In 1992, the Teamsters brought an unfair labor practice charge against a company called Electromation. The charge alleged that Electromation’s five employee “action committees” were employer-dominated labor organizations, the existence of which violates section 8(a)(2) of the National Labor Relations Act (NLRA).

The resulting NLRB case became a major event in the world of labor law and many organizations filed briefs trying to influence the agency’s decision. It was so big that the New York Times published three articles about it and included a note about it in the paper’s Business Digest (I, II, III, IV).

Companies feared that an adverse ruling would render tens of thousands of existing employee participation programs illegal, forcing the companies to abandon them or open themselves up to charges filed by unions attempting to organize their workers. Unions hoped that such a ruling would help reinvigorate a union movement that had lost so many members in the prior couple of decades.

What actually happened is that the NLRB ruled that Electromation’s “action committees” were employer-dominated labor organizations but also made it clear that not all employee participation programs are illegal. Company-run employee organizations that made specific proposals on things related to conditions of work or other subjects of bargaining covered by the NLRA are not allowed. But anything short of that — including organizations that serve brainstorming, communication, or “suggestion box” roles — were still allowed.

Despite the uneventful outcome of the case, overturning Electromation and protecting employer participation programs became somewhat of a cause for the Republican party in the mid-1990s. This cause culminated in the Teamwork for Employees and Managers Act of 1995, which passed the Congress only to be vetoed by President Clinton.

In the 30 years since Electromation was decided, nothing remarkable has happened. It is still the controlling case on the topic of employer-dominated labor organizations, but it has not generated a slew of cases invalidating existing employee participation programs. In the most recent significant case on the topic, the NLRB concluded that T-Mobile’s T-Voice employee participation program was not an employer-dominated labor organization under the test established by Electromation.

Given this background, it was strange when, last week, Senators Marco Rubio and Jim Banks revived this mid-90s bill by introducing the Teamwork for Employees and Managers Act of 2022.

The 1995 TEAM Act was at least nominally aiming to solve a specific legal problem caused by a recent NLRB decision. But we know by now that this decision did not actually create the problem the TEAM Act claimed to solve. Employee participation programs were not made illegal by Electromation and they continue to be used quite extensively by companies across the country. There are limits to what they can do, but brainstorming, communicating information, and suggestion-boxing — all allowed by Electromation and its successors — already allow companies to glean pretty much anything they might want to glean out of this kind of organization.

The main difference between the 2022 TEAM Act and the 1995 TEAM Act is that the new one allows employee involvement organizations (EIOs) at very large companies to elect a representative that will observe corporate board meetings. I guess this is some kind of gesture towards the idea of codetermination, but in real codetermination, the worker representative is an actual voting member of the corporate board, not a non-voting observer. Also, in real codetermination, the companies are required to have worker board members. Under the TEAM Act, companies get to decide whether to set an EIO up and may get rid of it whenever they’d like.

All of this raises the natural question: what is the point of this bill? Employers can already set up employee participation programs provided they stay within certain parameters. The NLRB is not threatening the existence of these programs. And the non-voting board observer, which a company can choose to have or not have, is completely impotent and pointless.

The only thing left, then, is what detractors of the TEAM Act said way back in 1995. From Clinton’s veto:

Instead, this legislation, rather than promoting genuine teamwork, would undermine the system of collective bargaining that has served this country so well for many decades. It would do this by allowing employers to establish company unions where no union currently exists and permitting company-dominated unions where employees are in the process of determining whether to be represented by a union. Rather than encouraging true workplace cooperation, this bill would abolish protections that ensure independent and democratic representation in the workplace.

Put differently, the employee involvement organizations contemplated by the 2022 TEAM Act, where not simply duplicating existing employee participation programs that are already legal, would give employers another union avoidance tool by allowing them to muddy the waters and by allowing them to fend off union organizing drives by setting up their own internal labor organizations, aka company unions.

Beyond this, it’s hard to see much of a point for this legislation, except that Oren Cass, who seems to be the person behind the legislation, has the unfortunate job of having to come up with some kind of working-class conservatism that some Republican politicians might actually approve of. Unions and codetermination are great working-class institutions that give working class people some real power in the world, but no Republican politician would endorse them for precisely those reasons. So I guess, within the constraints Cass operates in, company unions and non-voting board observers are the next best thing.