MEMBERS-ONLY COLLECTIVE
BARGAINING: GET
Ready FOR AN OLD CONCEPT WITH A NEW USE
Ready FOR AN OLD CONCEPT WITH A NEW USE
by
Charles J. Morris
© 2013 Charles J. Morris
© 2013 Charles J. Morris
This mini-essay is based in part on a speech presented
on March 7, 2013, at a conference on New Models
of Worker Representation sponsored by University of Illinois Labor Education
Program
The following is a response to the on-going search
for new models of union representation and collective bargaining in the
recently released Interim Report to the AFL-CIO Executive Council on AFL-CIO
Pre-Convention Outreach and Engagement.[1] Among its highlighted proposals, the Report acknowledged
that
Non-traditional methods such as members only unions [are noteworthy] because they can work in
existing union organizations, especially because they involve workers linked by
their common employer in a process that many see as “perpetual organizing.”[2]
Members-only
collective bargaining can indeed play a significant role in furthering the
goal which AFL-CIO President Richard Trumka described as “changing the labor
movement to speak for working people now and in the future through growth,
innovation and political action.”[3]
The Interim
Report records that
Collective bargaining was seen by a large segment of participants
as the reason we had a broad, shared prosperity in the decades following World
War II. Family-supporting wages,
employer-provided benefits, fair treatment at work and the very creation of the
middle class in the United States were direct results of unionism going back to
the 1880s, a big surge in unionism in the 1930s and 1940s, and the resulting collective bargaining agreements.[4]
As the
following discussion will demonstrate, members-only bargaining played an
important role in that latter surge in unionism and collective bargaining,[5] and
there is good reason to believe that it can do so again.
Now that the National
Labor Relations Board, at long last, has been reconstituted with five Senate
confirmed members[9]
and is thus able to again function in accordance with its statutory mandate,
the time is ripe to bring attention to the subject of members-only bargaining,
for a proposal to validate that process will likely be submitted to the Board soon. Although the subject of members-only
bargaining is not new, it will seem new to many because it is somewhat different
from the conventional union organizing and bargaining process to which we have
become accustomed. The anticipated proposal,
however, is not a pie-in-the-sky plan that has no chance of becoming a reality. It is a highly credible program which, unlike
the ill-fated Employee Free Choice Act (EFCA), can become effective without the
passage of new Congressional legislation, although fierce opposition from
Republican members of Congress is surely to be expected. This proposal is of major importance. It has the potential of becoming the
blockbuster that organized labor so urgently needs to reverse the downward trend
of private-sector union membership, which has reached a new low of 6.6 percent.[10]
Despite the public’s unfamiliarity with this program,
it is a process that is actually imbedded in both the text and history of the National Labor Relations Act. It is, in fact, a process that was widely
recognized and commonly employed during the decade following passage of that Act
in 1935. It consists of a practice and
procedure whereby a minority union engages in collective bargaining for its
members only―but not for any other employees. It is an active process
that continues until that union represents a majority of all the
employees in an appropriate bargaining unit― if
and when that occurs―at which time the union
becomes a conventional majority-exclusive union obligated to represent all
employees in the unit. It is
noteworthy that during those early years following passage of the Act,
members-only collective-bargaining contracts that resulted from such pre-majority
bargaining were as prevalent as majority-exclusivity union contracts, and their
coverage might even have been more extensive.[11] In the late thirties and early forties, negotiating
and signing such members-only agreements was a widely followed route to conventional
majority-union status. That is how the
Steelworkers organized the “big steel” industry and how the United Auto Workers,
following its Michigan sit-down strikes, signed its first contracts with the General
Motors and Chrysler corporations.[12] Those less-than-majority members-only
agreements were also popular in other industries,[13]
and almost all of those minority unions under those agreements grew in
membership and were later recognized as conventional majority-exclusive unions.[14] During
those early years the legality of these pre-majority members-only collective-bargaining
agreements was confirmed by both the Supreme Court and the NLRB in several
important cases.[15]
Notwithstanding that successful history,
members-only agreements have not been used anywhere in recent decades. This non-usage occurred because during the
early Wagner-Act years unions discovered that NLRB election procedures almost
always provided an easier, faster, and less expensive way to attain majority/exclusive
representation.[16] Consequently, with the passage of time, institutional
memory faded and the slower members-only route to organizing and bargaining was
effectively forgotten. Thus, through
force of habit that grew into established custom, most of the labor-management
community came to believe that only majority unions have the right to bargain, and
that misperceived belief evolved into conventional wisdom.
