the normal.
The second intensification measure was work role overload, in the sense of feeling that there
is too much work to do in the time available (Beehr, Walsh and Taber 1976). This wasmeasured using a six-item scale (Arynee, Srinivas and Tan, 2005) with responses obtained on
a 7-point response scale anchored from strongly disagree (1) to strongly agree (7)(coefficient alpha = .84). Higher scores are interpreted as indicating higher perceived work
intensification through work overload. Example items are: ‘It often seems like I have toomuch work for one person to do’ and ‘There is too much work to do everything well’.
Work may also be intensified through the perceived demands and expectations management
places on employee time in ways that might interfere with non-work activities. A modified
four-item measure of time demands originally developed by Thompson, Beauvais andLyness, (1999) was used. The items were: ‘To get ahead in the organisation, employees are
expected to work more than their contracted hours each week’, ‘Employees are often
expected to work overtime or take work home at night and/or weekends’, ‘Employees are
regularly expected to put their jobs before their families or personal lives’ and ‘To be viewed
favorably by senior managers, employees in my organisation must put their jobs ahead of
their family or personal lives’. Responses were obtained on a 7-point response scaleanchored from strongly disagree (1) to strongly agree (7), with higher scores interpreted asindicating higher perceived work intensification through managerial demands on personal
time (coefficient alpha = .85).
Job Satisfaction was measured using Warr, Cook and Wall’s (1979) original 15-item
instrument, together with an additional item measuring satisfaction with the degree of
involvement in decisions. Responses were obtained on a 7-point scale bounded from very
dissatisfied (1) to very satisfied (7) (coefficient alpha = .90)(see Table 4 for items). A
measure of overall job satisfaction was obtained by taking an average of the responses to the
16 items. Job-induced stress was measured using House and Rizzo’s (1972) seven-item
instrument with responses obtained on a 6-point scale scored so that higher scores represent
greater felt stress (coefficient alpha = .85). Finally, work-life imbalance was measured using
an instrument Frone and Yardley (1996) developed to measure work-family conflict. Because
the wording of the six items includes negative work spillover to non-familial aspects ofpersonal life and friendship, higher scores are interpreted in this study as suggesting greater
negative spillover from work to non-work life and therefore greater work-life imbalance. The

17

New Zealand Journal of Employment Relations 34(3): 14-25
response scale was never, seldom, sometimes, often, very often, bounded from 1 to 5
(coefficient alpha = .90).
Control Variables: Preliminary analyses indicated that respondent gender (χ2 (1) = 3.06, p =.080), temporary or permanent employment status (χ2 (1) = 3.29, p = .070), and firm size interms of number of employees (t (631) = -1.25, p = .213) were independent of union
membership status. However, age (t (637) = -3.53, p = .000), log weekly pay (t (622) = -3.07,
p = .002) and log years’ tenure (t (642) = -5.46, p = .000) were found to differ by union
membership. Older workers, those with longer tenure and those earning higher incomes weremore likely to be union members. These last three variables were therefore included as
potential control variables in the analyses that follow.
Employees’ behavioural and affective commitment to their organisation were also exploredas potential control variables on the principle that those experiencing poorer well-being at
work and/or higher levels of intensified work can seek to resolve the situation by either
exiting or psychologically disengaging from their organisations, rather than by attempting touse collective voice. Both dimensions of commitment were measured using theOrganisational Commitment Questionnaire (Mowday, Porter and Steers, 1982). However,neither intentions to stay (t (642) = 0.79, p = 0.43) nor affective commitment (t (640) = 0.29,
p = .768) were found to be associated with union membership.
Principal-axis factor analysis with varimax rotation (available on request) revealed that thework involvement and employee well-being variables were all factorially independent. Nor
was a single dominant factor was identified, suggesting common method variance is unlikely
to be a significant problem in this study.

Analytical strategy and results
Table 1 reports the correlations between the variables of interest in this study. With regard tounion belonging, employees with longer weekly working hours, higher perceived role
overload and greater managerial demands on their time were slightly more likely to be union
members than not, as were those with higher reported levels of job-induced stress and worklife imbalance.
As indicated above, there is potential for union membership to be both a dependent variable,in the sense that well-being at work may influence whether or not someone joins a union, oran independent variable in that membership may, through collective action, influence
employee well-being outcomes. A cross-sectional research design such as the present one
cannot specify causal direction or whether the nature of the relationship is reciprocal.
Furthermore, as Table 1 shows, the work intensification and well-being variables also covary
with each other to varying degrees, although not to a level suggesting multi-collinearity. For
these reasons, MANCOVA was used to test the hypotheses, with union membership enteredas a factor variable, and the well-being variables entered as dependent variables. The control
variables of age, log pay, and log tenure were entered as covariates. Bonferroni corrections
were applied to all significance levels to reduce the potential for Type I errors arising frommultiple statistical tests.

18

New Zealand Journal of Employment Relations 34(3): 14-25
Table 1: Correlations
Variables
Union
belongin
g
1
Usual
hours
worked2 Overload

1

2

3

4

5

.23**
.00

.48**
.31**

.36**

.26**

.53**

.50**

.32**

.55**

.55**

.41**
.35**

.01
.07

-.00
.02

-.02
.07

.06
.04

6

7

8

.08*

.12**
.24**

3
Time
demands
4
Job
satisfaction
5 Job Stress
6 Work-life

7 Age
8 Log tenure

.09*
-.03
.19**
.11**

.13**
.22**

.67*
*
-.03

-.03
.05

.11*
*
9 Log pay

.41**

.12**

.07
.68**

.21**

.16**

.09*

.23*
*

.19**

.24**

Notes: Union Belonging coded 0 (not a member), 1 (member). N = 616 after listwise deletion of
missing values. * = p < .05 ** = p < .01 (2-tailed)

Initial multivariate tests did not find any significant effects for employee age (trace (6, 606)
= 1.14, p = .339) or log tenure (trace (6, 606) = 1.84, p = .089) and these variables were
therefore dropped as controls from subsequent analyses. For the final model, the Box’s M testof the equality of the covariance matrix was not statistically significant (p = .832), and nor
were the Levene’s tests of the equality of the error variances, indicating that theseassumptions underpinning the use of MANCOVA were met (Hair, Anderson, Tatham andBlack, 1998).
In the final model, the multivariate test for union belonging was significant (trace (6, 612) =3.23, p = .004), thereby justifying further analysis. Table 2 reports the tests of betweensubjects effects and the marginal means for the intensification and well-being variables.
While the magnitude of the difference between the means is not large, all are in the directionof suggesting that union members work longer hours, experience more work role overload,and have greater demands placed on their non-work time by management. They also tend
towards having poorer job satisfaction, higher job-induced stress and work-life imbalance.
The differences between the means for work overload, time demands, job induced stress andwork-life imbalance are statistically significant. However, the differences between union andnon-union members in respect of hours worked and job satisfaction are not statisticallysignificant.

19New Zealand Journal of Employment Relations 34(3): 14-25
Table 2: Union belonging marginal means and univariate tests of between-subjects effects
Variables
Marginal MeansFp
Non-memberUnion(df 1, 617)
MemberTypical Weekly Hours
39.19
39.26
0.01
.925
Overload
3.44
3.72
6.07
.014
Time Demands
3.19
3.46
3.89
.049

Job Satisfaction
Job Induced StressWork-life Imbalance

5.19
2.61
2.43

5.09
2.97
2.61

1.49
18.07
5.19

.222
.000
.023

Of the observed differences, stress appears to be the clearest differentiator between union andnon-union members. To further explore this finding, Table 3 reports findings for two
regression analyses examining the predictors of job-related stress for union and non-union
members separately. In both models, over 50% of the variance in job stress is explained. For
both groups, negative spillover from work to non-work life is the clearest predictor of stress,
followed by dissatisfaction with one’s job.
The within-group analyses then show varying patterns in the predictors of stress, with union
members with higher stress also tending to report more role overload, to have longer tenure,and to be permanent rather than temporary employees. For non-union employees, higher
stress levels were associated with higher levels of managerial demands on their time, as well
as being better paid, female and younger.

Table 3: Standardised Regression Coefficients for Job-Induced StressPredictors

Non-member (N = 274)Bt
Constant
-0.11
Age
-.09
-2.05*
Gender (0 M 1 F)
.20
4.37***
Permanent / temporary (1,0).01
0.22
Log years tenure.04
0.87
Log weekly pay.23
3.23**
Log N employees.02
0.35
Usual weekly hours
-.07
-1.05
Role overload.07
1.23
Time demands.17
3.27**
Job satisfaction-.19-4.16***
Work-life imbalance.46
8.26***
Adjusted R2.538
Model F29.86**** = p < .05 ** = p < .01 *** = p < .001

Union Member (N = 330)
BT
2.01 *
-.06
-1.29
.00
0.09
.09
2.21*
.09
2.05*
.02
0.46
.00
0.09
.04
0.71
.20
4.12***
.07
0.16
-.20
-4.47***.44
8.26***.528
34.40***

20

New Zealand Journal of Employment Relations 34(3): 14-25
To explore whether an aggregate measure of job satisfaction may in fact be masking facetlevel dimensions of dissatisfaction that relate to union belonging, a further secondary
analysis was performed using logistic regression to analyse whether any aspect of job
satisfaction or dissatisfaction predicted the binary union membership variable (Table 4).
Of the 16 facet-level dimensions of job satisfaction measured in this study, only two were
found to be useful for predicting whether someone was a member of a union at their place ofwork: being dissatisfied with the amount of recognition received for good work and being
satisfied with one’s opportunities for promotion. However, while the overall model for job
satisfaction is significant, the level of reduction in the -2log likelihood between the initial andfinal regression step, together with the small value of the Nagelkerke R2, does not suggestthat the model explains much of the variance in union membership. Furthermore, knowing an
employee’s level of satisfaction on these two facets would only improve the odds of correctlyclassifying someone as a union member by just under 4%.
Table 4: Union membership logistic regression results for job satisfaction – final model
Variable

B

Wald

Constant-0.10
0.04
The physical work conditions you have to work in
-0.04
0.03
The freedom you have to choose your own methods of
-0.02
0.05
workingYour fellow workers.
0.00
0.00
The amount of recognition you get for good work
-0.20
7.63
Your immediate manager or supervisor
0.04
0.49
The amount of responsibility you are given
0.08
1.13
How much you are paid
0.03
0.34
The involvement you have in decisions that affect you
-0.10
1.95
Your opportunity to use your skills, abilities and
0.12
2.09
knowledge
Relations between management and other employees
0.02
0.09
in your firm.
Your chances of promotion
0.12
4.31
The way your firm is managed
0.01
0.03
The attention paid to suggestions you make
-0.10
1.72
Your hours of work
-0.07
1.43
The amount of variety in your job
0.07
0.97
Your current level of job security
0.05
0.85
Initial -2log likelihood = 887.90 Final -2log likelihood = 860.73
Initial CCR = 54.3%
Final CCR = 58.2%
2
Nagelkerke R = .055
Model Goodness of fit χ2 (16) = 27.17; p = .04

p

Exp(B)

.846
.578
.832

0.90
0.97
0.99

.950
.006
.483
.289
.560
.163
.148

1.00
0.82
1.05
1.08
1.03
0.91
1.12

.756

1.02

.038
.858
.190
.231
.326
.356

1.13
1.01
0.91
0.93
1.07
1.05

Discussion and conclusions
This paper throws light on the relationship between employee well-being outcomes of theexperience of work and union belonging. In certain conditions, work intensification remains
an important managerial ‘low-road’ for increasing labour productivity and thenceorganisational performance (e.g. Cooke, 2001). Such a process often has adverse
implications for employee well-being and the quality of working life. Our results provide
partial support for Hypothesis 1 in that workers experiencing higher levels of work overload,in the sense of having too much work to do in the time available, and who feel managers
21New Zealand Journal of Employment Relations 34(3): 14-25
make high demands on their personal time, are more likely to be union members. Thesefindings seem consistent with union joining as a threat response to managerial actions that
increase demands on workers without necessarily increasing either resources or rewards.
These findings also support a key methodological point for studies of work intensificationthat use hours worked as the primary indicator (e.g., Macky and Boxall, 2008). In our study,
the actual hours worked by an individual do not differentiate union members from nonmembers whereas perceptions of work overload and managerial demands on time do. Future
research needs to be careful to distinguish situations where workers work longer hours inorder to meet personal income goals, or because they are highly absorbed in work thatinterests them, from those situations in which work pressures are imposed on, and are
distressing for, the worker. The latter situation can derive from direct supervisory pressure orfrom the gradual development of an organisational culture in which managers and peers (forexample, in teams) create excessive workload norms.
The study also found partial support for Hypothesis 2. The findings on job satisfaction reveal
no significant differences in overall satisfaction between union members and non-members,
while the findings at the facet level are not strong. Instead, in our study the key
differentiators between unionists and non-unionists lie in the areas of stress and perceptionsof work-life imbalance. Both higher levels of stress arising from work, and perceptions of anegative balance between work and non-work life, were related to union belonging.
The stress measure used in this study is symptom-based, pointing to both psychological andphysiological adverse health outcomes that, for union members, are also associated withbeing dissatisfied with one’s job, work-life imbalance, and perceptions of being overloaded
at work. That this pattern of stressors differs from that for non-union members is aninteresting result and needs further research.
Pertinent to these findings is the ‘demand–control’ model of stress, which predicts that jobs
with higher demands, combined with low employee control, will be those that create the moststrain (Karasek, 1979; Mackie, Holahan, and Gottlieb, 2001; Gallie, 2005; Wood, 2008). To
the extent that stress is indicative of a loss of autonomy on the job, union joining behaviour
may represent a strategy by which some employees seek to gain greater control over theirwork pressure and thereby a reduction in job stress.
To conclude, our study shows the value for research on union membership of measuring
employee well-being in a more comprehensive way than has typically been done in the past.
Our findings show that job satisfaction is not a useful predictor of union membership in New
Zealand, while issues to do with work intensification, stress and work-life imbalance are.
Union members’ discontent in this country is associated with higher levels of stress, role
overload, and demands on their personal time, consistent with a demand-control model of job
strain. That said, while our research implies that union membership is at least associated withpoorer employee well-being at work, we need to understand how effective those same
employees perceive their unions to be in responding to these issues. Research of this nature,
examining the dynamic interplay among the motives of dissatisfaction/threat, utility, andideology/identity, is an important agenda for the future.

22

New Zealand Journal of Employment Relations 34(3): 14-25

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New Zealand Journal of Employment Relations 34(3):26-42

Employee Opinion on Work-Family Benefits: Evidence from theU.S.
DONNA M.
GIDDINGS***

ANDERSON*,KATHRYN

BIRKELAND**

and

LISA

Abstract
We examine employee views on employer assistance for employees’ work-family issues andthe effect on two measures of employee global attitude towards the employer: job
satisfaction and employee attitude. We use data from the 2002 National Study of the
Changing Workforce, a nationally representative sample of 2,451 waged and salaried U.S.
workers and a hierarchical multiple regression analysis to test for mediating effects ofsupervisor support and workplace culture. A negative view of an employer’s efforts to assist
employees with work-family issues results in lower levels of job satisfaction and worsens
employee attitude. Supervisor and coworker support moderated the negative effect of
employee opinion of a company’s work-life involvement on employee attitude, although thesupport had no effect on mediating the effect of the negative opinion on job satisfaction.
KEYWORDS: work-family benefits; workplace policies; employee attitudes

Introduction
A subtle shift in demographics in the American workplace has translated into what appears tobe, at least according to the popular press in the United States, a “backlash” against familyfriendly policies (Allerton, 2000). The number of unmarried and single U.S. residents
increased by 3.3 percent between 2005 and 2006 from 89 to 92 million individuals, or 42
percent of all adults. 60 percent of those individuals had never been married, 25 percent weredivorced and 15 percent were widowed (Wells, 2007). In 2000, less than one third of allhouseholds in the US had children under the age of 18 living in them (Popenoe, 2007). Thiswas down from a half in 1960 and is projected to drop to a quarter in the coming years(ibid.). These demographic changes have fueled a growing number of advocacy organisations
promoting the rights of single, unmarried, and/or childless individuals about what they
perceive as unfair treatment in society on behalf of the government and, in particular,
employers.i According to these groups, childless single employees “feel put upon, taken for
granted and exploited—whether because of fewer benefits, less compensation, longer hours,*

Donna M. Anderson, Ph.D., Professor of Economics (contact author: anderson.donn@uwlax.edu (608)785-6864)
Kathryn Birkeland, Ph.D., Assistant Professor of Economics; Lisa Giddings, Ph.D***
Associate Professor of Economics. University of Wisconsin-La Crosse, La Crosse, Wisconsin, 54601, USA.
**

26

New Zealand Journal of Employment Relations 34(3):26-42
mandatory overtime, or less flexible schedules or leaves—by married and child-rearing coworkers” (Wells, 2007, p. 37).
In the U.S. popular press, much has been made of worker dissatisfaction with family-friendly
workplace benefits. Bella DePaulo (2006) annotates experiences and complaints from single
employees about perceived work inequities on her blog and in her book Singled Out: How
Singles are Stereotyped, Stigmatized, and Ignored, and Still Live Happily Ever After. In her
book, The Baby Boon: How Family-Friendly America Cheats the Childless, Elinor Burkett(2000) argues that childless workers earn less money and receive fewer benefits than theircoworkers who are parents. This translates into a growing number of workers without young
children who are resentful because they believe they must cover for the minority of workers
with young children (Poe, 2000). Jerry Steinberg, the founder of No Kidding!, a Canadianbased association for the childless with more than 40 chapters in North America, claims that“the child-burdened work less and are paid the same, or more, and we’re tired of it” (Poe,
2000, p. 79). Survey results from the firm Adecco USA of Melville, N.Y. found that while
employees admired working parents’ “ability to do it all,” 36 percent reported that flexibility
at work negatively affected team dynamics and 31 percent claimed that employee morale
suffered (Wells, 2007). From that same survey, 59 percent of working men between the ageof 35 and 44 said that flexibility for working mothers caused resentment among coworkers(Wells, 2007). Lisa Belkin of the New York Times chimed in recently on the profitability offamily friendly policies, reporting that in this recession some companies have begun to cut
costs by eliminating their flexibility policies (2009).
To some extent, the dissatisfaction appears misplaced, given the U.S’ low ranking in theworld in generosity of paid family leave.ii The Federal Government only enacted any sort ofprotected leave as recently as 1993.iii Further, according to the U.S. Society for Human
Resources, in 2000 only 37 percent of U.S. companies offered paid parental leave (andusually only to certain categories of workers), 12 percent offered paid maternity leave, 7
percent offered paid paternity leave, and only 1 percent was considering such benefits in the
future (Poe, 2000). Nevertheless, the popular press has picked up on this dissatisfaction. The
danger of such media-fueled backlash is that anecdotal accounts could lead to reckless
inferences about the validity of investing in work-life resources. Employers could conclude
that the pursuit of policies and programmes assisting workers with work-family challenges
children is unworthy.
Using data from the 2002 U.S. National Study of the Changing Workforce (NSCW), our goal
is to shed some light on the pervasiveness of workers’ views on organisational support forwork-family policies, and whether this view impacts a worker’s global attitudes towards theorganisation. This research shows that over 25 percent of U.S. workers’ view work-life
challenges as outside the responsibility of the employer, and further, after controlling for
employee and workplace characteristics, this view negatively effects an employee’s job
employee’s job satisfaction and attitude toward the employer.

