Back to the Future: Reviving Minority-Union Collective Bargaining under the National Labor Relations Act
Morris, Charles J., Labor Law Journal
I bring you news of a sea change that is about to occur in American labor relations. Although this change is inconsistent with both conventional wisdom and the steady decline of union membership and collective bargaining, the requisite conditions for such a change presently exist. Here are those conditions:
* Throughout most of organized labor there is now a shared awareness of an urgent need to organize the unorganized. This is so notwithstanding the recent departure of several large unions from the AFL-CIO and their creation of the Change To Win federation. Union organizing is perceived to be a matter of union survival.
* To an extent not seen for over half a century, much of the public at large now empathizes with the weakness of unrepresented workers-especially lower paid workers-and recognizes their need for a viable means to secure both fair treatment in the workplace and a more equitable share of the nation's wealth.
* Unions are not being demonized today as much as they were in previous years.
* An increasing number of workers are now indicating a favorable attitude toward union representation, though most are still afraid or unable to obtain union representation where they work.
* And finally, the most critical condition-one that has heretofore been lacking-is the existence of an available and reliable process that will make it easier for employees to join unions and for unions to successfully organize and represent employees through collective bargaining.
The message that I bring today is that such a process-notwithstanding conventional wisdom to the contrary-exists, indeed has long existed. It is found where it has always been since 1935, in mandatory language in the National Labor Relations Act (NLRA or Act),1 although its usage, until recently, had been long forgotten. I am referring to the requirement that an employer has a legal duty under the Act to bargain collectively with a minority union for its members only where there is not presently an exclusive majority representative in an appropriate bargaining unit.
Comprehensive exposition of the legal and historical bases for this rediscovered bargaining thesis is contained in my book, THK BIJJK EACLE AT WORK: RECLAIMING; DEMOCRATK: RK,ins IN IHK AMERICAN WORKPLACK,2 which I shall refer to here as the BLUE EAC,LK. Although I will not review the research and analyses detailed in that study, I will note collaterally some of its highlights and conclusions. My intent here is to focus mainly on language in the Act, for this minority-union bargaining thesis is fully contained in the clear and plain wording of the statute itself. In addition, although not detailed here, overwhelming legislative history confirms the accuracy of that reading.3 As demonstrated by the earlier drafts of Wagner's first bill in 19344 and the drafts of the final bill in 1935,5 the drafters took pains to guarantee the employer's bargaining obligation even at the preliminary stage of pre-majority union bargaining, for that phase was viewed as a natural stepping-stone on the path to mature, majority-based exclusivity bargaining, which was considered to be the ultimate goal of the legislation.
Although both the Supreme Court and the National Labor Relations Board (NLRB or Board) have confirmed in several cases the legality of the member-only minority-union bargaining process and the collective-bargaining agreements produced by that process,6 there are no Board or court holdings that either affirm or deny that such bargaining is required by the Act.7 Such absence of decisional law may come as a surprise to most participants in the labor law community, but the obvious advantage of such a hiatus is that it provides the Board and the courts with a clean slate on which to write their affirmation of this newly-found thesis.
It is certainly true that virtually everyone involved in labor relations has grown up with the assumption that under the NLRA lhe sine qua non of an employer's duty to bargain is the existence of a majority of union employees in an appropriate bargaining unit. …