Thursday, May 1, 2014

 U.S. Chamber of commerce predicts
 Members-Only collective bargaining
Charles J. Morris (
© 2014)

The U.S. Chamber of Commerce announces in the title to its recent report on union representation that “The Blue Eagle Has Landed[1]referring to the “Blue Eagle At Work[2] (my book on members-only collective bargaining)and it concludes that the present system of majority-union representation and collective bargaining is “giving way to a...system that allows for members-only representation.”[3]  I appreciate such prescience in the report’s title and ill-gotten conclusion, for although the Blue Eagle has not yet landed, it is expected to land in the near future, after which American labor relations should vastly improve.  When that occurs, the original and existing purpose of the National Labor Relations Act (NLRA or Act) will certainly be more accurately realized than it has been in recent years, and this will significantly help in the rebuilding of America’s diminishing middle class.

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 caseswhich 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 readingand improperly reporting ofnon-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 reportlike 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 Actincluding Section 9(a) noted belowguarantee 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 Actbut 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 bargaininga 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 ruleexcept 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 provisionwas 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 replacedhence not rejectedby 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 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) (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.

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