27New Zealand Journal of Employment Relations 34(3):26-42

Review of Literature
The research on the spillover between work and family has gained momentum in the last
decade. This research has focused on the effect in general (Bailyn, Drago & Kochan, 2001;
Barnett, Marshall & Sayer, 1992; Grzywacz, Almeida & McDonald, 2002; Jacobs & Gerson,
1998, 2001; Leiter & Durup, 1996), gender, marital, and presence of children effects(Dilworth, 2004; Duxbury & Higgins, 1991; Hundley, 2001), industry differences (Anderson,
Morgan & Wilson, 2002), and workplace characteristics that mediate spillover and improve
job satisfaction, including the amount of autonomy and pressure a worker has on the job(Anderson & Delgado, 2006; Wallen, 2002). Overwork and the loss of leisure has been thesubject of several popular books, including The Time Bind: When Work Becomes Home andHome Becomes Work (Hochschild, 1997), and The Overworked American: The Unexpected
Decline of Leisure (Schor, 1991). It was in part due to this research that companies began
instituting family-friendly policies, including on-site childcare centers, eldercare referrals,
more generous parental leave policies, and flexible schedules. This began in U.S companies
in the early 1980s, and really took off a decade later (Galinsky, Friedman and Hernandez,1991).
There is a growing literature on the effect of family-friendly policies on employee attitudes
and work satisfaction. Much of this literature focuses on the effect of such policies among
those who use the benefits or flexibility (Eby, Casper, Lockwood, Bordeaux & Brinley,2005; Lilly, Pitt-Catsouphes & Googins, 1997; Baltes, Briggs, Huff & Neuman, 1999). Other
research focuses on the effects of particular types of policies offered such as on-site childcare(Goff, Mount & Jamison, 1990; Kossek & Nichol, 1992; Miller, 1984) or telecommuting(Bailey & Kurland, 2002; Duxbury, Higgins & Neufeld, 1998; Igbaria & Guimaraes, 1999),
while other strands of research focus on how family-friendly policies alter workplace issues
including job satisfaction, organisational commitment, turnover rates (Batt & Valcour, 2003;
Allen, 2001; Behson 2002; 2005; Clark 2001; Thompson, Beauvais & Lyness, 1999; Abbasi& Hollman, 2000), satisfaction (Kossek & Ozeki, 1998; Lambert 2000; Haar & Spell, 2004;
Greenberger, Goldberg, Hamill, O’Neil & Payne, 1989; Boles, Howard & Donofrio, 2001),
and productivity (Konrad & Mangel, 2000).
Recently, however, (and possibly in response to the media focus on backlash against family
friend policies) the literature has begun to explore the effect of family-friendly programmes
among non-users and on notions of fairness and justice within organisations between single,
childless workers and those workers with families (Rothausen, Gonzalez, Clarke & O’Dell,
1998; Grover, 1991). There is evidence, for example, that simply offering family-friendly
options can have a positive impact on employee attitudes, regardless of whether employees
actually use the programmes (Grover & Crooker, 1995). Other research shows that suchpolicies are mainly intended for and used by workers with families (Young, 1997a, 1997b;
Parkinson, 1996).
Authors have also documented perceptions of unfairness among childless workers. In a
survey of 78 companies conducted by the Conference Board, Parkinson (1996) reports that75 percent of workers said that their company was not adequately addressing childlessemployee’s needs. In another survey, Flynn (1996) showed that 81 percent of employees

28New Zealand Journal of Employment Relations 34(3):26-42
believed that single employees “end up carrying more of the burden than married employees”(p. 59). Still, other studies document different treatment of single employees versus
employees with families (Casper, Herst & Swanberg, 2003; Casper, Weltman & Kwegisa,2006) including social exclusion (Casper et al., 2006), unequal work opportunities (Flynn,
1996; Young 1999), unequal access to employee benefits (Grandey, 2001; Rothausen, et al.,
1998; Grover, 1991; Kirby & Krone, 2002; Parker & Allen, 2001; Young 1996; Lambert,
2000) and unequal respect for nonwork roles (Young, 1999; Kirby & Krone, 2002; Casper et
al. 2003).
Two recent studies from New Zealand have explored the question of worker backlash against
colleagues with children. Haar and Spell (2003) and Haar, et al (2004) examine therelationship between employee non-utilisation of work-family practices and attitudes towards
satisfaction, turnover, commitment, and support. Each study uses employee data from New
Zealand local government organisations with seven work-family practices: unpaid parental
leave, paid parental leave, domestic leave bereavement leave, an employee assistantprogramme, flexible working hours, and before and after-school childcare. The authors inboth studies found that, although non-users of work-family programmes have strong negative
feelings towards work-family practices, the negative attitudes do not lead to a backlash
against more global attitudes towards the organisation, such as job satisfaction and jobturnover intention.
We intend to mirror these two studies with a unique U.S. dataset that focuses on work-family
issues in the workplace, although with three significant changes. We use a direct measure of
employee attitude towards organisational assistance in employees’ work-family issues rather
than usage of work-family benefits as the pivotal independent variable. In addition, we use
two control variables for workplace culture: job pressure and amount of autonomy. Finally,
we use two measures of factors that would potentially mediate a negative relationshipbetween employee dissatisfaction with employer involvement in work-family issues andglobal attitudes towards the company: supervisor support and workplace culture.

Data and Methods
The data for this research come from the 2002 National Study of the Changing Workforce(NSCW), conducted under the auspices of the Family and Work Institute (Bond, Galinsky &Swanberg, 1998). The NSCW provides a nationally representative sample of U.S workers.
Due to their likely control over their schedule, individuals who categorised themselves as
exclusively self-employed were deleted from the sample and only waged and salaried
workers were investigated. The 2002 NSCW has a total sample of 2,810 waged and salaried
workers. After cases with non-responses were excluded, we were left with a sample of 2,454.
The two measures of employee global attitude towards the employer used as the dependent
variables are job satisfaction and employee attitude. Job satisfaction is measured using an
index of two separate questions from the 2002 NSCW: “How satisfied are you with yourjob?” and “Would you take the same job again?” The scale has reliability (Cronbach Alpha)29

New Zealand Journal of Employment Relations 34(3):26-42
of .78. Employee attitude towards the employer is measured using an index of two separate
questions: “Do you work harder than you have to for the company?” and “How loyal do you
feel toward your employer?” The scale has reliability (Cronbach Alpha) of .68. For eachscale, a higher number is associated with more job satisfaction and a better employee attitude
towards the company, respectively.
The independent variable of interest is a dichotomous variable in which the respondent isasked whether he/she agrees or disagrees with the statement that “work-family problems areworkers’ problems and not the company’s” (0=disagree, 1=agree). The need for controlling
for the potential effects of employee characteristics has been noted in the work-family
research cited above. Individual and/or family level variables that are hypothesised to predict
job satisfaction and employee attitude towards the employer include respondent’s sex,
whether a spouse or partner is present in the household, level of education, and the presenceof children under 13 in the household.
Relevant working conditions that have been found to effect job satisfaction and attitude arereflected in pressure, and autonomy on the job. These variables are available as indexes in
the NSCW (Bond et. al., 1998). An index of job pressure averages three questions found in
Table 1 that employ a 4-point Likert scale (Cronbach alpha = .47). The index ranges from
1=low pressure to 4=high pressure. Autonomy on the job (Cronbach alpha = .67), takes themean of the three items and ranges from 1= low autonomy to 4 = high autonomy.
Supervisor and coworker support indices are also provided in the dataset. Supervisor support
averages the means of nine items (Cronbach alpha = .88), and ranges from 1 = low support to4 = high support. The coworker support index (Cronbach alpha = .74) averages the level ofagreement to three questions and ranges from 1 = low coworker support to 4 = high coworker
support. Table 1 presents a listing of the variables, definitions, and descriptive statistics.

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New Zealand Journal of Employment Relations 34(3):26-42

Table 1: Variable Definitions and Descriptive Statistics by Work-Family Question Response:
Valid % / Mean (Std. Error)

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New Zealand Journal of Employment Relations 34(3):26-42
Descriptive characteristics based on whether respondents agree or disagree with the question“work-family problems are workers’ problems and not the company’s” are presented inTable 1. Approximately a quarter of the respondents agree with the statement. Workers who
agree with the statement have significantly lower mean levels of job satisfaction and attitude
towards the employer than those who disagree with the statement. The independent variables
also reveal a great deal of significant differences. Workers in agreement with the statement
report more job pressure, less autonomy, and less support from their supervisor andcoworkers than their counterparts. They are also younger, more likely to be male, less likely
to have post-secondary education and more likely to have children less than 13 years of age;results that conform to our expectations, except the last one. It is quite possible, however,that having children under the age of 13 is highly correlated with another variable, such asage, which is driving the unexpected result.
A hierarchical multiple regression analysis was done to test the hypotheses that opinion oforganisational involvement in a worker’s work-family problems affects the level of job
satisfaction and employee attitude toward the employer. Hierarchical multiple regression
analysis is the use of ordinary least squares estimation and adding blocks of explanatory
variables. The hierarchy keeps the main independent variable, opinion of the responsibility
for work-family problems while adding more explanatory variables to determine the level ofpredictive improvement in the model from each block. Thus, the work-family opinion
question was entered as the first block, the demographic control variables were entered as thesecond block, and the working condition variables were entered as the third block. To test
for moderating effects of supervisor and coworker support, these variables were added in step
4.
The base estimation equation is as follows:
Job Satisfactioni = β0 + β1(work-familyi ) + ui
Employee Attitudei = β0 + β1(work-familyi ) + ui
Recall that Harr and Spell (2003) and Harr, et al (2004) examined the relationship between
non-utilisation of work-family policies and attitudes and found that negative feelings about
the policies did not translated into negative global attitudes about the organisation. Thissuggests the (β1) coefficient would be insignificant. However, popular media reports on
dissatisfaction with family-friendly policies suggest we should expect coefficient (β1) to be
negative. (The work-family question asks whether the individual feels that work-life
problems are the responsibility of the worker, where work-family equals 1 if the respondent
agrees and equals 0 if the respondent disagrees). This would mean that those who agree thatwork-family problems are the responsibility of the worker, not the employer, have lower job
satisfaction and a poor employee attitude. The estimation equations with the additional
levels of explanatory variables are summarised as follows:
Job Satisfactioni = β0 + β1(work-familyi) + β2(demographicsi) + β3(workplace conditionsi)+ β4(supporti) + ui
Employee Attitudei = β0 + β1(work-familyi) + β2(demographicsi) + β3(workplace conditionsi)+ β4(supporti) + ui

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New Zealand Journal of Employment Relations 34(3):26-42
We expect that the coefficients on job pressure should be negative for both job satisfaction
and attitude while the coefficients on the level of autonomy should be positive. It is not clear
in the literature whether the demographic variables should positively or negatively effect job
satisfaction and attitude. Supervisor and coworker support should have a positive effect on
satisfaction and attitude.

Results
Results of the regression analyses appear in Table 2. The results in models 1 and 5 revealthat agreement with the work-family statement results in lower job satisfaction and worsens
employee attitude. The significance of this independent variable does not change with theaddition of the demographic characteristics, shown in models 2 and 6. For both equations,the demographic characteristics offer additional predictive power (job satisfaction: Fchange=7.106, p=.000; employee attitude: F change=6.174, p=.000). Age is positively
related to job satisfaction and employee attitude. Being female does not affect job
satisfaction, but is significantly related to a better attitude towards the employer. Having a
spouse or partner in residence leads to higher levels of job satisfaction, but is insignificant in
the employee attitude model. Finally, education and the presence of children less that 13
years of age does not affect job satisfaction, although not having post secondary educationand having children under 13 leads to a better attitude.

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Table 2: Ordinary Least Squares Regression Results

Models 3 and 7 add the working conditions variables and in both, job autonomy and pressure
significantly affect satisfaction and attitude, although while higher levels of autonomy relate
to higher levels of satisfaction and attitude, more pressure relates to lower job satisfaction, as
expected, but a better attitude towards the employer. The positive effect of job pressure on
employee attitude was unexpected, but it could mean job pressure is interpreted by theemployee as measuring his or her importance to the employer. The effect of work-family
opinion on both job satisfaction and attitude was mitigated somewhat by adding thisadditional block of explanatory variables, but the negative effect remains significant.
Further, for both groups of workers, adding working conditions offers additional predictive
power beyond that contributed by individual and family characteristics (job satisfaction: Fchange=133.332, p=.000; employee attitude: F change=103.989, p=.000). The independent34

New Zealand Journal of Employment Relations 34(3):26-42
variables significant in model 6 retain their significant relationship to employee attitude inmodel 7. However, although the independent variables of age and marital status retain theirsignificant relationship to job satisfaction in model 3 with the addition of the working
variables, being female becomes significant, suggesting that the gender effect was suppressedin model 2 for these workers.
Finally, the additions of coworker and supervisor support variables in models 4 and 8 havediffering effects. In model 8, not only are they significantly and positively related to
employee attitude, but their addition has made work-family opinion no longer related toattitude, indicating they have moderated the negative impact of the work-family opinion.
However, while the two support variables are significantly related to job satisfaction, workfamily opinion continues to affect job satisfaction, indicating that the finding is robust. As awhole, support adds significantly to satisfaction (F change=339.115, p=.000) and for
employee attitude (F change= 188.165, p=.000).
Differences in the effects of the independent variables on the two dependent variables raise
an important question concerning worker productivity. Which is more harmful: a negative
attitude towards the employer or towards the employee’s job? In other words, is an employee
more likely to leave the company or engage in other actions that hurt productivity if he or she
is unhappy with the job or with the employer? Although this paper does not address thisquestion, it does suggest that high supervisor and coworker support in job-related and familyrelated issues reduces negative feelings an employee may have towards the employer thatoffers generous work-family benefits. The mediating effect is not seen, however, in the job
satisfaction model. The persistence of dissatisfaction with a company’s assistance withwork-family issues despite the introduction of other explanatory variables, most importantly
supervisor and coworker support, suggests the handling of work-family benefits can be adelicate and complicated endeavour.

Conclusion
While there has been much international research on the benefits of work-family policies for
employees and the organisation, there has been limited research on what workers think about
employer involvement in an employee’s work-family problems. The most significant
findings of this research using U.S. data are that over a quarter of U.S. workers’ view worklife challenges as outside the responsibility of the employer, and further, after controlling for
employee and workplace characteristics, this view negatively effects an employee’s job
satisfaction and attitude toward the employer, although supervisor and coworker support
mediates the effect on attitude. This result differs from the New Zealand studies mentioned
earlier that concluded the potential for backlash is insignificant and overblown by the media.
In fact, this research suggests that serious attention should be paid to human resource policies
that promote cafeteria plans, providing “something for everyone”.

35New Zealand Journal of Employment Relations 34(3):26-42

Notes
i

Three of these associations are The Childfree Network, The American Association of Single
People and The World Childfree Association
ii

Australia and the U.S. are the only two OECD countries without a national programme ofcompensated birth and adoption leave. The Australian government, however, provides asignificant lump-sum birth grant and also income-tested family benefit payments to families with
one-earner (Brusentsev & Vroman, 2007
iii

In the U.S., parents may take up to 12 weeks unpaid for childbirth or care of a child up to 12
months of age as part of the U.S. Family and Medical Leave Act, although employers with fewer
than 50 employees are exempt. Five states and Puerto Rico provide some benefit payments toparents missing work around the time of childbirth [California, Hawaii, New Jersey, New York,
Rhode Island and Puerto Rico] (Susan Kell Associates, 2007).

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New Zealand Journal of Employment Relations 34(3):43-64

Grievance Processes: Research, Rhetoric and Directions for New
Zealand
BERNARD WALKER* and R.T. HAMILTON**

Abstract
Individual-level conflict is a central aspect of contemporary employment relations. The literature
is somewhat fragmented, focusing on certain aspects of grievances and dominated by North
American writing. The implications for New Zealand are explored and compared with local
research which has been driven largely by policy and operational needs. At a time when politicaldebate over grievance laws is once again intensifying, three main areas emerge as priorities for
future New Zealand research: a focus on the decision-making processes of employers andemployees; what happens in the early stages of within-company resolution; and the merits ofalternative dispute resolution procedures.

Introduction
This article provides an overview of the literature concerning employment grievances, relating
this to the New Zealand setting and defining an agenda for further research. In the process wepoint to the disconnection in New Zealand between the political lobbying and the shortage ofevidence-based findings. Given the breadth of this topic however, we have selected the mostsalient areas for discussion. Individual-level outcomes are explored, but not organisational-level
outcomes such as productivity and organisational performance where there are fewer clearly
established findings. We also give only brief coverage to post-settlement employment as this isless common in this country. The timeframe of the discussion covers research from the mid1980s, since earlier literature was less well developed (Bemmels and Foley, 1996), while theradical changes affecting both the internal and external contexts of organisations mean thatearlier findings may no longer be relevant (Kaminski, 1999; Lipsky, Seeber and Fincher, 2003).
Individual-level conflict is a central aspect of modern employment relations. Recent decades
have seen marked increases in the volume of formal, individual-level employment disputes
across countries. The USA has experienced a “litigation explosion” of discrimination complaints
and lawsuits (Lipsky et al., 2003: 54), with wrongful discharge litigation becoming one of thenation’s premier growth industries (Feuille and Delaney, 1992: 201). Similarly, in the UK thenumber of employment tribunal applications more than trebled between 1988 and 1996 (Burgess,
Propper and Wilson, 2001), a pattern mirrored in New Zealand with a major increase in personal
grievance claims during the 1990s (May, Walsh, Thickett and Harbridge, 2001). Some writers*

Dr B. Walker, Lecturer, Department of Management, University of Canterbury
Professor R.T. Hamilton, Department of Management, University of Canterbury**

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New Zealand Journal of Employment Relations 34(3):43-64
suggest that individual-level disputes may now represent a more accurate indicator oforganisational conflict than traditional collective action (Knight and Latreille, 2000).
The handling of individual-level disputes involves balancing justice for both sides, providing
suitable protections for employees while at the same time supporting the functioning oforganisations. It is also highly politicised. The New Zealand debate involves lobbying from
employer groups and unions, and in recent years the issue has attracted media attention with
employer allegations that the current system serves as a “gravy train” (EMA Northern, 2006a;
2009b). The recently elected National-led government introduced a 90 day probationary period
restricting entitlement to grievance protections from early 2009, and has announced its intention
to further review personal grievance procedures, intimating the likelihood of further legislativechange as a response to employer criticisms.

Background and Context
The term “grievance” is defined as “a mechanism for aggrieved employees to protest and seek
redress from some aspect of their employment situation” (Feuille and Delaney, 1992: 189). Any
discussion needs to acknowledge the significant differences across countries in terms of legal
provisions, structures and systems. One approach, exemplified by the United Kingdom, Australia
and New Zealand, follows European countries by developing extensive statutory individualrights protections, with enforcement and dispute resolution through national labour courts or
employment tribunals.
In contrast, North America places the onus on employers to resolve disputes and there hasdeveloped a long-standing division between union and non-union situations. Hence, there are
two distinct grievance systems, each with extensive literatures. Union settings involve formal,
multi-step grievance procedures which typically culminate in arbitration by a neutral third-party.
A grievance in this context is usually a claim by an employee or the union that the employer has
violated the contract (Feuille and Hildebrand, 1995, p.344). Non-union settings have evolved
from a situation with few protections for employees, to the recent widespread adoption of dispute
resolution systems. Among these however, there is considerable diversity in terms of scope andcomplexity, with differing procedures and protections. Unlike traditional union procedures, nonunion systems use a range of alternative dispute resolution (ADR) options, including open-door
systems, early neutral assessment, review panels, mediation and arbitration (Bingham, 2004:
145; Feuille and Delaney, 1992).
The term “employment dispute resolution” (EDR) typically refers to the use of a third-party suchas an ombuds (person), mediation, or arbitration to resolve employment disputes outside acollectively bargained grievance procedure (Bingham and Chachere, 1999: 95). Initially, nonunion provisions performed a similar role to union grievance procedures, dealing mainly with
contractual violations and violations of organisations’ own policies. Now however, North
American EDR, using employer-based or third-party programmes extends to systems which go
as far as to substitute for the statutory remedies usually available through the courts andgovernment agencies (Bingham and Chachere, 1999). These types of EDR systems can exist
both in non-union workplaces, as well as in union settings where they operate alongside union
44New Zealand Journal of Employment Relations 34(3):43-64
grievance procedures. Although the latter, more extreme forms are not “grievances” as typicallyunderstood, the processes do nonetheless have many commonalities with, and relevance for,grievance research.
The New Zealand system offers a significant contrast to North American systems where
employment-at-will, that is, employment being immediately terminable without recourse, forms
the legal setting for most private sector employees. The New Zealand grievance process is basedon statutory protections rather than employment contracts, with legislated systems for handlingindividual-level disputes including the forums of the Employment Relations Authority and thecourts. At the same time though, New Zealand does participate in the broader international
pattern of decentralising dispute resolution to the workplace level, and uses ADR with statesponsored mediation.

