U.S. Chamber of commerce predicts
Members-Only collective bargaining
by
Charles J. Morris (© 2014)
Members-Only collective bargaining
by
Charles J. Morris (© 2014)
What I don’t appreciate, however, is that
in this unsigned report the Chamber disparages and inaccurately describes the
process of members-only representation and bargaining and grossly misrepresents
and distorts the plain language and law of the NLRA and its legislative history,
which are the subjects of this blog. I invite
any Chamber attorney or attorneys with name identification to counter with documented
references to specific statutory text, legislative history, and applicable
cases—which will be difficult if not
impossible in view of what that text, history, and those cases clearly say. I shall indeed welcome a response.
Although the title and central focus of the
Chamber’s report concern members-only minority-union collective bargaining, its
featured complaint concerns the establishment and role of worker centers, which it views as forerunners of minority
bargaining— notwithstanding the absence of any
evidence tying those two concepts together.
My concern here, however, is not with what it asserts about worker
centers and their effect, but with the major falsehoods that it asserts about
members-only bargaining, of which it disapproves. I
leave to others the task of correcting misconceptions about worker centers.
I begin this consideration with a glimpse
at relevant history. Members-only collective
bargaining was commonly practiced during the first decade following passage of
the NLRA.[4] In fact, it was pursuant to a members-only
recognition and bargaining procedure advocated by Myron Taylor, the head of
U.S. Steel,[5]
that this practice became the basis for the first collective bargaining
contracts in both the steel and automobile industries. However, notwithstanding its early success, the
practice was eventually abandoned because in those years unions recognized that
National Labor Relations Board (NLRB or Board) representation procedures,
including elections, yielded a faster access to majority/exclusive
representation.[6] But with NLRB elections having now evolved
into unfair employer-controlled battlegrounds that tend to discourage or prevent
most employees who desire union representation and collective bargaining from
ever achieving that objective, the time has come to re-start the members-only bargaining
practice.
I shall charitably attribute the Chamber’s blatant
misstatements about members-only bargaining primarily to a lack of independent legal
analysis rather than to intentional dishonesty, for all of its legal
conclusions repeat errors already contained in the Advice Memorandum that former
NLRB General Counsel Ron Meisburg issued in 2006 when he refused to issue a
complaint in the Dick’s Sporting Goods
case[7]—a refusal that denied and delayed the Board’s
exercising its proper role in interpreting the Act. Other
than its reading—and improperly reporting of—non-existent language in statutory text and
historical statements (which are noted below), the report does not contain a
single independent examination of statutory text or legislative history. That is understandable, however, for an
objective analysis would have yielded an affirmation that the so-called “Morris
thesis” is a correct statement of the law, not merely a “theory” as it is
repeatedly labeled in the report. The validity
of this thesis was publically attested to in 2010 by forty-six labor law professors
from all over the country who signed and submitted to the Board an amici curiae
brief affirming the legal accuracy of that thesis.
It is thus no surprise that the author, or
authors, of the report—like
those responsible for the Dick’s
Advice Memorandum—chose not to attempt
to counter any of the Advice Memorandum’s list of deficiencies that the
involved unions cited, which the report nevertheless acknowledges and repeats[8] that
the General Counsel failed to identify any provision of the NLRA
that mandated that only majority unions have the right to collective bargaining;
did not properly read or analyze the plain language of Section 7 of the Act;
did not dispute that Section 9(a) was conditional; and “provided no textual or
history support for “his assertion that Section 8(a)(5) is premised on section 9(a).”
In addition to its failure to identify
asserted statutory provisions, the report commits even baser un-lawyer-like actions. It alters critical text. The first of those alterations is its false description
of the phrasing of three basic labor statutes.
It states that
The majority representation phrasing of Section 7 and 8(1) of the Wagner Act was carried over
almost verbatim from the Norris-LaGuardia Act via section 7(a) of the National
Industrial Recover Act, which had a developed case law under the (old) National
Labor Relations Board.[9]
Not one of those statutory provisions mentions or even implies “majority
representation.” The pertinent language
in all three provisions applies to “workers” or “employees” without reference
to majority status. By unambiguous text and
history they each promote collective bargaining and union organizing without
any reference to “majority’ representation.”
