Compensation and Working Conditions Winter 1997 28

B

roadly defined, compensation

and working conditions are

two aspects of the employment relationship about which

employers and employees may

negotiate or debate. These items are

typically the subject of collective

bargaining and are also topics for

legislative action. This article

explores working conditions: What

is meant by this broad category and

what actions are being considered in

the 105th Congress?

In U.S. labor law, working

conditions are recognized as an

appropriate subject for collective

bargaining. Under the titles NorrisLa Guardia, Wagner, and TaftHartley, named after those who

championed these laws in the 1930s

and 1940s, these labor laws established the principle of collective

bargaining for wages, hours, and

other terms and conditions of

employment. (See box for details of

these laws.) Perhaps not envisioned

by such leaders as New York’s

Senator Robert Wagner in the 1930s,

BY WILLIAM J. WIATROWSKI

105th Congress

Addresses Working

Conditions

The rapid pace of technological change has created a workplace

that looks little like that of our ancestors early this century.

Moreover, the workplace of tomorrow will be tied less to a single

physical location; the remote electronic workplace will be commonplace. The wide range of labor legislation being debated in

the 105th Congress reflects the expansion of labor issues beyond

the narrow bounds of the factory floor.

William J. Wiatrowski is an economist in

the Division of Compensation Data Analysis

and Planning, Bureau of Labor Statistics.

Telephone (202) 606-6255.

“other terms and conditions of

employment” now extend to such

topics as ergonomic equipment

designed to limit the risk of carpaltunnel syndrome, drug testing, and

use of polygraph tests. Proposed

legislation in the 105th Congress

addresses a wide variety of working

conditions.

Union-management activities

The National Labor Relations

Act, the Labor-Management

Relations Act, and subsequent labor

law establish the right of employees

to elect representation and to bargain

collectively. These rights are

frequently the subjects of legislation,

often designed to modify or clarify

existing procedures. The protections

provided in these laws are available

to nearly all workers, not just

members of labor unions who now

make up about 15 percent of the

labor force, down from a post-World

War II high of about 25 percent.

(See table 1.)
29 Compensation and Working Conditions Winter 1997

Several proposals before Congress

would require more disclosure by

unions of their activities and

finances. The Union Members’

Right to Know Act would require

greater financial disclosure of

spending for political purposes.

Proponents of this measure argue

that union members are often

unaware of the use of their dues.

They further argue that use of union

funds for “education” and “issue

advocacy” may in fact be for

political purposes.1 The measure

would require the disclosure of funds

used for political activities, political

candidates and organizations, and

affiliated political action committees

and the candidates these committees

assist.

Another means of getting at

similar issues is the Membership

Dues Disclosure and Deductibility

Act, which would require unions to

abide by the same disclosure rules as

other tax-exempt organizations.

Unions would generally have to

disclose to their members how much

of their collected dues are directed to

political and lobbying activities. In

addition, the bill would allow union

members to deduct the non-political

portion of their dues from their

income for tax purposes. Under

current law, union dues must be

combined with other “miscellaneous

expenses” in determining deductibility, and only total amounts of

miscellaneous expenses above 2

percent of adjusted gross income

may be deducted.2

An alternative legislative proposal would prohibit the use of

automatic paycheck deductions to

collect any funds used for activities

other than collective bargaining,

contract administration, and/or

grievance procedures on behalf of

employees. Union dues “check-off”3

is the system of allowing union

members to pay union dues through

payroll deductions that are withheld

by employers and paid to the union.

Concern arises when labor unions

use dues to finance political activities without the notification or

consent of those from whom the

money is collected. A 1988 Supreme

Court ruling prohibits unions from

assessing fees “beyond those

necessary to finance collective

bargaining activities.” The ruling

stems from Taft-Hartley language

that authorizes the deduction of only

those fees and dues necessary to

“perform the duties of an exclusive

representative of the employees in

dealing with the employer on labormanagement issues.”4

Employee rights stemming from

this case, known as Beck rights after

the name of the party in the case,

allow employees to request that dues

to be used for political purposes not

be deducted from their pay. However, proponents of this legislation

have cited anecdotal evidence of

abuse, such as the story of a North

Carolina man.5 A worker was

harassed when he objected to the use

of his union dues for political

purposes. The union posted notices

discouraging workers from objecting

to the political use of their union

dues and also posted the name of the

worker. He was subject to threats

and intimidation by fellow union

members. The proposed legislation

would require unions to notify

workers of how dues are being spent

and of their Beck rights.