The Grievance Literature
There is no “complete theory” of individual-level employment dispute processes which Bemmels
and Foley (1996) suggest is a reflection of the nature of the phenomena. Research into grievanceprocedures is complicated firstly by the variety of forms that these can take. Moreover any
grievance process will involve a sequence of different steps with many differing individuals
involved as the dispute progresses, moving from first-line local staff to more senior staff andexternal representatives as the dispute progresses. Given this complexity, Bemmels and Foley(1996) propose that any all-embracing theory would be “incomprehensible”, and instead it ismore appropriate to develop theoretical explanations for different phases. This is reflected in theexisting literature which tends to be fragmented, dealing with separate aspects of the overall
process.
In comparison with the international literature, New Zealand research has often been instigatedby the Department of Labour and hence driven by policy and operational needs. Recent reports
have included a diverse range of approaches including surveys of employers and employees(Department of Labour, 2000, 2002c, 2007d), interviews with parties (Department of Labour,
2002c, 2007d), a brief “snapshot” analysis of mediations (Department of Labour, 2007c) andAuthority determinations (Department of Labour, 2007b), as well as focus groups (Departmentof Labour, 2002c, 2007a). A number of common themes emerged from these publications. The
reports outlined the incidence of employment relationship problems and the associated financial,personal and social costs. The various avenues of resolution were identified, and the issue ofrepresentation was discussed with regard to issues of quality and the effect that this had on
resolution processes. The situation for small and medium enterprises was portrayed as
particularly difficult, as these were typically over-represented in the numbers of employment
relationship problems, with those problems having a disproportionately large impact on suchorganisations. While these reports cover a variety of issues, they are often limited bymethodological factors including sample size and response rates, and consequently the reports
themselves state that their “findings can only be indicative” (Department of Labour, 2007d: 5;
2007b).1

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New Zealand Journal of Employment Relations 34(3):43-64
The following discussion is structured around the four sequential phases of the grievanceprocess: (1) the incidence of grievable events; (2) grievance initiation; (3) grievance processing;and finally (4) outcomes.
1. Incidence of Grievances
The emergence of a grievance contains a number of sub-stages. The process commences with theinitial perception that a ‘grievable event’, a mistreatment or breach of employee rights, has
occurred. Surprisingly, the literature contains little information on these events although anumber of studies have suggested that their incidence is high (Bemmels and Foley, 1996;
Department of Trade and Industry (DTI), 2005a, 2005b; Lewin, 1999; Lewin and Peterson,1988). Of significance is the apparent drop-off between the large numbers of potential events andthe much smaller number actually pursued as grievances. The next sub-stage consists of initial,
informal complaints and their resolution directly between the parties. USA research suggests
most grievances are never put in writing but instead are dealt with informally between workers
and their supervisors (Lewin, 1999). Again, the incidence of this resolution is not known, but it isestimated that in union firms there are about 10 unwritten grievances for every one filed formally(Lewin and Peterson, 1988).
In the next sub-stage, actual formal filing, data for non-union North American settings comesfrom company records. The definition of what constitutes a grievance varies by company, but
overall studies suggest an average annual rate of around five grievances per hundred employees(Lewin, 2004). In contrast, the union filing rate is around 10%, twice that of non-union
organisations (Bemmels, 1994; Lewin, 2004; Lewin and Peterson, 1988). By comparison, United
Kingdom data is drawn from applications to an external forum, the Employment Tribunal, rather
than in-house grievance procedures and there the annual rate was 1.9 per thousand(approximately 2%) of employees (Knight and Latreille, 2000). Beyond these aggregated figures,
American, British, Canadian and other studies report wide variation in grievance rates acrossindustries or sectors (Bemmels and Foley, 1996; Earnshaw, Goodman, Harrison andMarchington, 1998; Hayward, Peters, Rosseau and Seeds, 2004; Lewin and Peterson, 1988), a
pattern that is mirrored in New Zealand (Department of Labour, 2003b). Overall, little is known
about the causes of these variations.
International between-country comparisons are problematic, with the New Zealand situation
further compounded by both the limited data and the use of measures not directly comparablewith American grievances. New Zealand surveys suggest that in a 12 month period, around 35%
of employees experienced a ‘problem’ that was discussed with a supervisor or manager(Department of Labour, 2000), while estimates of issues that are not resolved by discussion witha immediate manager or supervisor but proceed to third party involvement range from 1.5% to15%, with a higher incidence in the private sector (Department of Labour, 2000, 2003b, 2007d).
While absolute numbers are not directly comparable, the limited research does suggest a similar
pattern to elsewhere, with high levels of informal or private resolution and only a small
proportion proceeding to the formal institutions (Department of Labour, 2002c, 2007a).
Interestingly, in terms of the contemporary debates, one recent report (Department of Labour,2007d) suggests a low incidence with the majority of New Zealand businesses having noemployment relationship problems in the 12 months surveyed, whereas in contrast an employer46

New Zealand Journal of Employment Relations 34(3):43-64
group survey proposed that 30% of employers experienced a grievance over a similar period(EMA Northern, 2006b).

2. Grievance Initiation(a) Demographics
Early grievance research assumed that filing behaviour may be explained by demographic factors
or personal disposition. Subsequent studies however, failed to produce any correspondingly
simple answers; the findings varied and the studies tended to describe what occurred rather thandeveloping specific theory that could explain differences (Allen and Keaveny, 1985; Bacharachand Bamberger, 2004; Lewin, 1987; Lewin and Peterson, 1988). The matter is further
compounded with the relationships also varying by grievance issue (Bemmels and Foley, 1996;
Lewin, 2004; Lewin and Peterson, 1988). New Zealand data covers a range of factors such asage, tenure, ethnicity, union membership, and sector, however as findings vary both withincountries and between countries, there are no clear reference points for making inter-country
comparisons (Department of Labour, 2000, 2007c).
(b) Context of Work
Other studies explored the link between grievance filing, the work context and possible workrelated determinants. More aversive supervision or job characteristics for example, were
expected to result in increased grievance filing (Bamberger, Kohn and Nahum-Shani, 2008;
Klaas, 1989a). Despite the intuitive appeal of such links, once again empirical studies generated
inconsistent findings (Bacharach and Bamberger, 2004; Bemmels, 1994; Bemmels and Foley,
1996; Bemmels, Reshef and Stratton-Devine, 1991). The roles of unions and management have
however proven significant. Management policies requiring written applications for example,
have been associated with increased grievance rates, heightened formality and escalation of
disputes (Antcliff and Saundry, 2009; Gibbons, 2007; Lewin and Peterson, 1988). Union policiesof ‘taking certain grievances through the procedure’, along with stewards’ encouragement offiling, were also related to increased grievance filing (Bemmels and Foley, 1996). In contrast,
perceived supervisor capabilities, and shop steward attempts at informal resolution, were both
negatively associated with grievance rates (Bemmels, 1994; Bemmels and Foley, 1996;
Bemmels et al., 1991).
There is little New Zealand data to directly compare these findings with, however theinternational research does highlight the critical nature of the roles of management and unions
and this has significant implications for both New Zealand practice and research. Existing reports
note issues such as the key functions unions can perform assisting with resolving issues in theworkplace, as well as the effects of the varying levels of ability among managers (Department ofLabour, 2002c; Donald, 1999). Walker (2009) also observed the influence that different
approaches from employers and representatives have on the course of grievances, creating typesof interactions that move the dispute towards either escalation or resolution.

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New Zealand Journal of Employment Relations 34(3):43-64(c) Employee Decision-Making
A different line of inquiry has explored the process of employee decision-making; how do
employees decide for example, whether or not to file a grievance. Unlike the earlier, more
descriptive work, decision-making models typically involve the application of specific social
science theory. Several of these models are outlined in terms of their potential relevance for the
New Zealand situation.
Of particular significance is Klaas’ (1989a) model based on expectancy, procedural anddistributive justice theories. This proposes a “rational, calculative” decision-making process
where, in terms of expectancy theory, employees weigh up the relative attractiveness or utility offiling, taking into account factors such as the likelihood of winning and expected remedies,comparing these against alternatives such as quitting or inaction. Employees motivated by agenuine sense of inequity are likely to engage in additional “alternative responses” such as
disruptive behaviour if grievance procedures on their own do not restore equity - whereas thosefiling for purely instrumental reasons of political or economic gain, are less likely to do this.
Subsequent empirical investigations have supported this model (Lewin, 2004; Olson-Buchanan,1997).
Cappelli and Chauvin (1991) developed an “efficiency model” which also proposed that
employees will weigh up the costs and benefits (or effectiveness) of grievance filing comparedwith other options such as exit or remaining silent. In particular, labour market conditions suchas high unemployment, and higher wage premiums (compared to the local labour market), wereidentified as key determinants of the benefits of filing. This was consistent with the findings ofBrown, Frick and Sessions (1997) whose 30-year data from Germany and Britain showed thedemand for grievances to be cyclical, with macro-level factors such as unemployment andvacancy rates exerting a much stronger influence than changes in the legal infrastructure.
Bacharach and Bamberger (2004) however, found little support for the direct relationship with
unemployment or wage premiums. Instead they returned to a more traditional issue of therelative power of the parties. Drawing on power dependence theory (Lawler, 1992), they
proposed the more conceptual notion of “labour power”, meaning the employee’s perception of
the extent to which the employer is dependent on the employee, as a key determinant of
employees’ filing decisions.
More recently Olson-Buchanan and Boswell (2008) proposed a model which seeks to unify
earlier work regarding the separate aspects of the dispute process into an integrated theoreticalframework. This extends back to the pre-grievance stage, using a sense-making perspective
which incorporates individual’s perceptions before, during, and after grievance activity,
explaining how an individual firstly concludes they have been mistreated, and then responds tothis mistreatment.

The Exit-Voice-Loyalty model
Hirschman’s (1970) exit-voice-loyalty (EVL) model has been the dominant employee decision
making model. Originally developed as a model of consumer behaviour, it proposes that, whenconfronted by deterioration in a relationship, a party can respond through either “voice” seeking
to redress the situation, or “exit” by changing to another product. The individual’s loyalty to the48

New Zealand Journal of Employment Relations 34(3):43-64
supplier is the key determinant of whether voice or exit behaviour will occur. Freeman and
Medoff (1985) adapted the model to industrial relations, proposing that through offering a voice
option in the form of grievance procedures, unions produced positive benefits for organisations(Boroff and Lewin, 1997; Lewin, 2005). By having a voice option as an alternative to exit,
employers would benefit through reduced turnover, as well as learning about problems more
quickly, and gaining more specific information to address the issues. Similarly, employees could
also benefit through being able to resolve disputes, restoring their employment relationship andso being able to remain with the company. The traditional wisdom became that voice action,
through grievances, was advantageous for both employers and employees (Feuille and Delaney1992).
Unlike other decision-making models however, the research surrounding Hirschman’s (1970)
model has not been limited to the initial grievance-filing decision but has extended to otheraspects, particularly the proposed beneficial outcomes that are predicted to occur in relation tofiling. This has produced unexpected findings which challenge the traditional wisdom. Contrary
to those predictions, a series of studies reported negative outcomes following grievance filingand settlement, thus questioning both the traditional wisdom and the adequacy of the EVL
model. Comparing employees and supervisors involved in grievances with those who were not,one year after grievance settlement, both performance ratings and promotion rates were lower,
and turnover rates were significantly higher, for grievance filers compared to non-filers. No
significant differences existed between the filer and non-filer groups prior to, or during, filingand settlement. A similar pattern of outcomes occurred among supervisors involved in thosegrievances (Lewin, 1987; Lewin, 1999; Lewin and Peterson, 1988; Lewin and Petersen, 1999).
So the debate has expanded to encompass competing models which offer alternative explanations
for those outcomes. This research will therefore be discussed in relation to those outcomes,
below. The area has important implications for not only understanding how employees
experience, and respond to, instances of perceived mistreatment, but also possible changes that
occur in the employer-employee relationship.

Decision Making Models: Applications and Limitations
While the decision-making approach appears to hold explanatory power, it has limitations.
Internationally the work has been tended to be confined to a single decision, namely the initialdecision to lodge a grievance, and has not extended to the other decisions throughout thesubsequent stages of grievance processes. Furthermore, the work has focused predominantly on
the employee perspective with significantly less attention to that of the other key player, theemployer. Consequently there are still considerable unexplored areas concerning decisionmaking in grievance processes. One further potential limitation concerns generalisability, and thequestion of whether the nature of grievance initiation is the same across differing jurisdictions. In
North America for example, it is more typical for grievances to occur with an expectation thatthe employee will continue their relationship with the same employer. In contrast, New Zealandgrievances have tended to occur where the employment relationship has ended, and grievanceprocedures have often addressed the “terms of dissolution” of such relationships (McAndrew,
2000: 303). There is only limited information concerning grievance initiation decisions in New
Zealand and in the absence of such data, it is difficult to assess whether parties are in fact,
weighing up the same issues and making the same type of decision.
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Although those limitations are acknowledged, it would seem that the area of decision-making,especially by employees, may have considerable potential relevance for New Zealand. Theinternational research suggests that this is an important component in understanding grievance
behaviour, yet this aspect of New Zealand grievances still remains ill-defined. The developmentof grounded findings may provide insights and contrasts for the politicised debate, including
issues such as alleged opportunism among employees. Klaas (1989a) for example distinguishes
between instrumental and genuine grievance activity, while two New Zealand Department ofLabour reports (Department of Labour, 2002c, 2007d) suggest that, at most, only a small
minority employees are likely to pursue grievances for purely opportunistic, financial gain –contradicting employer claims.
New Zealand reports have also noted factors that operate in the opposite direction, exerting
significant deterrent effects on employee decision-making, particularly the specific social,personal and financial costs experienced by employees (Department of Labour, 2007d). Unlike
the international literature the New Zealand information also extends to an outline of elements of
employer decision making, in terms of the factors involved, and decision-areas such as the
choice of resolution method (Department of Labour, 2007d, 2007a). While the existing
information is largely descriptive, Walker (2009) developed a grounded theoretical model of
employer and employee decision based on a power dependency framework, as part of a wider
grievance process model. This adopts a cost-benefit perspective using elements similar to those
noted in Department of Labour reports (Department of Labour, 2007d) but incorporating asequence of stages as well as noting employer behaviours that are outside the intent of current
legislation. It seems that understanding decision-making, particularly from the employee
perspective, may be a particularly central element in developing greater knowledge of New
Zealand grievance dynamics. Research exploring this area could begin to explain why employee
behaviours occur, rather than simply observing overall grievance numbers and making
generalisations based on anecdotal evidence.

3. Grievance Processing
Grievance processing refers to “when, where, and how grievances are resolved” (Bemmels andFoley 1996: 372). The inherent focus on the grievance-handling system of a specific country ororganisation means that research findings are often interwoven with details of the structures andprocedures in a particular locality, thus limiting generalisability. A variety of indicators are usedin evaluating grievance processing, but the two main criteria are speed and satisfaction (Buddand Colvin, 2008).
Firstly, the “speed” literature emphasises measures such as the length of time until settlement(Lewin and Peterson, 1988; Ponak and Olson, 1992; Ponak, Zerbe, Rose and Corliss, 1996), the‘level’ or step at which settlement occurs, and settlement rates (Dastmalchian and Ng, 1990;
Lewin, 1999; Lewin and Peterson, 1988; Ng and Dastmalchian, 1989). In North America forexample, the bulk of grievances are typically settled at the first or second steps, with only a verysmall proportion (around 2%) settled at the final step of either procedure (Feuille, 1999; Lewin,
2004; 2005; Lewin and Peterson, 1988). In New Zealand, reports address aspects such as
resolution methods, timeframes associated with each method, costs, and numbers resolved by50

New Zealand Journal of Employment Relations 34(3):43-64
each method (Department of Labour, 2007a, 2007c, 2007d). Not surprisingly, in-house
resolution generally proves more rapid and less expensive, and as with North America, only asmall proportion of cases reach the later stages of the Authority or Employment Court.2
Secondly, ‘satisfaction’ measures typically consider parties’ perceptions of procedures,
especially their fairness. The organisational justice literature addresses how employees determine
if they have been treated fairly, and the impact of those perceptions, with employees who believe
they are treated fairly tending to be more favourably disposed toward the organisation (CohenCharash and Spector, 2001; Greenberg and Lind, 2000). While much of the grievance processing
research is both descriptive and limited by context, the construct of organisational justice withthe three aspects of distributive, procedural and interactional justice, provides a theoreticalframework with potential to generalise across settings (Colquitt, Conlon, Wesson and Porter,2001).
Research concerning grievance processes generally confirms the importance of those perceptionsof justice or fairness in employees’ assessments of the effectiveness of systems (Bemmels andLau, 2001; Blancero, 1995; Boroff, 1991; Lewin, 1999; Nurse and Devonish, 2007). Fairness canbe more important than speed (Gordon and Bowlby, 1989, Lewin, 1999), with perceived
procedural justice significantly predicting a belief in overall workplace justice (Fryxell, 1992), as
well as being linked to satisfaction with the union and management (Fryxell and Gordon, 1989).
Usage of grievance procedures, which can itself be used as a criterion (Bingham, 2004), has also
generally been found to be associated with the perceived fairness of the system, with positive
employee perceptions of effectiveness related to increased employee use (Lewin and Peterson,
1988; Mesch and Dalton, 1992; Petersen and Lewin, 2000). Blancero and Dyer (1996) for
example, report systems that are perceived as ‘credible’, ‘accessible’ and ‘safe’ were used more,while Colvin (2003) suggests the neutrality of decision-makers promotes usage.
New Zealand reports propose relative satisfaction concerning procedures; for example in a recent
survey of employers, around two-thirds expressed satisfaction with resolution procedures andoutcomes (Department of Labour, 2007d). Contrary to employer claims, the employers surveyed
perceived employment relationship problems as resulting in an overall benefit rather than a costfor business, with indications that the direct financial costs for employers were quite low incomparison with countries such as the UK (Department of Labour, 2007d; Gibbons, 2007;
Shulruf, Woodhams, Howard, Roopali and Yee, 2009). There is however no consensus on what
constitutes “effectiveness” in grievance procedures (Lewin 1999). While there are numerous
measures used, there is little clarity on precisely what constitute optimal outcomes. In response,
Budd and Colvin (2008) propose the three concepts of ‘equity’, ‘efficiency’ and ‘voice’ as core
standards which could be utilised for comparison and evaluation of procedures.
In the North American context, the evaluation of grievance systems takes on particularsignificance in comparisons of non-union systems utilising ADR processes, against traditional
union-based procedures. A key question concerns the extent to which the newer alternative
systems provide workplace justice, especially for employees (Bingham, 2004; Colvin, 2003,
2005; Klaas, Mahoney and Wheeler, 2006; Mahony and Klaas, 2008). Traditional systems
contain strong procedural safeguards with well-established due process protections, however the
few studies that have examined non-union procedures have tended to find fewer protections, with51

New Zealand Journal of Employment Relations 34(3):43-64
wide variation in terms of procedural formality and only modest independence from management(Feuille and Delaney 1992; Feuille and Hildebrand 1995). Specific shortcomings are identified
for each of the various ADR forms (Budd and Colvin, 2008; Mahony and Klaas, 2008), but
Bingham’s (2004) review of the existing evidence suggests that mediation produces betterorganisational outcomes than either no intervention or an adjudicatory option such as arbitration.
Other writers however question ADR procedures with Van Gramberg (2001) for example,
suggesting a “second class” nature of justice afforded to employees through newer Australiangrievance systems.
Questions of equity and justice are not simple matters. In non-union North American settings,
grievance systems can be unilaterally designed and imposed by the company, raising crucial
questions regarding justice for employees. An especially controversial area concerns the abilityof an employer to impose mandatory company-based arbitration as a condition of employment,
requiring employees to relinquish their rights to external forums such as the courts, orgovernment agencies. While the New Zealand situation seems far less extreme, there arenonetheless questions concerning the extent to which ADR procedures used in current forums
such as Department of Labour mediation, do provide justice for both employees and employers.
These international questions also provide a caution for policy-makers considering any possible
changes to the New Zealand system. The issues highlight a further, significant research gap
concerning within-company resolution in New Zealand. While it seems the majority of disputes
are settled privately, and many resolved internally, particularly in larger organisations(Department of Labour, 2007d; EMA Northern, 2006b), from an employee perspective theprocesses involved may not be prompt or effective, and only 20 - 46% of disputes end with theemployee remaining in their job (Department of Labour, 2000, 2003b). Conversely employers
also argue that private settlements do not necessarily represent justice but are simply a pragmaticway of avoiding the possibility of high costs associated with forums such as the Authority (Bond,
2004; Department of Labour, 2007d; EMA Northern, 2006b). Although New Zealand legislation
requires that companies have a written “plain language explanation” of their resolution
procedures, the limited local research questions the extent to which these written procedurestranslate into systems are in fact, credible, accessible and safe for employees (Blancero andDyer, 1996; Department of Labour, 2000, 2002c; Walker, 2009). There is a need for further
investigation into the processes that do actually occur within New Zealand organisations, before
grievances reach external forums, and particularly within-company resolution.
4. Outcomes
Grievance outcomes have been studied over different time intervals, including the longer term
implications for employees who remain with the employer post-settlement. In the North
American union environment, Feuille and Hildebrand (1995) suggested that most grievanceswere resolved in the employee’s favour. This situation is mirrored in the limited New Zealandinformation concerning Authority determinations (Department of Labour, 2007b; EMA
Northern, 2009a). Feuille and Hildebrand (1995) noted however, that there was no single
explanation for why employees prevail in some grievances and not in others, and this is
symptomatic of the lack of theoretical development. More broadly, potential determinants thathave been investigated include the grievant’s work background (Klaas, 1989b), the industrial
relations climate of the organisation, the salary of the grievant, the grievance issue (Ng and52

