The Blue Eagle At Work
Encyclopedia
The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace is a legal treatise written by Charles J. Morris
which analyzes collective bargaining
under the National Labor Relations Act
(NLRA), the federal statute governing most private sector labor relations
in the United States. Published in 2005 by Cornell University Press
, the text claims that the NLRA guarantees that employees under that Act have the right to bargain collectively through minority unions—but only on a members-only basis—in workplaces where there is not an established majority union, notwithstanding that the present practice and general understanding of the law is that only majority-union employees are entitled to engage in collective bargaining on an exclusivity basis. Contracts resulting from such minority-union bargaining would apply to union members only, not to other employees.
Chapter One provides a historical overview of the rise of membership-based collective bargaining in the period prior to federal recognition of the right to bargain collectively, the provisions of the Norris-LaGuardia Act
, and the enactment and legal meaning of Section 7(a) of the National Industrial Recovery Act
(NIRA). Attention is paid to The Conference Board survey of labor relations conducted in November 1933. Morris points out that the survey results indicate that members-only recognition and bargaining were common when the NLRA was enacted.
Chapter Two provides an in-depth and exceedingly detailed history of legislative attempts to enact improvements in federal labor law. The chapter provides an extensive analysis of the nine legislative drafts of Senator
Robert F. Wagner
(D
-NY
) for his 1934 bill. The chapter also discusses the implementation of the NIRA under first the National Recovery Administration
(NRA) and then the National Labor Board
and the National Labor Relations Board
(NLRB). Morris documents how the concepts of representational exclusivity and majoritarianism were developed in cases such as Denver Tramway Corporation
, 1 NLB 63
(1934) and Houde Engineering Corp., 1 NLRB (old) 35
(1934) and cites cases showing that employers refusing to bargain with a minority union violated the NIRA.
Chapter Three is an extensive consideration of the legislative history of Wagner Act. The three drafts of the Act, committee hearings, floor debates, and committee reports are closely examined to tease out the meanings of the changes made. Morris uncovered one feature that required no teasing, a "smoking gun" that shows that congress clearly intended that collective bargaining would not be confined to majority unions only, to wit, the deliberate rejection of a version of the duty-to-bargain contained in Section 8(a)(5) that would have so confined the bargaining process. Instead, the present wording, which does not so limit the bargaining obligation, was selected. Morris notes that the Senate committee and debate statements disparaging minority or plurality bargaining all referred to bargaining after a majority representative had been chosen. None referred to bargaining before majority selection, which was not a controversial issue.
Chapter Four contains the history of members-only minority-union organizing and bargaining during the decade following passage of the NLRA and what followed. Morris notes:
Morris points to the organizing history of the Steel Workers Organizing Committee
and United Auto Workers
as prime examples of members-only organizing and collective bargaining, and cites statistics from Bureau of National Affairs
(BNA) and Twentieth Century Fund reports which document the widespread use and acceptance of members-only contracts.
Morris concludes that several factors led unions to become dependent on representational elections. The NLRB itself favored representational elections, "for they provided a relatively simple pattern for bargaining-unit determinations, conduct of elections, and certification of majorities for exclusive union representation." The conflict between the American Federation of Labor
and the Congress of Industrial Organizations
refocused attention away from organizing. The rapid expansion of unions during World War II
and the massive waves of strikes
which came after the war continued to divert attention away from organizing. Morris also argues that the Taft-Hartley Act
led to "the phenomenon of unions becoming busily engaged in a multitude of legal defensive actions generated by the numerous union restrictions that the new law had created."
"As a consequence," Morris concludes, "only a few years after Taft-Hartley, the NLRB and its union and employer constituents were routinely viewing majority-union bargaining—which was certainly the ultimate goal intended by the Act—as the only bargaining contemplated by the Act. Although unions had originally favored NLRB elections out of sheer convenience, their reliance on the election process had now become routine, with attendant misunderstanding of the true scope of bargaining offered by the statute. ... Thus was born the latter-day conventional wisdom that assumes that majority-union representation is the sine qua non of collective bargaining."
Chapter Five engages in a Plain-Meaning-Rule construction
of the language of Section 7(a) and the NLRA. Morris examines Section 7, Section 8(a)(1), Section 9(a), and Section 8(a)(5) of the NLRB for their plain meaning, and concludes they guarantee the right of all employees to bargain collectively, whether before or after majority-union designation. Bargaining before such selection must be for members-only through a union of the employees' choice; bargaining after majority selection must be for all employees in the bargaining unit through the selected union only. This chapter provides the heart of Morris' thesis, for although it is supported by legislative history (and constitutional and international law), its primary basis is contained in the unambiguous text of the statute. The critical language is short, simple, and of clear meaning. Fourteen words in Section 7, borrowed verbatim from Section 7(a) of the NIRA, provide that "Employees shall have the right...to bargain collectively through representatives of their own choosing...." This is guaranteed and enforced by Section 8(a)(1) and reinforced by Section 8(a)(5) (which by its clear wording and its "smoking gun" legislative history requires bargaining both before and after majority selection). The only limitation on this bargaining right is a conditional limitation on the choice of representatives, but not on the duty to bargain. This limitation is contained in Section 9(a) which does not operate unless there is a majority representative, in which event the selected majority union becomes the exclusive representative. Morris points out that both the Supreme Court and the NLRB have approved minority and members only bargaining and resulting members-only contracts where they exist voluntarily, and that the time is now ripe for a decision confirming that such bargaining is enforceable where there is not yet a majority representative. This universal concept of collective bargaining conforms to the "policy of the United States" expressed in Section 1 of the Act, which policy was expressly reconfirmed in the Taft-Hartley Act.
Chapter Six examines several rulings by the Supreme Court
which are often cited as supportive of majority-only collective bargaining. Morris reviews the First Amendment
guarantee of freedom of association
, and how the concepts of indirect state action (as elucidated in NAACP v. Alabama, 357 U.S. 449
(1958), and Bates v. City of Little Rock
, 361 U.S. 516
(1960), and the test of indirect state action as outlined in Lugar v. Edmondson Oil Co., 457 U.S. 922
(1982)), direct state action and compelling government interest
protect and affirm members-only minority-union collective bargaining. Morris also discusses three key Supreme Court rulings—NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568
(1988) and Communications Workers of America v. Beck
, 487 U.S. 735
(1988)—and concludes that they conform to the concept of members-only bargaining as well.