Another proposal in the 105th

Congress regarding union activities

is a bill to limit the use of official

time by Federal employee unions.

Official time is paid time during

which union officials are allowed to

perform union functions, such as

explaining contract provisions or

working with an employee on a

grievance. There has been concern

raised about the use of official time

by Federal employees for lobbying

purposes, including lobbying

Congress. Such a practice results in

Federal employees being paid

Federal funds to lobby Congress.

The bill would outlaw this practice.

Among other legislation, the

Public Safety Employer-Employee

Cooperation Act would grant

firefighters and law enforcement

officers fundamental collective

bargaining rights. At present,

certain collective bargaining rights

are not available to these workers

due to the nature of their work. This

Act would provide only certain

collective bargaining rights, and

would preserve the restriction

against strikes.

TEAM Act

The Teamwork for Employees

and Managers (TEAM) Act would

allow companies to use employeemanagement teams to address a

broad range of workplace issues,

such as productivity, flexible work

schedules, worker safety, employee

benefits, and more. The National

Labor Relations Board has ruled that

such teams, under current law, may

be considered an unfair labor

practice.6 Such teams have been

construed by the NLRB as employer

support for organizations that

represent workers regarding wages,

benefits, and working conditions, an

activity that is the exclusive purview

of labor organizations. The TEAM

Act would amend the National Labor

Relations Act to permit employers

1930 ................... 3,401 6.8

1935 ................... 3,584 6.7

1940 ................... 8,717 15.5

1945 ................... 14,322 21.9

1950 ................... 14,267 22.3

1955 ................... 16,802 24.7

1960 ................... 17,049 23.6

1965 ................... 17,299 22.4

1970 ................... 21,248 24.7

1975 ................... 22,361 23.6

1980 ................... 22,377 20.5

1985 ................... 16,996 18.0

1990 ................... 16,740 16.1

1995 ................... 16,360 14.9

1996 ................... 16,269 14.5

 NOTE: Beginning with 1970 data, union

member data include individuals in public

employee associations and professional organizations, such as the National Education

Association. Prior to 1970 data, such individuals were not included. Beginning with

1985 data, the labor force includes all employed wage and salary workers.

Union

members

(thousands)

Percent

of labor

force

Year

Table 1. Union membership, selected

years, 1930-96
 Compensation and Working Conditions Winter 1997 30

“to establish, assist, maintain or

participate in” organizations for

employees. An identical bill was

passed by the 104th Congress, but

was vetoed by President Clinton.

Proponents, typically employer

groups, argue that the change in the

law is necessary to promote employee participation in the workplace, which can go a long way

toward fostering cooperation and

improving productivity. They also

argue that labor-management

partnerships have been known to

work well. There are muchpublicized examples of employeemanagement teams that have

reassessed the work process and

instituted improvements.

Opponents, including organized

labor, claim that the bill would

encourage employers to interfere

with an employee’s right to choose

their own representation. The

contention is that employers would

be able to create and disband

committees at will, hand-pick

members, dictate the agenda, and

pre-determine the outcome. Because

the teams would be determining

working conditions, a legitimate

subject of collective bargaining by

the elected representatives of the

employees, in essence the workers’

right to choose their own representative would be ignored.7

The proposed legislation is

generally applicable to nonunion

employers. In a unionized environment, establishing workplace teams

is not an unfair labor practice, as

long as participation on the teams is

determined in conjunction with the

union. In such a case, the union is

the sole and duly elected representative of the employees, and as such is

the only organization that can

determine employee representation

on a team. In the case of a nonunion

company, or a unionized company

where team members are not chosen

in conjunction with the union, teams

violate the workers’ rights to choose

their representatives. The legislation

would legalize these teams.