New Zealand Journal of Employment Relations 34(3):43-64
Dastmalchian 1989), the nature of the forum (labour versus employment arbitration) (Bingham
and Mesch, 2000; Klaas et al., 2006), as well as extraneous factors such as the gender of thegrievant and/or decision maker (Bemmels, 1991; Dalton and Todor, 1985; Dalton, Tudor andOwen, 1987). These have shown possible links, and it would seem that in general, factors otherthan the merits of the case may influence settlement decisions, again raising questions regarding
the justice delivered by the system. Firm size is also implicated, and this pattern is especiallyevident in New Zealand where smaller firms are more likely to be involved in dispute hearings(Department of Labour, 2007d, c); in the UK they are also more likely to lose compared to large
firms (Saridakis, Sukanya, Edwards and Storey, 2008). The relationship with organisation size
requires further investigation; New Zealand reports suggest that possible explanations may
include lesser HR resources and expertise in smaller businesses, along with their lesser
experience in dealing with individual-level disputes (Department of Labour, 2007, 2007c).
Representation is another recurrent topic with Antcliff and Saundry (2009) finding no links
between actual representation and UK company grievance hearing outcomes, although highunion density was linked with more favourable outcomes for employees. In New Zealand,
McAndrew (1999) found that in the earlier Employment Tribunal, employers without
professional representation were less likely to achieve successful outcomes, while another key
predictor of the outcome was the nature of the grievance McAndrew (2000). More recently,
reports have noted comparatively high levels of representation in general (Department of Labour,
2003b, 2007b), as well as a positive relationship between representation and settlement outcomesat mediation (Department of Labour, 2007c), however the causes of this are unclear. The
influence of representatives is a contentious issue in New Zealand, with employers alleging that“no-win no-fee” contingency representatives inflate grievance rates by pursuing cases that lack
merit and are based solely on minor procedural technicalities (EMA Northern, 2006a, 2007).
Reports however suggest this type of representative was only involved in a small percentage ofproblems and did not have a significant influence overall (Department of Labour, 2007d). The
varying approaches of different representatives has however been noted (Department of Labour,
2007a, 2007d), including the competency levels, and negative effects of some advocates, as wellas the positive roles that others such as unions can play in managing and resolving grievanceissues, as mentioned earlier (Department of Labour, 2002c; Donald, 1999), with Walker’s (2009)
grounded theoretical model addressing the dynamics involving representatives and the effects
these have on dispute outcomes.
In general, while many jurisdictions including New Zealand have data concerning outcomes interms of aspects such as win/lose rates and settlements, these tend to often simply report what
happens. These however cannot be read at face-value and in isolation; they need to be read in thecontext of a theoretical framework and an understanding of why these occur. A greater
understanding of employee decision-making for example, may demonstrate that factors such as
costs may mean that employees will only pursue cases with a very high probability of success.
This information would therefore imply that one would actually expect a higher proportions ofoutcomes in favour of employees, rather than assuming that a 50/50 balance of win/lose
outcomes is the benchmark for equity. Furthermore, in contexts such as New Zealand it isnecessary to be clear about exactly what a system is seeking to achieve and why. If a system isseeking to achieve early, low level resolution, then this needs to be based on a clear theoreticalmodel and outcomes can be measured against those criteria. At the same time, there are hotly
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debated issues as to what constitutes a suitable measure of equity and “justice” in both processes
and outcome measures. These issues are currently sparking calls for a whole new programme ofresearch into non-union and EDR systems in North America.
Longer-term research on post-settlement issues in North America has found that some employees
do experience significant negative outcomes, particularly in areas of performance, promotion
attendance and exit, the reverse of what was predicted by the EVL model. These outcomes are
however consistent with an alternative model, that of organisational punishment - industrial
discipline (Arvey and Jones, 1985; O’Reilly and Weitz, 1980). Therefore one explanation forthese negative outcomes is simple ‘retaliation’, with employees who file grievances and theirsupervisors, being punished (see Klaas and DeNisi, 1989). Alternatively, there is anotherpossibility; the negative post-settlement outcomes may be due to real behavioural differences,with grievants and their supervisors genuinely being poorer performers. The process of grievancefiling and resolution then prompts employers to pay closer attention to their performance, which
reveals the performance deficits (Lewin and Petersen, 1999; Olson-Buchanan, 1996).
Studies also suggest that the experience of mistreatment on its own, independent of taking
grievance action, is significantly linked to exit (Boswell and Olson-Buchanan, 2004; OlsonBuchanan, 1996). Various other factors appear to be involved. The type of mistreatment or
grievance for example, was also influential with ‘personal’ grievances against supervisors’
actions being more strongly linked with lower performance ratings and higher work withdrawal
than ‘policy-related’ issues (Boswell and Olson-Buchanan, 2004; Klaas and De Nisi, 1989). The
type of voice also proved influential with loyal employees raising issues but in less formal ways,
which could be construed as supporting the EVL model (Olson-Buchanan and Boswell, 2002).
Overall however, there is still mixed evidence supporting each of the potential explanations, withno single unequivocal conclusion.
An important implication is that when the grievance process is triggered by deterioration in therelationship between the employee and employer, it would seem that formal grievance activities
often do not successfully restore that relationship - irrespective of whether or not the grievanceprocedures themselves contribute to that decline. This poses questions as to whether formal
grievance procedures, perhaps including external mediation, can achieve the resolution andrestoration of relationships that is often desired, especially when such interventions only occur
after there has been relationship deterioration. In New Zealand, post-settlement outcomes have
had less prominence because grievances continue to be dominated by disputed dismissals whererelationships have already ended (Department of Labour, 2007b, 2007c). Instead, the question
becomes why this occurs, especially when the intent of the current legislation was to promote
early intervention, proactively restoring or maintaining employment relationships (Department ofLabour, 2002a: 6). Reports have noted for example, that rather than being opportunists, New
Zealand employees were in fact, often reluctant to pursue grievances due to concerns about
potential retribution, harm to their career, and the likely demise of the employment relationshipas an almost-inevitable consequence of a grievance – elements that match overseas retribution
interpretations (Department of Labour, 2002c). This also raises the question of how employees
deal with perceived mistreatment and whether some issues are not pursued. Similarly, employers
may tend to avoid dispute resolution outside the company due to concerns about relationshipdamage, often perceiving mediation as a “road of last resort” (Department of Labour, 2002c).
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Perhaps the smaller size of New Zealand workplaces means that parties are more acutely awareof the potential consequences of grievance action, compared to their North Americancounterparts. These matters again relate to the issues already noted such as employee decision
making and within-company resolution, and thus represent fertile ground for further
investigation.
Reinstatement serves as another focus of research. the international literature suggests this isawarded in about half of grievance cases (Lewin, 1999; Williams and Taras, 2000), however
there is wide variation in estimates of numbers who subsequently return to work, ranging from
38% to 91% (Eden, 1994; Lewin, 2005; Malinowski, 1981; Williams and Taras, 2000). Canadianand British findings suggest that reinstated employees do not tend to remain with their employers
long term (Dickens, Hart and Weekes, 1984; Lewin, 1999; Trudeau, 1991). In contrast, while
reinstatement is the “primary” remedy for grievances in New Zealand (ER Act s101(c), s125), in
practice it is rarely sought by applicants, a similar situation to Britain (Corby, 2000; Departmentof Labour, 2002b, 2003a, 2003b). Again, this raises questions regarding the causes of thisphenomenon. Are within-company processes perhaps so effective that if resolution is possible, it
is normally achieved at that stage – or conversely, are New Zealand employers so unforgivingthat embarking on grievance action effectively signals the end of an employment relationship(Department of Labour, 2002c)?

A Research Agenda for New Zealand
The international literature highlights a range of research areas with potential relevance for New
Zealand. At the same time, it exposes the limited body of New Zealand research at a time when
this is much needed to inform contemporary debates and policy. Internationally, a range of
research is needed and this includes the development of models which capture the ongoing
dynamic nature of grievance processes involving a progression through a sequence of stages, aswell as extending the existing one-sided perspectives to capture the interactive nature ofgrievances. While the New Zealand shortfalls reflect international patterns to some extent, there
are a number of issues of particular local significance which we have identified in the paper. In
concluding, our overview is that the most urgent New Zealand needs are centred on three areas3.
Firstly, there is a shortage of information concerning decision-making, particularly by employees
and employers. The factors driving the behaviours of these parties remain ill-defined eventhough this may be quite a critical issue. There is a need to explore decision-making throughout
all stages of the grievance process, from the perspectives of multiple parties. This could include
issues such as the alleged prevalence of opportunism, and the numbers of employees who simply
decide to exit rather than pursue a dispute.
Accompanying this, the role and influence of third parties in grievances, including
representatives and unions, is relatively uncharted. There are indications that these parties arequite influential (McAndrew, 1999; Walker, 2009) but the dynamics are not clearly established.
Similarly, the role of HR staff in grievances also warrants investigation, in terms of both theircurrent functions and also their potential to assist in low-level resolution.

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New Zealand Journal of Employment Relations 34(3):43-64
A second little-explored area concerns the early stages of grievances, particularly withincompany dispute resolution. For example, what actually happens in the early stages, particularly
when significant numbers of problems are apparently resolved within organisations and neverreach external forums, and yet why do disputed dismissals make up such large proportion ofgrievances? The 90-day “probation period” also represents a new area requiring thoroughinvestigation. Related to this is the issue of private resolution, concerning grievances that are
resolved with the assistance of an external party other than official Department of Labour agents.
A third, related area needing research is the introduction of ADR procedures such as mediation
with an emphasis on informal confidential resolution. While there are numerous critiques of
ADR and ‘private’ (as opposed to ‘public’) justice (van Gramberg, 2001), the full implications
for grievances have yet to be explored, and these point to the challenging task of evaluating
issues of justice and equity in the New Zealand context. Those issues also extend to questions
such as access to the higher level forums of the Authority and the Employment Court whencritics argue that factors such as costs make these inaccessible for many employees.
Grievances represent an important area of contemporary employment relations. Amidst thecurrent political debates there is a need for research-based evidence in place of rhetoric, however
as yet the limited existing local research often provides conflicting results without clear patterns.
Internationally, it is well recognised that the field is confronted with major challenges withregard to research access and the design of appropriate methodologies (Bingham, 2005, Bingham
and Chachere, 1999, Lewin, 1999). Although these are more pronounced in North America
where the employer-centred systems mean that data resides only within the organisation, similar
issues remain problematic in a New Zealand context. Nonetheless, an improved understanding of
the issues has the potential to benefit employers, employees and policy makers, producing
systems that achieve both justice and efficiency.

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Relations Industrielles, 55(2): 227-249.

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Notes
1

The studies tend to be descriptive rather than driven by theory, and as yet, generally do nothave the support of significant amounts of independent academic research.

2

A Department of Labour (2007d) employer survey suggested that around 60% of employment
relationship problems are resolved within the organisation
3

These areas now form the focus of the author’s ongoing research

64New Zealand Journal of Employment Relations 34(3):65-82

Secondary Boycotts and Ally Doctrine in the U.S. Law of Strikes
JACOPO BUSNACH RAVENNA*
Abstract
The paper aims to schematically illustrate the legal genesis of the concept of secondary
boycott in U.S. statutory law and its application in the relevant case law. For this purpose, abrief overview of the historical origin of the right to strike is provided, along with theanalysis of the evolutionary process which led to its inclusion in the Constitutional Charts ofmany European countries. This introduction is followed by a description of the legislative
steps towards the enactment of the Wagner Act (1935), as amended by the Taft-Hartley Act(1947), and of the Landrum-Griffin Act (1959), especially focusing on the different sanctions
which may spring from group ostracism against neutral employers. The distinctiveness of theso-called “ally doctrine” as regards the labour unions’ liability for instigating secondary
boycotts is further portrayed, as an exception to the guarantee of free speech contained in theFirst Amendment to the U.S. Constitution.

Introduction
When employers undergo trade unions’ collective actions such as strikes or boycotts, they
always strive to reduce, as much as possible, the impact that the work stoppage can provoke
on the going concern. In fact, one of the most critical issues arising from a strike lies in thefact that work stoppages may permanently affect the firm’s productivity (Bock, 2005).
Concerned about the risk that such collective actions could affect national security, legislators
throughout the ages have been adopting measures aimed at restricting strikes, ranging fromcivil sanctions to total ban (Chepaitis , 1997). All the same, the constant tendency for almost
all legal systems is by now to grant workers valuable tools in order to counterbalance theinescapable disproportion in bargaining power between the two negotiating parties in
employment contracts. This trend has been translated into regulations which haveincreasingly equipped workers and their representatives, namely trade unions, withappropriate legal protection against employers’ retaliatory conducts. This development has
been suddenly boosted by the drafting of constitutional principles protecting the right tostrike (Pope, 1999). However, it should be noted that almost all subsequent, both legislativeand regulatory, interventions have been aimed at limiting the sphere of application of suchright.
Deprived of workers, the employer is likely to hunt for other sources in order to replace thestriking labour force. If these attempts succeed, the effect of the strike is likely to fade away
and thus the very significance of the striking workers’ grievances – which originallyprompted the strike – tends to blur. Meanwhile, on the other side of the river, unions calling astrike strive to make it successful and do their best to prevent employers from getting outside*

LLB, Bocconi University (2007); Visiting Student, University of Richmond School of Law (2008); JD,
Bocconi University (2009); Associate at Gianni, Origoni, Grippo & Partners – M&A Department (2009 - now).
I would like to acknowledge the support of my fellow and friend Luigi Russi, whose commitment andenthusiasm I will never forget.

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New Zealand Journal of Employment Relations 34(3):65-82
workers. This mostly defensive counter-activity, which targets the secondary means used by
the primary employer, is often referred to as a “secondary boycott”. Its essence was defined
as “a combination to influence A by exerting some sort of economic or social pressure
against persons who deal with A” (Frankfurter and Green, 1930 as cited in Dereshinsky,
Berkowitz and Miscimarra, 1981).
Generally speaking, these kinds of activities are deemed to be unlawful under U.S. law, thesystem with which this article is chiefly concerned. In particular, such practices are normallyoutlawed to the extent to which they follow the notion of “unfair labour practice” set forth ona statutory basis, although this notion is often construed differently by the courts. Bothaspects of the issue, and the peculiar tenets of the “ally doctrine”, will be analysed in thefollowing paragraphs.
This paper starts with describing, in unbiased terms, the legislative process which led to therecognition of the right to strike by the major legal systems worldwide. In particular, within
the U.S. framework, the legislator had to cope with such recognition in order to make it
consistent with the privileges traditionally claimed by the powerful industrial lobbies.
Without prejudice to the social consequences driven by the enactment of workers-oriented
provisions within the U.S. capitalist framework, the fragility of this equilibrium has also
awaken interest of legal scholars, who have attempted for a long time to regulate the relevant
issues taking them back to the common principles of labour law. However, as this paper aims
to demonstrate, such attempt often collided with the increasingly evolving standards andpractices, that may be hardly contained within the narrow limits of the statutory law. In suchrespect, both case-made law and non-governmental organisations are likely to play a primaryrole in regulating the delicate issues arising from strikes.

An Overview of the Right to Strike
From Crime To Right
The right to strike suffers from being preceded by the social fact of the strike: the law reacts
to this phenomenon, the law does not dominate it (Sinay, 1966 as cited in Betten, 1985). In
the industrial relations environment, strikes are coessential with the employment relationshipand are often related to workers’ complaints regarding the performance of the contractual
obligations under the conditions set forth unilaterally by the employer. This explains why
most of the striking activity occurs during the negotiation phase between the employer andthe unions, namely when the different contractual power must be properly offset.
The factors that trigger a strike are diverse and not necessarily interrelated, but as a whole
they share the embodiment of demands which employees want to press on the employer. In
this sense, strikes are powerful weapons aimed at enforcing a particular policy within theworkplace. However, it should also be pointed out that sometimes strikes occur in response tosignificant influences outside workers’ control and in such circumstances, work stoppages do
not reflect the workers’ claims and therefore may not be managed within a single work unit.
Strikes are always collective. This feature has a historical explanation because as long as
employees were supposed to work under conditions unilaterally set by the employer due tothe absence of a collective bargaining infrastructure on the labour side, courts used to66New Zealand Journal of Employment Relations 34(3):65-82
construe work stoppages, literally, as a just cause of termination of the employment contract.
Later on, workers have realised that the counterpart would have paid attention to theirgrievances only if they had acted collectively and ensured the solidarity of other workers. In
other words, employees have gradually become aware of the fact that only a high number ofstrikers would have affected the employer to such an extent that they could not remain
insensible to their complaints. In modern labour practice, the collectivity requirement
generally necessitates that the strike be announced in advance; otherwise, in the absence ofprevious proclamation, a sum of individual abstentions would instead arise.
Along with other collective actions, strikes were originally outlawed as criminal offenses –no matter how many participants gathered at the strike. The rationale of such a legislative
choice apparently lies in the social alarm arising from strikes, which may result in emulativeacts performed by workers belonging to other industrial sectors, potentially able to pose athreat to national security. Not surprisingly, the toughest legislation regarding labour
practices was enforced by most of the totalitarian regimes spreading over Europe since theearly 1930s (Jacobs, 2008).
Past the phase during which strikes constituted criminal offences, workers’ participation inthem still constituted a breach of the employment contract: the worker, in fact, stops carrying
out what they have promised to do (Murcia and Villiers, 1997). However, a particular fictio
juris aimed at avoiding harmful contractual consequences with respect to striking employees,
namely dismissal or more feeble penalties, has been elaborated. According to the so-called“suspension of contract theory,”1 the strike merely suspends the effectiveness of the contract
but leaves it intact. This technique openly pretends that work stoppages do not infringe on
labour obligations but “hibernating” them instead, in the hope of a full recovering once theconflict has been resolved (Murcia and Villiers, 1997). It does so by assuming that only themain effects of the contract (i.e., the respective obligations of lending one’s services andpaying the wage) come to a standstill. On the other hand, several collateral duties remain inforce, such as the duty of loyalty and the duty to protect and safeguard the employer’s
property.
The latest step of this labelling process is the abolishment of civil sanctions for participation
in a strike, and ending up with the recognition of strike as a right to be exercised by workers
under certain conditions (Betten, 1985). The fundamental achievement of such an evolution is
to make the employment contract much less precarious; preventing it to be terminatedbecause of the possible reprisals by the employer and providing the labour relationship withlegal protection also during the time of the work stoppage. Nonetheless, courts often reserve
the right to downgrade the strike from a right to a mere liberty whenever it is called forpolitical purposes, which at least in theory should always happen with the general strikes.2

The Constitutional Overlay
In the general theory of law, the holder of a right cannot suffer any loss because of its
exercise. This principle is clearly expressed by the Latin brocard qui iure suo utitur neminem
laedit,3 logically intended to elude contradictions inside a legal system, which should neverprovide different legal responses to the same human act (i.e., prohibiting and in the
meanwhile permitting it). The mentioned standard also highlights the difference existing
between rights and liberties: only the latter, in fact, may expose those who exercise them to a
detriment, although not of criminal kind.
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New Zealand Journal of Employment Relations 34(3):65-82

Many of the EEC founding Countries, such as France4 and Italy,5 have developed the general
concept of freedom of association typically contained in post-WWII Constitutional Charts(such as the German one),6 turning it into a specific right to strike, albeit to be exercised incompliance with the law. This “southern European” notion of strike, which is also expressly
mentioned in the Spanish Constitution,7 opposes the “northern European” concept of strike,8
where it appears mostly as a series of statutory immunities from certain torts which workers
usually commit while striking (Betten, 1985).9At the national level, attempts to achieve a statutory regulation have failed nearly
everywhere; this also explains the interim role played by courts in elaborating the recognitionof the right to strike. At the European level, following a meeting held in 2000 in Nice, theCouncil adopted the Charter of Fundamental Rights, among which six big chapters,10 the
Solidarity pillar contains a provision (Article 28) expressly dedicated to the right of collective
bargaining and action:“Workers and employers, or their respective organisations, have, in accordance with
Community law and national laws and practices, the right to negotiate and conclude
collective agreements at the appropriate levels and, in cases of conflicts of interest, totake collective action to defend their interests, including strike action”.
This provision marks the conclusion of a long legislative path inaugurated with the European
Social Charter of 1961.11 The latter, in turn, was the forerunner to the 1989 Community
Charter of the Fundamental Social Rights of Workers, which, until the new millennium, hasbeen the main supranational source for the exercise of the right to strike apart from nationallaws and practice. This is also thanks to the regulation of all those labour disputes exceeding
the Member States’ boundaries. The Nice Charter surpasses the 1989 one, on the one hand,because it guarantees not only social rights but all rights and freedoms of the citizens within
the EU and, on the other hand, because it is an official document agreed upon by all Member
States whereas the Social Charter was not agreed upon by the United Kingdom.

