Many workers believe that labor unions provide the only (or best) way to address employment issues and disputes, but unions are not the only options available for employees. In fact, many employers now encourage their employees to participate in management decisions directly. In the public sector, where government employees are increasingly forming and joining unions, constitutional protections against potential employer abuse have always existed.

The NLRA's passage in 1935 marked a radical break with the American tradition of a government-neutral approach toward labor relations, and recent decades have seen even greater departures free-market principles. Various employment laws and court decisions have supplanted the union's traditional role and now afford employees, whether unionized or not, legal recourse for a variety of workplace disputes with their employers.

Participatory Employee Involvement Programs

Many businesses provide employee involvement (EI) programs (also known as "quality circles" or "labor-management committees") as an opportunity for employees to participate in managerial decision making. EI is a workplace process by which individual employees are encouraged to communicate their thoughts and suggestions directly to the management concerning a variety of workplace issues, including productivity, scheduling, and technologies.

As much as 75 percent of all U. S. companies use some form of EI, ranging from suggestion boxes to self-directed work teams. Successful EI arrangements increase productivity, boost employee satisfaction, improve quality, and lead to a more competitive position in the marketplace for the company. Rising productivity and quality in turn provides a rising standard of living for workers and their families.

In December 1994, Princeton Survey Research Associates reported the findings of a national survey on worker participation:

  • 63 percent of employees would "like to have more influence" in workplace decisions;

  • 76 percent believe that if "more decisions about production and operations were made by employees, instead of managers," their company would be "stronger against its competitors";

  • 79 percent believe that employee involvement would improve the "quality of products or services"; and

  • 87 percent think that "employees would enjoy their jobs more" in EI arrangements.

Additionally, the survey asked employees if they preferred employee-management committees, unions, or laws as a way to discuss or resolve workplace issues and problems. Fully 63 percent of surveyed employees preferred committees, 20 percent chose unions, and 15 percent chose laws.58

Despite the popularity among workers of EI programs, there is a legal cloud over them due to current interpretations of the NLRA.59 Unions attempting to organize employees in an EI environment often feel threatened, worrying that their services are unnecessary when workers are free to deal directly with their employers over workplace issues in a constructive and non-adversarial manner. Consequently, many unions use the law to strike down these programs in an attempt to increase organizing opportunities. However, employee involvement programs do seem to enjoy greater acceptance by unions when the union officials can also participate in the process.

Constitutional Employment Protections for Government Employees

All government employees, regardless of their union status, enjoy constitutional protections against potential employer abuse. The rights of individuals as specified in both the U. S. and Michigan Constitutions apply against the conduct of government, not that of private employers, so these constitutional rights in labor law are of importance mainly to government employees.

The First Amendment to the U. S. Constitution provides that "Congress shall make no law abridging freedom of speech. . . ." This means that government, as employer, cannot take adverse action against its employees on a basis that infringes any employee's constitutionally protected interest in freedom of expression. Employees' speech, however, must relate to a matter of public concern in order to be protected under the First Amendment.

The Fourth Amendment to the U. S. Constitution provides for "the right of people to be secure against unreasonable searches and seizures." This provision ensures against unreasonable intrusions into a government employee's privacy and covers such employer conduct as searches of employee lockers and personal belongings. The Supreme Court has characterized the right to privacy as "the most comprehensive of rights and the right most valued by civilized men."60

Although various aspects of personal privacy have received legal recognition and protection, it remains a somewhat vague concept. In a legal sense, "privacy" lacks a precise definition and the law is still evolving. There is no express "right to privacy" specifically guaranteed by the U. S. Constitution; however, the courts have developed a common law right to privacy based on the Bill of Rights,61 which protects individual citizens from unreasonable government intrusions.

The Fourteenth Amendment to the U. S. Constitution provides that no state may deprive any person of life, liberty, or property without due process of law. Under this amendment, a government employee is guaranteed "due process" when a threatened or actual personnel action deprives the employee of either a "property" interest or a "liberty" interest in his continued employment. Due process generally requires that the employee be afforded an opportunity to be heard at a meaningful time and in a meaningful manner.