Safety and health

Safety and health issues are an

important part of working conditions. In 1970, Congress passed and

President Nixon signed into law the

Occupational Safety and Health Act.

This act established standards for

safe working environments, compliance requirements, penalties for

noncompliance, and reporting

requirements to track the extent of

occupational illness and injury. The

Act promises every American

worker the right to a safe job. Data

from the Bureau of Labor Statistics

on the prevalence of workplace

injuries, illnesses, and deaths have

been collected since the mid-1970s,

in part to comply with reporting

requirements in the law. These data

indicate an overall reduction in the

prevalence of workplace injuries and

illnesses in the past 2 decades. (See

table 2.)

Among the current issues

regarding workplace safety and

health is the amount of regulation to

impose on small businesses. For

example, the Occupational Safety

and Health Administration (OSHA),

the agency of the Department of

Labor established to perform the

regulatory functions of the law,

recently proposed a rule restricting

the use of methylene chloride (used

to strip paint and clean metal parts,

among other things). This action is

said to cut the risk of cancer among

construction workers, but it is

controversial. In the view of

opponents of the rule, studies have

yielded inconsistent results. OSHA

has recommended use of a less-toxic

substitute, although industry officials

indicate such substitution will be

costly and may result in worker

exposure to other hazards.8

The proposed rule largely affects

construction and related industries,

which are dominated by small

employers. (In 1995, two-thirds of

all construction firms employed

fewer than 5 workers, and 92 percent

employed fewer than 20.9) This has

led to concern in Congress about the

amount of regulation imposed upon

small employers. In 1996, Congress

enacted the Small Business Regulatory Fairness Act, requiring Congress to review certain new regulations affecting small businesses prior

to adoption.10 OSHA must comply

with this requirement before it can

issue a final rule. Furthermore,

legislation has been introduced in

Congress to prevent final implementation of the rule.

Conditions for awarding Federal

contracts

The Clinton Administration has

proposed changes to contracting

procedures to encourage Federal

agencies to select contractors based

on prior labor relations and employment practices. The changes would:

Table 2. Rate of occupational injury and

illness per 100 full-time workers,1

private sector, 1973-95

1973 .................. 11.0 -

1974 .................. 10.4 -

1975 .................. 9.1 3.3

1976 .................. 9.2 3.5

1977 .................. 9.3 3.8

1978 .................. 9.4 4.1

1979 .................. 9.5 4.3

1980 .................. 8.7 4.0

1981 .................. 8.3 3.8

1982 .................. 7.7 3.5

1983 .................. 7.6 3.4

1984 .................. 8.0 3.7

1985 .................. 7.9 3.6

1986 .................. 7.9 3.6

1987 .................. 8.3 3.8

1988 .................. 8.6 4.0

1989 .................. 8.6 4.0

1990 .................. 8.8 4.1

1991 .................. 8.4 3.9

1992 .................. 8.9 3.9

1993 .................. 8.5 3.8

1994 .................. 8.4 3.8

1995 .................. 8.1 3.6

 

1

 The incidence rate represents the number of injuries and illnesses or lost workdays

per 100 full-time workers. It is calculated by

multiplying the number of injuries and illnesses (or lost workdays) times the total

hours worked by all employees during the

calendar year. That product is divided by

200,000 (the base for 100 full-time equivalent workers working 40 hours per week, 50

weeks per year).

 - Data not available.

Total

cases

Lost

workday

cases

Year
31 Compensation and Working Conditions Winter 1997

• Require that contractors have a

satisfactory record in labor

relations and employment

practices before they can bid

on Government contracts;

• Prohibit the Federal Government, as part of any contract,

from paying expenses associated with violations of labor

laws; and

• Require that all Federal

agencies consider “project

labor agreements” for Federal

construction projects.