Needless to
say, we know only too well what eventually happened to the NLRB election process. Elections became increasingly unfair; they became employer-controlled battlegrounds that made
union representation virtually unavailable to most American workers who wanted
and needed that representation. Therefore
my purpose here is to acquaint the reader with an alternative means to change
the present scenario so that collective bargaining can once again become widely
available in the American workplace. That
alternative is to return to the same members-only organizing and bargaining
process that workers and unions employed many decades ago. An NLRB rulemaking petition to that effect, i.e.,
one that will confirm the validity of pre-majority members-only collective
bargaining, is expected to be filed soon. Actually, an effort to obtain that
confirmation from the Board was begun eight years ago by the Steelworkers Union[17] when
it organized a group of workers at the Dick’s Sporting Goods warehouse near
Pittsburgh for whom it requested members-only minority-union recognition and
bargaining. When the employer refused to
bargain, the Steelworkers filed an unfair labor-practice-charge[18] for
which the Bush-appointed General Counsel of the Board―not
surprisingly―refused to issue a complaint, thereby preventing the Board from deciding
the issue. Undaunted, the Steelworkers,
joined by six other national unions―the IBEW,[19] CWA,[20] UAW,[21]
Machinists,[22] UE,[23]
and California Nurses’ Association[24]―countered that action by filing a rulemaking petition[25] which
urged the Board to issue a binding rule under its then little-used rulemaking
authority that would recognize the validity of members-only pre-majority bargaining. That action was later joined by a second
petition filed by the Change-to-Win federation,[26] which
then consisted of seven national unions―the SEIU,[27]
Teamsters,[28] UFCW,[29]
UNITE-HERE,[30]
Carpenters,[31]
Laborers,[32] and United
Farm Workers.[33] The two petitions remained quietly on the
Board’s docket until the latter part of President Obama’s first term when, because
of severe time pressures relating to the pendency of several other major
rulemaking and adjudicatory cases, the Board carefully dismissed them without prejudice, thus deliberately avoiding
a potential dismissal with prejudice by
a pro-management Republican Labor Board had President Obama had not been reelected. After the filing of the anticipated new rulemaking petition, members-only bargaining should―ultimately―become the law of the land. That outcome is evidenced by the overwhelming strength of the legal case that supports this concept, which is an assessment confirmed by many outstanding labor law authorities, including 46 labor-law professors who signed an amici brief to the Board supporting the two earlier petitions. Notwithstanding the opposition that can be expected from employer organizations and their Republican allies with well-funded judicial appeals, the concept of enforceable pre-majority members-only collective bargaining under the National Labor Relations Act should eventually become a reality.
Accordingly, It is important for the labor relations community to become well acquainted with the idea that the repeatedly asserted conventional wisdom that workers cannot be represented by a union unless and until they are part of a union-majority is not a correct statement of the law. Regardless of what became standard practice, there is nothing in the Act―not a single provision―that makes majority representation a prerequisite for collective bargaining. The text of the statute governing this issue is brief and unambiguous―it is plain English that does not require specialized knowledge or a law degree to understand its meaning.
The place to begin examining that text is with Section 7, the heart of the Act that is sometimes called labor’s “bill of rights.” It simply states unequivocally and without any majority prerequisite that “Employees shall have the right...to form, join, or assist labor organizations [and] to bargain collectively through representatives of their own choosing.” The principal enforcement device for that right is Section 8(a)(1), which states that it is “an unfair labor practice for an employer to interfere with...the exercise” of that right “guaranteed in section 7.” The Supreme Court, in its first case that reviewed the Act, characterized that guarantee as “a fundamental” right,[34] thus underscoring its universal application to all employees covered by the Act, not just to those who are part of an arbitrary majority.
The only provision of the Act that refers to majority representation is Section 9(a), which is a conditional provision that specifies that if and when a union represents a majority of the employees in an appropriate bargaining unit it becomes the exclusive representative of all the employees in that unit. That conditional meaning is clear. Here, verbatim, is its pertinent text:
Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit appropriate
for such purposes, shall be the exclusive representatives of all the employees
in such unit for the purposes of collective bargaining....
Section 9(a) thus says nothing about majority status being a
prerequisite for collective bargaining.
