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.
THe USSC in Bernard-Altman held that an employer cannot lawfully recognize and bargain with a minority union. “Members only” contracts still exist in industries using short term, freelance employees usually hired from a union hiring hall. The called union workers work side by side with non-union workers hired off the street. Check out any convention contractor’s workforce in Vegas, Orlando, Chicago, etc. The real problem facing greater use is that the union is subject to both (1) raids by rival unions, and (2) a DFR claim by a non-member that he’s not being represented despite being part of the bargaining unit. What happens, for example, when the non-member unit employee gets sick or injured and is not eligible for the union negotiated benefit plan?
Fiorino – If I recall you are a union-side attorney. READ THE BOOK. Morris has covered all the bases. This is a quote from the majority opinion in the Bernhard-Altman decision you refer to: “…the violation which the Board found was the grant by the employer of exclusive representation status to a minority union, AS DISTINGUISHED FROM AN EMPLOYER’S BARGAINING WITH A MINORITY UNION FOR ITS MEMBERS ONLY.” 366 U.S. at 736 (emphasis mine). Douglas’ partial dissent is even clearer on the role of members-only bargaining.
Members-only bargaining lacks the advantages of exclusive representation status (the whole reason minority-bargaining fell out of favor in the first place). However, absent exclusive representation it is an excellent step for a union to take to get its foot in the door (really no different than trying to get in by winning majority status in one department, only easier). The DFR claim is silly. The only “bargaining unit” in a members only situation are the members of that union. If you’re not a member there is no duty to represent.
Again, check out the book. I think you’ll be impressed by the thoroughness of the research.
Charlie Morris is a serious scholar who does his homework. One has to take him seriously.
I haven’t read the book yet, but I have read other presentations by him on the same subject so I’m familiar with the outline. Despite his homework, I follow his argument only part way. Subject to one qualification I’ll mention in a minute, he may well be right that members-only bargaining is lawful. I’m nowhere near convinced that it’s required. Sec. 8(a)(5)imposes a duty to bargain “with the representatives of his employees, subject to the provisions of section 9(a).” The first clause is perhaps broad enough to cover members-only bargaining with minority unions. The second clause removes any possbile obligation by making it “subject to” Sec. 9(a). Section 9(a) provides for exclusivity for majority unions. In short, the only bargaining obligation runs to an “exclusive” representative.
Even if minority bargaining were lawful, I’m not sure the product of such bargaining would be. A members-only contract would have to provide terms of employment that are the same as, less than, or more than those given to other employees. If the terms are the same or less, there’s no point in minority bargaining, so we won’t see any such cases. If the terms are better, however, the contract would run smack into Sec. 8(a)(3) by discriminating in regard to “any term or condition of employment to encourage or discourage membership in any labor organization.” Obviously better terms would “encourage” membership, just as any union would want it to.
This is perhaps a good example of the sometimes wide gulf between theory and practice. Your statement, “If you’re not a member there is no duty to represent” runs afoul of some pretty basic concepts. Having negotiated my fair number of “members only” agreements, let me ask you a few questons: What do you tell a non-union worker who is discharged and wants to use the contract’s grievance procedures? Or who just wants to join the union? What do you tell the union that wants, for various reasons, to limit its membership? (That’s usually the point of these contracts, incidentally). And you didnt answer my original question, if the non-union member gets sick and is denied benefits under the contract’s benefit plan. The liability and litigation risks are high. In addition, the history of members only contracts in the labor movement is not good at all; they were intentionally used for years (and unfortunately still are) to deny entry and jobs to minority employees. I could be wrong, but I believe it was the Steele case that originally undermined the concept by forcing the railroad unions to represent the non-member minorities in the unit. The duty of fair rep applies to all employees in the bargaining unit. If the union and employer were to define it as delimited by union membership, we run into the 8a3 problem Dennis mentioned. There’s more, but I think you get the point. Morris has a fine mind, and it’s great he’s looking for interesting ways to increase organization, but union only contracts are not the way to go for many practical as well as organizational reasons. They were considered but rejected as a viable organizing strategy by several of the “progressive” unions years ago, and I dont think opinions have changed.
Dennis – Again, I’ll refer you to the book – it is well worth the time. Your reading of 8(a)(5) is certainly a legitimate one. However, if you look at the prior drafts, you might see other possible readings. For example, one verson of 8(a)(5) rejected was, “chosen as provided in Section 9(a),” which clearly would limit the bargaining obligation to representatives chosen under 9(a). Instead congress adopted “subject to the provisions of Section 9(a)” in the final version. Morris’ argument is that the “subject to” language prohibits an employer from bargaining with a minority union once an exclusive representative is chosen under 9(a). However, 9(a) doesn’t prohibit minority bargaining, it just explains how to select a majority union. 8(a)(5) clearly does not prohibit members-only bargaining (USSC Consolidated Edison decision – I’ve argued this for a while). The only question is does 8(a)(5) prohibit bargaining with a minority union on behalf of its own members PRIOR to the selection of a 9(a) majority union. Again, Dennis’ reading is certainly a reasonable one, but I don’t think it is an open and shut case – I was a very skeptical reader and if you read the legislative history I think you’ll scratch your head a bit too.
Dennis’ second point is well taken. Minority members-only bargaining is certainly no panacea. However, even today many employers offer more favorable conditions to one 9(a) union over another 9(a) union covering different units in the same location, and many employers offer more favorable conditions to non-union workers over represented ones with limited consequence. Further, the idea here is to get the foot in the door – 9(a) status is the ultimate goal, but members-only bargaining is a way to get started without having to win an election.
I’d love to hear opposition from someone who has read the book. I have little nits to pick, but I am really impressed with the argument. If this does get before the Board I bet it ultimately gets bounced on policy grounds (we’ve done it this way for years, it’s unfair to change now) versus statutory interpretation.