In Chapter Seven, Morris discusses how the Supreme Court's doctrine of "administrative deference" (outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
, 467 U.S. 837
(1984)) could provide another avenue for judicial articulation of his thesis. Although it is a basic premise of his book that the defined duty to bargain is mandatory under the Act, if the NLRB were to find the applicable language ambiguous it could and should exercise its discretionary authority and require bargaining in accordance with the thesis—which under step two of the Chevron doctrine would be confirmed by a reviewing federal court even if the court were in disagreement, for the determination would not be "arbitrary, capricious, or manifestly contrary to the statute."
In Chapter Eight, Morris outlines U.S. obligations under international law. He points out that the International Covenant on Civil and Political Rights
and the International Labour Organization
's 1998 Declaration of Fundamental Principles and Rights at Work both compel a construction of the NLRA which protects members-only collective bargaining.
Chapter Nine discusses the current state of NLRB and court rulings which might appear to exclude members-only minority-union collective bargaining. Morris identifies eight "false majority" cases in which the NLRB or a court appears to rule out bargaining with a minority union, but in each of those cases the union was either directly or indirectly seeking to represent the entire bargaining unit as a Section 9(a) majority representative, hence the designation of "false-majority" cases; in none of them did the union actually engage in members-only representation and bargaining. Morris also dismisses four "group-dealing" cases, in which the question was whether an employer has a duty to meet and bargain with groups of nonunion employees under the "mutual aid or protection" language of Section 7. But once more, Morris distinguishes the cases by noting that in none of the cases did the union engage in members-only representation or bargaining as defined by the "collective bargaining" language of Section 7, which is the text that provides minority unions with the right to bargain.
Chapter Ten discusses using the NLRB and the courts to reaffirm the minority-union concept. Morris outlines how unions might use NLRB representational procedures or direct court rulings to revitalize the concept of members-only unions. Morris also discusses novel approaches, such as direct legal action against the NLRB's General Counsel and picketing for members-only recognition. Other approaches he suggests include amending a Section 8(a)(3) complaint (made to the NLRB when an employee is discharged for engaging in protected union activity, a fairly common occurrence in NLRB representation elections) to establish the fact of members-only unionization and to force the employer to bargain. He also advocates petitioning the NLRB to engage in administrative rulemaking
on the subject, which is the process now pending before the Board in two rulemaking petitions.
Chapter Eleven discussed how unions should establish members-only minority unions. Morris discussed the role of the union steward, Weingarten rights
, employer notification, and how to force employers to engage in collective bargaining.
Chapter Twelve concludes the work with a vision of industrial democracy. Morris argues that members-only unions represent the best way to revitalize the American labor movement. He outlines how workplace democracy is stunted without collective bargaining, argues that productivity is greatly enhanced when unions exist, and that strong unions strengthen social capital
inside and outside the workplace.
The second appendix is meant to accompany Chapter Three. This appendix contains all relevant portions of the 1935 drafts of the National Labor Relations Act (S. 1958). The drafts provide the critical textual evidence for Morris' legislative history and plain-meaning interpretive arguments.
The "Blue Eagle" concept of members-only unions has received additional attention since the early 1990s. Legal scholars addressed the merits of the theory, and discussed its application to a variety of other "pre-union" organizations such as worker center
s.
, the Journal of Industrial Relations
, WorkingUSA
, Labor History, Berkeley Journal of Employment and Labor Law
, Employee Rights and Employment Policy Journal, LRA Online, Labor Research Association, British Journal of Industrial Relations, Relations Industrielles/Industrial Relations, Hawaii Laborer, ILCA Online, Portside, The Progressive Populist
, Workday Minnesota, Religious Socialism
, All Aboard, NLRB, Labour/Le Travail
, Noteworthy Books in Industrial Relations and Labor Economics, Princeton University, Benson's Union Democracy Blog, University of Pennsylvania Journal of Business and Employment Law
, and the Annual Review of Law and Social Science. Some of the reviews expressed greater or lesser degrees of skepticism about the likelihood of Morris' thesis being adopted but praised the work highly.
One reviwer wrote:
[It] is a remarkably compelling, innovative stroke, one which should be taken very seriously by those who wish to see any kind of renaissance for workers' collective power," wrote one reviewer, whose assessment was typical.
Almost all of the labor law professors who have publicly commented on the members-only minority-union bargaining thesis have agreed that the Morris thesis is legally correct. Twenty-five of those professors joined in a letter to the NLRB on August 14, 2007, endorsing the rulemaking petition that was proposing adoption of such a rule. They stated to the Board that The plain and unambiguous language of the Act guarantees that in workplaces where there is not currently a Section 9(a) majority-exclusive representative in an appropriate bargaining unit, employees have an enforceable right to bargain collectively through minority unions of their own choosing, but for their employee members only.
Such reading of the statute is fully supported by clear and consistent legislative history.
Nevertheless, Morris' theory has been challenged. Although a few of the reviewers disagreed with some of Morris' secondary conclusions, none disagreed with his critical reading of the statutory language on which he relies. One supportive reviewer, Judge John True, wrote: "Nothing in the actual language of the NLRA, in its legislative history, in NLRB or court cases, in the constitution, in international law, or indeed in common sense or sound policy suggests that unions could not still use this 'members-only' bargaining approach." He reads the language of Section 7 as "all inclusive," explaining that
Morris never denied, indeed emphasized, that the ultimate objective of the Act was majority-based collective bargaining. Nevertheless, minority-union bargaining was always protected as a stepping-stone stage of bargaining that could be expected to lead to majority bargaining, which is exactly what happened during the decade following passage of the Act. None of the facts reported by historian Tomlins, on whom one historical criticism was erroneously based indicated the contrary; indeed The Blue Eagle at Work cited Tomlins.
One need only read the statute, however, with or without this history, to conclude that because of the lack of ambiguity in the language, step one of the Chevron doctrine mandates that "[i] f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." The pending rulemaking petition by the Steelworkers Union, et al., now awaiting the NLRB's decision, also notes the following regarding the clear statutory language on which the Morris thesis is based:
Additional evidence indicates that the Congress did intend the NLRA to protect members-only unions, particularly the historical "smoking gun" of Congress having rejected specific language that would have limited bargaining to Section 9(a) majority unions only.