A project labor agreement (PLA)

is a required set of labor standards

imposed on contractors for the life of

a project. PLA’s generally cover

wages and working conditions,

mandate that all employees join a

union and pay dues, designate the

union as the sole representative of

the employees, and require payment

into union benefit funds. Included

in the agreement is the guarantee

that projects will be built without

strikes, lockouts, or similar disruptions.

Many Federal, State, and local

construction projects have used

PLA’s. Several States have executive

orders authorizing the use of PLA’s

for State-funded projects when they

promote the efficient, timely, and

safe completion of a project.

PLA’s do not exclude any

contractor from bidding on a project,

even if they have never been a

signatory to a collective bargaining

agreement. Also, every qualified

worker is eligible to be employed on

a PLA project, regardless of whether

he or she has ever been a union

member. However, according to

PLA opponents, in nonunion

settings PLA’s require firms “to

organize work around the rigid and

... archaic lines that define each

union’s jurisdiction,”11 such as

specific trades or specialties. This

often requires such employers to hire

more workers than they might

otherwise hire for a project of

similar size. Consequently, nonunion firms do not often bid on such

work.12

Even in unionized situations,

opponents argue that the requirements of the PLA may make it

necessary to hire additional workers

and to alter wages, benefits, or other

working conditions. Such agreements can also lead to the situation

where an employee works under one

set of compensation and working

conditions while doing work under

the PLA and under different rules

while employed on other jobs.13

Recently, the administration

agreed not to issue an executive

order. Instead, a “presidential

memorandum,” encouraging Federal

agencies to follow these rules in

establishing contracts, is expected.

This will have the same effect as the

executive order, except that the

memorandum will lapse when

President Clinton leaves office,

while an executive order would have

remained in effect unless specifically

rescinded by a future President. At

the same time, there is also legislation pending in Congress to overturn

the actions of the President.

Job training

In May 1997, the House of

Representatives passed the Education, Training and Literacy Enhancement Act. This bill consolidates 50 Federal employment, job

training, and literacy programs into

3 block grants to the States. The bill

is similar to a bill in the 104th

Congress that got sidetracked over

concerns that the Federal Government might take too large a role in

vocational education. This year’s

bill does not include the disputed

vocational education provisions.

The intent of the bill is to

coordinate existing independent

training programs. It creates a onestop career center, centralizes many

local job training and employment

search services in one location, and

allows States to target funds based

on their local needs. The bill

establishes 3 block grant programs:

• Disadvantaged Youth Employment and Training Opportunities—for at-risk, low-income

teens and young adults;

• Adult Employment and

Training Opportunities—for

disadvantaged adults and

dislocated workers; and

• Adult Education and Literacy—for low-income people

to obtain job skills, geared

especially for transition from

welfare to work.

In general, the training provided

through these programs is offered

outside the work setting. Often, this

training is part of a job-search

process, such as that provided

through State employment security

agencies. Employers also provide

training to their employees, although

the availability and type of this

training can vary widely. A 1993

Bureau of Labor Statistics survey of

employer-provided training among

private sector employers indicated

that 71 percent of establishments

offered training to their employees.14

Larger establishments almost

universally provided training while

it was less prevalent among smaller

establishments. The most frequently

offered type of training was job-skills

training, to provide skills needed to

perform a particular task. Other

prevalent types of training covered

orientation, safety, and health.

Fewer than half of all employers

provided job skills training, however, suggesting the need for

additional training outside the work

setting. (See table 3.)

Sweatshops

In April 1997, President Clinton

announced the formation of an

Apparel Industry Partnership

intended to reassure consumers that

exploited workers do not make

clothes and shoes. Included in the

partnership are garment manufacturers, unions, human rights organiza-
 Compensation and Working Conditions Winter 1997 32

tions, and others. Manufacturers

who participate in the partnership

are allowed to place “no sweatshop”

labels in their products, place signs

in stores, or otherwise advertise their

compliance. At the same time, a

Child Labor Free Consumer Information Act has been introduced in

Congress. This bill would establish

a “seal of approval” or logo that

manufacturers could display if they

meet child labor standards.

