Repairing the American Education System Through Labor Reform: How German and French Works Councils Can Provide a Framework for Empowering Teacher's Unions

• Jurisdiction: United States,Federal
• Citation: Vol. 51 No. 2
• Publication year: 2023

Repairing the American Education System Through Labor Reform: How German and French Works Councils Can Provide a Framework for Empowering Teacher's Unions

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Jacob N. Koch^*

Table of Contents

I. Introduction......................................................................................................540

II. Background......................................................................................................541

A. Works Councils............................................................................541

i. The German System............................................................542
ii. The French System..............................................................544

B. The National Labor Relations Act...........................................545
C. Problems in American Education............................................548

III. Argument.........................................................................................................550

A. What is the Goal?........................................................................550
B. The Obstacles and the Solutions..............................................550

i. Amending the NLRA...........................................................550
ii. Judicial Interpretation........................................................552

IV. Conclusion......................................................................................................553

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I. Introduction

The United States' labor system is complex and ever evolving. It provides safety and support for our employees in countless ways, and exactly what is protected and how it is protected are frequently subject to change. That ability to change can provide solutions in one of the most important areas in the country: education.

The education system in the United States suffers from many problems, and there is no shortage of literature examining those issues and offering various solutions.¹ One potential solution that is not currently possible under U.S. labor law is works councils² for teachers. Works councils are not permitted in the United States due to labor law's statutory framework, but with a few changes, these labor organizations could be implemented in the United States. This would allow educators to not only directly voice their concerns to the governing bodies in the education system, but would also give educators the ability to directly influence and change education.

Educators are at the forefront of the U.S. education system and they know best what issues are pressing in the U.S. education system and how to solve them. Instead of administrators or legislators being the only people that have decision-making power in the education system, the advent of works councils for teachers would empower teachers to make the changes they deem necessary. This would allow teachers to further advocate for themselves, resulting in a stronger education system with better prepared students and fewer obstacles to academic success.

There are statutory obstacles to implementation of works councils within the United States. Although it is possible to overcome these obstacles, doing so requires political will, collective action, and the ability to see the benefit in

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a labor organization that so many other countries already realized and currently utilize.³ The implementation of works councils in the United States labor system would not solve every labor problem, but their use could help employees—specifically teachers—voice their concerns directly to managers. This change allows people on the front lines of these issues create meaningful change as they deem necessary through their experience.

The United States can learn meaningful lessons from various other countries that have implemented works councils in their workforces.⁴ Although no two countries face the same problems or can effectively use the same solutions, the United States can use works councils from other countries as a model. These works councils could be a valuable asset in many different areas of labor and labor relations, but they could also help to fix problems in the country that people often do not see as directly connected to labor, such as education.

II. Background

A. Works Councils

Works councils are a type of labor organization, capable of advocating for employees as their own unique labor entity.⁵ Works councils are not part of labor unions;⁶ instead, these organizations work as an additional instrument

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through which employees can collectively bargain and advocate for themselves within the workplace.⁷ Works councils are common across the world—often mandated by legislation—but are unfortunately not present in the United States.⁸ This is due to United States labor law and the way the National Labor Relations Act is interpreted and applied.⁹

i. The German System

Works councils are protected by law in Germany as an integral part of German labor law.¹⁰ Although protected, the decision of whether to create a works council at a workplace belongs exclusively to the employees, as works councils are not mandatory.¹¹ The number of employees who are part of the works councils is calculated based on the total number of employees.¹² The number of works council members increases as the number of employees increases, standardizing the size of these organizations across the country.¹³ The purpose of works councils in Germany is to "ensure that some of the key decisions at the workplace are not taken by the employer alone but involve representatives of the workforce."¹⁴

German works councils are robust in their coverage of employees. The organizations do not discriminate based on part- or full-time status, and "[a]ll employees are covered by the works councils with the exception of senior

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management."¹⁵ This coverage gives works councils a large amount of influence within German workplaces, as these organizations can "conclude what are called 'work agreements' with the employer - enforceable, legally valid agreements that regulate working conditions in the company."¹⁶ In fact, employers whose companies have works councils are not allowed to make decisions regarding many issues without first conferring with the works council.¹⁷ The result is a strong organization, consisting of employees, that exists for the sole purpose of furthering the interests of all the employees in a workplace.

The strength of works councils in Germany and some other parts of the world lies in their function as a direct bargaining tool for workers.¹⁸ Trade unions are another tool for collective bargaining for German employees, but they, unlike works councils, do not allow employees to directly bargain with the employer in making employer decisions.¹⁹ The beauty of works councils is that they work in tandem with labor unions to strengthen the voice of employees from within the workplace, as opposed to advocating for employees from outside the workplace (although that is incredibly important as well).²⁰ Works councils, as employee-led bodies, directly advocate for employees and collectively bargain to ensure that employee's voices are heard by employers, unlike outside organizations like trade unions where union representatives voice the concerns of the employee body to the employer.²¹ This arrangement has the practical effect of allowing employees to use their own experience and observations to foster a workplace better suited for them and, hopefully, for the employer as well.²²

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ii. The French System

French employees also have the ability to create works councils, but France has a different system than Germany.²³ The French labor law system allows for the formation of what are called Comite Social et Economiques (CSEs), or Conseil d'entreprises (CEs).²⁴ "Where a CSE has been set up, it is a joint body consisting of the employer, who chairs it and who may be accompanied by up to three colleagues, and elected representatives of the employees. The number of employee representatives is set out precisely in the legislation . . . ."²⁵ Similar to German works councils, French works council sizes are proportionally related to the size of the company in which the organization exists.²⁶

These labor organizations, which require employers to negotiate, help employees bring matters to their employers' attention quickly and with the power to make changes if necessary.²⁷ CSEs exercise substantial power in

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French labor law because employers are statutorily required to consult them on a number of specific issues before the employer can take any action.²⁸ Although the CSE are not strictly works councils, they exercise the same power as the former works councils.²⁹ The difference between the two is that CSEs have expanded powers because they incorporate some of the powers from other French labor organization types, as well (specifically employee delegates and health and safety committees).³⁰

Much like German works councils,³¹ French works councils allow employees to directly influence their workplace in ways that make the workplace more amenable to employee needs and, hopefully, more efficient and productive overall.³² The ability for workers to voice their concerns, questions, and demands directly to employers through employee representatives is a powerful tool that should not be underestimated.³³ Works councils give employees the ability to directly influence how the workplace should function, meaning employees can bring the most salient issues affecting them to their employ-

B. The National Labor Relations Act

The National Labor Relations Act (NLRA) was enacted in 1935, after the Great Depression, to "protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy."³⁵ The NLRA provides the statutory power for employees to...