However, in a response article, Morris pointed out the errors in Judge True's reading of the Moorsville Cotton Mills case.
[i.e., minority union bargaining] ."
One problem some commentators have noted is that members-only collective bargaining creates problems of competition within the workplace. Employers may not respond favorably when a proposed solution will force them to alter work rules and personnel policies across the entire workforce. As one reviewer argued: "Bargaining over wages for members only or a grievance procedure for members only may be possible. Many subjects will have an effect upon non-members and potentially all other non-represented employees. Such issues may adversely impact non-members who do not want representation." On the other hand, the same problems—if they are problems—could also exist where voluntary recognition and bargaining occurs with a members-only minority union, which is unquestionably legal under the Act. That was conceded by the General Counsel in the Dick's case Advice Memorandum.
organized a members-only minority union at Dick's Sporting Goods
, a sporting-goods retailer located near Pittsburgh, Pennsylvania
. The Director of the NLRB's Region 6 asked the NLRB General Counsel's Division of Advice for guidance and received an "Advice Memorandum", on the legal merits of the case. In the Advice Memorandum, Associate General Counsel Barry J. Kearney of the Division of Advice rejected the argument that the NLRA contained an affirmative duty to bargain with members-only minority unions. That Memorandum has been challenged by the two rulemaking petitions now pending before the NLRB.
In his quarterly review of the activities of the Office of the General Counsel, Meisburg reiterated his conclusion that the NLRA does not require employers to bargain with members-only minority unions.
That assertion was challenged by the rulemaking petition of the Steelworkers Union, et al., now pending before the NLRB, which noted that "not one sentence in either the Advice Memorandum or the Regional Director's Dismissal Letter" in the Dick's case presented any discussion of statutory language other than to reiterate the Morris reading without presenting any disagreement with that reading. It noted further that the Memorandum never addressed the relevant legislative history, particularly the "smoking gun" revelation. Regarding the alleged Board and Supreme Court cases, it pointed out that they are non-existent, for there are no cases holding that minority-bargaining for members only where there is not yet a majority representative is either legal or illegal, and the General Counsel was unable to cite any.
Unions appear determined to bring their case to the NLRB. Because the General Counsel's refusal to issue a complaint is not deemed subject to review, in order to bring the issue before the Board the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO
(Steelworkers Union), joined by six other unions, on August 14, 2007, petitioned the NLRB in a substantive rulemaking case for issuance of the following rule:
The six unions that joined with the Steelworkers Union were the International Brotherhood of Electrical Workers
, Communication Workers of America, United Automobile, Aerospace and Agricultural Implement Workers of America
, International Association of Machinists and Aerospace Workers
, California Nurses Association, and United Electrical, Radio and Machine Workers of America
. Following the filing of that petition, on August 14, 2007, 25 university professors of labor law submitted a letter to the NLRB indicating their agreement with the legal premise of the Steelworkers' petition and urged the Board to issue the rule proposed in that petition. On January 4, 2008, the Change to Win
union federation, on behalf of its seven affiliated unions, to wit, International Brotherhood of Teamsters, Laborers' International Union of North America
, Service Employees International Union
, United Brotherhood of Carpenters and Joiners of America
, United Farm Workers
, United Food and Commercial Workers International Union, and UNITE HERE
, filed another rulemaking petition requesting the NLRB to issue the above proposed rule. The proposed rule is thus now backed by several major AFL-CIO unions, one independent union, and all of the CTW unions with their six million members. These petitioning unions represent the overwhelming majority of all private sector union members in the United States who are subject to the NLRA.
The title of the book refers to the symbol adopted by the National Recovery Administration. The National Industrial Recovery Act was enacted by Congress
in 1933 to stimulate the American economy and help the nation recover from the Great Depression
. The law created the NRA to administer the act. Section 7(a) of the Act promoted the formation of labor unions, and created a tremendous upsurge of union organizing.
The NRA adopted the "Blue Eagle
" icon as its symbol.
Charles Morris (legal educator)
Charles J. Morris is professor of law emeritus at the Dedman School of Law at Southern Methodist University in Dallas, Texas. He is an internationally renowned labor law scholar and authority on the National Labor Relations Act....
which analyzes collective bargaining
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
under the National Labor Relations Act
National Labor Relations Act
The National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...
(NLRA), the federal statute governing most private sector labor relations
Labor relations
Industrial relations is a multidisciplinary field that studies the employment relationship. Industrial relations is increasingly being called employment relations because of the importance of non-industrial employment relationships. Many outsiders also equate industrial relations to labour relations...
in the United States. Published in 2005 by Cornell University Press
Cornell University Press
The Cornell University Press, established in 1869 but inactive from 1884 to 1930, was the first university publishing enterprise in the United States.A division of Cornell University, it is housed in Sage House, the former residence of Henry William Sage....
, the text claims that the NLRA guarantees that employees under that Act have the right to bargain collectively through minority unions—but only on a members-only basis—in workplaces where there is not an established majority union, notwithstanding that the present practice and general understanding of the law is that only majority-union employees are entitled to engage in collective bargaining on an exclusivity basis. Contracts resulting from such minority-union bargaining would apply to union members only, not to other employees.
Structure of the book
The Blue Eagle At Work contains three parts: 1) An overview of collective bargaining law in the U.S.; 2) The legal framework in which members-only collective bargaining could occur; and 3) How unions could implement and strengthen members-only collective bargaining and use it as a strategic organizing tool.Part I
Part I of the book addresses collective bargaining law in the United States. It is broken down into four chapters.Chapter One provides a historical overview of the rise of membership-based collective bargaining in the period prior to federal recognition of the right to bargain collectively, the provisions of the Norris-LaGuardia Act
Norris-LaGuardia Act
The Norris–La Guardia Act was a 1932 United States federal law that banned yellow-dog contracts, barred federal courts from issuing injunctions against nonviolent labor disputes, and created a positive right of noninterference by employers against workers joining trade unions...
