A Union's A Union No Matter How Small

Conventional wisdom says it is an unfair labor practice to bargain with a non-majority union. Professor Charles J. Morris argues in his new book The Blue Eagle At Work that conventional wisdom is wrong. It surprises me to admit it, but I think he may be right.

For those readers who don’t immediately recognize the name, Morris is Professor Emeritus of SMU’s Dedman School of Law and edited the first two editions of The Developing Labor Law. He knows what he’s talking about. Blue Eagle argues not only that it is lawful for an employer to bargain a members-only contract (I’ve made a similar argument before in), but that management has a DUTY to bargain with a minority union for a contract covering its members.

How is it possible that virtually every labor expert got this basic point of labor law backwards for 50 years? According to Morris, who exhaustively searched the legislative history, the case law and the historical record, the reason is both simple and surprising. Minority union bargaining was such a common feature of the labor landscape in the 1930’s (both before and after the NLRA) that, outside of the protections of Section 7 and 8(a)(1), nobody thought anything else needed to be said about it specifically in the statute. However, unions were so successful at winning “exclusive majority” elections after adoption of the NLRA (at about an 85% clip) that minority bargaining just died out. Ironically (given labor’s complaint that campaign rules are too one-sided in favor of management today) unions quit members-only bargaining because it was a lot easier win a Board-supervised election.

Surely this is just wishful thinking from some law professor who retired to San Diego and got too much sun? All I can say is buy the book. It is both a great read and, in my opinion, a tight legal argument. Based on his historical review and detailed line-by-line review of the development of Sections 7, 8(a)(1) and 8(a)(5), Morris shows that minority “members-only” bargaining was common practice during the years that the NLRA and its predecessor statutes were drafted. More important he finds minority members-only bargaining was specifically considered by Senator Wagner (it is the Wagner Act, after all) to be part of the Section 7 right of employees to “bargain collectively through representatives of their own choosing.”

According to this view, the exclusive-bargaining election process is really just a way for a majority union to put an end to various members-only bargaining. However, absent an election certifying an exclusive bargaining agent, management must bargain with whatever representative is chosen by any group of two or more employees. The historical record and legislative history are especially favorable to this point of view. The statutory language, while not clear, certainly accommodates this interpretation (Morris makes a compelling argument under Chevron analysis that the interpretation would stand if adopted by the Board).

The case law, surprisingly, says little. Although Morris is a bit more dismissive of the handful of cases that seem to adopt the conventional wisdom (in passing or in footnotes) than his critics might be, the issue appears to have never been decided directly in any Board decision. I plan to research some areas that Morris did not discuss (especially cases on withdrawal of recognition, which might contain some interesting dicta), although I am certain Morris’ research hit any case that directly discussed members-only bargaining.

This is an absolutely brilliantly argued book, whether you agree with the conclusion or not. I am excited to see how the legal strategy plays out - unions absolutely must exploit this interpretation of the Act.