It simply stipulates that if a union does in fact represents a majority
of the employees in an appropriate unit, it must bargain for everyone in that
unit, including any nonunion employees―which is the Act’s intended
version of mature collective
bargaining, but not its only version of such bargaining.
Congress also recognized and protected pre-majority collective bargaining, a
logical process that can be a precursor leading to mature majority bargaining. Section 9(a) says nothing about the duty to bargain. That duty is based on Section 7, enforced by Section
8(a)(1), as previously noted, and also on the reinforcing provision of Section
8(a)(5), which expressly defines an employer’s refusal to “bargain
collectively”[35]
as a specific unfair labor practice, thereby complementing and reinforcing the broad
unfair-labor-practice requirement of Section 8(a)(1), which is applicable to
all the rights in Section 7. And there
is no majority requirement in Section 8(a)(5); the plain message in that
provision, that a union majority is not a prerequisite for the duty to bargain,
is even supported by a “smoking-gun” in the Act’s legislative history, for
Congress expressly considered and specifically rejected a draft of Section 8(a)(5) that would have limited the duty to
bargain to majority unions only.[36]
Although the Supreme Court and the Board long ago validated
minority-union contracts that resulted from pre-majority collective bargaining,[37]
there has never been a case reviewing the enforceability of the right to engage
in such bargaining. Accordingly―although the text of the
Act provides clear indication that such enforceable right exists―in view of the passage
of time since it was last widely used, confirmation of that right by the Board,
with judicial approval, will now be appropriate. Indeed, for enforcement purposes it will be
necessary.
Nevertheless―notwithstanding the legal validity of the process―the wisdom of reintroducing that concept into the realm of
American labor relations should also take into consideration whether or not its
operation will represent an improvement in those relations. I am convinced that this program will indeed
have that positive effect. In fact, there
is reason to believe that not only will the nation’s labor relations be
improved, the economic condition of the American middle class will be significantly
strengthened,[38]
thus advancing the country to a stronger economy. Having examined the legal basis for members-only collective bargaining, it is now fitting to address the question of how that process will operate in the diverse workplaces of the real world. Before hazarding such descriptions, however, I want to remind the reader to consider the conditions that presently exist in many―if not most―nonunion companies. Numerous shortcomings exist in the hierarchical employment relationship prevailing at those companies, for example, the absence of employment security under the employment-at-will doctrine that governs that relationship,[39] and wages of most nonunion employees tend to be severely lower than union wages for comparable work.[40]
Despite the statutorily declared national policy of encouraging the “practice and procedure of collective bargaining” and the protection of workers’ “full freedom of association,”[41] employees in nonunion establishments who seek union representation do so at considerable risk. Most nonunion companies respond negatively―and too often illegally―whenever their employees show any interest in union representation. That same kind of response will undoubtedly continue after members-only bargaining becomes legally recognized―at least in the beginning.
Nonunion employers who are accustomed to fearing and opposing unions will surely persist in that opposition. Many, if not most, will probably continue to employ combinations of reverse salesmanship and intimidation― frequently illegal―to discourage or block their employees from seeking or retaining union representation. With members-only bargaining, however, there will be an important difference. Management’s typical anti-union conduct will prove less successful because of the absence of a majority-requirement for recognition and bargaining. For example, conduct that presently succeeds in discouraging employees from signing union cards or voting for a union, thereby allowing the workplace to remain union free, will not have a similar effect when used against members or potential members of a members-only minority union because that union will still be entitled to bargain for its members regardless of the employer’s conduct. Because members-only bargaining does not depend on winning an election, anti-union coercion or other negative conduct may weaken a minority union but not necessarily destroy it, for as long as there is a group of employee-members in a union that seeks to bargain on their behalf, the employer will be required to bargain. Thus, although organizing on a members-only basis will not be easy, it will be easier than organizing through the current lengthy practice of first obtaining sufficient numbers of signed authorization cards and then engaging in a bitter and expensive election campaign that is inherently tilted toward the employer.[42]
Organizing and bargaining on a members-only basis will thus be different―and easier. The following is a brief description of some of the features of the way in which members-only unions and their adherents will likely organize and bargain. Organizing will be unlike pre-election organizing that presently prevails. Instead of soliciting for union-authorization cards,[43] the organizers—whether they be active employees or outside union representatives—will solicit employees for genuine union membership, which will be promptly offered. From the beginning, the union’s organizational goal will be the building of a viable union rather than merely winning an election. This radically different course of action will call for a totally different mind-set.