, and the enactment and legal meaning of Section 7(a) of the National Industrial Recovery Act
National Industrial Recovery Act
The National Industrial Recovery Act , officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 (Ch. 90, 48 Stat. 195, formerly...
(NIRA). Attention is paid to The Conference Board survey of labor relations conducted in November 1933. Morris points out that the survey results indicate that members-only recognition and bargaining were common when the NLRA was enacted.
Chapter Two provides an in-depth and exceedingly detailed history of legislative attempts to enact improvements in federal labor law. The chapter provides an extensive analysis of the nine legislative drafts of Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Robert F. Wagner
Robert F. Wagner
Robert Ferdinand Wagner I was an American politician. He was a Democratic U.S. Senator from New York from 1927 to 1949.-Origin and early life:...
(D
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
-NY
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
) for his 1934 bill. The chapter also discusses the implementation of the NIRA under first the National Recovery Administration
National Recovery Administration
The National Recovery Administration was the primary New Deal agency established by U.S. president Franklin D. Roosevelt in 1933. The goal was to eliminate "cut-throat competition" by bringing industry, labor and government together to create codes of "fair practices" and set prices...
(NRA) and then the National Labor Board
National Labor Board
The National Labor Board was an independent agency of the United States Government established on August 5, 1933 to handle labor disputes arising under the National Industrial Recovery Act .-Establishment, structure and procedures:...
and the National Labor Relations Board
National Labor Relations Board
The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...
(NLRB). Morris documents how the concepts of representational exclusivity and majoritarianism were developed in cases such as Denver Tramway Corporation
Denver Tramway
The Denver Tramway, operating in Denver, Colorado was incorporated in 1886. The tramway was unusual for a number of reasons: the term "tramway" is generally not used in the United States, and it is not known why the company was named as such...
, 1 NLB 63
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1934) and Houde Engineering Corp., 1 NLRB (old) 35
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1934) and cites cases showing that employers refusing to bargain with a minority union violated the NIRA.
Chapter Three is an extensive consideration of the legislative history of Wagner Act. The three drafts of the Act, committee hearings, floor debates, and committee reports are closely examined to tease out the meanings of the changes made. Morris uncovered one feature that required no teasing, a "smoking gun" that shows that congress clearly intended that collective bargaining would not be confined to majority unions only, to wit, the deliberate rejection of a version of the duty-to-bargain contained in Section 8(a)(5) that would have so confined the bargaining process. Instead, the present wording, which does not so limit the bargaining obligation, was selected. Morris notes that the Senate committee and debate statements disparaging minority or plurality bargaining all referred to bargaining after a majority representative had been chosen. None referred to bargaining before majority selection, which was not a controversial issue.
Chapter Four contains the history of members-only minority-union organizing and bargaining during the decade following passage of the NLRA and what followed. Morris notes:
- For several years following the passage of the Wagner Act in 1935, there was never any legal question raised as to the scope of its bargaining requirements, either as to minority-union members-only bargaining or majority-union exclusivity bargaining. Both types of bargaining had prevailed earlier under the Blue Eagle administration of Section 7(a) of the NIRA and both were now widely accepted under the new NLRA.
Morris points to the organizing history of the Steel Workers Organizing Committee
Steel Workers Organizing Committee
The Steel Workers Organizing Committee was one of two precursor labor organizations to the United Steelworkers. It was formed by the CIO in 1936. It disbanded in 1942 to become the United Steel Workers of America....
and United Auto Workers
United Auto Workers
The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, better known as the United Auto Workers , is a labor union which represents workers in the United States and Puerto Rico, and formerly in Canada. Founded as part of the Congress of Industrial...
as prime examples of members-only organizing and collective bargaining, and cites statistics from Bureau of National Affairs
Bureau of National Affairs
The Bureau of National Affairs, Inc. — known as BNA — is an independent, privately owned publisher of specialized online and print news and information for professionals in business and government, headquartered in Arlington, Virginia, USA...
(BNA) and Twentieth Century Fund reports which document the widespread use and acceptance of members-only contracts.
Morris concludes that several factors led unions to become dependent on representational elections. The NLRB itself favored representational elections, "for they provided a relatively simple pattern for bargaining-unit determinations, conduct of elections, and certification of majorities for exclusive union representation." The conflict between the American Federation of Labor
American Federation of Labor
The American Federation of Labor was one of the first federations of labor unions in the United States. It was founded in 1886 by an alliance of craft unions disaffected from the Knights of Labor, a national labor association. Samuel Gompers was elected president of the Federation at its...
and the Congress of Industrial Organizations
Congress of Industrial Organizations
The Congress of Industrial Organizations, or CIO, proposed by John L. Lewis in 1932, was a federation of unions that organized workers in industrial unions in the United States and Canada from 1935 to 1955. The Taft-Hartley Act of 1947 required union leaders to swear that they were not...
refocused attention away from organizing. The rapid expansion of unions during World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
and the massive waves of strikes
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
which came after the war continued to divert attention away from organizing. Morris also argues that the Taft-Hartley Act
Taft-Hartley Act
The Labor–Management Relations Act is a United States federal law that monitors the activities and power of labor unions. The act, still effective, was sponsored by Senator Robert Taft and Representative Fred A. Hartley, Jr. and became law by overriding U.S. President Harry S...
led to "the phenomenon of unions becoming busily engaged in a multitude of legal defensive actions generated by the numerous union restrictions that the new law had created."
"As a consequence," Morris concludes, "only a few years after Taft-Hartley, the NLRB and its union and employer constituents were routinely viewing majority-union bargaining—which was certainly the ultimate goal intended by the Act—as the only bargaining contemplated by the Act. Although unions had originally favored NLRB elections out of sheer convenience, their reliance on the election process had now become routine, with attendant misunderstanding of the true scope of bargaining offered by the statute. ... Thus was born the latter-day conventional wisdom that assumes that majority-union representation is the sine qua non of collective bargaining."
