If you don't care about a feasible, legal, and powerful way for U.S. unions to organize new workplaces, then stop reading. For the rest of you, read on. If you're like every other U.S. union leader, activist, attorney, judge, HR manager, and professor, then you think unions must demonstrate majority support?often through an arduous NLRB election, or increasingly through card check agreements, or other mechanisms?in order to win bargaining rights. In more technical terms, U.S. labor relations rest on a system of exclusive representation when unions have majority support. Now imagine a world in which a few workers in a nonunion workplace can join a union and request that their employer bargain with their union?no elections, no authorization cards, no majority required. Sounds like an answer to a union activist's prayer.
In fact, this is the law of the land according to Charles Morris, a distinguished labor law professor, in his just-released book The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (Cornell University Press, 2005). That's right, Morris argues that in the absence of a traditional, certified exclusive bargaining agent with majority support, it is an illegal unfair labor practice under the National Labor Relations Act (NLRA) for an employer to refuse to bargain with a union that represents a minority of employees (in short, a "minority union").
Yes, it's been long settled that an employer can't fire employees for engaging in essentially minority unionism conduct. And it's been long settled that an employer does not have to bargain with a minority union when it incorrectly claims to represent a majority of the employees. But Morris asserts something much greater?not only is it legal for employers to voluntarily bargain on a members-only basis with a minority union in the absence of a majority union, but employers in fact have a legal obligation to bargain in this way when requested by a minority union.
How can this be? Sixty years of thoroughly-ingrained conventional wisdom emphasizes the need for a union to win majority support. There are three elements to Morris's argument that this conventional wisdom is completely wrong. The first element is to show that minority unionism was a prominent feature of the labor relations landscape in 1935 when the NLRA was enacted. As members-only minority unionism was widespread at the time, it's logical that for the NLRA to outlaw such arrangements, it must do so explicitly. But nowhere is minority unionism explicitly mentioned. In fact, the famous General Motors sitdown strike in 1937 resulted not in a traditional union contract, but in a members-only agreement because the UAW did not have majority support. As a second prominent example, the first recognition agreement signed by U.S. Steel in 1937 only recognized the Steelworkers as the bargaining representative for union members, not all workers.
So minority unionism is legal. But this by itself does not mean that employers can be compelled to bargain with minority unions. To that we turn to the second element of Morris's argument. Why do we think employers only have to bargain with majority unions? Because of the NLRA's section 8(a)(5) which makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)." And section 9(a) says 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." So putting these two sections together, it's only an unfair labor practice to refuse to bargain collectively when a union has been designated for the purposes of collective bargaining by the majority of the employees, right?
WRONG! says Morris. These two passages specify that it's illegal for an employer not to treat a majority union as anything but the exclusive representative of all of the employees. This does not mean that there is a duty to bargain only when there is a majority union. It only means that if there is a majority union, then it's illegal to not treat it as the exclusive representative. The key to understanding this distinction is to see that the first unfair labor practice [section 8(a)(1) which makes it illegal for employers to "interfere with, restrain, or coerce employees" when exercising their section 7 rights] is what Morris calls the "universal enforcer." This is intended to cover all forms of illegal employer interference. In technical terms, sections 8(a)(2) through 8(a)(5) are not even needed. So why were they added? They were added to explicitly remind employers that the most problematic anti-union actions at the time?company-dominated unions [8(a)(2)], firing union supporters [8(a)(3)], and refusing to accept exclusive representation when a union has majority support [8(a)(5)]?are indeed illegal unfair labor practices. These sections in no way were intended to limit section 8(a)(1). Refusing to bargain with a minority unions interferes with the section 7 right of employees to "to bargain collectively through representatives of their own choosing" and thus violates section 8(a)(1).
So if an employer can be legally compelled to bargain with a minority union on a members-only basis, then why does conventional wisdom tell us that a union needs majority support. This brings us to the third element of Morris's argument?unions were victims of their own success. In 1937, members-only agreements were common. But shortly afterwards, unions began having tremendous success winning majority support and gaining recognition as exclusive bargaining agents. This success, combined with the distractions of World War II and the Taft-Hartley Act, caused unions and others to completely forget about minority unionism. It is critical to note, however, that its use simply faded away?it was never ruled to be illegal.