Just as unions organized many years ago before they became addicted to the election process, they will once again organize by signing-up employees for union membership rather than for pre-election authorization cards. When the Act was originally passed―both before and after―unions almost always organized and bargained based on their unity and strength, not on the basis of majority selection; and organizing and bargaining were conducted as an overlapping process. Despite strong and often violent employer opposition, groups of workers with common grievances made commitments—usually with the active encouragement and assistance of outside union organizers—to become union members, after which they could confront their employers from positions of combined strength rather than individual weakness. As these fledgling unions increased their visibility and appeal, they almost always grew in membership and authority. A contemporary union observer In the early ’40s described that process as follows:
[U]nions were free to organize in whatever manner they found
most effective. Frequently, a union
would build its membership in a shop by first organizing a small group of
workers who had the fortitude to stand strong for the union. Upon the organization of such group, certain
job improvements would be obtained for them from management. And this working example of the gains to be
achieved through organization frequently formed the most potent organizational
appeal to other workers in the shop, and they too would join to improve their conditions.44]
The essence of that old-fashioned process can be
replicated. Because organizing on a
membership basis creates an authentic agency relationship,[45] employees who join the union during its
initial organizing stage will do so with a commitment to the payment of union dues,
albeit moderate in amount. This is a “put-your-money-where-your-mouth-is”
approach. Many of these unions will
probably adopt a multi-tiered dues
structure with only a modest fee on joining, which will be followed later by
increases at more mature stages in the bargaining process. Thus by paying dues―however nominal―employees will become aware that their act of
joining the union represents a serious commitment―indeed, it will be a far superior indication of
voluntary intent than either signing a card or casting a vote. And these new union members will be encouraged
and expected to participate in various phases of union activity, such as
organizing, electing union stewards and other officers, serving on committees,
and occasionally meeting and negotiating with representatives of management. From the beginning, therefore, and throughout
the organizational process, their organizing cry can be “union now,” rather
than “union if we can win an election.”
This combined process of organizing and bargaining will
represent the Section 7 rights mandate in meaningful action, for employees will
be exercising their guaranteed right to join unions and to engage in collective
bargaining regardless of the limits of their numbers. Although It is undoubtedly true that unions
with only a few members will have little bargaining power, those few members
will at least have the benefit of group presence and the Act’s critical requirement
that with respect to “wages, hours, and other terms and condition of employment”[46]
the employer must deal with them through their union rather than with them individually. This means that workers, whether by
themselves or with the assistance of union organizers, will henceforth be more
able to join unions when they perceive a need, instead of having to wait months
or even years trying to achieve and exhaust NLRB election procedures. And as their new union grows in membership
and attains some success in representation and bargaining—even if in the
beginning it only succeeds in becoming a collective voice for common
grievances—it will have established the union’s identity and its right to be
present in the workplace. And when this
union finally makes its request to bargain collectively, the employer will
either bargain in good faith or become the possible subject of unfair labor
practices. NLRB enforcement procedures,
including, when appropriate, temporary injunctions[47]
and other judicial actions,[48]
will therefore be important to process.
Furthermore, in marked contrast to present procedures, the members-only
union will have the right to remain on the premises regardless of the time
required to complete an NLRB enforcement action against a recalcitrant
employer, and the employer’s duty to bargain with that union will
continue. Needless to say, however, these
projections assume a sufficiently funded NLRB, which hopefully will be
available. Yet, because of the continued
presence of unions in the workplace and the possibility that ultimately there should
be greater employer acceptance of the national policy favoring collective
bargaining―however
reluctant that acceptance may be―the Board’s enforcement role, and hence its need for more
funding, should eventually decrease.
