On August 14, 2007, seven AFL-CIO-affiliated unions filed with the National Labor Relations Board a Petition for “Rulemaking Regarding Members-Only Minority-Union Collective Bargaining,” which would permit unions to demand employer collective bargaining even where a majority of the workforce has not selected union representation.

Professor Emeritus Charles J. Morris of Southern Methodist University, one of the nation’s most highly-respected labor scholars, has been advocating minority union recognition for several years. In 2002, he presented a paper entitled “ Members-Only Collective Bargaining: A Back-to-Basics Approach to Union Organizing ” at a conference co-hosted by the AFL-CIO and Michigan State University. His 2004 book, The Blue Eagle At Work: Reclaiming Democratic Rights In The American Workplace , further documented the detailed 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 a majority of their co-workers did not share their desire to do so.

Section 7 of the NLRA provides: “ Employees shall have the right . . . to bargain collectively through representatives of their own choosing.” Professor Morris asserts that this language can be traced to pre NLRA sources, including the Norris-LaGuardia Act of 1932, and to the Depression-era National Industrial Recovery Act (NIRA) of 1933,. According to Professor Morris, minority unions were commonplace during this era and, he argues, the incorporation of this language into the 1935 NLRA reveals that Congress never intended to abolish the practice. He admits, as he must, that the practice quickly faded from usage and:

In 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.

Professor Morris’s efforts to revive that “institutional memory” were given a boost when, in 2005, the Steelworkers Union formed what it called an “Employee Council” for workers at a Dick’s Sporting Goods Distribution Center in Smithton, Pennsylvania . The council charged members dues of $4 per month and promised to bargain on their behalf over regarding wages, benefits and working conditions at the facility. It also offered members:

§ The ability to join a Council committee, receive specialized training and participate in Council decisions.

§ Special, members-only rates on goods and services available only to union members and their families, through the "Union Plus" program.

§ Confidential counseling on your rights in the workplace.

§ Access to a on-line job skills development center, which offers 1,600 courses that can benefit our families and our daily lives.

When Dick’s refused to meet with representatives of the council to discuss health and safety concerns, a grievance procedure, and the discharge of one of its members, the Steelworkers Union, relying on Professor Morris’s research, filed an unfair labor practice charge with the National Labor Relations Board. On June 22, 2006, NLRB Associate General Counsel Barry J. Kearney advised the Regional Director to dismiss the charge on the grounds that minority bargaining is not required by the NLRA. Mr. Kearney’s Advice Memorandum carefully addressed and rejected each of the Professor’s arguments.

Dismissal of the charge deprived the union of an opportunity to present the Professor’s theory to the five-member National Labor Relations Board, which has historically announced policy through adjudicatory rulings rather than administrative rulemaking. 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.

Word of the Steelworkers’ plan to request NLRB rulemaking was leaked in March 2007 when Professor Richard Bales noted on his Workplace Prof Blog that Professor Morris and Professor Charles Craven of The George Washington University Law School were circulating a letter to the NLRB in support of the then-unfiled petition .

The 71-page Petition was authored by Professor Morris on behalf of the Steelworkers Union, and is joined by:

• the United Electrical, Radio and Machine Workers of America;
• the California Nurses Association;
• the International Association of Machinists and Aerospace Workers;
• the United Automobile, Aerospace and Agricultural Implement Workers of America;
• the Communication Workers of America; and
• the International Brotherhood of Electrical Workers.

All seven of the union signatories are AFL-CIO unions, and, with the exception of the unions that represent government workers, they are the largest unions in that organization. Neither the AFL-CIO nor the unions representing government workers signed on to the petition. Additionally, the Change to Win organization and its member unions have been noticeably silent on the issue. This is hardly the type of full court press that we saw behind the Employee Free Choice Act. Whether the rest of the movement will sign on now that the petition has been filed is yet to be seen.

While the law professors’ letter is signed by a number of very impressive scholars, there are some notable absences. Two that came to mind immediately were Professor Patrick Hardin and Professor Theodore St. Antoine.

There is little chance that the current Board will grant the request for rulemaking. But if some in the labor movement have their way, a President from the Democratic Party would be expected to appoint Board Members who will promptly do so.

Finally, it should be observed that members-only bargaining is a concept that may find support among some conservatives. Business-oriented think tanks such as the National Institute of Labor Relations Research and the Mackinac Center for Public Policy have in the past argued that unions should be relieved of their legal obligation to represent non-members. While these arguments have not expressly mentioned mandatory bargaining with minority unions, the logic behind their arguments could well lead to that practice.

Additional Reading:

• August 14, 2007 Petition for “Rulemaking Regarding Members-Only Minority-Union Collective Bargaining”
• August 14, 2007 Law Professors’ Letter in support of Petition for “Rulemaking Regarding Members-Only Minority-Union Collective Bargaining

• Seven Unions Ask Labor Board to Order Employers to Bargain
• Minority Unions?
• Members-Only Collective Bargaining: A Back-to-Basics Approach to Union Organizing
• A "New Spring" in Labor and Employment Law?
• A Union's A Union No Matter How Small
• Morris, Craver Circulate Proposed NLRB Rule
• NLRB Advice Memorandum in Dick's Sporting Goods, 6-CA-34821
• Dick's Employee Council