The report’s most basic textual error is
that it totally ignores the controlling plain language in Sections 7, 8(a)(1),
and 8(a)(5) of the Act, which contain the statutory text that “guarantee[s]” to
all
employees “the duty to bargain collectively” without majority status being
mentioned or implied as a prerequisite. The
report also ignores other textual evidence in the Act itself, Section 8(a)(3),
that proves Congress’s anticipation of minority-union bargaining, for that
clause expressly denies minority unions the right to enter into compulsory
union agreements, specifying that such agreements are permitted only “if such
labor organization is the representative of the employees as provided in section 9(a), thus acknowledging
the right of minority unions to bargain collectively concerning other subjects
of bargaining. It is therefore beyond dispute
that Sections
7, 8(a)(1), and 8(a)(5), buttressed by the recognition language in
Section 8(a)(3) and the absence of contrary text anywhere in the Act—including Section 9(a) noted below—guarantee employees the right to
bargain collectively on a members-only basis through a union that represents
less than a majority of the employees in an appropriate bargaining unit. That is the law—notwithstanding the report’s wishful thinking to the contrary.
Another example of the report’s assertion of non-existent
statutory text is its reference[10]
to the presence of “majority rule” in Section 8(a)(2), which prohibits company
unions, and in Section 8(b)(1)(A), which prohibits unions from restraining or
coercing employees in the exercise of their Section 7 rights. This is pure fantasy; neither provision
relates to any special connection to “majority rule.”
The report also erroneously affirms without
qualification,[11]
the General Counsel’s assertion that “enacting Section 9(a) of the Act...sets
forth the majority rule,” which as a
requirement for bargaining it does not.
By its explicit language, that provision is only conditional.
It does not require majority-representation as a prerequisite for bargaining. It simply states that “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....” Thus, in
plain English, it applies only if, when,
and after a union represents a majority of the employees in an appropriate
bargaining unit. Duty-to-bargain
requirements are contained only in Sections 7, 8(a)(1), and 8(a)(5),
and they are not majority-restricted.
Another instance of the report’s “make-believe” is its
allegation of a non-existent quotation from Senator Wagner that “collective
bargaining means majority rule,” which Wagner did not say.[12] Reference to the cited page of legislative
history reveals no such quotation. In
fact, all of the majority-rule statements attributed to Wagner and others,
including “commentary by scholars and contemporaneous labor officials” and statements
in Senate and House reports,[13]
were expressly directed to the
bargaining process after a union had been designated by a majority of a unit’s
employees, not before such designation.
There was wide agreement by the proponents of the Act—but not by the employer lobby—that post-Section 9(a) majority-representation
bargaining should be conducted exclusively with majority unions, not with a
plurality of unions, which the employer groups favored. Majority/exclusive representation was deemed best
suited to produce effective collective bargaining—a concept that was never disputed in the Blue Eagle or by any union presentation to the NLRB in the Dick’s case or thereafter. Minority-union bargaining that preceeds majority-bargaining, however, was
carefully protected without fanfare, for it was not deemed contraversal.
The report also errs in its affirmations[14]
of the General Council’s allegations in Dick’s
regarding the Board’s holdings in prior cases. The General Counsel’s contention that the
Board has consistently declined to find violations of Sections 8(a)(1) and/or
8(a)(5) when employers have refused to recognize or bargain with members-only
unions is untrue, because the Board has never been requested to so rule—except in irrelevant cases where the
minority union was improperly seeking or claiming recognition as a majority/exclusive
Section 9(a) representative. There have
been no cases where a minority union was seeking recognition and bargaining not
as a Section 9(a) majority union but as a members-only union, hence the Board
has never had occasion to rule on such a case.
Although the report purports to present relevant legislative
history, its descriptions are slanted and inaccurate. It ignores the real history. In fact, the most vital piece of legislative history
is conspicuous by its absence. It never
mentions the unassailable fact that when Section 8(5)—the Act’s specific duty-to-bargain unfair-labor-practice
provision—was belatedly added to the Wagner bill,
it was accompanied by a “smoking gun” historical event from the Senate committee’s
mark-up consideration which shows that
Congress expressly rejected an
alternative provision that would have limited the 8(a)(5) bargaining requirement
to representatives “chosen as provided in Section 9(a),” i.e., only to
unions that had already achieved majority representation in an appropriate
bargaining unit. As the Supreme Court
has emphasized, “[f]ew principles of statutory construction are more compelling
than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier
discarded in favor of other language.”[15]
Rather than recognizing or even trying to
explain the foregoing precise Congressional rejection of majority-representation
as a perquisite for collective bargaining, the report follows the lead of the Dick’s Memorandum in grasping at an
inaccurate legislative straw. It claims
there was a Congressional rejection
of a minority-bargaining provision, when in fact what actually occurred supports
the opposite thesis. The claim is to a decision
by the legislative drafters not to include in the bill that was ultimately filed
in Congress a ten-month-old oddly-worded provision, which was replaced—hence not rejected—by an unambiguous broad provision that clearly
allowed minority-union bargaining. The provision cited in the report was thus never even presented to Congress, hence
never rejected by Congress. Nevertheless,
that weak straw formed the basis for the “chutzpah” assertion on the report’s opening
and closing pages that members-only representation was “expressly rejected” by
Congress.[16]
Not only was minority bargaining not
expressly rejected, it was expressly protected, for pre-majority members-only
bargaining was recognized as a normal means for a union to grow in size until
it reached majority/exclusive bargaining status. Although the report acknowledges the Blue Eagle’s reference to this
“stepping-stone approach to unionization,”[17] it ignores
the legislative and textual evidence that supports that observation.