Part II
Part II of The Blue Eagle At Work examines the legal interpretation of Sections 1, 7, 8(a)(1), 8(a)(3), 8(a)(5), and 9(a) of the NLRA, and concludes that Morris' construction of the law is consistent with the statutory requirements and also with existing legal rulings and treaty obligations. Part II consists of five chapters.Chapter Five engages in a Plain-Meaning-Rule construction
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
of the language of Section 7(a) and the NLRA. Morris examines Section 7, Section 8(a)(1), Section 9(a), and Section 8(a)(5) of the NLRB for their plain meaning, and concludes they guarantee the right of all employees to bargain collectively, whether before or after majority-union designation. Bargaining before such selection must be for members-only through a union of the employees' choice; bargaining after majority selection must be for all employees in the bargaining unit through the selected union only. This chapter provides the heart of Morris' thesis, for although it is supported by legislative history (and constitutional and international law), its primary basis is contained in the unambiguous text of the statute. The critical language is short, simple, and of clear meaning. Fourteen words in Section 7, borrowed verbatim from Section 7(a) of the NIRA, provide that "Employees shall have the right...to bargain collectively through representatives of their own choosing...." This is guaranteed and enforced by Section 8(a)(1) and reinforced by Section 8(a)(5) (which by its clear wording and its "smoking gun" legislative history requires bargaining both before and after majority selection). The only limitation on this bargaining right is a conditional limitation on the choice of representatives, but not on the duty to bargain. This limitation is contained in Section 9(a) which does not operate unless there is a majority representative, in which event the selected majority union becomes the exclusive representative. Morris points out that both the Supreme Court and the NLRB have approved minority and members only bargaining and resulting members-only contracts where they exist voluntarily, and that the time is now ripe for a decision confirming that such bargaining is enforceable where there is not yet a majority representative. This universal concept of collective bargaining conforms to the "policy of the United States" expressed in Section 1 of the Act, which policy was expressly reconfirmed in the Taft-Hartley Act.
Chapter Six examines several rulings by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
which are often cited as supportive of majority-only collective bargaining. Morris reviews the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
guarantee of freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
, and how the concepts of indirect state action (as elucidated in NAACP v. Alabama, 357 U.S. 449
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1958), and Bates v. City of Little Rock
Bates v. City of Little Rock
Bates v. City of Little Rock, 361 U.S. 516 , was a case in which the Supreme Court of the United States held that the First Amendment to the U.S...
, 361 U.S. 516
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1960), and the test of indirect state action as outlined in Lugar v. Edmondson Oil Co., 457 U.S. 922
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1982)), direct state action and compelling government interest
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
protect and affirm members-only minority-union collective bargaining. Morris also discusses three key Supreme Court rulings—NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1979), Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1988) and Communications Workers of America v. Beck
Communications Workers of America v. Beck
Communications Workers of America v. Beck, 487 U.S. 735 is a decision by the United States Supreme Court which held that, in a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining...
, 487 U.S. 735
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1988)—and concludes that they conform to the concept of members-only bargaining as well.
In Chapter Seven, Morris discusses how the Supreme Court's doctrine of "administrative deference" (outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers...
, 467 U.S. 837
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1984)) could provide another avenue for judicial articulation of his thesis. Although it is a basic premise of his book that the defined duty to bargain is mandatory under the Act, if the NLRB were to find the applicable language ambiguous it could and should exercise its discretionary authority and require bargaining in accordance with the thesis—which under step two of the Chevron doctrine would be confirmed by a reviewing federal court even if the court were in disagreement, for the determination would not be "arbitrary, capricious, or manifestly contrary to the statute."
In Chapter Eight, Morris outlines U.S. obligations under international law. He points out that the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
and the International Labour Organization
International Labour Organization
The International Labour Organization is a specialized agency of the United Nations that deals with labour issues pertaining to international labour standards. Its headquarters are in Geneva, Switzerland. Its secretariat — the people who are employed by it throughout the world — is known as the...
's 1998 Declaration of Fundamental Principles and Rights at Work both compel a construction of the NLRA which protects members-only collective bargaining.
Chapter Nine discusses the current state of NLRB and court rulings which might appear to exclude members-only minority-union collective bargaining. Morris identifies eight "false majority" cases in which the NLRB or a court appears to rule out bargaining with a minority union, but in each of those cases the union was either directly or indirectly seeking to represent the entire bargaining unit as a Section 9(a) majority representative, hence the designation of "false-majority" cases; in none of them did the union actually engage in members-only representation and bargaining. Morris also dismisses four "group-dealing" cases, in which the question was whether an employer has a duty to meet and bargain with groups of nonunion employees under the "mutual aid or protection" language of Section 7. But once more, Morris distinguishes the cases by noting that in none of the cases did the union engage in members-only representation or bargaining as defined by the "collective bargaining" language of Section 7, which is the text that provides minority unions with the right to bargain.
Part III
The three chapters of Part III discuss how unions might go about reaffirming the right to engage in members-only minority-union collective bargaining.Chapter Ten discusses using the NLRB and the courts to reaffirm the minority-union concept. Morris outlines how unions might use NLRB representational procedures or direct court rulings to revitalize the concept of members-only unions. Morris also discusses novel approaches, such as direct legal action against the NLRB's General Counsel and picketing for members-only recognition. Other approaches he suggests include amending a Section 8(a)(3) complaint (made to the NLRB when an employee is discharged for engaging in protected union activity, a fairly common occurrence in NLRB representation elections) to establish the fact of members-only unionization and to force the employer to bargain. He also advocates petitioning the NLRB to engage in administrative rulemaking
Rulemaking
In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.By bringing...
on the subject, which is the process now pending before the Board in two rulemaking petitions.
Chapter Eleven discussed how unions should establish members-only minority unions. Morris discussed the role of the union steward, Weingarten rights
Weingarten Rights
In 1975 the United States Supreme Court, in the case of NLRB v. J. Weingarten, Inc., , upheld a National Labor Relations Board decision that employees have a right to union representation at investigatory interviews...
, employer notification, and how to force employers to engage in collective bargaining.
Chapter Twelve concludes the work with a vision of industrial democracy. Morris argues that members-only unions represent the best way to revitalize the American labor movement. He outlines how workplace democracy is stunted without collective bargaining, argues that productivity is greatly enhanced when unions exist, and that strong unions strengthen social capital
Social capital
Social capital is a sociological concept, which refers to connections within and between social networks. The concept of social capital highlights the value of social relations and the role of cooperation and confidence to get collective or economic results. The term social capital is frequently...
inside and outside the workplace.