Members of President Clinton’s

Partnership are prohibited from

using prison or other forced labor,

prohibited from employing children

under age 15, required to pay

minimum or prevailing wages,

required to limit hours worked in a

week to 60, and required to provide

at least 1 day off per week. Companies that join the Partnership must

also ensure that their contractors and

suppliers comply with these requirements. The agreement calls for

internal monitoring by manufacturers plus independent external

monitoring.

Some manufacturing groups

argue that the Partnership advocates

standards that already exist; human

rights groups argue that the standards do not go far enough to help

exploited workers. Other concerns

are that counterfeit “no sweatshop”

labels will begin to appear and that

employers will find ways to circumvent the prohibitions.

Other labor issues

Other labor-related topics in the

105th Congress include the Employment Non-Discrimination Act,

which prohibits employers from

making decisions about hiring,

firing, promoting, or compensating

an employee based on sexual

orientation; the Workplace Fairness

Act, which prohibits employment

discrimination on any basis (an

individual must be judged solely on

their merit); and the Volunteer

Firefighter and Rescue Squad

Worker Protection Act and other

related proposals, which allow such

workers to volunteer their services

without running afoul of wage and

hour laws.

The rapid pace of technological

change has created a workplace that

looks little like the workplace of the

1930s and the 1940s, when many of

our labor laws were first established.

Moreover, the workplace of tomorrow will be tied less to a single

physical location; the remote

electronic workplace may be

commonplace. The wide range of

labor legislation being debated in the

105th Congress reflects the expansion

of labor issues beyond the narrow

bounds of the factory floor. Changes

in working conditions in the future

will necessitate the constant review

of these laws.

Table 3. Percent of private sector establishments providing formal training, 1993

Provide training ......................................... 70.9 68.9 97.9 99.3

Orientation1

.............................................................. 31.8 28.5 74.9 92.5

Safety and health2

............................................... 32.4 29.5 70.2 88.3

Apprenticeship3

..................................................... 18.9 17.5 35.6 51.1

Basic skills4

.............................................................. 2.2 1.7 7.2 19.3

Workplace skills5

................................................. 36.1 33.0 77.3 89.6

Job skills6

.................................................................. 48.6 45.8 85.8 95.9

Other ................................................... 4.1 3.6 10.5 17.1

Fewer than

50 workers

50 - 249

workers

250 workers or

more

Characteristic Total

1

 Orientation training provides information on personnel and workplace practices and overall company policies.

2

 Safety and health training provides information on

safety procedures and regulations and health warnings

and hazards.

3

 Apprenticeship training is a structured process by

which individuals become skilled workers through a combination of classroom instruction and on-the-job training.

4

 Basic skills training provides instruction in reading,

writing, arithmetic, and English language skills.

5

 Workplace skills training gives information on policies and practices that affect employee relations or the

work environment.

6

 Job skills training upgrades employee skills and

qualifies workers for a job.

NOTE: Sum of individual items may be greater than

the total because employers may offer more than one

type of training.
33 Compensation and Working Conditions Winter 1997

Details of Labor Law in the United States

 The foundations of American labor law were largely established in the 1930s and 1940s,

beginning with the Norris-La Guardia Act in 1932. (Prior to that date, certain anti-trust laws had

some effect on labor-management relations in this country and a few industry-specific labor laws, most

notably the Railway Labor Act of 1926, were in place.) Norris-La Guardia came about during a period

of high unemployment at the height of the Great Depression. The main purpose of the Act was to

limit the authority of courts to issue injunctions against certain labor activities. The Act limited the

power of the courts to stop workers and labor organizations from engaging in several activities,

including peaceful picketing, peaceable assembly, organizational picketing, and payment of strike

benefits. In essence, the Act recognized the rights of workers to associate, organize, and choose

representation. However, there were no restrictions placed on employer efforts to stop labor activities.