Strikes as Conspiracies: the Boycott
When unions call a strike, they are accountable for its effectiveness. Now, a strike’s
outcomes may never be ascertained ex ante; however, in order for it to be worthfile forworkers to undergo a certain degree in striking, the projected outcomes must at least offset
such hazard. But still, although the real effects of a strike are unpredictable, unions will makeevery effort to make the strike at least look successful in order to persuade striking employeesthat the struggle is worthwhile. Indeed, unions will have no interest in involving its affiliates
for a lost cause; however, the boundary between success or defeat is often very thin, because
labour disputes are definitely unpredictable.
One of the most valuable means to persuade doubtful employees, although in the short term,
is intimidation aimed at weakening the employers. In fact, challenging the equilibrium
between the employer and its employees often urges the former to “enter the lists” against his
will. À la guerre comme à la guerre. These kind of practices occurring during strikes,
commonly referred to as boycotts, may consist of violence to persons or properties linked
with the employer, or of a complete social or business ostracism, or of both (Cogley, 1894).

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New Zealand Journal of Employment Relations 34(3):65-82
The origin of the word “boycott” is shrouded in the mists of history. It is commonly
attributed to a rent dispute between a group of Irish tenants and a land agent, Captain Charles
C. Boycott, during Ireland's Land League rent wars in the 1880s (Minda, 1999). In the legal
field, in spite of being more than a century of judicial praxis, the meaning of “boycott” is still
controversial and courts continue to argue around its interpretation. One shared aspect is thatthe word boycott is usually encoded with metaphoric images recalling the idea of aconflicting group refusing to deal.
Black’s Law Dictionary defines it as “an action designed to achieve the social or economic
isolation of an adversary” (Garner, 2004).12 This inclination to associate the concept of“boycott” with “insurgency” has strongly influenced the way judges have interpreted its legal
meaning, with the consequence that all non-peaceful boycotts have been outlawed in most of
the Western countries. Unlike the primary effects of a labour dispute, whose legality is
granted by the constitutional overlay covering the exercise of some of the most importantcollective rights, non-peaceful boycotts have been held as criminal offences.
In other words, boycotts have not been afforded with the same protection granted to other
legitimate forms of protest occurring during work stoppages: the legislator’s reasoning might
be that such an indirect pressure asserted on the employers is of a kind that cannot be simply
considered as a breach of contract. Yet, boycotts are the concomitants of nearly every strikeof considerable dimensions (Cogley, 1894). As a matter of fact, it is often hard to determine
whether strikes involving retaliatory conducts by the workers may be deeded as non-peaceful
boycotts, and consequently they should be outlawed. After all, the employees’ boycott
against the employers, often consisting of a concerted refusal to work for purposes ofadvancing a dispute over wages, hours and working conditions, is the essence of all strikes(Minda, 1999). Such investigation is quite tricky, because biased courts may be end up
preventing all significant strikes, therefore introducing the dimension as an indicator of thelawfulness of a strike. Finally, it should be clarified that labour disputes are amongst the few
legitimate tools at the workers’ hands, and should not be outlawed without a specific reason
restricting the constitutional freedom, irrespective of the number of participants to the work
stoppage.

Other Collective Forms of Intimidation
Picketing
An implicit condition underlying the choice of striking is that the places which the workers
have temporarily and voluntarily surrendered must not be filled by others, otherwise theproduction damage might be neutralised and thus the employers have no incentive to comply
with the workers’ grievances. According to Black’s Law Dictionary, picketing consists of:“The demonstration by one or more persons outside a business or organization toprotest the entity’s activities or policies and to pressure the entity to meet theprotesters’ demonstration aimed at publicizing a labor dispute and influencing the
public to withhold business from the employer” (Garner, 2004).13
Usually picketing is accompanied by patrolling with signs, and its intimidating meaning isaddressed not only to the employers striking but also to workers who refuse to join the strike(roughly called “scabs”). However, picketing targets are not confined within the firm’s
69New Zealand Journal of Employment Relations 34(3):65-82
boundaries. In particular, it is pretty common that picketers turn to the general public, making
them aware of the motivations lying beneath their striking activity. In this sense, althoughpicketing is constitutionally guaranteed as a form of free speech and as the legitimate exerciseof the freedom of assembly and association, it can be limited where it constitutes a threat to
public order. The general rule applied in some countries is that peaceful picketing ispresumed lawful when also the strike is considered lawful (Jacobs, 2008).

Blacklisting
Blacklisting is a side practice commonly exercised by unions during labour disputes, whichsome regard, instead, as an attempt at revenge undertaken by both conflicting parties (Cogley,1894). It consists of “a list of persons marked out for special avoidance, antagonism, or
enmity on the part of those who prepare the list or those among whom it is intended tocirculate” (Ballentine, 1969). It also indicates the act of putting a person on such a list, which
employers will do by identifying undesirable employees whereas unions will record workers
who refuse to become members or to conform to its rules. Indeed, blacklisting does notnecessarily require the physical presence of written documentation, and can instead be
pursued informally and by consensus.
The scope of blacklists is clearly discriminatory, as far as they aim at demarcating a certain
group of people who share the same objective for mainly retaliatory purposes. Like picketing,blacklisting entails coercive effects irrespective of evident threats of work slowdown througha strike (VV.AA, 1961). The slippery aspect of blacklists is that, unlike picketing, theanonymity of their drafters limits the other party’s reaction and thus grants an almost full
impunity. The more specific blacklists are, the more likely the legislator is to outlaw them. So
if this determinativeness characteristic is absent, blacklists should rather be deemed as
newspaper advertisements (VV.AA, 1961), and therefore courts are mostly willing not toprosecute their drafters.

The Secondary Boycott in the American Legislative History
The Legislative Path
The different shapes adopted by the secondary boycott, which will be later analysed both inits substantial layout and in its effects on labour relations, are the outcome of a sufferedlegislative path of the U.S. Congress that dates back to 1932. At common law, boycotts were
outlawed under a variety of legal theories (Dereshinksy et al, 1981). The courts’ holdings
have been multiple and often contrasting, so it is not possible to outline the judicial evolution
which has taken place in the absence of a statutory law.
During the Hoover Administration (1929-1933), the legislator enacted the Anti-Injunction
Bill (also known as Norris-LaGuardia Act),14 under which “yellow-dog” contracts15 had beenoutlawed. It can be seen as an expression of liberal policy, upon appraisal of the attribution to
U.S. employees of the freedom to form unions without employer interferences. For our
purposes, it is also notable that the Act deprived the courts of the injunction tool, on which
they commonly relied as a means to stop secondary union activity.

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New Zealand Journal of Employment Relations 34(3):65-82
Three years later, with the National Labor Relations Act (NLRA, also known as WagnerAct),16 collective bargaining became the accepted national labour policy, mainly thanks to asteadily higher support of union growth by the Federal Government. Despite the NLRA’s
enactment, the Norris-LaGuardia Act was not abolished so conflicts emerged between theirrespective provisions. In particular, the NLRA’s scope was limited to workers in the private
sector and did not cover agriculture and domestic employees, supervisors, independent
contractors and all those employees whose employers were subject to the Railway Labor
Act.17 The major legacy of the Wagner Act is, however, the establishment of the National
Labor Relations Board (NLRB),18 a federal agency in charge of investigating and ruling
unfair labour practices as well as conducting elections among workers, a channel throughwhich they could express their will to be represented by unions in the workplace.
After the NLRA passed, the co-existence of two Acts treating secondary boycotts in adifferent manner had the effect of making them a powerful weapon available to unions(Dereshinsky et al, 1981). This critical situation urged the Congress to react, and in 1947 the
NLRA was amended by the Labor Management Relations Act (LMRA, also known as TaftHartley Act).19 During the parliamentary debate on the secondary boycott section, co-sponsor
Senator Haft explained that “[t]his provision makes it unlawful to resort to a secondary
boycott to injure the business of a third person who is wholly unconcerned in the
disagreement between an employer and his employees”.20 Unfair union labour practices werereformulated in more precise terms, and secondary boycotts were eventually banned.
Furthermore, many union privileges granted in the Wagner Act were abolished. Even though
workers still secured the right of organising and bargaining collectively, the Taft-Hartley Act
also recognised the possibility to not to join any union and finally outlawed all thoseenterprises, known as “closed-shop”21 which hired only unionised workers.

Framing the Secondary Boycott Under the Statutory Law
As briefly stated above, secondary boycotts occur when the aggrieved party attempts to either
boycott a third party or to coerce it into joining an ongoing boycott. Thus, workers instituting
a boycott may refuse to patronise firms that continue to deal with the initially boycotted party(The Columbia Encyclopedia, 2008).
Assuming that the (primary) employer cannot afford to comply with the requests which havetriggered the strike, they can still seek help from another (secondary) employer in order to besupplied with the workers needed for a temporary period of time. Consequently, unions may
react by damaging this secondary employer in order stop them from making business with thestruck employer through secondary boycotts. In other words, secondary boycotts always ariseout of a primary dispute between a labour union and a primary employer and involve a
neutral third party. These innocent employers are also referred to as “noncombatants”, i.e.
people drawn into a dispute not of their own making.
Unlike primary boycotts, the legislator has a relevant interest in restricting pressures exerted
against third parties in controversies for which they are not liable, and that they neither havethe power nor the authority to solve. This rationale justifies rules that would be impermissible
if imposed on primary boycotts (Anderson, 1984). The pertinent provision is Sec. 8(b)(4)(A)of the NLRA as amended by the Taft-Hartley Act, titled “Unfair Labor Practices by Labor
Organization”:22 assuming that the secondary employer remains neutral irrespective of the71New Zealand Journal of Employment Relations 34(3):65-82
dispute’s outcome, entangling attempts made by unions are to be held unlawful and shall be
prosecuted in the forms prescribed, which often involve the NLRB (Dereshinsky et al, 1981).
Courts realised very soon that the strict application of this provision led to great uncertainties.
In fact, the language of the law bared several ambiguities: the definition of “employee” could
not be analogically extended to those categories of workers excluded in the NLRA, and thesame happened with the correspondent definition of “employer”. Furthermore, since Sec.
8(b)(4)(A) prohibited only inducements to employees, the courts had come to the paradoxthat inducements and threats made directly to secondary employers did not violate thesecondary boycott statute.23
In 1959, the Congress enacted the Labor-Management Reporting and Disclosure Act(LMRDA, also known as the Landrum-Griffin Act).24 For our purposes, the law incorporates
the secondary boycott provision in the new Sec. 8(b)(4)(B) of the amended Wagner Act, still
titled “Unfair Labor Practices by Labor Organization”.25 This insertion succeeded in closing
the aforementioned loopholes, and as a result two goals were accomplished: the range of
employers covered by the act was broadly extended, and the new language of the rule
prevented its misapplication by the courts.
Despite these two relevant achievements, the doctrine of secondary boycotts must still faceborderline situations, where the law is in fact developed on a case-by-case basis. Both thecommon-situs picketing and the ally doctrine pose several questions about the effectivenessof the NLRA provisions, which still lack ultimate answers and which should be viewed in aperspective de jure condendo.

“Common-Situs” Picketing in a Nutshell
The basic principles for common-situs cases were established by the U.S. Supreme Court in
the General Electric case26. Since the mid 1950s, General Electric (hereinafter “GE”) had
followed a policy of reserving a gate exclusively for independent contractors’ employees
working on its premises, who performed a wide variety of tasks at its manufacturing facility.
In July 1958, following a strike called by the union which resulted in picketing of the entire
plant, the separate gate was also picketed and most of the independent contractors’ employees
were forced to stay out of the factory.
Ruling on the case, the NLRB applied a literal approach to the statute and held that theunion’s conduct constituted an unfair labour practice in violation of Sec. 8(b)(4)(B) of the
NLRA as amended by the Taft-Hartley Act. On the other hand, the Supreme Court, inreviewing the Board’s decision, concluded that “[t]he key to the problem is found in the typeof work that is being performed by those who use the separate gate”27. The evidence arisingfrom the case was that the independent contractors’ employees had done work which wasvery similar to the tasks normally performed by the striking employees. Because of theintegration of the independent contractors’ employees into the production process of GE, it
was possible to infer that the two groups of workers were, by and large, almost replaceable
and furthermore that they were an essential element in the non-paralleled competition that GE
and the independent contractors had created (Chepaitis, 1997).

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New Zealand Journal of Employment Relations 34(3):65-82
Beside the criterion of the type of work performed by the neutral employees, the Supreme
Court also held that an unfair labour practice by the unions may come to light only if the
independent contractors’ work is “of a kind that would not, if done when the plant were
engaged in its regular operations, necessitate curtailing those operations”28. In other words,
similarly to the exception under the “ally doctrine” regarding employers performing struck
work, the Court introduced a “related work” test for determining the lawfulness of picketingthat occurs at a primary site (Dereshinsky et al, 1982). Nevertheless, the judicially provided
threshold was very vague, as it restricted the relevant work to that “connected to the normal
operations” of the primary employer.29

Other Peaceful Secondary Activities
With regard to all possible forms of secondary boycotts, which overall consist of techniques
intended to exert pressure on unrelated businesses (Group, 2008), employees’ secondary
actions are only one side of the coin. Typically labour unions arrange secondary boycotts
different from those involving employees vis-à-vis ineffective alternative measures. Amongthem, consumer boycotts comprise practices of disseminating information aimed ateliminating consumer demand for products supplied by the target employer (Dereshinsky et
al, 1981).
As a way of advertising and promoting the dispute, unions’ activities directed to consumers
should never be restricted according to the First Amendment to the U.S. Constitution,30 whichinter alia expressly prohibits the legislator to enact laws infringing the freedom of speech. In
spite of its constitutional overlay, such a freedom had to be balanced with the neutral
employers’ right not to be harmed because of non-related labour disputes. An ad hoc solution
was apparently found through the “publicity exception” contained in Sec. 8(b)(4)(ii)(B)31 of
the NLRA as amended by the Taft-Hartley Act, which subordinates the legality of consumer
secondary boycotts induced by labour unions to a number of conditions.
Another remarkable secondary boycott practice is the so-called “hot cargo clause”(Armstrong, 1955) a contractual provision contained in union contracts obliging the employer(or allowing employees) to refrain from handling or working on goods stemming from astruck plant, or from dealing with employers listed on a union “unfair list.” Cargo clauses
were outlawed by the Taft-Hartley Act on the basis that, through a pressure on the struck
employers, they tended to settle strikes on terms favorable to workers. The function of theseclauses is to secure permission from an employer to exert secondary pressure upon any
person doing business with the employer who has a dispute with the labour organization(Armstrong, 1955).
The pertinent rule is Sec. 8(e)32 of the NLRA as amended by the Landrum-Griffin Act, titled“Enforceability of Contract or Agreement to Boycott any other Employer”, which provides
some exceptions. According to the legislative history of Sec. 8(e), there should be no doubtthat the legislator’s intent was to grant the employer a freedom to choose whom to deal with.
This freedom was intended to be as broad as possible. By referring the proscription to“express or implied” agreements, the legislator aims to extend the prohibition to all thoseclauses that might reasonably be intended by the contracting parties as a veiled agreement not
to handle or to work on goods stemming from a struck plant, or to deal with employers listed
on a union “unfair list” (Yale Law Journal, 1961).

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New Zealand Journal of Employment Relations 34(3):65-82

Genesis of the Ally Doctrine in Acts and Case Law
The Very Beginning: the Ebasco Case
It should now be clear that the secondary boycott statute protects only disinterested parties, inother words third parties whose intervention in the controversy has no valuable effect.
However, if the secondary target has previously accepted farmed-out struck work or issomehow related to the primary employer, then it is not deemed to be neutral to the latter’slabour dispute, but is instead considered an ally of the primary employer (Anderson, 1984).
This concept of alliance has no statutory basis. Relying on Senator Taft’s remark expressed
during the Senate’s pre-enactment of Sec. 8(b)(4)(A),33 Judge Rifkin ruled on the Ebasco
case34 finding that “no unfair labor practice resulted from picketing a secondary employer towhom struck work was being transferred by the primary employer” (Wooden, 1958).
According to Sec. 10(l), the federal district courts have jurisdiction to restrain activity
temporarily when the regional attorney has “reasonable cause to believe” that the activity
constitutes an unfair labour practice. Using this rule, a regional director of the NLRB soughta preliminary injunction against some Ebasco striking employees. In fact, they were alleged
to have also picketed an independent partnership, called Project Engineering, forcing some ofits draftsmen to quit. However, on the basis of a previous contract, Ebasco was entitled tosupervise the work done by Project’s employees and even to set their wages.35 This led thecourt to say that Project actually ran a business “identical to Ebasco’s”.36 Judge Rifkin
highlighted a noteworthy detail about this case, namely that the effect of the strike had been
fully balanced by Project’s activity, as if Ebasco had hired strikebreakers. As a result, thepicketing clearly did not have as its object “requiring . . . any . . . person . . . to cease doing
business with any other person”. Finally, the court held that the provision of the NLRA
prohibiting secondary activity applied only where it could truly be said that the other person
had no interest in the dispute (Chepaitis 1997), which takes us back to what was underlined in
the beginning of the paragraph, i.e. that the secondary boycott statute does not apply here
since Project by no means can be considered a disinterested party.

Conditions Under Which Alliances Arise
Integration of Business and Operation: the Struck WorkAs in the Ebasco case, two independent employers may become allies when B’s businessexpands with work that would otherwise be handled by A’s striking workers (VV.AA, 1980).
This was particularly evident in the aforementioned seminal struck-work case, because
already before the strike Ebasco had subcontracted workers to Project, and had furnishedsupervisors entitled to exercise a pervasive control over Project’s employees. However, after
the Ebasco ruling courts have not implied that secondary employers are to be deprived of theprotection afforded to neutral ones by Sec. 8(b)(4)(B) solely because they make use of
externalised struck work. In the case Royal Typewriter Co.37 a company struck by its
repairmen instructed customers to let their typewriters be fixed by any independent repairmanof their choice, and promised them to pay the receipts. Since there was no integration
between the two businesses, the court held that the picketing towards the independents
constituted a violation of the NRLA because Royal and the secondary employers could not be
deemed to be allies.
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New Zealand Journal of Employment Relations 34(3):65-82
What is struck work? The significance of this question is self-evident, because on its
boundaries rests the rationale of the NLRA provision. It is widely agreed that struck work is
work which – but for the strike – would be performed by the employees of the primary
employer. The formula should be read as following: the performing of subcontractual
obligations by a secondary employer on the primary’s behalf is not alone sufficient to makethem allies, when the contracted work would be done regardless of the strike (Levin, 1970).
In both the Ebasco and the Royal Typewriter decisions, the secondary employers clearly
performed work that, but for the strike, would have been performed by the (striking) primary
employees (Dereshinsky et al, 1981).
Furthermore, some courts have added the malice factor in order to restrict the sphere ofapplication of struck work. In other words, there should also be evidence that the work was
intentionally transferred to the secondary employer in order to avoid the impact of the
primary dispute. The rebuttable consequence of such a test is the assumption that entering
into subcontracts after a strike has been called is a reasonable proof of the intent to evade it.
Insofar as this practice imposes a reverse burden of proof, it improperly contradicts theflexibility which should be typical of contractual negotiations, and therefore should be
rejected.

Common Ownership and Control
The first application of the ally doctrine occurred barely one year after the ruling about
Ebasco. In the case Irwin-Lyons38 both the primary and the secondary employers were owned
and managed by the same corporation: here the court held that a common ownership affects
the business activities to such an extent that the second corporation will never be “wholly
unconcerned” in the first’s labour disputes. The rationale of this ruling lies in a judicial
presumption applied by the court, i.e. that commonly owned and managed employers engage
in “one straight line operation”.39
This test assumes that enterprise A is enterprise B’s production arm, but if plainly applied
may lead to deadlocks. In fact, it fails to give a logic explanation to those cases where,
although the goods produced or the services provided are different (thereby forbidding theinference that it is a common production that turns the two firms into “allies”), twoenterprises still share the same substantial expectations by creating a community of interests.
Perfectly aware of the inaccuracy underlying the straight line prerequisite, the NLRB
eventually discarded it as a valuable means to disclose alliances between employers and,
therefore, to make the secondary boycott provision inapplicable.
The “one straight line operation” concept has never been properly defined in case law, and, asa result, it is still used with different meanings and for different purposes. In particular, where
the “straight line” element is too mild to encompass relevant cases of common ownership andcontrol, the “actual common control” standard comes up. Briefly, this standard consists of anumber of tests taken by courts which consider several corporate factors such as whether thecompanies exchange employees, advance each other credit, make sales to each others, etc(Dereshinsky et al, 1981). Ça va sans dire that the efficiency of such a method cannot be
generalised, since the tests are conducted on a case-by-case basis. However, it is essential forthe control exercised on the two entities to be actual, since potential influence is too common
to warrant application of the doctrine (Levin, 1970).