Appendices
The book contains two substantive appendices. The first is an appendix to Chapter Two. It contains all the relevant provisions of the proposed 1934 "Labor Disputes" bill and the proposed 1934 "National Adjustment Bill" substitute for S. 2926. Both proposed bills are crucial to understanding the evolving concept of collective bargaining which led to the Wagner Act.The second appendix is meant to accompany Chapter Three. This appendix contains all relevant portions of the 1935 drafts of the National Labor Relations Act (S. 1958). The drafts provide the critical textual evidence for Morris' legislative history and plain-meaning interpretive arguments.
Scholarly history
The scholarly pedigree of The Blue Eagle At Work is somewhat lengthy. Although many in the labor movement saw the treatise as novel, the concept, as Morris noted, was recognized in a law review article as early as 1936 and was discussed generally as early as 1975. Morris himself published an early version of his thesis in 1994. But the most prominent and complete statement of the legal theory came from Professor Clyde Summers in 1990 (which Morris acknowledges in his book).The "Blue Eagle" concept of members-only unions has received additional attention since the early 1990s. Legal scholars addressed the merits of the theory, and discussed its application to a variety of other "pre-union" organizations such as worker center
Worker center
Worker centers are non-profit organizations that organize workers who are not already members of a collective bargaining organization . Many worker centers in the United States focus on immigrant workers, and most focus on low-wage workers in sectors such as restaurant, construction, day labor or...
s.
Reviews
The Blue Eagle At Work was highly anticipated by many labor scholars, labor attorneys and activists in the labor movement. After its publication, the work was widely reviewed in the scholarly and labor press, including Labor Studies JournalLabor Studies Journal
Labor Studies Journal is a multi-disciplinary academic publication about workers and labor organizations in the United States as well as internationally. It was founded in 1975....
, the Journal of Industrial Relations
Journal of Industrial Relations
The Journal of Industrial Relations is published five times a year by SAGE Publications on behalf of the Industrial Relations Society of Australia. First published in 1958 by IRSA, it is currently edited by Dr. Bradon Ellem and Dr. Marian Baird of the University of Sydney...
, WorkingUSA
WorkingUSA
WorkingUSA: The Journal of Labor and Society is a comprehensive and significant critical source on the "work" experience, labor movements, and class relations throughout the world...
, Labor History, Berkeley Journal of Employment and Labor Law
Berkeley Journal of Employment and Labor Law
The Berkeley Journal of Employment and Labor Law is a law journal that publishes articles in the field of labor and employment law. It was founded in 1979 as the Industrial Relations Law Journal. It changed its name to the current title in 1993...
, Employee Rights and Employment Policy Journal, LRA Online, Labor Research Association, British Journal of Industrial Relations, Relations Industrielles/Industrial Relations, Hawaii Laborer, ILCA Online, Portside, The Progressive Populist
The Progressive Populist
The Progressive Populist is a magazine in tabloid newspaper format published twice monthly. Founded in 1995, the magazine is based in Storm Lake, Iowa with editorial offices in Manchaca, Texas. The editor is James M...
, Workday Minnesota, Religious Socialism
Religious socialism
Religious socialism is a term used to describe forms of socialism that are based on religious values.Religious Socialism is also the title of a journal published by the Religion and Socialism Commission of the Democratic Socialists of America, a member of the Socialist International.Several major...
, All Aboard, NLRB, Labour/Le Travail
Labour/Le Travail
Labour/Le Travail is an academic journal which publishes articles on the labour movement in the Canada, sociology, labour economics, and employment relations. Although its focus is Canadian, the journal carries articles about the United States and other nations as well.Labour/Le Travail is...
, Noteworthy Books in Industrial Relations and Labor Economics, Princeton University, Benson's Union Democracy Blog, University of Pennsylvania Journal of Business and Employment Law
University of Pennsylvania Journal of Business and Employment Law
The University of Pennsylvania Journal of Business and Employment Law is an expansion of the Journal of Labor and Employment Law, which has published focused and cutting-edge scholarship since 1997. Building upon its decade of successful contribution to legal academia, the Journal now also...
, and the Annual Review of Law and Social Science. Some of the reviews expressed greater or lesser degrees of skepticism about the likelihood of Morris' thesis being adopted but praised the work highly.
One reviwer wrote:
- There is the potential for private-sector US industrial relations to undergo the biggest change since 1947, or even 1935--all without any new laws or overturning any legal precedents. Not only will many workers obtain union representation when a majority of their co-workers are not interested, but the entire industrial relations environment might be altered. Morris shows how Senator Wagner--the father of the NLRA--viewed minority-unionism as a stepping stone to full-fledged majority unionism, especially as the benefits of union representation are vividly demonstrated to skeptical co-workers. The organizing process can thus change as unions can focus their attention on building organizations rather than winning elections.
Legal analysis
The book was widely praised for its scholarship. "Almost all of the labor law professors who have publicly commented on the members-only minority-union bargaining thesis have agreed that the Morris thesis is legally correct. Twenty-five of those professors joined in a letter to the NLRB on August 14, 2007, endorsing the rulemaking petition that was proposing adoption of such a rule. They stated to the Board that The plain and unambiguous language of the Act guarantees that in workplaces where there is not currently a Section 9(a) majority-exclusive representative in an appropriate bargaining unit, employees have an enforceable right to bargain collectively through minority unions of their own choosing, but for their employee members only.
Such reading of the statute is fully supported by clear and consistent legislative history.
Nevertheless, Morris' theory has been challenged. Although a few of the reviewers disagreed with some of Morris' secondary conclusions, none disagreed with his critical reading of the statutory language on which he relies. One supportive reviewer, Judge John True, wrote: "Nothing in the actual language of the NLRA, in its legislative history, in NLRB or court cases, in the constitution, in international law, or indeed in common sense or sound policy suggests that unions could not still use this 'members-only' bargaining approach." He reads the language of Section 7 as "all inclusive," explaining that
- It does not by its terms limit in any way the rights it confers, including "activities for the purpose of collective bargaining," to those who have designated a union as their exclusive representative. The clear language of the statute confers this right on all employees. So as a matter of simple logic, a minority group of employees is entitled to engage in "activities for the purpose of collective bargaining:" including, presumably, the right to make their employer respond to its bargaining demands.
