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The hottest topic in labor law during 2007 was the near passage of the Employee Free Choice Act, H.R. 800, which would have allowed unions to obtain collective bargaining rights simply by presenting authorization cards signed by a majority of employees in an appropriate bargaining unit, and would have eliminated an employer’s right to insist upon secret-ballot elections. But another issue is looming � one that is a high priority for some elements of the union movement, and one they might be expected to press for if an ally in the Democratic Party wins with White House. On Aug. 14, 2007, seven AFL-CIO-affiliated unions filed with the National Labor Relations Board (NLRB) a petition for “Rulemaking Regarding Members-Only Minority-Union Collective Bargaining,” which would permit unions to demand employer collective bargaining even when a majority of the work force has not selected union representation. Under current law, unions may gain representation rights either by prevailing in a secret-ballot election conducted by the NLRB or by entering into an agreement under which the employer recognizes the union’s majority status as demonstrated by authorization cards or some other method. Once majority status is properly established, the union becomes the exclusive representative of all employees in a defined bargaining unit irrespective of the wishes of the minority. Any contract negotiated by the union selected by the majority applies to all unit employees. The union has an obligation to represent all employees, even those who choose not to join the organization. The Aug. 14 petition asks the NLRB to require employers to bargain with groups that comprise less than a majority of a unit for terms and conditions that would apply only to members of the organizing union. Professor Emeritus Charles J. Morris of the Southern Methodist University Dedman School of Law, one of the nation’s most highly respected labor scholars, has been advocating minority union recognition for several years. In 2002, during a conference co-hosted by the AFL-CIO and Michigan State University, he presented a paper entitled “ Members-Only Collective Bargaining: A Back-to-Basics Approach to Union Organizing“. In a recent book, Morris further documented the research that he believes supports his theory that Congress intended the National Labor Relations Act (NLRA) to protect the right of employees to engage in members-only collective bargaining even when a majority of their co-workers do not share their desire to do so. Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (2004). Section 7 of the NLRA provides: “Employees shall have the right…to bargain collectively through representatives of their own choosing.” 29 U.S.C. 157. Morris asserts that this language, which contains no majority standing, can be traced to pre-NLRA sources, including the Norris-LaGuardia Act of 1932, and to the Depression-era National Industrial Recovery Act of 1933. According to Morris, minority unions were commonplace during this era and the incorporation of this language into the 1935 NLRA reveals that Congress never intended to abolish the practice. He acknowledges that the practice quickly faded from usage and “[i]n due time, the interplay of employer self-interest and union acquiescence in relying on elections effectively repressed all institutional memory of and reliance on minority-union bargaining.” Charles J. Morris, “Members-Only Collective Bargaining: A Back-to-Basics Approach to Union Organizing.” A stepping stone Morris and others view minority-union bargaining as a stepping stone to full-fledged majority representation. In his book, Morris encourages unions to form members-only organizations and demand ad hoc bargaining over issues such as employee discipline, work rules, layoffs and production standards. Because a duty to bargain carries with it a prohibition on unilateral changes by an employer prior to reaching good-faith impasse, Morris anticipates that the employer would spend so much time on “the nitty-gritty of repetitive ad hoc bargaining” that it would gladly engage in bargaining for an agreement covering all terms and conditions of employment and providing a grievance and arbitration mechanism for resolving disputes. Morris, The Blue Eagle at Work 310 (2004). Such terms and conditions would, he believes, be so desirable that a majority of the work force would opt to be covered by it. The efforts to revive the “institutional memory” of minority-union bargaining were given a boost when, in 2005, the United Steelworkers union formed what it called an “employee council” for workers at a Dick’s Sporting Goods distribution center in Smithton, Pa. The council charged members dues of $4 per month and promised to bargain on their behalf regarding wages, benefits and working conditions at the facility. It also offered members specialized training opportunities, discounts on goods and services through the AFL-CIO’s “Union Plus” program, and “confidential counseling” on workplace rights. When Dick’s refused to meet with representatives of the employee council to discuss health and safety concerns, a grievance procedure and the discharge of one of its members, the United Steelworkers union, relying on Morris’ research, filed an unfair labor practice charge with the NLRB. On June 22, 2006, NLRB Associate General Counsel Barry J. Kearney advised the regional director to dismiss the charge on