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Co-employers
As underlined above, a close relationship between employers is not a necessary condition toconsider them allies. It is worth recalling Senator Taft’s statement about the “unconcern”
element as a requisite for the application of Sec. 8(b)(4)(B): according to it, a secondary
employer may still be concerned in the primary’s dispute as far as he supervises, on thelatter’s behalf, employees accomplishing their tasks. It is important to emphasise the fact thatthe extension of such a supervision goes far beyond a mere control of the final result, whereas
it entails that secondary employers are in charge of overseeing the labour process in itinere.
What triggers the existence of a co-employers relationship is different than under the single
entity doctrine: in fact, the attention is here focused on the degree of control that one
employer exercises over another employer’s employees. Not surprisingly, co-employer cases
mainly occur when A’s work is subcontracted to B but A still retains some control over thelabour relation policies of B. The language used by scholars in shaping the co-employers
doctrine tends to associate it with the single entity doctrine. Although the distinction between
the two concepts is philosophically insignificant, it is however tactically crucial because
circumstances suggesting coemployer status are even more prevalent than those required forsingleness (Levin, 1970).
The rate of control exercised by the secondary employer which allows him to be viewed as aco-employer is fairly disputed. Courts have consistently contended that, unlike the influencestemming from the holding entity, it is sufficient for this kind of control to be merely
retained, meaning that – while in the former case the holding entity is in a position to exert an
all-encompassing influence on the way in which the controlled firm operates – in the latter
situation, instead, the co-employer must merely be in the position to affect specific aspects of
the other employer’s labour relations: it merely retains control in some areas, while leaving
the rest to the other employer’s discretion. Finally, secondary employers shall be free from
unnecessary pressure exercised by the primary ones (Levin, 1970), otherwise the integration
between the two enterprises would end up being too close and they should be considered as asingle entity.

Common Control over Labour Relations
The cut-off of such an interrelatedness between two (formally) separate business entities may
be found in those situations where the employment conditions for both the enterprises are set
by only one employer. In this case scholars tend to recognise the two entities as a single
enterprise. Here the application of Sec. 8(b)(4)(B) should be granted only to those businesses
which the secondary employer could freely discontinue, even running the risk to be sued by
the primary employer for breach of contract (Levin, 1970).
Usually this common control over negotiations in the labour market is strictly linked with
common ownership, which makes companies horizontally integrated. However, this element
is not necessary: it may also happen that unrelated enterprises’ workers, even represented bydifferent unions, go on strike against one employer in order to prevent the latter to fix work
conditions for the workforce as a whole. A crucial consequence stemming from the horizontal
integration between two companies is that when employees of one do not engage in concerted
bargaining activity, they compete with employees of the other company (Chepaitis, 1997).
Briefly, assuming that two enterprises (A and B) actually form one integrated and multishaped enterprise, a picketing activity of A’s striking workers damages B no more unlawfully
than it would damage A. This conclusion is made possible by courts through a much broader
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New Zealand Journal of Employment Relations 34(3):65-82
construction of the term “other person” contained in NLRA.40 It goes without saying that thisresults in an extension of its sphere of application.

From Alliance to Neutrality: the Way Back
Once a neutral employer becomes an ally, under which conditions can he restore his neutral
status? The issue has a huge relevance for the secondary employers, to whom the NLRA
affords the right to be preserved from boycotts only if they have no (actual) tight relations
with the primary employer.
The case law that has evolved under the ally doctrine identifies factors that may be used toappraise the secondary employer's neutrality (Minch, 1977). As stated above, the lawfulnessof secondary activities should be determined by assessing whether its economic impact isdisproportionate to the secondary's involvement with the primary employer. In the
Morrison’s case,41 some laundry workers went on strike with the purpose of renegotiating thecollective agreement. When the union found out that the enterprise relied on a secondary
employer whose employees performed struck work on Morrison’s behalf, it requested that thesecondary employer either affirm or deny that it was performing such work (Dereshinsky et
al, 1981). Having received no response, the union picketed the secondary employer; but the
Trial Examiner found in such a behavior a violation of Sec. 8(b)(4), since at the time theunion commenced picketing at the secondary employer’s premises, it had ceased performing
struck work and hence it should not be held an ally anymore.
Contra, the NRLB reversed this decision holding that “the ally, in order to expunge its
identity with the primary dispute, is under an affirmative duty to notify the picketing unionthat struck work shall no longer be performed”.42 This obligation however is neutralised
when unions know or should have known, through the exercise of ordinary care, that during
the time of picketing the secondary employer does not perform struck work. The Morrison’s
case does not jeopardise the protection granted to former allies, who can still enjoy theapplication of the NLRA provisions simply breaking their link with the primary employers.
However, it still entails that upon termination of the ally status an affirmative duty of
notification arises every time unions are not able to discover the relinquishment of struck
work on their own.

Concluding remarks
Secondary boycott provisions, along with exceptions to the general rules such as the ally
doctrine, reflect an underlying policy of balancing the rights of unions to pursue theireconomic interests with the protection afforded to nonaligned parties. The single enterpriseand the coemployers doctrines rest on the need to overcome the employers’ neutrality, every
time that their businesses are identifiable with those of the primary employer’s ones to suchan extent that, the secondary workers being the primary’s fellows, they may justifiably bereached. Nonetheless, this sort of immunity granted to labour activities has been judiciallycreated on a case-by-case basis, hence heavily relying on each factual background. Ever
since, moreover, reversals of policy and disagreements have been so frequent that foreseeinga certain judicial outcome relative to secondary boycotts is nearly impossible.

77New Zealand Journal of Employment Relations 34(3):65-82
The US statutory law has long provided sections outlawing secondary activities performed
during strikes, even though the term “secondary boycott” is never used by the legislator.
Other legal systems, such as the vast majority of European countries, consider secondary
activities rather as collateral behaviors typically related to work stoppages, in other words as
devices aimed at ensuring the effectiveness of strikes. As a result, courts within the EU arequite reticent to shield unoffending employers from pressures in controversies that are nottheir own. This approach is indeed endorsed by a stronger unionisation, which tremendously
affects labour relations and the policy making in the labor law field.
All this assumed, would an exclusive regulation on secondary boycotts make any sense?
Considering that specific by-laws would involve extremely different prohibited activities,
ranging from picketing at the neutral employer’s premises to engaging in actions harmful tothe latter’s productivity, the judicial struggle for unambiguity would be harsh. The answer istherefore negative. Narrowing the issue, legislators should instead develop general guidelines
aimed at preventing litigation among parties and at the same time at encouraging courts toadopt permanent determinations. For this purpose, a crucial substitutive role shall be playedby administrative bodies or by international organisations such as the International Labor
Organization (ILO), a specialised agency operating under the UN aegis, whose nearworldwide scope could even result in a harmonisation of the different national legal
frameworks related to the strike phenomenon.

References
Anderson, B.J (1984), Secondary Boycotts and the First Amendment, The University of
Chicago Law Review. 51(3): 811-837
Armstrong, J.G. (1955). LMRA: ‘Hot Cargo’ Caluse as a Defense to Secondary Boycott.
Michigan Law Review.54(2): 253-265
Ballentine, J.A. (1969). Ballentine’s Law Dictionary. (3rd ed). Rochester, NY: Lawyers Cooperative Pub. Co.
Betten, L. (1985). The Right to Strike in Community Law: The Incorporation of Fundamental
Rights in the Legal Order of the European Communities. Amsterdam: North-Holland
Bock, R.A. (2005). Secondary Boycotts: Understanding NLRB Interpretation of Section
8(b)(4)(b) of the National Labor Relations Act. University of Pennsylvannia Journal of Laborand Employment Law. 7(4): 905-969
Garner, B.A. (2004). Black’s Law Dictionary. (8th ed). St Paul, MN: WestGroup, G. (ed). (2008). West’s Encyclopedia of American Law. (2nd ed). LA: West Group
Publishing
Chepaitis, D.G. (1997). The National Labor Relations Act, Non-Paralleled Competition andMarket Power. California Law Review. 85(4): 769-821
Cogley, T.S (1894). The Law of Strikes, Lockouts and Labor Organizations. Washington:
Lowdermilk & Co
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Dereshinsky, R.M., Berkowitz, A.D., and Miscimarra, P.A. (1981). The NLRB and Seconday
Boycotts. Industrial Research Unit: Wharton School, University of Pennsylvania.
Jacobs, A.T.J.M. (2008). The Law of Strikes and Lockouts. In R. Blanpain, J. Baker,. M.
Biagi,. G, Bamber,. and R. Ben-Israel. (eds). Comparative Labor Law in Industrial Relationsin Industrialized Market Economies. (chapter 21). Boston: Wolters Kluwer Law & Business
Levin, M.H. (1970). “Wholly Unconcerned”: The Scope and Meaning of the Ally Doctrine
under Section 8(b)(4) of the NLRA. University of Pennsylvania Law Review. 119(2): 283-350
Minch, L.N. (1977). Consumer Picketing: Reassessing the Concept of Employer Neutrality.
Californa Law Review. 65(1): 172-219
Minda, G. (1999). Boycott in America: How Imagination and Ideology Shape the Legal
Mind. Carbondale: Southern Illimois University Press
Murcia, J.G. and Villiers, C. (1997). Strikes and the Contract of Employment: a Comparisonof the Laws of Spain and England. Legal Studies. 17(1): 101-127
Pope, J.G. (1999). The First Amendment, the Thirteenth Amendment and the Right toOrganize in the Twenty-First Century. Rutgers Law Review. 51: 941-970
The Columbia Encyclopedia. (6th ed). New York: Columbia University Press.
VV. AA. (1980), Union, Conglomerates, and Secondary Activity under the NLRA,
University of Pennsylvania Law Review, 129(1): 221-252
VV. AA. (1961), Labor Law. Boycotts. Self-Employer Has No Cause of Action against
Unions for Blacklisting to Enforce Union Hours Standards. St. John v. Building Trades
Council (Nev. 1960), Harvard Law Review, 74(8): 1665-1667
Wooden, W.P. (1958). NLRA: ‘Ally’ Doctrine. Michigan Law Review. 56(3): 462-464
Yale Law Journal. (1961). Hot Cargo Clauses: The Scope of Section 8(e)*. 71(1): 158-170

Notes
1

The suspension of contract theory has been widely adopted by European courts, in an attempt to overcome thelack of constitutional grounds of the right to strike.
2

The qualification of strikes as rights instead of liberties represents one of the most valuable achievements
within the modern legal tradition. Granting workers with a freedom to strike would have merely prevented themfrom being charged with a criminal offence. However, workers would have been still liable towards theiremployer for the breach of contractual obligations. In addition, this would have entitled the employer towithdraw from the contract without any further duty to the striking employee. By contrast, workers having theright to strike may not be held liable for any work stoppages at all, provided that the latter occur within thelimitations set forth by law.
3

He who acts in accordance with a right of his does not damage others.

79New Zealand Journal of Employment Relations 34(3):65-82

4

See 1946 CONST. preamble para. 7 (Fr.) (“The right to strike shall be exercised within the framework of thelaws governing that right”) (translation provided by the author), which the Preamble to the 1958 Constitution
refers to.

5

See COST. art. 40 (Italy) (“The right to industrial action shall be exercised in compliance with the law”)(translation provided by the author).

6

See GG art. 9 (F.R.G.) (“All Germans shall have the right to form corporations and other associations”)(translation provided by the author).
7

See C.E. art. 28.2 (Spain) (“The right of workers to strike in defence of their interests is recognized. The law
governing the exercise of this right shall establish the safeguards necessary to ensure the maintenance ofessential public services”) (translation provided by the author) and C.E. art. 37.2 (“The right of workers andemployers to adopt collective labour dispute measures is hereby recognized. The law regulating the exercise ofthis right shall, without prejudice to the restrictions which it may impose, include the guarantees necessary toensure the functioning of essential public services”) (translation provided by the author).

8

In England, see generally Trade Union and Labour Relations Act, 1974, sect. 18(4), which prevents terms ofcollective agreements prohibiting or restricting the right of workers to engage in a strike to form part of any
employment contract.
9

The distinction may be further splitted when considering that the “continental Northern European approach” isbasically different from the “British Northern European approach”
10

They are: 1) Dignity; 2) Freedom; 3) Equality; 4) Solidarity; 5) Citizenship; 6) Justice. A seventh chapter
containing the final provisions follows. However, it should be noted that the Charter is not legally binding as is,having only been “solemnly proclaimed” by the European Parliament, the Council and the European
Commission. It was however included in the proposed European Constitution, signed in October 2004 but
which failed to be ratified after referendum defeats in France and the Netherlands. Nonetheless, the Charter wasreferred to in the Lisbon Treaty, and will be therefore legally binding within the EU once the ratification process
will be completed.
11European Social Charter art. 6.4, Oct. 18, 1961, as revised at Strasbourg on May 26, 1996, Europ. T.S. No.
163, 36 I.L.M. 31 states:
With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties. . . recognise: . . . the right of workers and employers to collective action in cases of conflicts of interest,
including the right to strike, subject to obligations that might arise out of collective agreements
previously entered into.
12

See also entry ‘boycott’: Ballentine, J.A. (1969). Ballentine’s Law Dictionary. (3rd ed). Rochester, NY:
Lawyers Co-operative Pub. Co
A species of ostracism, a combination in refusing to have business dealings with another until heremoves or ameliorates conditions deemed inimical to the members of the combination, or some of them,or grants concessions which are deemed to make for the removal or amelioration of such conditions.
13rd

See also entry ‘picketing’ in: Ballentine, J.A. (1969). Ballentine’s Law Dictionary. (3 ed). Rochester,
NY: Lawyers Co-operative Pub. Co. “The establishment and maintenance of an organized espionage upon
the works of an employer and upon persons going to and from them.”

14

The name of the Act derives from its sponsors: NE Senator George Norris (R) and NY Representative
Fiorello H. La Guardia (R).
15

The expression “yellow dog” refers to those clauses contained in employment contracts which state theemployee’s consent not to join a labor union as a condition of employment. The formula indicates themetaphoric transformation of all workers waiving their rights in yellow dogs, a symbol of slavery andsubmission to the owner.
16

The name of the Act derives from NY Senator Robert F. Wagner (D), who had already promoted the Social
Security Act and is considered one of the architects of the modern social state. The NLRA was one of the mostsignificant legislative initiatives of Franklin D. Roosevelt’s New Deal, and resulted in a deep change of the U.S.
labor law. Although toughly hindered by the employers, the NLRA was active only from 1938 on, after several
head-on collisions between the two parties such as the almost two-month long occupation of General Motors.

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17

The Railway Labor Act (RLA) is the first federal law governing labor relations in the transportationindustries. Passed in 1926, the Act was amended in 1936 to cover the emerging airline industry.
18

The NLRB substituted a much weaker organization established under the National Industrial Recovery Act. It
is formed equally by both workers’ and employers’ representatives for a total number of six.
19

The name of the Act derives from its sponsors: OH Senator Robert A. Taft (R) and NJ Representative Fred A.
Hartley (R). Still effective, the Act was legislated overriding President Harry S. Truman’s veto.

20

93 Cong. Rec. 4198 (1947).

21

Except in those states that have enacted “right-to-work” laws, the Taft-Hartley permitted the “union-shop”
clause, which although not requiring the union membership as a precondition for the employment still forced theemployed worker to join the union within a period of time following its hiring.
22

The provision reads as follows:
8(b) It shall be an unfair labor practice for a labor organization or its agents . . . 4) to engage in, or toinduce or encourage the employees of any employer to engage in, a strike or a concerted refusal in thecourse of their employment to use, manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A)forcing or requiring any employer or self-employed person to join any labor or employer organization or
any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the
products of any other producer, processor, or manufacturer, or to cease doing business with any otherperson.

23

Id., at 5.

24

The name of the Act derives from its sponsors: GA Senator Phil Landrum (D) and MI Representative RobertP. Griffin (R).
25

The provision reads as follows:
8(b) It shall be an unfair labor practice for a labor organization or its agents . . . (4)(i) to engage in, or toinduce or encourage any individual employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, orcommodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged incommerce or in an industry affecting commerce, where in either case an object thereof is: . . . (B) forcing
or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the
products of any other producer, processor, or manufacturer, or to cease doing business with any otherperson, or forcing or requiring any other employer to recognize or bargain with a labor organization as
the representative of his employees unless such labor organization has been certified as the representativeof such employees under the provisions of section 9: Provided, That nothing contained in this clause (B)shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary
picketing.

26

Local 761, International Union of Electrical Workers v. NLRB (General Electric), 366 U.S. 667, 674 (1961).

27

Id

28

General Electric, supra note 26.

29

General Electric, supra note 26.

30

The provision reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably toassemble, and to petition the government for a redress of grievances.

31

The provision reads as follows:
8(b) It shall be an unfair labor practice for a labor organization or its agents . . . (4)(ii) to threaten,
coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where ineither case an object thereof is . . . (B) forcing or requiring any person to cease using, selling, handling,transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or tocease doing business with any other person.

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32

The provision reads as follows:8(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any
contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or
refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other
employer, or cease doing business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void.

33

See supra note 14.

34

Douds v. Metropolitan Federation of Architects (Ebasco), 75 F. Supp. 672 (S.D.N.Y. 1948).

35

During the strike, Project also performed work for Ebasco and some of it was even transferred to Project in
the half-finished state in which the strikers left it.
36

See note 14.

37

NLRB v. Business Machine Mechanics Local 459 (Royal Typewriter Co.), 228 F.2d 553 (2d Cir. 1955), cert.
denied, 351 U.S. 962 (1956).

38

Marine Cooks and Stewards Union (Irwin-Lyons Lumber Co.), 87 N.L.R.B. 54 (1949).

39

Id.. Here the NRLB held that, because the two commonly owned companies were engaged in “one straightline operation”, neither could claim neutrality from the other’s labor disputes.
40

Judge Rifkin affirmed: “To give such broad scope to the term would, for instance, reach out to and include thebusiness relation between an employee of the primary employer and the primary employer”. (Ebasco, supra note65).
41

Laundry Workers Local 259 (Morrison’s of San Diego), 164 N.L.R.B. 426 (1967).

42

Morisson’s of San Diego, supra note 41.

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New Zealand Journal of Employment Relations 34(3):83-91

The 2010 review of the New Zealand personal grievance system:
Commentary
BERNARD WALKER and R.T. HAMILTON*
Abstract
Following its election in 2008, the National-led government has moved to amend grievance laws.
The arguments for and against such changes are well-rehearsed in terms of the values involved.
What is missing, however, are empirical studies to substantiate or refute the claims made byeither side. The present article outlines the nature of the research needed, highlighting the role ofresearchers, as well as the need for employers, unions and practitioners to collaborate inestablishing a field of knowledge.

Introduction
Once again the pendulum of legislative change in New Zealand has begun to swing back. After
three terms of a left-wing government, a change of government now brings a move to the right.
This time, however, the focus has shifted to personal grievances and employment relationshipproblems (ERPs). This area survived the radical changes of the ECA 1991 and was not on themost recent list of changes sought by Business NZ (Business New Zealand, 2010). Nonetheless,it has remained the subject of ongoing criticism from the right-wing and employer groups(Anderson, 2002).
This commentary concerns the discussion paper released by the Minister of Labour on 2 March
2010, reviewing Part 9 of the Employment Relations Act (Department of Labour, 2010). In thisarticle we commence with a brief outline the content of the discussion paper, then place the New
Zealand debate in the broader context of developments affecting grievance laws internationally.
A central issue emerging across many countries concerns the absence of research-based evidence
to inform those debates. Given that each country’s grievance system is somewhat unique, we
argue that this highlights the need for more research concerning New Zealand grievances. This is
not only an issue for academics but will require the participation of a range of practitioners andother parties.

*

Both authors, Department of Management, University of Canterbury

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New Zealand Journal of Employment Relations 34(3):83-91

The Discussion Paper: Review of Part 9 - Personal Grievances
The discussion paper contains the Minister’s statement that the aim of the consultation is toachieve employment law that is “both fair and flexible for all”. Specifically, the objectives of thereview (which presumably now indicate the goals for the system) are to consider whether the
personal grievance system:
1.
2.
3.
4.
5.

Strikes a fair balance between employer flexibility and employee protection
Does not impose unnecessary costs or obligations for employers or employees
Supports improvements in workplace productivity
Is efficient and effective, andHas met its objectives (as set out in the Employment Relations Act 2000).

The consultation seeks input from both “people who have had direct experience of the personal
grievance process”, and also those without direct experience “but whose understanding of theprocess affects their decisions or behaviour in the workplace” (Department of Labour, 2010: 3).
The discussion paper focuses on eight main topics related to personal grievances, and these aresummarised in Table 1.
Table 1: Outline issues from Discussion Paper Review of Part 9: Personal Grievances
Topic

Issues noted

Possible options listed

1. Cost of problem
resolution

Perceptions of cost may leadparties to avoid formal
processes and settle informally(private settlements)• Helpline for employers andemployees (particularly SME )• Information provision / promotion

2. Quality of
employment advocates

Concerns regarding the tactics
and competency levels of someadvocates• Regulation - requiring membershipof professional organisation

Perceived bias; process is more
important than substance.
Current system is too complex
and needs more clarity andcertainty. Remedies are notadequate.