Morris never denied, indeed emphasized, that the ultimate objective of the Act was majority-based collective bargaining. Nevertheless, minority-union bargaining was always protected as a stepping-stone stage of bargaining that could be expected to lead to majority bargaining, which is exactly what happened during the decade following passage of the Act. None of the facts reported by historian Tomlins, on whom one historical criticism was erroneously based indicated the contrary; indeed The Blue Eagle at Work cited Tomlins.
Legislative History and Statutory Text
Morris' interpretation of the NLRA's legislative history and statutory text has come under fire from one scholar in a brief review in a Canadian journal. He presented his opposing opinion, but without any explanatory analysis or cited authority, as follows:- Morris's argument involves close reading of the pre-NLRA administrative cases, and then the successive drafts of the NLRA. ... I was not convinced. While I agree that the NLRB should have required employers to meet with organizations representing only a fraction of their workforce, I do not find a clear Congressional command that requires the Board to do so. Morris shows that, at several stages in the drafting process, such clear language was briefly part of the bill, but was later deleted as part of a general process of simplifying language and delegating detail to the new NLRB. Drafters similarly rejected a proposal that would clearly have restricted the duty to bargain to majority representatives. I read this history to mean that Congress delegated this issue, along with many others, to the new NLRB.
One need only read the statute, however, with or without this history, to conclude that because of the lack of ambiguity in the language, step one of the Chevron doctrine mandates that "
- in workplaces where the majority/unit condition in Section 9(a) is not activated, the text of the Act guarantees that employees shall have the right to bargain collectively through a minority-union of their choice on a nonexclusive, i.e., members-only, basis; and an employer who refuses to bargain collectively with that union commits an unfair labor practice in violation of Sections 8(a)(1) and 8(a)(5). This statutory text is not Humpty-Dumpty language that naysayers might say means whatever they "choose it to mean." Rather, it is plain, unambiguous language that means exactly what it says--the same kind of broad and sweeping language that Chief Justice John Roberts referred to when, as a judge on the District of Columbia Circuit Court of Appeals, he accurately observed in two separate decisions that "
[t] he Supreme Court has consistently instructed that statutes written in broad, sweeping language should be given broad, sweeping application."
Additional evidence indicates that the Congress did intend the NLRA to protect members-only unions, particularly the historical "smoking gun" of Congress having rejected specific language that would have limited bargaining to Section 9(a) majority unions only.
The "false majority" cases
Morris' discussion of the "false majority" cases has also been criticized. In a somewhat laudatory piece, Judge John True concluded that Morris read too much into otherwise ambiguous decisions:- A number of the other cases
[Morris] characterizes as "false majority" claims feature ambiguities similar to Mooresville Cotton Mills. To be sure, none of them squarely disposes of Morris' interpretation, but neither does any seem like the "myth" and dicta that he says stand in the way of minority bargaining rights.
However, in a response article, Morris pointed out the errors in Judge True's reading of the Moorsville Cotton Mills case.
Constitutional and International Law Commentary
Although Morris bases his thesis on the text of the NLRA, which is supported by legislative history, he also contends that constitutional and international law provide additional support. Some have argued that Morris' constitutional arguments based on freedom of association are not valid under current case law. One commentator takes issue with Morris' claim that collective bargaining under the NLRA constitutes direct or indirect state action, and also points out that Morris' reliance on international law is a weak reed. As Morris himself admits, "it is widely known and fully documented that the United States does not comply with ILO standards regarding the right of workers to engage in collective bargaining." Morris also admits that the International Covenant on Civil and Political Rights does not permit private citizens to sue in U.S. courts, but he explains, however, that the language of the Covenant and the features of its ratification permit raising the issue in NLRB cases. Despite his criticism of Morris' constitutional and international law analyses, this reviewer agreed with Morris' primary analysis based on the wording of the NLRA, stating that "Section 7 protects concerted activities in various contexts by employees where there is no exclusive representative, and the language of section 7 itself does seem to provide for MUBPragmatic issues
Several reviewers have pointed out that Morris' prescriptions for reaffirming members-only minority-union collective bargaining contain problems of their own. They applaud Morris for crafting some inventive and aggressive strategies and tactics.One problem some commentators have noted is that members-only collective bargaining creates problems of competition within the workplace. Employers may not respond favorably when a proposed solution will force them to alter work rules and personnel policies across the entire workforce. As one reviewer argued: "Bargaining over wages for members only or a grievance procedure for members only may be possible. Many subjects will have an effect upon non-members and potentially all other non-represented employees. Such issues may adversely impact non-members who do not want representation." On the other hand, the same problems—if they are problems—could also exist where voluntary recognition and bargaining occurs with a members-only minority union, which is unquestionably legal under the Act. That was conceded by the General Counsel in the Dick's case Advice Memorandum.
Action by the NLRB
The NLRB has not yet considered or acted upon Morris' thesis. In 2006, the United SteelworkersUnited Steelworkers
The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union is the largest industrial labor union in North America, with 705,000 members. Headquartered in Pittsburgh, U.S., the United Steelworkers represents workers in the United...
organized a members-only minority union at Dick's Sporting Goods
Dick's Sporting Goods
Dick's Sporting Goods, Inc. , or Dick's, is a Fortune 500 American corporation in the sporting goods and retail industries.The company's headquarters are on the grounds of Pittsburgh International Airport in Findlay Township near Pittsburgh, Pennsylvania. Dick's has 451 stores in 42 states as of...
, a sporting-goods retailer located near Pittsburgh, Pennsylvania
Pittsburgh, Pennsylvania
Pittsburgh is the second-largest city in the US Commonwealth of Pennsylvania and the county seat of Allegheny County. Regionally, it anchors the largest urban area of Appalachia and the Ohio River Valley, and nationally, it is the 22nd-largest urban area in the United States...
. The Director of the NLRB's Region 6 asked the NLRB General Counsel's Division of Advice for guidance and received an "Advice Memorandum", on the legal merits of the case. In the Advice Memorandum, Associate General Counsel Barry J. Kearney of the Division of Advice rejected the argument that the NLRA contained an affirmative duty to bargain with members-only minority unions. That Memorandum has been challenged by the two rulemaking petitions now pending before the NLRB.