It's OK to be skeptical. Professor Morris isn't na?ve and he expects the reader to be skeptical. But The Blue Eagle at Work is very convincing. I read it with much skepticism, but the scholarship is very thorough and I'm now a believer. And this is far from simply an esoteric academic debate. If Morris is correct and employers have an obligation to bargain with minority unions on a members-only basis in the absence of majority unions, then the ramifications for the U.S. labor movement are tremendous. Unions do not have to focus on winning arduous elections?instead they can focus on building their membership a few workers at a time. Once there is bargaining in the workplace for a few workers, what better way is there to demonstrate the value of union representation to others in the workplace? In fact, Morris argues that this is exactly what Senator Wagner?the author of the NLRA in 1935?envisioned. Exclusive representation is the ideal form of mature collective bargaining, but minority unionism is the stepping stone to building broader support and achieving this goal. And since Morris's arguments are rooted in past practice, legislative intent, the plain meaning of the NLRA, and the absence of legal rulings to the contrary, minority unionism can be achieved without revising a single law or overturning a single legal precedent.
Lastly, The Blue Eagle at Work is not some inaccessible academic treatise. Chapter 11 provides a roadmap for gaining legal acceptance (including specific advice such as the correct wording on picket signs) and chapter 12 provides a procedural how-to manual for union activists (including specific advice such as a sample letter requesting members-only bargaining). The Blue Eagle at Work may not be the answer to labor's prayers, but it's quite a start. The U.S. labor movement ignores this very important book at its own peril.
John W. Budd is an Industrial Relations Landgrant Term Professor in the University of Minnesota's Carlson School of Management and is the recent author of Employment with a Human Face: Balancing Efficiency, Equity, and Voice (Cornell University Press) and Labor Relations: Striking a Balance (McGraw-Hill/Irwin).
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If you don’t care about a feasible, legal, and powerful way for U.S. unions to organize new workplaces, then stop reading. For the rest of you, read on. If you’re like every other U.S. union leader, activist, attorney, judge, HR manager, and professor, then you think unions must demonstrate majority support?often through an arduous NLRB election, or increasingly through card check agreements, or other mechanisms?in order to win bargaining rights. In more technical terms, U.S. labor relations rest on a system of exclusive representation when unions have majority support. Now imagine a world in which a few workers in a nonunion workplace can join a union and request that their employer bargain with their union?no elections, no authorization cards, no majority required. Sounds like an answer to a union activist’s prayer.
In fact, this is the law of the land according to Charles Morris, a distinguished labor law professor, in his just-released book The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (Cornell University Press, 2005). That’s right, Morris argues that in the absence of a traditional, certified exclusive bargaining agent with majority support, it is an illegal unfair labor practice under the National Labor Relations Act (NLRA) for an employer to refuse to bargain with a union that represents a minority of employees (in short, a “minority union”).
Yes, it’s been long settled that an employer can’t fire employees for engaging in essentially minority unionism conduct. And it’s been long settled that an employer does not have to bargain with a minority union when it incorrectly claims to represent a majority of the employees. But Morris asserts something much greater?not only is it legal for employers to voluntarily bargain on a members-only basis with a minority union in the absence of a majority union, but employers in fact have a legal obligation to bargain in this way when requested by a minority union.
How can this be? Sixty years of thoroughly-ingrained conventional wisdom emphasizes the need for a union to win majority support. There are three elements to Morris’s argument that this conventional wisdom is completely wrong. The first element is to show that minority unionism was a prominent feature of the labor relations landscape in 1935 when the NLRA was enacted. As members-only minority unionism was widespread at the time, it’s logical that for the NLRA to outlaw such arrangements, it must do so explicitly. But nowhere is minority unionism explicitly mentioned. In fact, the famous General Motors sitdown strike in 1937 resulted not in a traditional union contract, but in a members-only agreement because the UAW did not have majority support. As a second prominent example, the first recognition agreement signed by U.S. Steel in 1937 only recognized the Steelworkers as the bargaining representative for union members, not all workers.