• Changes to the current test ofjustification (s103A)

Access to information,knowledge of processes, andaffordable advice orrepresentation - costs may be
too high and/or the system toocomplex• Information provision andpromotion on processes, likely
costs, and options for support
without costs

3. Balance of fairness

4. Access to justice• Self-regulation – sector to list
professional members, and/or its
own rating and reporting system• Information provision• Information promotion andsupport on processes

84New Zealand Journal of Employment Relations 34(3):83-91
Delays due to long waitingtimes and/or avoidance byparties - can lead to escalationand increased costs• Change Authority processes• Possible Authority practice notes

SMEs have less experience andresources in resolving
problems, with fewer processes
and procedures in place, lessinformation and awareness ofthe options, time and financial
costs
Harder for SMEs to comply
with procedural requirements• Code of Employment Practice

7. Eligibility forraising a grievance

System’s functionality
improved if legislation applieddifferently to different types of
employees
Concerns that a grievance canbe filed up to three years after
first raised• Limit eligibility by length ofservice• Extend the current 90-day trial
period, as in (6) above• Reduce the current 3-year
limitation for lodging a grievance

8. Effectiveness ofremedies

Reinstatement ineffective as a
primary remedy
Current remedies are
insufficient, fail to address thefull range of costs
Remedies need to be effective
and provide credibility monetary remedies noteffective in rebuilding
relationships or learning fromerrors• Remove reinstatement as a
primary remedy• Regulate costs and remedies• Non-monetary remedies, incl.
training/education (for both
employers and employees)• Practice notes for the Authority• Increase financial remedies• Information promotion

5. Responsiveness andtimeliness of services

6. Impact on SMEs

• Greater use of technology• Earlier intervention• An employment facilitation
process• Extend trial period beyond 90 days
for firms with < 20 employees• Extend 90-day trial to mediumsized business (20-49 employees)• Diagnostic problem-solving tool
• Helpline (employers & employees)• Information provision andpromotion (awareness raising)

There are two main aspects for possible commentary in relation to the discussion paper. The
first aspect concerns the nature of the “issues” listed in the paper, and particularly how much (orhow little), information exists concerning these. The second aspect concerns the politicaldimensions and the process for determining how the issues are addressed with the “possible
options” listed. It is not practicable to attempt to cover both topics in one article, and therefore
this commentary will restrict its focus to the first aspect, concerning the existing research since
this is a foundational matter which has significant implications.

85New Zealand Journal of Employment Relations 34(3):83-91
The “issues” listed in the paper, and their sources, are significant. These are described as mattersthat have “attracted commentary in recent years, either in the media, anecdotally or that havebeen raised directly with the Department…by stakeholders and/or social partners” (p.6). These
are summarised in the middle column of Table 1. For each issue, the report provides a section“What we know about...” which summarises the existing information. Several of these issues arerecurring topics that have been identified in earlier Department of Labour reports and Cabinet
papers; for example the quality of employment advocates, the responsiveness and timeliness ofservices, perceptions regarding the balance of fairness, and the disproportionate impact on small
and medium enterprises (Cabinet Economic Development Committee, 2007, Department ofLabour, 2003, 2007a;b;c;d). Other topics, such as the eligibility for raising a grievance, andaspects of the effectiveness of remedies, are more recent. The “possible options” list,
summarised in the right column of Table 1, contains a number of proposals that have not been
actively explored or pursued, particularly under the previous government. As mentioned, thepolitical dimensions of those shifts are beyond the scope of this commentary.

The International Context
From an international perspective, it is not surprising that grievance laws are the focus forlegislative debate. Elsewhere, grievance law and resolution procedures constitute an ever-moving
target. In North America, newly introduced protection laws are eroding the traditional hard-line
employment-at-will (dismissal-at-will) model. That continent is also experiencing the
introduction of controversial new within-organisation EDR procedures which are operated by
employers and can remove employees’ access to external forums such as the courts orgovernment agencies. In Australia, WorkChoices and other radical changes, which
commentators suggest prompted the downfall of the Howard government, are now being
reversed to some extent by the Rudd government. Britain, too, has experienced a series ofreforms to the grievance system, with the most recent changes paying significant attention to
improving within-organisation procedures. Interestingly, those changes were drawn largely froma report which used the current New Zealand model as a well-regarded reference point (Gibbons,2007).
A key theme emerging in the international literature is the question of whether such changes
deliver justice, particularly for employees (Bingham, 2005, Colvin, 2005, Mahony and Klaas,2008). In New Zealand, the two sides of the debate are well-entrenched. Employer groups claimthat the current system is overly complicated, burdensome and biased in favour of employees,with contingency fee advocates contributing to create an employee “gravy train”. In support ofthis, they cite their own member surveys, outcome statistics from the Authority, and anecdotal
accounts from members. Hence they argue for reform. In contrast, employee groups argue thatthe current grievance laws are necessary to safeguard the rights of workers and although thecurrent awards may not fully address the harm that employees may suffer, the system is working
adequately (Anderson, 2006, McAndrew, Morton, and Geare, 2004, Shulruf, Woodhams,
Howard, Johri and Yee, 2009).

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New Zealand Journal of Employment Relations 34(3):83-91
Over the last decade, the Department of Labour sought to resolve these apparently contradictory
claims with a series of reports covering many aspects of grievances and employment relationshipproblems. These generally portrayed the system as functioning satisfactorily and argued that
their findings did not support claims such as the gravy train allegations. The reports nevergained much attention though and generally did not make their way into the public debate. Froma research perspective, a significant limitation was the methodology which made the studies
more exploratory or “indicative” than statistically representative (Department of Labour, 2007d:5). The current discussion paper does refer to the Department’s earlier research, noting thosefindings, but at the same time the paper seeks further input on those topics.
There is only limited research work done by other persons or agencies. Our own research forexample, identified a group of employees who were potentially disadvantaged by the current
system, but at the same time employers also discussed opportunist claims that they had
experienced (Walker, 2009). In general, it would seem that sub-optimal outcomes can occur forboth employees and employers under the current system, but there is no clear evidence
concerning how widespread these are, nor whether one party is more affected than the other. To
have credibility, an area of research needs to have findings that are replicated and corroborated
across a range of sources and researchers. Importantly then, in terms of local research, there isno comprehensive and universally agreed set of findings concerning grievances. One side argues
that the system is in urgent need of reform while the other may counter-argue that ‘it ain’t broke
so don’t fix it’, but there is little evidence to establish which, if either, is correct. Our article inthe current issue highlights a number of key areas requiring future research attention. In terms ofthe current discussion paper, we propose that each of the issues cited represents a significant but
unanswered research question.

The Need for Academic Research
Politics and academic research are however, very different fields. The world of politics does not
wait for academics to assemble sufficient studies and reach consensus on the state of a field.
Following its election the government introduced the 90 day trial period for small businesses,
and has now indicated its willingness to consider further reform. The consultation process
associated with the current discussion paper will draw upon feedback and anecdotal accounts
concerning experiences of the ERP resolution system (Department of Labour, 2010). Academics
will, of course, highlight the shortcomings of such less-scientific processes, with the possibility
for lobbying and under-representation or over-representation by certain groups. That however isthe nature of political processes.
The topics in the current discussion paper are far-reaching and likely to be controversial. Whilethe disproportionate impact on small and medium enterprises (SMEs) is a recurring topic, thepossible options to address these types of issues are markedly different from those advocatedunder an earlier government. Among those newer options are possible changes to eligibility forraising a grievance. These include a minimum service period (regardless of whether theemployee is on a trial period), as well as extending the current trial periods, both beyond thecurrent 90 days for small businesses, and also extending the provision to include businesses with87New Zealand Journal of Employment Relations 34(3):83-91
20 to 49 employees. These options, along with the mention of restrictions by salary-limit, repeat
suggestions recently raised in other forums (Taskforce 2025, 2010).
Another area which may seem minor, but which is likely to prove controversial, concerns thelegal test of justification (s103A) and accompanying procedural aspects. Two versions of thetest of justification had emerged in case law. The previous government argued that the test that
had developed from the Court of Appeal was one of a number of issues that were not in keepingwith the intent of policy and the legislation, and so replaced that test with a legislative definition(which used the other version), in the 2004 ER Amendment Act. This revision provoked the ireof employers however, as it was seen as making it more difficult to dismiss an employee, andthus shifting the balance in favour of employees. Any further change will thus involve debate as
to what truly constitutes a ‘balanced’ position.
Researchers also need to explore the experience of other countries in relation to developing new
policy and legislation. The development of a Code of employment practice, for example, is listed
as another possible option. Although these types of moves may have an intuitive appeal as ameans of simplifying matters, there are a number of cautions (Hughes, 2010). Responding to
criticisms of their own system, the British sought to simplify procedural matters and reduce
claims by moving from a non-binding code to highly prescriptive statutory regulation of withincompany discipline and grievance procedures. In practice however, this produced the opposite
outcomes; the processes in smaller businesses became more formalised and adversarial, and formany businesses the number of claims increased (Gibbons 2007). At the same time, betweencountry comparisons need to take into account the full nature of another system, rather thansimply comparing one aspect in isolation, such as eligibility for raising a grievance. Each system
has developed in its own unique manner and thorough, comprehensive comparisons are needed,unlike the over-simplified and inaccurate comparisons that can occur in public debates.
The paper also points to possible changes to remedies. This aspect is likely to be much debatedin its own right, but there appears to be little research concerning the effects of such provisions.
Changes to remedies can also have significant implications for other aspects of employment
relations. Overseas evidence shows that the external framework, including potential penalties orremedies, influences the day-to-day organisational practices for dealing with disputes, whilesome local writers argue that the current penalties are ineffective and function only as an “exitprice” (Anderson, 2003;2006, Department of Labour, 2002, McAndrew, et al., 2004).
Studies are not only needed to address the legislative framework and external forums, but also
the less accessible area of within-organisation resolution processes. In a final section, thediscussion paper explores a number of issues with regard to early intervention and mediation.
There is an amount of existing research (Department of Labour, 2008) and while it is generally
agreed that early resolution is desirable for reducing grievance costs and preserving employment
relationships, the real difficulty is how to apply this in practice. In the USA, attention has been
given to the development of integrated conflict management systems (ICMS) which employ a“co-ordinated set of organisational mechanisms to identify conflict in its early stages, manage it
to prevent escalation, and resolve it efficiently to maintain positive workplace relations” (Gadlin,
2005: 371-372). This approach is however centred on large organisations, which raises
questions as to how these principles can be applied among smaller enterprises. There is a need to88New Zealand Journal of Employment Relations 34(3):83-91
shift the attention to more proactive methods for dealing with conflict (Lewin, 1999). The paper
outlines some possible means for improving early intervention, including the use of technology,
and the development of advisory services, similar to the work of ACAS (Advisory, Conciliation
and Arbitration Service) in the UK, which includes training, mediation and conciliation, andadvice. Although external resources and systems are important, the ways in which organisations
handle conflict is often an expression of deeper aspects concerning organisational culture andrelationships, and these are often less amenable to change than policymakers anticipate.

Conclusion
These developments highlight the increased need for researchers to direct new attention toward
area of employment protection and resolution systems. These are not simple matters forinvestigation though. The introduction of the 90-day trial period for example, has coincided witha recession and high unemployment, making it particularly difficult to assess the effects on
hiring practices. There is little information concerning the consequences of that change, while
the government apparently does not have information on how many employers are using thescheme (Radio New Zealand, 2010). Tracking dismissal cases that occur within the current 90day period is highly problematic; while employers can generally be accessed through theiremployer-organisations, there are no equivalent sources for locating dismissed employees. In
addition, the task of identifying ‘opportunist’ claims is far from straightforward. If, as employerorganisations suggest, a proportion of claims are settled privately, then no independent third
party evaluation of a case occurs; the same claim that an employer considers opportunist could
well be one that the employee views as genuine.
There is a lot at stake. The USA and British experience shows that grievance legislation andprocedures not only affect the parties directly involved in grievances but also set a broader
context which shapes day-to-day practices in organisations. While there will always be aminority of rogue employers and rogue employees, the challenge for legislators is to create andmaintain systems that achieve an equitable balance, protecting the majority of participants in theworkforce. For researchers, the challenge is, therefore, to assemble evidence-based findings that
contribute to open and informed debate among the politicians and lobby groups. This is not atask for academics and researchers to attend to on their own. Given the complexity of the subject,a new attitude to research will be needed among employers, employees, unions and otherpractitioners. They, too, will need to be involved in a collaborative effort, supporting theimplementation of studies that can begin to assemble the required data.

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Anderson, G. (2002). Employment Law: the Richardson Years Victoria University of Wellington
Law Review. 33 887-894
Anderson, G. (2003). Personal grievances: a review of the current law and proposals for reform.
Wellington, NZ, Victoria University of Wellington.
Anderson, G. (2006). Reimbursement and Compensation for Unjustified Dismissal New ZealandBusiness Law Quarterly. 12(3): 230-252
Bingham, L.B. (2005). The Impacts of Alternative Dispute Resolution on Workplace Outcomes– Discussion. Labor and Employment Relations Association Series Proceedings of the 57th
Annual Meeting
Business New Zealand. (2010). Setting New Zealand Apart – Getting More Productive andCompetitive: A Plan for Action. Auckland, NZ.
Cabinet Economic Development Committee (2007). Review of the Employment Relationship
Problem Resolution System. Cabinet Economic Development Committee, Minute of Decision
EDC Min (07) 24/6.
Colvin, A.J.S. (2005). Inequalities in Access to Justice in the Workplace. Labor and Employment
Relations Association Series Proceedings of the 57th Annual Meeting
Department of Labour. (2002). The Employment Relations Act: a Summary of the First Two
Years (2 October 2000 to 30 September 2002). Wellington, Department of Labour.
Department of Labour. (2003). Evaluation of the Short-Term Impacts of the Employment
Relations Act 2000. Department of Labour, NZ
Department of Labour. (2007a). Final Report on the Focus Groups inquiring into people's
experience of resolving disputes outside the ERA dispute resolution framework. Wellington,
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Department of Labour. (2007b). Personal grievance determinations in the Employment Relations
Authority. Wellington, Department of Labour, NZ.
Department of Labour. (2007c). Personal Grievance Mediations Conducted at the Department ofLabour: A Snapshot, June 2007. Wellington, Department of Labour, NZ.
Department of Labour. (2007d). Social and Economic Costs and Benefits of Employment
Relationship Problems: Report to the Department of Labour, August 2007, conducted by the
Workplace Policy Research and Evaluation Group of the Department of Labour, in partnershipwith McDermott Miller Ltd, Strategic Planning Consultants. Wellington, Department of Labour,
NZ.

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Department of Labour. (2008). Current trends, process and practice in mediation and alternative
dispute resolution: A review of the literature. Wellington.
Department of Labour. (2010). Employment Relations Act 2000 Review of Part 9: Personal
Grievances. A discussion paper seeking submissions on your views and experiences with the
Personal Grievance system under the Employment Relations Act 2000. Wellington, New
Zealand, March 2010.
Gadlin, H. (2005). Bargaining in the shadow of management: integrated conflict management
systems. In M.L, Moffitt and R.C, Bordone. (Eds.), The Handbook of Dispute Resolution San
Francisco, Jossey-Bass.
Gibbons, M. (2007). Better Dispute Resolution: A review of employment dispute resolution in
Great Britain. London. Department of Trade and Industry.
Hughes, J. (2010, in press). Investigating Codes of Practice on Discipline and Dismissal
Employment Law Bulletin
Lewin, D. (1999). Theoretical and empirical research on the grievance procedure and arbitration:a critical review. In A.E Eaton and J.H, O’Keefe. (Eds). Employment Dispute Resolution andWorker Rights in the Changing Workplace. Champaign, Illinois: Industrial Relations Research
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Mahony, D.M. and Klaas, B.S. (2008). Comparative dispute resolution in the workplace. Journalof Labor Research. 29(3): 251-271
McAndrew, I., Morton, J., and Geare, A. (2004) The employment institutions. In E. Rasmussen.
(Ed.). Employment Relationships: New Zealand's Employment Relations Act. (pp.98-118).
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Radio New Zealand (2010). Papers show government doesn't know uptake of 90 day trial period.
Morning Report 3 March 2010.
Shulruf, B., Woodhams, B., Howard, C., Johri, R., and Yee, B. (2009). ‘Grievance gravy train
picking up speed’: myths and reality around employment disputes in New Zealand Journal ofIndustrial Relations. 51(2): 245-261
Taskforce 2025 (2010). Answering the $64,000 question: Closing the income gap with Australia
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Walker, B. (2009). For Better or for Worse: Employment Relationship Problems under the
Employment Relations Act 2000. Unpublished PhD Dissertation. University of Canterbury.

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Chronicle: June 2009 – September 2009
June 2009
The impact of the recession and swine flu featured prominently in several media
reports in June 2009.
The advent of swine flu raised the issue of payment to healthy workers if a business
was forced to close down. The Dominion Post highlighted that the Government had
sought legal advice on whether businesses, ordered to close because of swine flu,
could be forced to pay healthy workers for the duration. Employers argued that there
was a lack of clarity in the law and that it would be a financial burden if businesses
were forced to continue paying staff while not working. In addition, there was a callfor the Government to guarantee that employers would not be left to ‘carry the can’for the pandemic. Union leaders also stated that workers should not be penalised
either by using up sick days. A spokesperson for the Minister of Labour Kate
Wilkinson said that while an employee had to be paid if ready and willing to work,
but that a forced closedown of a business was a ‘unique’ situation.
The Dominion Post also reported that the increasing number of swine flu cases
created a catalyst for employers to “get serious” about their employees’ health.
Barbara Buckett, an employment lawyer, stated that given that the World HealthOrganisation was considering declaring a pandemic, employers should look at their
obligations and responsibilities to provide a safe work environment and becommunity sensitive. Ms Buckett went as far as saying that infectious staff could be
deemed, for the purposes of health and safety law, hazards in the workplace andemployers may be sued for loss and damage if the illness was spread from theworkplace.
The Government announced a review of the Holidays Act in which the aim was to
examine how to reduce the burden of compliance for business and to make it easierfor both employers and employees. The review would be carried out by a working
group made up of two business representatives, two union representatives and an
independent chairperson. According the Dominion Post, Minister of Labour Kate
Wilkinson said that she expected the outcome would be a change to the current
legislation that would be “comprehensible and fair”. Employer groups were quick topoint out the faults of the current legislation, saying that any changes needed to reflect‘the real world’ and that the current legislation was particularly confusing for certain
sectors and occupational groups, such as hospitality and seasonal horticultural
workers. One proposed provision was the ability to ‘cash up’ one week of leave
which drew concerns from Council of Trade Unions’ Vice-President Richard
Wagstaff, who said that it could be abused by some employers. Employment lawyer
Peter Cullen summed it up best when he said that it would be a challenge for theworking group to satisfactorily address the diverse requirements of all industries andyet at the same time create a simpler piece of legislation.