In his quarterly review of the activities of the Office of the General Counsel, Meisburg reiterated his conclusion that the NLRA does not require employers to bargain with members-only minority unions.
- When Congress enacted Section 9(a), which sets forth the majority rule, it explicitly rejected other forms of representation, including plural and proportional representation, which were permitted under Section 7(a) of the NIRA. Statements by the Act’s sponsors show that they did not intend to require employee representation by minority-supported unions because it could not lead to a working system of collective bargaining. ... In the early enforcement of the Act, the Board held that an employer may recognize and bargain with a minority, members-only union, as long as the employer does not extend that union exclusive status. Consolidated Edison Co. of New York, 4 NLRB 71, 110 (1937), enfd. 95 F.2d 390 (2d Cir.), modified on other grounds 305 U.S. 197 (1938). However, nothing in the statutory language, legislative history of the Act, or decisions interpreting the Act, establish an employer's duty to do so. ... Rather, the statutory language, the legislative history, and Board and Supreme Court decisions interpreting the Act all mandate the conclusion that an employer is not required to bargain with a union seeking to bargain as a minority representative for its members.
That assertion was challenged by the rulemaking petition of the Steelworkers Union, et al., now pending before the NLRB, which noted that "not one sentence in either the Advice Memorandum or the Regional Director's Dismissal Letter" in the Dick's case presented any discussion of statutory language other than to reiterate the Morris reading without presenting any disagreement with that reading. It noted further that the Memorandum never addressed the relevant legislative history, particularly the "smoking gun" revelation. Regarding the alleged Board and Supreme Court cases, it pointed out that they are non-existent, for there are no cases holding that minority-bargaining for members only where there is not yet a majority representative is either legal or illegal, and the General Counsel was unable to cite any.
Unions appear determined to bring their case to the NLRB. Because the General Counsel's refusal to issue a complaint is not deemed subject to review, in order to bring the issue before the Board the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO
United Steelworkers
The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union is the largest industrial labor union in North America, with 705,000 members. Headquartered in Pittsburgh, U.S., the United Steelworkers represents workers in the United...
(Steelworkers Union), joined by six other unions, on August 14, 2007, petitioned the NLRB in a substantive rulemaking case for issuance of the following rule:
- Pursuant to Sections 7, 8(a)(1), and 8(a)(5) of the Act, in workplaces where employees are not currently represented by a certified or recognized Section 9(a) majority/exclusive collective-bargaining representative in an appropriate bargaining unit, the employer, upon request, has a duty to bargain collectively with a labor organization that represents less than an employee-majority with regard to the employees who are its members, but not for any other employees.
The six unions that joined with the Steelworkers Union were the International Brotherhood of Electrical Workers
International Brotherhood of Electrical Workers
The International Brotherhood of Electrical Workers is a labor union which represents workers in the electrical industry in the United States, Canada, Panama and several Caribbean island nations; particularly electricians, or Inside Wiremen, in the construction industry and linemen and other...
, Communication Workers of America, United Automobile, Aerospace and Agricultural Implement Workers of America
United Auto Workers
The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, better known as the United Auto Workers , is a labor union which represents workers in the United States and Puerto Rico, and formerly in Canada. Founded as part of the Congress of Industrial...
, International Association of Machinists and Aerospace Workers
International Association of Machinists and Aerospace Workers
The International Association of Machinists and Aerospace Workers is an AFL-CIO/CLC trade union representing approx. 646,933 workers as of 2006 in more than 200 industries.-Formation and early history:...
, California Nurses Association, and United Electrical, Radio and Machine Workers of America
United Electrical, Radio and Machine Workers of America
The United Electrical, Radio and Machine Workers of America , is an independent democratic rank-and-file labor union representing workers in both the private and public sectors across the United States....
. Following the filing of that petition, on August 14, 2007, 25 university professors of labor law submitted a letter to the NLRB indicating their agreement with the legal premise of the Steelworkers' petition and urged the Board to issue the rule proposed in that petition. On January 4, 2008, the Change to Win
Change to Win Federation
The Change to Win Federation is a coalition of American labor unions originally formed in 2005 as an alternative to the AFL-CIO. The coalition is associated with strong advocacy of the organizing model...
union federation, on behalf of its seven affiliated unions, to wit, International Brotherhood of Teamsters, Laborers' International Union of North America
Laborers' International Union of North America
The Laborers' International Union of North America is an American and Canadian labor union formed in 1903. As of March 31, 2010, they have about 632,000 members, members, about 80,000 of which are in Canada.The current general president is Terence M...
, Service Employees International Union
Service Employees International Union
Service Employees International Union is a labor union representing about 1.8 million workers in over 100 occupations in the United States , and Canada...
, United Brotherhood of Carpenters and Joiners of America
United Brotherhood of Carpenters and Joiners of America
The United Brotherhood of Carpenters and Joiners of America is one of the largest building trades union in the United States. One of the unions that formed the American Federation of Labor in 1886, it left the AFL-CIO in 2001.-Early years:...
, United Farm Workers
United Farm Workers
The United Farm Workers of America is a labor union created from the merging of two groups, the Agricultural Workers Organizing Committee led by Filipino organizer Larry Itliong, and the National Farm Workers Association led by César Chávez...
, United Food and Commercial Workers International Union, and UNITE HERE
UNITE HERE
UNITE HERE is a labor union in the United States and Canada with more than 265,000 active members The union's members work predominantly in the hotel, food service, laundry, warehouse, and casino gaming industries...
, filed another rulemaking petition requesting the NLRB to issue the above proposed rule. The proposed rule is thus now backed by several major AFL-CIO unions, one independent union, and all of the CTW unions with their six million members. These petitioning unions represent the overwhelming majority of all private sector union members in the United States who are subject to the NLRA.
Title
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
in 1933 to stimulate the American economy and help the nation recover from the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
. The law created the NRA to administer the act. Section 7(a) of the Act promoted the formation of labor unions, and created a tremendous upsurge of union organizing.
The NRA adopted the "Blue Eagle
Blue Eagle
The Blue Eagle, a blue-colored representation of the American thunderbird, with outspread wings, was a symbol used in the United States by companies to show compliance with the National Industrial Recovery Act...
" icon as its symbol.