 Such restrictions were put into place in 1935 by the National Labor Relations Act, or the

Wagner Act. This Act specifically banned a set of management actions that constituted unfair labor

practices. These now-prohibited unfair practices included:

• Restraining, coercing, or interfering with employees in their right to organize;

• Dominating or interfering with the formation or administration of labor unions;

• Discriminating in hiring, tenure, or working conditions to encourage or discourage union

membership or activities;

• Discriminating against employees who had filed unfair labor practices, as designated by the

Act; and

• Refusing to bargain collectively with the duly chosen representatives of the employees.

The Wagner Act was modified in 1947 by the Labor-Management Relations Act, commonly

referred to as the Taft-Hartley Act. This law largely left unchanged the unfair employer practices of

the Wagner Act, but introduced additional unfair labor practices applicable to employers and unions.

The prohibited union practices included restraining or coercing employees regarding certain collective

bargaining rights; causing an employer to discriminate against an employee to encourage or discourage union membership; refusing to bargain in good faith; and related activities. Taft-Hartley also

specifically included language recognizing employees as individuals, including an individual’s right to

present grievances directly to the employer, without the intervention of a union.

More recent labor law is largely concerned with reporting and disclosure requirements for both

employers and labor unions. Today, the rights of employers and employees are still largely governed

by the provisions of the Wagner and Taft-Hartley Acts.
 Compensation and Working Conditions Winter 1997 34

1

 “Christensen Bill Seeks More Union Spending Disclosure,” Congress Daily, The National

Journal, April 14, 1996, pp. 2-3.

2

 Under current Federal tax law, individuals

who itemize deductions may include union dues

as part of their miscellaneous deductions. Other

such deductions include unreimbursed job-related

expenses (such as unreimbursed job-related

travel), tax preparation fees, and certain investment expenses. Only expenses in this category in

excess of 2 percent of adjusted gross income (total income minus certain items such as contributions to individual retirement accounts and alimony payments) may be included in an

individual’s total itemized deductions.

3

 Check-off is the procedure of employers

withholding union dues from employee pay and

remitting those dues to the union. This practice

was specifically addressed in the Taft-Hartley Act

of 1947. At that time, “automatic” check-off,

without the consent of employees, was prohibited.

The law required unions to obtain the written consent of employees to have union dues withheld

from their pay.

4

 The Supreme Court ruling considers several

reasons why fees for non-collective-bargaining

activities violate worker rights. It also makes distinctions between union members and non-members who nonetheless must pay dues. See Communications Workers v Beck, 487 US 735 (1988).

5

 Congressman Harris W. Fawell, 13th District of Illinois described this story, in a letter to

colleagues on April 23, 1997.

6

 Since 1992, the National Labor Relations

Board has ruled in approximately 20 cases that

worker-management teams were in violation of

the National Labor Relations Act prohibition

against company-dominated unions. Many

worker-management teams do exist, although only

a few have been challenged. Typically, teams are

challenged when they are considered an interference to worker attempts to organize and vote for

union representation.

7

 Under current labor law, employees have the

sole right to choose their representatives to bargain for “terms and conditions of employment.”

Because the duly elected representatives of all

employees do not select team members, the teams

violate the employee’s right to choose their own

representatives.

8 NAM Briefing, National Association of

Manufacturers, April 21, 1997, p. 6.

9 Employment and Wages Annual Averages,

1995, Bureau of Labor Statistics, Bulletin 2483,

December 1996.

10 The Small Business Regulatory Fairness Act

of 1996 requires Federal agencies to consider the

special needs and concerns of small entities, such

as small businesses, small local governments, and

farmers, when regulations are drafted. Agencies

must prepare an analysis of the effect of new regulation on small businesses and must consult with

small businesses prior to issuing proposed rules.

11

 “Open Shop and Union Contractors Jointly

Oppose President’s Plan for Executive Order on

Project Labor Agreements,” Open Letter from the

Associated General Contractors of America, April

15, 1997.

12 Ibid.

13 Ibid.

14 For more information, see Harley J. Frazis,

Diane E. Herz, and Michael W. Horrigan, “Employer-provided training: results from a new survey,” Monthly Labor Review, May 1995, pp. 3-

17.

—ENDNOTES—