The report also leaves the impression that
minority-union members-only bargaining was and is intended to be a substitute
for majority bargaining, which is definitely not the case. The stepping-stone stage of bargaining was
intended to lead to and thus actually increase majority bargaining, and in the early years it did so. As the Blue
Eagle and related presentations to the Board by the involved unions have
made quite clear, majority bargaining was simply the ultimate intent of the NLRA and its framers. The
report’s conclusion that the system, “as defined by Morris, reflects a major
paradigm shift in a direction that was expressly rejected by Congress,”[18] is
grossly untrue. As the record has shown,
although mature majority-bargaining was the ultimate objective of the Act,
pre-majority bargaining was protected and never rejected by Congress, expressly
or otherwise.
The report is also in error in its
assertion that members-only bargaining
would “undermine the intent of the NLRA.”[19]
Notwithstanding the persistent efforts of employer lobbyists to claim otherwise
and their failed legislative efforts to change the Act’s intent,[20] the
NLRA has always had but one statutory
intent. As Section 1 of the Act
declares, “the policy of the United
States...is encouraging the
practice and procedure of collective bargaining [and] protecting [workers’]
full freedom of association, self-organization, and designation of
representatives of their own choosing, for the purpose of negotiating the terms
and conditions of their employment or other mutual aid or protection.”[21] That remains the Act’s intent, and resumption
of members-only collective bargaining will be consistent with that intent.
I have
presented the above in an effort to disclose the truth behind the Chamber’s
falsehoods, but I have left for last the Chamber’s most basic falsehood, which
is its creation of the impression that it favors majority rule for American employees. If it really favors majority rule it would
not oppose unions bargaining for their members only until majority-status is
achieved. And it would not oppose efforts
to make NLRB elections truly democratic.
It would thus favor unions having equal access to the voters prior to an
election, including providing an opportunity to address employees in a manner
equivalent to the employer’s “captive-audience” presentations; it would favor
prohibiting employer representatives from engaging in one-on-one anti-union
contacts with employees prior to an election; it would also favor strong and
meaningful penalties when employers seriously interfere with employees’ exercise
of their Section 7 rights; and it would favor holding elections in neutral
locations without undue delay. Favoring
majority-rule under present conditions is but code for disfavoring any form of
union representation and collective bargaining.
Notwithstanding
anticipated opposition from the U.S. Chamber of Commerce and its allies, I
expect the Blue Eagle to fly and land
again, and to bring with it a renewal of the collective-bargaining process that
the American middle class so badly needs.
[1] The Blue Eagle Has Landed: The Paradigm Shift from Majority Rule to
Members-Only-Representation (U.S.
Chamber of Commerce, Workforce Freedom Initiative 2014) http://www.workforcefreedom.com/publications/new-study-blue-eagle-has-landed-paradigm-shift-majority-rule-members-only-representation
(hereinafter report).
[2]
Charles J. Morris, The Blue Eagle at Work: Reclaiming
Democratic Rights in the American Workplace (Cornell Univ. Press 2005)
(hereinafter Blue Eagle).
[3]
Id., at p. 40
[4]
Union Recognition as Shown in Contracts,
1A L.R.R.M. (BNA) 781 (1938).
[5]
It
Happened in Steel, Fortune Magazine, Vol. XV pp. 91-94,
176, 179-180 (May 1937).
[6]
See Blue Eagle at 85-88 and nn. 35-44 (analyzing NLRB election
results).
[7]
NLRB case No. 6-CA-24821.
[8]
Report at p 21.
[9]
Id., at p. 6. Emphasis added.
[10]
Id., at p. 9.
[11]
Id., at p.16.
[12]
Id., at p. 5.
[13]
Id., at pp. 16 & 17.
[14]
Id., at p. 18.
[15]
INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987).
[16]
Report at p. 1 & n. 3 & p. 40.
[17]
Id., at p. 14.
[18]
Id., at p. 40.
[19]
Id., at p. 6 and elsewhere.
[20]
See Charles J. Morris, How the National Labor Relations Act was
Stolen and How it Can Be Recovered: Taft-Hartley Revisionism and the National
Labor Relations Board’s Appointment Process, 33 Berkeley J. Emp. & Lab. L. 1, 15-46 (2012).
[21]
Emphasis added.