the ground that minority bargaining is not required by the NLRA. Dick’s Sporting Goods Inc., No. 6-CA-34821 (NLRB Gen. Counsel Advice Memo, June 22, 2006). Kearney’s advice memorandum addressed and rejected each of Morris’ arguments, arguing in turn that the legislative history did not support his contentions. Kearney observed that an early draft of the 1935 NLRA, which was also known as the Wagner Act, contained language expressly providing that “any minority group of employees in an appropriate unit shall have the right to bargain collectively through representatives of their own choosing when no representatives have been designated or selected by a majority in such unit.” That language was removed from the bill before passage. In addition, Kearney cited a remark by then-Senator Robert F. Wagner, D-N.Y., the bill’s sponsor, during a May 21, 1935, interview with NBC Radio. “The reasons for majority rule are very simple,” Wagner said in the interview. “Obviously an employer has to deal with his workers either as individuals, or as a variety of minority groups, or as a consolidated unit . . . .The second alternative, which consists in dealing with various minority groups, gives the unscrupulous employer the opportunity to play one group against another constantly. It foments in the ranks of the workers discord, suspicion and rivalry at all times. In addition, since it is virtually impossible to make more than one agreement covering one set of workers in a single plant, the pretense of negotiating with minorities means that there is to be no real collective bargaining at all. Majority rule is thus the only rule that makes collective bargaining a reality.” Leon H. Keyserling, “Why the Wagner Act?” in The Wagner Act: After Ten Years 19-20 (Louis G. Silverberg, ed., 1945). The need for an employer to negotiate with multiple minority unions, some of which might demand conflicting policies, arguably would present burdens in practice. The work force today is far more diverse than it was in the 1930s, and one can imagine workplace segregation and polarization emerging among employees who align themselves with organizations based on unique self-interests, such as marital status or national origin. One also can imagine a return of sweetheart unions � sham organizations created by employers to avoid having to deal with true labor unions. Dismissal of the Dick’s Sporting Goods charge by the regional director deprived the union of an opportunity to present members-only minority-union collective bargaining to the five-member NLRB, which, historically, has announced policy through adjudicatory rulings rather than administrative rule-making. Although the NLRA gives the board the authority to issue rules in the absence of a case in controversy, the board has seldom done so. Other unions sign on The 71-page “Members-Only Minority-Union” petition was authored by Morris on behalf of the steelworkers’ union, and was joined by six other AFL-CIO unions. All seven of the union signatories are AFL-CIO affiliates, and, with the exception of the unions that represent government workers, are the largest unions in that organization. Neither the AFL-CIO nor the unions representing government workers signed on to the petition. Change to Win, a coalition of unions that split from the AFL-CIO in 2005, and its member unions joined the petition only recently, on Jan. 4. Interestingly, members-only bargaining is a concept that may find support among some conservatives. Some business-oriented think tanks, such as the National Institute for Labor Relations Research (NILRR) and the Mackinac Center for Public Policy, have argued that the current system creates a labor monopoly that deprives individuals of their right to choose not to be represented by a union selected by a majority of their co-workers. Former National Labor Relations Board member Robert P. Hunter made the argument. “Today in most states, when a union gets a mere simple majority of the votes in a representation election, all the workers can then be compelled to financially support the union and are subject to discharge if they fail to do so,” he wrote. “This simply puts too much power in the union officials’ hands, both in relation to the employee and the employer.” Robert P. Hunter, Michigan Labor Law: What Every Citizen Should Know (1999). In a December 2006 monograph, Stan Greer of NILRR argued for removing “provisions from the NLRA and the [Railway Labor Act] that authorize exclusive union bargaining and replacing them with language providing that unions shall bargain contracts and handle grievances for their voluntary members only.” Stan Greer, Why Are Workers Still Dangling in the Blue Eagle’s’ Talons?, National Institute for Labor Relations Research (December 2006). Hunter and Greer suggest that labor organizations should be required to compete for an individual’s membership dues based on the attractiveness of the contract the union negotiates with the individual’s employer. In many respects, that approach is not much different than the one espoused by Morris. There seems little chance that the current board will grant the request for rule-making. But if some in the labor movement have their way, a new president might be expected to appoint board members who promptly will do so. Richard Hankins is a partner in the Atlanta office of Kilpatrick Stockton and is head of the firm’s labor and employment law team.

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