Now for a glimpse into the future: what I believe will
generally occur after the proposed rule becomes widely recognized. Where
workers with shared interests join together and organize into an identifiable
group that satisfies the broad definition of a “labor organization” under the Act,[49] they
will ipso facto become a stronger presence in their meetings with management and
in their efforts to resolve common problems and grievances―much stronger than would be possible if each worker
was acting alone. In all but the smallest
workplaces, or where a close-knit or family-type relationship exists between the
employer and employees, communication between management and workers concerning
conditions of employment is likely to be more productive where employees have
the security of union membership and a union that speaks collectively on their
behalf.[50] Accordingly, a members-only union, even if small
or informal and with or without outside-union affiliation, will be suitable for
this purpose because union employees―unlike
nonunion at-will employees―have all the legal protections provided by Section
7. And most important of all, the
employer’s duty to bargain with a members-only union―regardless
of its size―will provide the employee members
with a voice that must be heard and a response that must be forthcoming. That response must be forthcoming because Sections 8(a)(1) and 8(a)(5) of the Act require an employer to respond to a union that represents its member-employees rather than respond to those employees individually, and to negotiate with that union, their agent, before any changes in their conditions of employment can be effected. Fundamental to this basic concept of collective bargaining is that management has a duty to meet with the union “at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment,”[51] which means that there can be no unilateral changes in the working conditions of these union members[52] and no direct dealing with them individually regarding those conditions.[53]
Although in its early stages members-only bargaining may appear to be no more than informal meet-and-confer sessions, even under that simple format workplace problems and grievances are more likely to be settled fairly than under the employment-at-will system that typical prevails in non-union workplaces. [54] And because employers will be legally required to recognize and bargain with these members-only unions, aggrieved employees will ordinarily have no need to resort to confrontational conduct in order to focus management’s attention on matters requiring correction,[55] such as occurred in the recently publicized walk-outs at various Wal-Mart and fast food locations.[56] Furthermore, when a members-only union does choose to engage in such concerted activity as strikes, picketing, or consumer leafleting, most such conduct will be protected under Section 7, and this activity might also be an integral part of a statutory bargaining process that is designed to produce bilateral agreements because the management counterpart―unlike nonunion management in the recent Wal-Mart and fast food walkouts―will be required by law to engage in good-faith bargaining.
When employees begin organizing and bargaining through these newly-found procedures and employers begin complying with the law’s bargaining requirements, what differences in employment benefits might be expected? For the employees who choose to join a members-only union, the early availability of collective bargaining should lead to noticeable improvements in their working conditions—however slight. And when that union grows in membership and authority, employment benefits should likewise increase, for despite the expected obstacles, this is what collective bargaining usually produces. This budding union might begin its effort at formal bargaining by first seeking to negotiate about problems or grievances that affect both union and nonunion employees. Although any negotiated benefits will be legally binding only for union employees, management might unilaterally decide to extend some or all of those benefits to other employees. And even though this pre-majority union will have no authority to represent nonunion employees, management’s extension of those benefits to non-member employees should reflect favorably on the union in its effort to recruit new members. This would be an example of the bargaining process complimenting the organizing process. It is likely, however, that the minority union will not request formal bargaining for a comprehensive collective agreement until its membership has reached a size large enough to command serious attention. How large that should be and the timing of that request will depend on numerous factors, such as economic conditions, the nature and importance of the union members’ jobs, the nature and extent of the employer’s business, and of course, sound judgment and good fortune.
Although working life for
minority-union employees is thus expected to improve, what effect will
members-only bargaining have on the employer’s business? Although some adjustments in human-resource
procedures will undoubtedly be necessary, they ought not to impose an undue
burden considering their human benefits, such as improved employee morale―a conclusion many employers will undoubtedly dispute. Nevertheless, accommodation to this new
bargaining requirement ought to be no more difficult than what typically transpires
when a company first begins to bargain in good faith with a traditional majority-based
union. Time is a great teacher. Although it is true that almost every
nonunion employer will prefer to retain unimpeded hierarchic control of a
workforce answerable to no one but management, that is not what the Act requires. However, once employers become accustomed to
members-only bargaining they will probably and eventually adjust to the
process, just as union companies in the past have usually adjusted in their
dealings with traditional majority unions.
Except for its more limited contractual coverage, pre-majority
bargaining for union members only will in most respects not be substantially
different from majority-union bargaining.
But because newly granted employment benefits resulting from
members-only negotiations will contractually apply only to union employees,
management alone must decide whether all, part, or none of those benefits will
be made available to similarly situated nonunion employees.[57] And, needless to say, the minority union must
be especially careful not to request or demand that any union-negotiated
non-representational benefits be withheld from nonunion employees.[58] Although the employer will be free to grant
the same union-negotiated economic benefits to nonunion employees, representational
benefits, such as grievance and arbitration procedures, will be available to
union members only.