So minority unionism is legal. But this by itself does not mean that employers can be compelled to bargain with minority unions. To that we turn to the second element of Morris’s argument. Why do we think employers only have to bargain with majority unions? Because of the NLRA’s section 8(a)(5) which makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).” And section 9(a) says 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.” So putting these two sections together, it’s only an unfair labor practice to refuse to bargain collectively when a union has been designated for the purposes of collective bargaining by the majority of the employees, right?
WRONG! says Morris. These two passages specify that it’s illegal for an employer not to treat a majority union as anything but the exclusive representative of all of the employees. This does not mean that there is a duty to bargain only when there is a majority union. It only means that if there is a majority union, then it’s illegal to not treat it as the exclusive representative. The key to understanding this distinction is to see that the first unfair labor practice [section 8(a)(1) which makes it illegal for employers to “interfere with, restrain, or coerce employees” when exercising their section 7 rights] is what Morris calls the “universal enforcer.” This is intended to cover all forms of illegal employer interference. In technical terms, sections 8(a)(2) through 8(a)(5) are not even needed. So why were they added? They were added to explicitly remind employers that the most problematic anti-union actions at the time?company-dominated unions [8(a)(2)], firing union supporters [8(a)(3)], and refusing to accept exclusive representation when a union has majority support [8(a)(5)]?are indeed illegal unfair labor practices. These sections in no way were intended to limit section 8(a)(1). Refusing to bargain with a minority unions interferes with the section 7 right of employees to “to bargain collectively through representatives of their own choosing” and thus violates section 8(a)(1).
So if an employer can be legally compelled to bargain with a minority union on a members-only basis, then why does conventional wisdom tell us that a union needs majority support. This brings us to the third element of Morris’s argument?unions were victims of their own success. In 1937, members-only agreements were common. But shortly afterwards, unions began having tremendous success winning majority support and gaining recognition as exclusive bargaining agents. This success, combined with the distractions of World War II and the Taft-Hartley Act, caused unions and others to completely forget about minority unionism. It is critical to note, however, that its use simply faded away?it was never ruled to be illegal.
It’s OK to be skeptical. Professor Morris isn’t na?ve and he expects the reader to be skeptical. But The Blue Eagle at Work is very convincing. I read it with much skepticism, but the scholarship is very thorough and I’m now a believer. And this is far from simply an esoteric academic debate. If Morris is correct and employers have an obligation to bargain with minority unions on a members-only basis in the absence of majority unions, then the ramifications for the U.S. labor movement are tremendous. Unions do not have to focus on winning arduous elections?instead they can focus on building their membership a few workers at a time. Once there is bargaining in the workplace for a few workers, what better way is there to demonstrate the value of union representation to others in the workplace? In fact, Morris argues that this is exactly what Senator Wagner?the author of the NLRA in 1935?envisioned. Exclusive representation is the ideal form of mature collective bargaining, but minority unionism is the stepping stone to building broader support and achieving this goal. And since Morris’s arguments are rooted in past practice, legislative intent, the plain meaning of the NLRA, and the absence of legal rulings to the contrary, minority unionism can be achieved without revising a single law or overturning a single legal precedent.
Lastly, The Blue Eagle at Work is not some inaccessible academic treatise. Chapter 11 provides a roadmap for gaining legal acceptance (including specific advice such as the correct wording on picket signs) and chapter 12 provides a procedural how-to manual for union activists (including specific advice such as a sample letter requesting members-only bargaining). The Blue Eagle at Work may not be the answer to labor’s prayers, but it’s quite a start. The U.S. labor movement ignores this very important book at its own peril.
John W. Budd is an Industrial Relations Landgrant Term Professor in the University of Minnesota’s Carlson School of Management and is the recent author of Employment with a Human Face: Balancing Efficiency, Equity, and Voice (Cornell University Press) and Labor Relations: Striking a Balance (McGraw-Hill/Irwin).