In Name Only: Employee Participation Programs and Delegated Managerial Authority after Crown Cork & Seal
As U.S. Industries work to become more competitive in a global market, employers have at various time turned to processes for involving employees in decision-making and harnessing valuable employee insight in areas related to workplace efficiency and plant safety, among others. However, these mechanisms risk running afoul of the National Labor Relations Act, Section 8(a)(2), which prohibits employer domination or interference with labor organizations. In a line of decisions between 1992 and 2001, the NLRB has developed a doctrine for employee involvement based around Section 8(a)(2) and the scope of “dealing with” under Section 2(5).
This Comment analyzes the recent trends in the “dealing with” doctrine, focusing on changes to the “delegated managerial authority” exception analysis after the Board’s decision in Crown Cork & Seal Co. This Comment criticizes the Crown Cork & Seal test as imprecise and potentially unbalancing, and recommends that the Board either narrow its application of Crown Cork & Seal to similarly comprehensive employee participation programs or apply a test for managerial authority that conforms to its “managerial employee” test, as developed in Bell Aerospace and Yeshiva University.