Although most employers will naturally prefer not to
engage in any kind of collective bargaining, there will be some negative
incentives that might encourage
good-faith bargaining on a members-only basis, however grudging. For instance, conduct that might constitute
an unfair labor practice, such as unilateral changes in working conditions
affecting union members,[59]
discriminatory grants of special benefits to nonunion employees to discourage
their joining the union,[60]
or actions that reveal an intent not to reach an agreement,[61]
will invite the filing of unfair-labor-practice charges and their
consequences. And, as previously noted,
a members-only union that actively represents employees will have the right to
continue its presence in the workplace regardless of the outcome of the
unfair-labor-practice charges. Furthermore,
a strike by a minority-union to protest an employer’s refusal to bargain will
almost certainly be an unfair-labor-practice strike entitling the striking
employees to reinstatement at the conclusion of the strike.[62] Minority unions might therefore prove more
successful in achieving first contracts than their present-day majority-union
counterparts.[63]
And when a
members-only union finally achieves
majority status—which will probably occur in most cases—there should ordinarily
be no need for an election, for the objective procedure of counting the number
of employee-members to determine if a unit-majority has been reached can be
easily determined and verified from union records.[64] It is therefore conceivable that elections
will ultimately be conducted only for the limited purpose Congress intended,
i.e., to resolve questions concerning
representation when a union’s claim of majority status in an appropriate bargaining
unit is legitimately in doubt.[65] However, if and when an NLRB election is held
with a union that has already engaged in successful members-only bargaining,
the result should be a foregone conclusion.
After organizing and bargaining by members-only
unions becomes conclusively validated―however long that might take―members of those unions will be conscious of being an
integral part of a democratic organization that really works, and the often
heard employee question of “what can the union do for me?” may thus be changed
to “what can we do for ourselves, for we are the union?” That concept should be especially evident
during a minority union’s organizational stage, even when its ultimate success
depends on the active participation of outside union organizers. This new, yet old-fashioned, type of union―which organizes while
simultaneously bargaining―will
hopefully provide union representation for millions of American workers
who want and need union representation but for whom it has previously been rarely
obtainable. This concept offers a private-enterprise means of helping America
build a healthy middle-class, with economic revival―using President Obama’s phrase[66]―coming from the “middle
out” rather than from the top down.
[3]
Michell Amber, AFL-CIO to Seek Input From
Outside Labor to Find Ways to Meet Needs of Workers, 39 Daily Lab. Rep. (BNA) B-1.
[6]
See e.g., Steven Greenhouse, Fighting
Back Against Wretched Wages, N.Y. Times (7/28/2013); Mark Bittman, Fast
Food, Low Pay, N.Y. Times
(7/26/2013); Robert Iafolla, Workers at Wal-Mart Supplier Strike Over
Alleged Retaliation for Safety Complaints, 142 Daily Lab. Rep. (BNA)
A-9 (7/24/2013); Rhonda Smith, Wal-Mart Employees Allege Retaliation for Protests at Recent
Shareholder’ Meeting, 124 Daily Lab.
Rep. (BNA) A-8 (6/27/2013); Susan
R. Hobbs, ‘Day of Action’ at 150 Wal-Mart
Stores Asks Retailer to Correct Scheduling Concerns, 70 Daily Lab. Rep. (BNA) A-10 (4/24/2013); Stephen Lee, California Wal-Mart Warehouse Workers Go on
Strike to Protest Unsafe Conditions, 177 Daily Lab. Rep. (BNA) A-9
(9/12/2012); Michael Bologna, Nonunion
Wal-Mart Workers Launch Protest in Four States Over Pay, Working Conditions,
195 Daily Lab. Rep. (BNA) A-11
(10/09/2012); Michael Bologna, Nonunion
Wal-Mart Workers Launch Protest in Four States Over Pay, Working Conditions,
195 Daily Lab. Rep. (BNA) A-11
(10/09/2012); Alicia Biggs, California
Wal-Mart Warehouse Workers Strike for Second Time in Three Months, 220 Daily
Lab. Rep. (BNA) A-9 (11/14/2012); Steven Greenhouse, Wal-Mart Dismisses Labor Protests at its
Stores, N.Y. Times
(11/24/2012).
[8]
See James J. Brudney, Isolated and
Politicized, the NLRB’s Uncertain Future, 26 Comp. Lab. L. & Pol’y J. 221, 225, & n. 17 (2005) );
Anne Marie Lofaso, The Persistence of
Union Repression in an Era of Recognition, 62 Me. L. Rev. 199 (2010); Kate
Bronfenbrenner, No Holds Barred: The
Intensification of Employer Opposition to Organizing, Economic Policy Institute and American Rights
at Work Education Fund (2009); Charles J. Morris, A Tale of Two Statutes: Discrimination for
Union Activity Under the NLRA and RLA, 2 Emp.