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New Zealand Journal of Employment Relations 34(3):92-101

A Private Members Bill, drafted by Labour MP Darien Fenton, aimed at setting
minimum redundancy entitlements for redundant workers during the recession period
failed to find favour with the Government. According to the Nelson Mail, the Ministerof Labour Kate Wilkinson said that it was “not my priority to try to impose minimum
statutory redundancy on businesses that are struggling enough to survive and to keep
their staff”. However, in the Sunday Star Times it was claimed that people were worse
off in 2009 than during the 1987 share market crash as the Employment Contracts Act
1991 had reduced the number of employees on collective contracts which meant thatfewer employees today were covered by redundancy agreements.
The Sunday Star Times also reported that victims of the recession were ‘not only outof work and stressed’ but they were also chasing bigger compensation payouts. An
Auckland employment lawyer claimed that during this recessionary period, there wasan increase in the number of employees taking stress-related personal grievance cases
and also claiming larger amounts for hurt and humiliation. In a summary of cases
heard by the Employment Relations Authority in 2008, the Dominion Post found that
there was a record of 521 cases heard. The average payout for hurt and humiliation in
Wellington was $6,474, in Auckland $4,851, and in Christchurch $4,896. In the
Sunday Star Times a clinical psychologist commented that there was often a“causation contest” in stress-related personal grievances relating to whether the stress
was work related or caused by a non work issue.
The Nelson Mail reported that an Air Nelson baggage handler who was dismissed forrecording false luggage weights had lost his appeal before the Employment Court.
The worker falsified the weights as a form of personal industrial action. While
trained in a new automated system he had continued to use a manual system which
the airline claimed created a potential risk to aircraft safety and was in breach of
explicit operational instructions.
A woman who was awarded $16,000 after she was told her job was no longer
available when she wanted to return from parental leave. According to NZ Herald, thewoman worked as a manager at the Penrose Branch of Allied Work Force Ltd. Earlyin her parental leave she suffered a miscarriage and met with her human resourcesmanager to discuss returning to work. She was informed that a restructure had
occurred and that her old position had been awarded to another employee. She wasoffered a new position on the same salary but after mentioning that she was planningto have another baby, the offer was withdrawn. The Employment Relations Authority
found that the employer had not taken into account the considerable trauma thewoman had undergone and awarded her $8,308 in lost wages and $8,000 incompensation for hurt and humiliation for the insensitive and unsympathetic treatment
she had received.
The Timaru Herald reported on a local seven year saga which finally came to an end(refer June 2007 Chronicle) when a former Temuka police officer’s claims of
constructive or unjustified dismissal against the Police were dismissed by the
Employment Court. The officer resigned in 2003 after he questioned his Sergeant's
ability and challenged the numerous inquiries that followed the stand-off with the
manager, including a sexual harassment complaint against him. The officer filed apersonal grievance for constructive dismissal and unjustified disadvantage because of93

New Zealand Journal of Employment Relations 34(3):92-101
his dissatisfaction with how police dealt with investigations into a complaint he madeabout his supervising officer. The Employment Court dismissed the claims saying the
Police did not breach any express or implied terms of his employment agreement. In
relation to the alternative claim for unjustified dismissal the judge found that at all
times, the Police had been a fair and reasonable employer, and any disadvantage
suffered by the officer were not the responsibility of the Police.
The Press reported that a Christchurch company was ordered to pay $8,000 for
wrongful dismissal after the employer dismissed an employee for suspected drug
dealing. The company disregarded accounts of the incident by those involved andrelied instead on the “profuse sweating” of the employee while he was undergoingquestioning. The employee was caught on camera allegedly exchanging a bag
containing drugs with another employee. The other staff member maintained he wasonly paying back some money owed to the employee and denied buying drugs. The
Employment Relations Authority found that the company relied almost entirely on thevideo evidence and gave too little weight to the oral evidence from staff. The worker
was awarded compensation of $2,500 and a contribution for lost wages of $5,500.
A deal between Work and Income and McDonald’s could see beneficiaries working in
McDonalds restaurants. In a select committee hearing, the Minister of Social
Development Paula Bennett revealed the agreement and said that up to 7,000
unemployed people could be used for the McDonald’s restaurant expansion plansover the next five years. Under the deal with McDonald’s, Work and Income would
assist with the recruitment and training of 7,000 staff to be placed in service roles.
Labour Party Employment Spokesperson Ruth Dyson said that while jobs at
McDonald’s were better than being on the dole, the plan was ‘not the best example’ ofthe Government’s commitment to ‘upskilling the economy’. It was also stressed thatthe deal followed the Government’s decision to cut a tertiary education training
allowance for beneficiaries.
According to the NZ Herald, many expatriate New Zealanders were returning home
as a result of the recession but thousands were returning “to the dole queue and astrong reality check when it comes to finding a new job”. Figures provided by
Minister of Social Development Paula Bennett showed that 3,000 people, out of the
26,000 who returned over the past year, were receiving the unemployment benefit. Of
those unemployed, many were highly skilled. A Department of Labour spokesperson
said that the tightening of immigration rules in other countries in response to theeconomic downturn was driving New Zealanders to return because it was harder to
get work overseas.

July 2009
On 1 March 2009, the Employment Relations Amendment Act (also known as the “90day probation period Act”) came into force and as a result the Department of Labour
was inundated with enquiries regarding the changes. According to an article in the
Dominion Post, nearly 30,000 people sought information through the Department ofLabour website and more than 400 employers and 248 workers received telephoneadvice from the Department. The Minister of Labour Kate Wilkinson stated that she
had been informally approached by business representatives about making the scheme

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more widely available, but added that any decision was unlikely in 2009. A
spokesperson from the Northern Employers and Manufacturers Association said heknew of 25 companies using the new provision and thought that the actual number
could be much higher. He also stated that employers not would exploit the law as they
invested time and resources to train staff and they would not dismiss them without
reason. The Council of Trade Unions claimed that they were aware of at least six
workers who had lost their jobs under the new law.
An Employment Court decision to pay on-duty rest home carers while taking a sleep
break would result ‘in carnage at rest home doors as families drop off their loved ones
and run’, according to a Dominion Post article. It was estimated that costs forproviding overnight care would almost double and that the result would be that ACC
and District Health Boards would have to reduce the level of care they currently
provided.
High profile television reality star, the ‘Lion Man’ Craig Busch (refer to Chronicle
December 2008) claimed unjustified dismissal from Whangarei’s Zion Wildlife Park.
In a NZ Herald article, it was noted that his hearing before the Employment Relations
Authority had been postponed until August 2009 due to the fatal mauling of an animal
handler by one of the tigers at the park. Mr Busch was dismissed after being accusedof serious misconduct, including allegations of safety protocol breaches, inappropriate
behaviour and poor performance.
The Sunday Star Times reported that Air New Zealand dismissed an employee forapparently sending offensive emails, but the Employment Relations Authority foundthat the employee has been unjustifiably dismissed. In response the airline sent anemail to more than 11,000 staff attacking the employee’s actions and provided
graphic descriptions of the most offensive messages. One employment lawyer called
the actions of Air New Zealand both ‘petty’ and ‘childish’ and showed a level ofdisrespect for the Authority. Air New Zealand responded that the email was sent toensure that all staff had the relevant facts as an earlier media report had said that thee-mails weren’t that bad. Air New Zealand also announced that it would appeal the
Authority decision.
In another high profile employment issue involving Air New Zealand, it was reported
that a veteran pilot had won his long-running battle against the airline for age
discrimination (refer to Chronicle October 2008). The Boeing 747 captain and flight
instructor was reduced to a lower rank of first officer when he turned 60 because
being under the age of 60 was necessary to do his job. He appealed to the Supreme
Court against a Court of Appeal decision that said age discrimination was not thereason he lost rank and was shifted to a lower-paying job. The Supreme Court ruledthat Air New Zealand had discriminated against the pilot and awarded him costs of$15,000. The case will now return to the Employment Court as the pilot intends toseek reimbursement from Air New Zealand over lost pay and damages, which could
amount to hundreds of thousands of dollars. At the same time, he announced his
intention to retire in September 2009.

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New Zealand Journal of Employment Relations 34(3):92-101
A rather bizarre case of a journalist who was dismissed because his editor believed
rumours he was selling illicit drugs from office toilets and was linked to criminal
gangs was reported in the Dominion Post and the Waikato Times. The employee wason sick leave when drug squad detectives went to his place of employment wanting to
speak with him. His employer was informed by the detectives that as part of theirsurveillance of an address the employee had been seen five or six times and that ‘he
was not at the address for work purposes’. A further article in the Sunday Star Times
reported on other rumours included involvement in a $5 million P ring out of
Paremoremo prison. During the case, there were also allegations of industrial
espionage on an unprecedented scale where reporters working for the Herald on
Sunday were ordered to steal stories out of the Sunday Start Times newspaper. The
employer, APN Newspapers, claimed the dismissal followed a proper, careful, patient
process and that the journalist had failed to obey a reasonable and justified instruction
by refusing to provide his notes to his editor. The Employment Relations Authority
adjudicator, Rosemary Monaghan, reserved her decision.
The Employment Relations Authority was told that a ‘fractious’ working relationshipbetween two Massey University managers resulted in the resignation of one and theother going on stress leave. Cheryl Kent, who was employed as a physical resourcesmanager, had accused her employer of failing to investigate complaints that she wasconstantly being bullied by her manager. However, the university responded that the
woman had plenty of opportunities to raise her concerns but she did not, despite being
an assertive and forthright person. The woman claimed that the university had a dutyof care in protecting her from bullying from a man who had a history of bullying type
behaviour. The complaint was considered to be a relationship issue not bullying andthe investigation stopped when the manager resigned.
The Nelson Mail highlighted local job losses at the Nelson office of the Ministry ofSocial Development. The Public Service Association (PSA) expressed concern at thecuts during a time of rising unemployment. PSA National Secretary Brenda Pilott
stressed that the cuts were being made at a time when 1,100 people a week weresigning up for the unemployment benefit.
There were a growing number of unscrupulous Marlborough vineyard labour-hire
contractors who were short-changing seasonal employees, according to the Dominion
Post. Wine Marlborough advised grape growers to take a close look at the labour-hire
contractors they use during the pruning season after reports that some of thecontractors were illegally paying their workers as little as $6 an hour (less than half
the statutory minimum wage). Winter was one of the busiest times in vineyards, withmore than 80 labour-hire contractors, employing 3,500 employees worked in theregion, pruning and tying down vines. In previous years, the region had struggled toget enough workers, but this year there was plenty of labour available, creatingpressure among the labour-hire contractors to secure contracts with the vineyards
owners. As prices for jobs fell, there was pressure on labour-hire contractors to cut
wages and costs, which had encouraged some of them to skimp on payments to staff
and the Inland Revenue Department. The Department of Labour figures also showeda 125 per cent increase in complaints regarding vineyard labour-hire contractors inwhich there were 90 complaints made about 30 companies between 2008-09 while in
the previous year there were only 40 complaints received about 13 companies.
However, a Department of Labour spokesperson attributed the rise to seasonal96

New Zealand Journal of Employment Relations 34(3):92-101
workers becoming more aware of their rights, rather than just increased noncompliance by their employers.

August 2009
A number of strikes hit the media headlines during August. The Nelson Mail and the
Waikato Times reported that more than 1,000 telephone line engineers went on striketo fight for redundancy protection. The employees worked for companies which were
contracted to Telecom which had announced plans to move to a new owner-operator
model.
Meanwhile, the four different unions representing bus drivers and cleaners returned to
the negotiations with NZ Bus after a pay offer was rejected. The unions were seeking
a 6.8% pay rise, against a company offer of 3.5% for 2009 and 3% for each of thefollowing two years, which would guarantee industrial stability for buses needed forthe 2011 Rugby World Cup. One of the unions negotiators stated that the employers
offer to their 870 drivers and cleaners was so wide of the mark that there was little
point in putting the proposal to a stop work meeting. The unions argued that thecurrent starting rate for drivers was only $14.05 an hour which was only $1.55 above
the statutory minimum wage.
Other high profile employment disputes received media coverage. NIWA scientist
Jim Salinger was given a date for his Employment Relations Authority hearing which
will be in Auckland during October 2009 (see May Chronicle). The Dominion Post
reported that ‘Lion Man’ Craig Busch had withdrawn his bid to be reinstated to theZion Wildlife Park (see July Chronicle). Zion had launched numerous counterclaims,
including the recovery of thousands of dollars worth of machinery, tools andequipment and the entire park’s animal and zoo records which it alleged that Mr
Busch had taken.
A dispute over a $7 discrepancy in a café’s takings ended up costing the businessowner several thousand dollars. The Rangiora cafe (near Christchurch) was found by
the Employment Relations Authority to have unjustifiably dismissed an employee
which started with a heated discussion with one of her employee who overlooked arefund worth $7. As the employee left the café, she told a co-worker that the owners“could stick their job up their ....” She was told the next day to resign by her
employer. The Authority said that the central matter was whether the woman’s
parting words amounted to a resignation and found that the outburst was an
expression of frustration not a resignation. The employer failed to undertake a proper
investigation into the background to the dispute. The employee was awarded 13
weeks pay minus 10 days sick leave, a $120 refund for the return of her cafe uniform
and $6,000 compensation for hurt and humiliation.
A Court of Appeal ruling reported in the Nelson Mail found that employers cannot
order workers to do the jobs of colleagues lawfully on strike. This decision overturned
an earlier Employment Court judgment which ruled that the Employment Relations
Act allowed employers to instruct take that action. The Engineering, Printing andManufacturing Union took the case to the Court of Appeal after the Employment
Court rejected their claim. The Court of Appeal's ruling will make it difficult for

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employers to hire ‘strike-breakers’ during lawful strikes, but the Court stressed its
ruling had no ramifications for employers faced with illegal strikes. The Court ofAppeal ruling stated that the Employment Court’s judgement was inconsistent withthe words of the legislation and difficult to apply in practice. The Court of Appeal
also released its judgment on a case involving striking Air Nelson engineers that
centred on the same legal question.
It was major news when Wespac Bank dismissed the employee who had inadvertently
transferred $10 million dollars to a Rotorua garage proprietor who subsequently
absconded to China. The Sunday Star Times reported that the woman made a second
error subsequent to highly publicised error when she again keyed in the wrong loan
amount. She was called to a meeting with her bosses, accompanied by arepresentative of Finsec (the bank workers union) and was subsequently dismissed.
The woman vowed to fight her dismissal and take a case to the Employment Relations
Authority.
The NZ Herald reported that a train conductor, who was dismissed for sexuallyharassing a female colleague, was reinstated and was awarded 30 weeks of wages and$5,000 compensation for humiliation, loss of dignity and injury. The conductor
employed by Veolia Transport (the company that runs Auckland’s trains) was foundby the Employment Relations Authority to have been subject to a ‘faulty inquiry’. A
female colleague claimed that the man twice touched her inappropriately and made aformal complaint to the company. A resultant enquiry found on the balance of
probabilities that deliberate sexual harassment had occurred and the employee wassubsequently dismissed. The Authority concluded the company had ‘failed to conduct
an inquiry that was full and fair enough to establish the allegations to the necessary
high degree of probability’. It ordered the conductor to be reinstated, despite Veolia
Transport saying his return to work was impractical and unsafe.
A psychiatric nurse, who was dismissed after he hit a patient while being attacked,
was awarded nearly $30,000 for unfair dismissal and his employer the WhanganuiDistrict Health Board was ordered by the Employment Relations Authority toreinstate him. The nurse was badly injured, when a patient he was trying to restrain,kneed him in the stomach. The nurse’s hand hit the patient's face in the ensuing
struggle making him bleed. The Authority said there was insufficient evidence ofassault; yet, in dismissing the employee, the board had relied on allegations.
In a rather extreme case of taking work frustrations out on an employer, a 25-year
veteran Inland Revenue Department (IRD) employee drove his car through the foyer
his workplace after having been involved in a 3 years long employment dispute. The
Christchurch man crashed through two sets of glass doors and smashed a third on theother side of the foyer before coming to a stop, according to the Dominion Post.
Interestingly, the disgruntled employee claimed that he went to great lengths to avoid
any risk to staff hence his actions took place on a Saturday morning. The employee
said that he was fed up with concealment of workplace bullying and incompetentmanagement at the IRD. The man appeared in the Christchurch District Court charged
with intentional damage and reckless driving.

98New Zealand Journal of Employment Relations 34(3):92-101
September 2009
The Dominion Post reported that organisations specialising in disability support facean increase of their annual salary payments in the range of $40 million if the
Employment Court upholds a decision for carers on night duty to be paid theminimum adult wage of $12.50 per hour (see July Chronicle). Carers would also beable to claim back pay for up to six years if the court upheld an earlier decision
involving carer Phillip Dickson. A lawyer representing the provider organisations
explained to the Court that they were unable to afford the additional $40 million
annual wage bill. The test case involved a carer who overnight looked after fivepeople living in a community house but was paid only the equivalent of $3.77 perhour. The three judges hearing the case reserved their decision.
A survey of 1500 business enterprises by Business NZ found that the 2005
amendments to the Holidays Act 2003 had increased costs for 74 per cent of the
respondents. The increased complexity of the legislation was another major problem,
according to the Bay of Plenty Times. This was used as background to the review of
the Holidays Act 2003 announced in June 2009 by the Minister of Labour Kate
Wilkinson (see June Chronicle). The working group reviewing the legislations was tofocus on ‘vexed issues’, including the calculation of relevant daily pay as laid down in
the act, trading annual leave for cash, transferring the observance of public holidays
and the entitlements of casual employees. The New Zealand Chambers of Commerceargued in their submission that the terms of reference for the review were not broad
enough and that the legislation needed a ‘fundamental rethink’. New ZealandChambers of Commerce representatives argued that as the labour market had become
more complex, the conventional nine to five, Monday to Friday working week was
becoming less common and, thus, the legislation was struggling to adequately deal
with the complexities of modern work patterns.
The proposed Auckland Supercity started to have an impact on the 6,800 employees
employed by the eight existing local authorities. The NZ Herald reported that the
Local Government (Tamaki Makaurau Reorganisation) Act 2009 would havesignificant repercussions for all employees employed by the local authorities as the
local authorities will cease to exist on 31 October 2010. The new legislation required
the Transition Agency to “…plan and manage all matters in relation to thereorganisation to ensure that the Auckland Council is ready to function on and from1st November 2010”. It must develop an organisational structure for the Auckland
Council and a change management plan that had “...regard to the existing employment
agreements applying to the staff”. Former Alliance Cabinet Minister and trade union
leader Laila Harre was appointed to the Transition Agency to manage the humanresource and change management aspects of the transition.
Once again, professional firefighters took industrial action over the breakdown intheir 14-month negotiation with their employer for a pay rise. The Southland Times
reported that local firefighters had joined their colleagues nationwide in refusing toperform any administrative duties, including processing jobs. In addition, thefirefighters were only going to respond to emergency incidents but were not going tooperate the computers. The industrial action was in its second week and would
continue until 24 September 2010.

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As a sign of the recession’s impact on employees, the Sunday Star Times reported thatan increasing number of people facing redundancy or workplace restructuring wereseeking legal assistance from local community law centres. As a result the centres
were struggling to cope with the higher demand for their services. The Wellington
Community Law Centre used to have one volunteer employment lawyer available
during its weekly clinic but as a result of the extra demand, the Centre was forced toroster three lawyers and even then they were unable to keep up with the demand. The
Centre’s manager Geoffrey Roberts said that he could not recall such a heavy demandon services. Similarly the Canterbury Community Law Centre had 600 employment
inquiries in the past year and had also witnessed a growth in consumer and debt
issues.
In a reference to the TV comedy series ‘The Office’, a NZ Herald article stated thatthe real life situation is rarely so amusing. The article was about a recently released
book called Inhuman Resources: A guide to the psychos, misfits and criminally
incompetent in every office, written by Australian author Michael Stanford. While thebook is intentionally funny the author said that the humour should not mask theserious message that work colleagues can make working life miserable. According to
Stanford, there are a range of characters in the workplace from the simply annoying to
the toxic. Factors that have increased workplace friction are e-mail (it can be used ina manipulative way) and the recession (people becoming fearful and misbehave).
One expert interviewed said that unlike Australia, conflict in New Zealand
workplaces was not necessarily aggressive as New Zealanders on the whole displayed
stoicism and a desire to avoid conflict at all costs.
Another article related to psychopathic workers in the workplace. A Dominion Post
article claimed that up to one in ten workplaces “harbour a psychopathically oriented
worker”, according to research by Dr Giles Burch a senior lecturer in management atUniversity of Auckland. A psychopath worker was one who displayed antisocial
behaviour and a chronic disregard for ethical principles. Dr Burch pointed to character
traits such as superficial charm, an inflated sense of self-worth, pathological lying,cunning, manipulation, lack of remorse or empathy and a sense of impulsive nonconformism. He said that these workers create ‘toxic’ workplaces, rife with bullying,manipulation, sexual harassment, lying and fiddling the books. They also made those
who work with them ill through insomnia and depression. The worrying aspect wasthat individuals with these personalities were increasingly being employed by highly
competitive organisations for their aggressive behaviour, thus rewarding andreinforcing their behaviour. The banking, finance and media sectors were particularly
prone to psychopaths and they generally rose to management based on theirsuperficial charm and apparent decisiveness – which were mistaken for leadership
qualities. The best way to avoid hiring psychopaths was to use behavioural questions
in staff interviews such as asking for examples of teamwork and following up withreferee checks.
In an article on workplace bullying, the Sunday Star Times quoted research which said
that one in ten workers had been bullied by a work colleague in the past six months.
The two year project, which was conducted by three universities, surveyed 20
organisations in the hospitality, health and education sectors. 1,600 employees
completed a questionnaire and preliminary results showed that a significant number
had been victims of workplace bullying, with many still suffering the effects.

100New Zealand Journal of Employment Relations 34(3):92-101
Bullying was defined by the researchers as a situation in which a person feels they
have been repeatedly on the receiving end of negative actions from another worker, inan environment where it is difficult to defend themselves. Some of the worst places
for bullying appeared to be restaurant kitchens and there was reference to the ‘Gordon
Ramsay effect’. Hospital staff reported bullying from relatives of patients andteachers recorded instances of bullying from pupils. Other findings were that bullying
not only occurred from the top down but could also occur in reverse. Manyorganisations, while they have harassment and stress policies, do not actually know
how to handle workplace bullying. The article went on to say that it was incumbent
on management to be proactive and develop a work culture that promotes
collaboration, respect and an environment that treats people with dignity.
The Dominion Post featured a Harvard Business Review paper which claimed that
there was solid evidence that office cubicle culture does not work. The claim byresearchers Laura Sherbin and Karen Sumberg was that cubicles reduced theopportunity for people to get together and share information. Cube farms discouraged
collaboration, stifled employee engagement and, as a result, strangled innovation.
According to the research, both baby boomers and generation Y workers resented
barriers that would hinder networking and that workers were looking for more
efficient ways to work collaboratively.

Colin Ross & Erling Rasmussen
Auckland University of Technology

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