Thursday, August 1, 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.

 It is especially important that the AFL-CIO and other participants in American labor relations become better acquainted with the concept of members-only collective bargaining because the National Labor Relations Board will likely be considering that process in the near future.  Validation of this innovative process can be of immense help in getting American workers back on the road to a robust labor movement and a major expansion of collective bargaining that will help build a stronger middle class.  The need for such a process has been dramatically evidenced by recent work stoppages at various Wal-Mart and fast-food locations.[6]  Although those walk-outs represent commendable examples of courageous workers fighting back, they will inevitably be unsuccessful in achieving significant change.  Despite their legitimate complaints, those low-wage workers have no effective mean to engage management in a dialogue about working conditionsmuch less in a consequential bargaining session that might significantly improve those conditions.  They obviously need a union; but in accordance with prevailing conditions under the National Labor Relations Act (NLRA or Act),[7] union representation is virtually unavailable to them and to most other American workers.  The sad fact is that Wal-Mart and other anti-union companies are almost always able to prevent their employees from achieving union representation.  Manyif not most nonunion companies routinely indoctrinate their workforce with anti-union rhetoric and frequently engage in aggressive conduct—both legal and illegal—to successfully discourage any support for workers organizing into groups for any purpose.  Employment discrimination and discharges for union activity, and the fear of such retaliation, are commonplace.[8] 

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 occursat 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 Boardnot surprisinglyrefused to issue a  complaint, thereby preventing the Board from deciding the issue. Undaunted, the Steelworkers, joined by six other national unionsthe 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 unionsthe 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 shouldultimatelybecome 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 provisionthat makes majority representation a prerequisite for collective bargaining.  The text of the statute governing this issue is brief and unambiguousit 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 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 employeeswhich 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.  Accordinglyalthough the text of the Act provides clear indication that such enforceable right existsin 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.
Neverthelessnotwithstanding 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 manyif not mostnonunion 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 negativelyand too often illegallywhenever their employees show any interest in union representation.  That same kind of response will undoubtedly continue after members-only bargaining becomes legally recognizedat 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 illegalto 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 differentand 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  passedboth before and afterunions 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, gGGroups 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 dueshowever nominalemployees 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 bargaininghowever reluctant that acceptance may bethe 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 employeesunlike nonunion at-will employeeshave all the legal protections provided by Section 7.  And most important of all, the employer’s duty to bargain with a members-only unionregardless 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 counterpartunlike nonunion management in the recent Wal-Mart and fast food walkoutswill 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 moralea 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 takemembers 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 unionwhich 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 revivalusing President Obama’s phrase[66]coming from the “middle out” rather than from the top down.


[1] Presented on July 24, 2013.  Available at
[2] Id., at p. 6.  Emphasis added.
[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. 
[4] Supra note 1 at  p. 5.
[5] See infra at notes 11-15.
[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).
[7] 29 U.S.C. §§ 151-69. 
[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.
[10] Bureau of Labor Statistics, Union Members2012, Release Jan. 23, 2013.
[11] Union Recognition as Shown in Contracts, 1A L.R.R.M. (BNA) 781 (1938). 
[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 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).      
[16] See Blue Eagle, supra note 13 at 85-88 & nn. 35-44.
[17] United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO
[18] Dick’s Sporting Goods, Inc., NLRB Case No. 6-CA-24821; charge filed Aug. 12, 2005.
[19] International Brotherhood of Electrical Workers, AFL-CIO, CLC.   
[20] Communications Workers of America, AFL-CIO, CLC.
[21] International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO-CLC.
[22] International Association of Machinists and Aerospace Workers, AFL-CIO, CLC.
[23] United Electrical, Radio and Machine Workers of America (UE). 
[24] California Nurses Association, AFL-CIO.
[25] Filed Aug.  14, 2007.
[26] Filed Jan. 4, 2008.
[27] Service Employees International Union.  
[28] International Brotherhood of Teamsters.
[29] United Food and Commercial Workers International Union. 
[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.
[31] United Brotherhood of Carpenters and Joiners of America.
[32] Laborers’ International Union of North America.
[33] United Farm Workers.  
[34] NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937).
[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.
[37] See note 15 supra.
[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.) .
[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.”)
[41] § 1.
[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.”  .
[46] §8(d).
[47] §10(j).
[48] §10.
[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).
[51] §8(d).
[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).
[56] Supra at note 6.
[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.”
[59] Supra notes 46-48.
[60] §8(a)(3).
[61] See Atlas Mills, 3 NLRB 10 (1937); National Licorice Co. v. NLRB, 309 U.S. 350 (1940).
[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.  
[65] See Blue Eagle, supra note 13 at 71.
[66] Annie Lowrey, Obama Adopts Catchphrase to Describe Proposed Recipe for Economic Revival, N.Y. Times (7/23/2013)

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