Rts. & Emp. Pol’y J. 327, 329-30 (1998) (Between 1992 and 1997 one
of every eighteen employees involved in
union election campaigns was subject to discharge or other employment
discrimination to discourage union representation.)
[9]
This piece is being distributed immediately after the Senate’s confirmation of Chairman Mark Gaston Pearce and new members
Nancy Schiffer, Kent Hirozawa, Philip Miscimarra, and Harry Johnson on July 30,
2013.
[12]
See The
Twentieth Century Fund, How
Collective Bargaining Works: A Survey of
Experience in Leading American Industries 24 (Harry A. Millis, Research
Director, 1942).
[13]
Supra note 11. See also Charles J. Morris, The Blue Eagle at Work:
Reclaiming Democratic Rights in the American Workplace (2005) (hereinafter
Blue Eagle) at 82.
[14]
The automobile industry was a stellar example of that process. Upon the conclusion of the members-only UAW
contracts that had been executed in the late thirties, the NLRB in 1940
conducted elections that resulted in certification of the UAW as exclusive bargaining
representative for 130,000 employees at General Motors and 50,000 employees at
Chrysler. 5 NLRB Ann. Rep. 18-19, 141, 151 (1941). See
also Sidney Fine, Sit-Down: The General Motors Strike of
1936-1937, 266-312, 328 (1969).
[15]
See Consolidated Edison Co. v. NLRB,
305 U.S. 197, 236-237 (1938) (“The Act contemplates the making of contracts
with labor organizations. That is the
manifest objective in providing for collective bargaining....[I]n the absence
of...an exclusive agency the employees represented by the Brotherhood even if
they were a minority, clearly had the right to make their own choice.”);
International Ladies Garment Workers v. NLRB (Bernhard-Altmann Tex. Corp.), 366
U.S. 731, 736, 742-43 (1961); Retail Clerks v. Lion Dry Goods, Inc., 369 U.S.
17, 29 (1962); The Solvay Process Co., 5 NLRB 330 (1938); The Hoover Co., 90
NLRB 1614 (1950); Consolidated Builders,
Inc., 99 NLRB 972 (1952).
[17]
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CIO
[21]
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO-CLC.
[30]
Consisting of mergers of the following unions over a number of years: Hotel
Employees & Restaurant Employees International Union; International Ladies’
Garment Workers’ Union; Amalgamated Clothing Workers of America; Textile
Workers Union of America.
[35]
It provides that it is an unfair labor practice for an employer “to refuse to
bargain collectively with the representative of his employees, subject to the
provisions of section 9(a),” i.e., the exclusivity and other requirements of
that provision if and when a union represents an employee majority.
[36]
The language specifically rejected was that the duty to bargain applied only with
unions “chosen as provided in Section
9(a).” See Kenneth M. Casebeer, Kenneth
M. Casebeer, Drafting Wagner’s Act: Leon
Keyserling and the Precommittee Drafts
of the Labor Disputes Act and the
National Labor Relations Act , 11
Indus. Rel. L. J. 73, 131 (1989).
For detailed analysis of the language and legislative history of §8(a)(5)
see Blue
Eagle, supra note 13 at
103-105.
[38]
That was the effect of the strengthening union movement during the middle of
the last century. See, e.g., Melvyn Dubofsky, The State of Labor in Modern America ,125 (1994) (“During
the 1950s and 1960s [c]ollective bargaining between unions and management
created an affluent society in which rising real wages enabled workers and
their families to consume with abandon.”);
[39]
See, e.g., Craig Woodman, What is the Employment at Will Doctrine? (The employment at will doctrine is a
cornerstone of employer and employee relationships, particularly when related
to the discharge of an employee. Employment at will basically holds
that employment is for no definite period of time, and that either the employer
or the employee may end the relationship at any time for any reason.)
http://www.ehow.com/info_8239373_employment-doctrine.html#ixzz2a0WIuvBV .
http://www.ehow.com/info_8239373_employment-doctrine.html#ixzz2a0WIuvBV .