Two quick comments on matters outside the book. (The book should arrive in a few days. I’ll see then if Charlie is any more persuasive in it than he has been in other forums.)
First, this sort of legislative history, relying on slight changes in language along the way to passage, is notoriously slippery. That some earlier version was more restrictive doesn’t easily translate into a command that employers bargain with minority unions.
Second, Phillip’s reference to differing terms in contracts for different 9(a) unions is inapposite Of course different bargaining units have different terms. That’s what 9(a) is all about. The problem raised Morris’s argument involves different terms *within* a single bargaining unit. That is a clear no-no: the employer could no more discriminate in favor of union members in a bargaining unit than it could discriminate against them.
Phillip is right that this is a moot issue. Neither the Board nor the courts are going to change their interpretations of 8(a)(3) and (5) after 70 years just because a retired law professor suggests they could have read the law another way.
Fiorino is closer to this than I am, but I think fear of a DFR charge is a pretty conservative reason to reject this strategy, even if the Board and the courts ultimately side with the current interpretation. From a legal standpoint I think a members-only case today could be easily distinguished from Steele or Vaca v. Sipes – those were race discrimination cases looking for a statute, and the unions in both cases prohibited african-american employees from becoming members. If membership is voluntary I think you have a much different fact situation.
To answer Fiorino’s questions, if someone wants in the union you say, “yes.” If they want to be represented under a grievance procedure or covered under the benefit plan you say, “join the union.” You are not disciminating against anyone in the “unit” (again the “unit” here is not a 9(a) unit and I’m pretty sure Vaca dealt with a 9(a) union) – you are providing the same representation to anyone who asks for it, so long as they join (and you put no restrictions, other than paying dues or fees, on joining the union). I’m not saying there is no risk, but I don’t think Steele and Vaca answer the question. And please don’t complain about free-riders: unions need all the riders they can get, free or not. Make it a fee for service model, just like your law practice.
As far as a union wanting to limit its membership for “various reasons,” I guess if those are non-discriminatory or business-related then that probably flies, although it clearly increases the risk (just like BFOQ’s increase risk for employers).
Again, I don’t represent unions so I don’t know for sure, but I would guess that the fear of a DFR case is overblown. Let me ask you a question, Fiorino – how many DFR cases have you lost? How many have actually gone to hearing or trial? Sure there are risks to any decision, but there are risks to not trying new strategies as well (like union density dropping to record low levels). Supposedly 50% of private sector want to be represented by a union. Assuming that number is true I think the REAL failure to represent is unions not at least trying this strategy.
Sitting around complaining about how unfair the NLRA is to unions, or waiting for the Act to change is not a strategy. Spending millions of dollars doing the same things that haven’t worked for the last 20 years is not a strategy. This is a strategy. It might fail too, but it seems at least worth a shot. It definitely would make your law practice pretty exciting for a while!
As far as Dennis’ comments, I agree that the legislative history stuff is slippery and I wouldn’t ever want to rely on it in a case. However, it is interesting. And watching the evolution of 8(a)(5), 9(a) and Section 7 is very telling (again, I’m anxious to hear your comments after reading the book). The historical record is also interesting (i.e. apparently minority union, members-only bargaining was as common as 9(a) exclusive representation for several years following enactment of the Wagner Act). It clearly doesn’t answer the question, and the Act is curiously worded if it was definitely intended to create a duty to bargain with minority unions, but it is a plausible and perhaps the intended interpretation (even if poorly worded).
The 8(a)(3) problem clearly depends on your definition of a “unit.” If you define a unit as all employees in a single location then, yes, members-only bargaining is replete with problems. However, if the unit is defined as just the members of the union, it is no different than having two 9(a) unions in the same location or a 9(a) union and unrepresented employees at the same location. Remember (as Fiorino notes) these members-only contracts exist today and are recognized by the Supreme Court as lawful, so while this might be an argument against allowing members-only contracts, the fact is they are allowed. This isn’t an argument against Morris’ hypothesis.
I thought this was an interesting article and also found it interesting that this had not been being done for the last 50 years. I understand that the circumstances were usually majority bargaining but I would have thought this circumstance would come up more often.
I thought this was an interesting article and also found it interesting that this had not been being done for the last 50 years. I understand that the circumstances were usually majority bargaining but I would have thought this circumstance would come up more often.
Phillip, you ask “how many DFR cases have you lost? How many have actually gone to hearing or trial?” It’s irrelevant, but my answers are, none, and one too many (for trials at least; there have been far too many hearings). The point I was trying to make was that a “members only” definition of the bargaining unit would permit a union to, in effect, define the bargaining unit by whatever arbitrary, discriminatory, or bad faith criteria it chooses to use to limit its own membership. This would be contrary to well established principles of American labor law that unions cannot refuse to represent workers for any such reasons. If you say that a “members only” regime should not allow such union arbitrariness, well there we go off into litigation la-la land. But the REAL REASON “members only” contracts don’t work in the real world is because they are actually hindrances to organizing, not aids. The employers in the industries I cited in my earlier post love “members only” contracts, because they build in a two-tier workforce, and make it much more difficult, if not impossible, for the union to expand into the non-represented, lower paid ranks. If the union attempted to do so, the “deal” with the employer is off. Their members risk losing their higher pay, benefits, and other perks, all for the sake of organizing their lower paid brethren. Guess how far that strategy will go in a “democratic” union. So, most organizers who understand the need for all workers to pull together run away from “members only” deals because they know they are a death trap. Again I say, it’s nice that sympathetic academics continue to dip into the dusty corners of the law libraries to find out if there are any legal theories remaining that can possibly help us, but it would be nice if they first talked to the people on the ground.
I thought the article was interesting as were the responses to it