[40]
Lawrence Mishel, Unions, Inequality, and Faltering
Middle-Class Wages, Economic Policy
Institute, Aug. 29, 2012 (“The
union wage premium—the percentage-higher wage earned by those covered by a
collective bargaining contract—is 13.6 percent overall (17.3 percent for men
and 9.1 percent for women). Unionized
workers are 28.2 percent more likely to be covered by employer-provided health
insurance and 53.9 percent more likely to have employer-provided pensions.”)
[42]
See dissent of Members Liebman and
Walsh in Harborside Healthcare, Inc., 343 N.L.R.B. 906, 917-18 & n.14
(2004): “At the direction of their employer, supervisors—up to the highest
company official—may urge their subordinates to vote against unionization. Indeed, employers are free to compel employees
to listen to their antiunion message, in captive audience meetings, one-on-one
encounters, and other settings, while excluding union representatives.” (Citations
omitted.)
[43]
Which under Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301 (1974),
can be insufficient to establish majority status; thus, absent agreement from
the employer, they are presently useful only to establish a 30% showing of
interest to obtain an election. NLRB Statement of Procedure, §101.18(a).
[44]
Paul R. Hutchings, Effect on the Trade
Union, in The Wagner Act: After Ten
Years 73 (Louis G. Silverberg ed. 1945).
[45]
The basic agency relation is a “fiduciary relationship between two parties in
which one (the ‘agent’) is under the control of (is obligated to) the other
(the ‘principal’) . The agent is
authorized by the principal to perform certain acts, for and on behalf of the
principal. The principal is bound by the
acts of the agent, performed in carrying out entrusted duties and within the
scope of agent’s authority.” www.businessdictionary.com/definition/agency.html .
[49] §2(5): “The term ‘labor organization’ means
any organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions of
work.”
[50]
“If management uses the collective bargaining process to learn about and
improve the operation of the workplace and the production process, unionism can
be a significant plus to enterprise efficiency.” Richard
B. Freeman & James L. Medoff, What Do Unions Do? 12 (1984).
[52]
NLRB v. Katz, 369 U.S. 736 (1962) (granting of non-automatic wage
increases). See also, e.g., Garment Workers Local 512 v. NLRB (Febrow, Inc.),
795 F.2d 705 (9th Cir. 1986r)
(unilateral economic layoffs); Oneita Knitting Mills, 205 NLRB 500 (1973)
(unilateral grant of merit increases).
[53]
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944); General Elec. Co., 150
NLRB 192 (1964), enforced, 418 F.2d
736 (2nd Cir. 1969), cert.
denied, 397 U.S. 965 (1970).
[54]
See especially the Board’s recent
decision in Alan Ritchey, Inc., 359 NLRB No. 40 (12/14/12), which
reinforces the considerable authority members-only unions will have even before
they engage in formal contract negotiations.
[55] See
NLRB v. Washington Aluminum, 370 U.S. 9 (1962) (strike by minority group of
employees over work-related grievance is protected concerted activity under §7 of
the Act).
[57]
Withholding those benefits will not violate §8(a)(3) because the employer’s purpose will not be “to encourage
or discourage membership in any labor organization.” Id. As the Supreme Court stated
in Radio Officers Union v. NLRB, 347 U.S. 17 (1954),
The language of
§8(a)(3) is not ambiguous. The unfair
labor practice is for an employee to encourage or discourage membership by
means of discrimination. Thus this
section does not outlaw all encouragement or discouragement of membership in
labor organizations; only such as is accomplished by discrimination is
prohibited. Nor does this section outlaw
discrimination in employment as such; only such discrimination as encourages or
discourages membership in a labor organization is proscribed. Id.
at 42-43.
[58]
§8(b)(2) prohibits a union from
causing or attempting “to cause an employer to discriminate against an employee
in violation of subsection 8(a)(3),” i.e., to discriminate as to any term or
condition of employment “to encourage or discourage membership in any labor
organization.”
[62]
John E.
Higgins, Jr. ed., The Developing Labor Law: The Board, the
Courts, and the National Labor Relations Act 1686 (6th ed.
2012).
[63]
See Ross Eisenbry, Employers Can Stall First Contract for Years. Economic
Policy Institute, May 20, 2009.
[64]
Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301 (1974), would not
apply, for unlike the uncertainty that might attach to employees’ intent based
on authorization cards, there can be no uncertainty about their intent when they
have committed to becoming dues-paying union members.
[66]
Annie Lowrey, Obama Adopts Catchphrase to
Describe Proposed Recipe for Economic Revival, N.Y. Times (7/23/2013)
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