MEMBERS-ONLY COLLECTIVE BARGAINING:
REJECTING CONVENTIONAL WISDOM
By CHARLES J. MORRIS

The United States deserves a revitalized labor movement. It is deserved not just because the exercise of democratic freedom ought to include the right of workers to join together to express a meaningful voice about their wages and working conditions, which most advanced democratic countries deem to be a basic human right, but also because only a strong labor movement can supply the countervailing force this country needs to help offset the economic and political power of large corporations, especially multinational and mega-corporations such as Wal-Mart.

To achieve a strong labor movement, however, organized labor needs to develop new ways to organize. One such way-new for current use, yet old historically-is to organize minority unions to engage in collective bargaining on a members-only basis until majority status and the right to exclusive representation is achieved. This process is available under existing law.

Unreachable?
As we know too well, industrial democracy in America is but a dream. Seventy years ago Congress passed the National Labor Relations Act (NLRA), which was intended by Senator Robert F. Wagner (who conceived and sponsored the legislation) to be the vehicle that would carry that dream into reality through the process of collective bargaining. Is it now too late to achieve that dream?

Knowledgeable observers, almost unanimously, agree that widespread collective bargaining is absolutely unreachable under existing law. And for the most part they are right. The NLRA's primary direction was certainly skewed by several add-ons in the Taft-Hartley and Landrum Griffin amendments, and over the years unsympathetic Labor Boards and misunderstanding courts have eroded-and are still eroding-many of its protections.

I can thus understand the frustration of labor-union representatives who are trying to organize and bargain under this inadequate law, but what I cannot understand is their quixotic effort to improve that law by congressional amendment. This should be recognized as an obvious waste of time, money, and valuable energy. After its futile effort to pass a labor-law reform bill during the Carter administration, organized labor should have learned from the subsequent make-up of the legislative and executive branches of the federal government that no improvement in labor law could be enacted now or in the foreseeable future.

So where should the labor movement look for a viable means to reverse the downward spiral of union membership and density? Obviously, unions need to organize vigorously, and the recent split in the AFL-CIO-whatever else it means-signifies a new, albeit belated, awareness of that organizational imperative. However, despite good intentions and the dedication of more funds for organizing, if unions persist in adhering to their traditional organizational methods-i.e., soliciting authorization cards and hoping to win National Labor Relations Board (NLRB) elections-then the best they can expect is to recoup but a small fraction of the membership they lost during the past several decades. Something more will be required.

The New York Times perceptively identified that "something more" in its editorial comment on the recent union-federation split. It stated that what America needs is "a union movement that is both feisty and sophisticated, ready to think creatively about new ways to lift up the diverse, struggling, yearning men and women who make up the working class." Indeed, thinking creatively about new ways to organize will mean that labor must abandon, at least for the time being, its knee-jerk strategy of trying to amend the NLRA. It must concentrate instead on finding creative ways to organize under the existing law. One of the most promising of these ways is to pursue an organizational practice long forgotten but recently uncovered.

Minority Unions
The forgotten practice is organizing and bargaining through minority unions on a members-only basis in workplaces where there is no recognized majority union. This practice is clearly authorized and protected by the NLRA, notwithstanding that conventional wisdom has come to assume that a union must represent a majority of the employees in an appropriate unit before it can represent or bargain on behalf of any employees. That popular notion, however, is but latter-day conventional wisdom, not the original wisdom contained in the language of the NLRA, which is supported by strong legislative history and the absence of any decisional law to the contrary. This clarified meaning of the law and its history is fully documented in my recent book, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (Cornell University Press, 2005), the thesis of which a number of unions are now seriously considering and are beginning to put into practice.

The practice is not new. Members-only bargaining by minority unions was common when the NLRA was passed in 1935, and during its first decade such bargaining was as prevalent as majority-exclusivity bargaining. It was widely accepted as an ordinary method of organizing; in fact, that is how the steel and automobile industries were first unionized. Accordingly, it is fitting that the Steelworkers' union is taking the lead in reestablishing the practice.

The first NLRB case asserting this renewed right to members-only bargaining was recently filed by the Steelworkers on behalf of its newly organized Dick's Employee Council at the Dick's Sporting Goods distribution center near Pittsburgh. This Council, notwithstanding its minority status, is seeking to bargain about conditions affecting its member-employees, specifically about health and safety concerns, the firing of one of its members, and the establishment of a fair and equitable grievance procedure. Although the company has admitted that such minority-union bargaining is legal, it refuses to meet with the Council's representatives.

What is different about this union-organizing effort is that the Dick's Employee Council is seeking to grow by acting like a union from the very beginning. It is making a concerted effort, even as a fledgling union, to convince management to improve its members' working conditions, and its members are already paying dues-nominal at this early stage, though nevertheless dues. They are "putting their money where their mouth is" to show their commitment to building a real union.

As the Council demonstrates the benefits of union representation, other workers will have visible reason to join. Organizing by bargaining can thus be "both feisty and sophisticated" and can create an entity that will be an important stepping-stone on the path to conventional majority-union exclusivity bargaining. This new union is being built in the same way a new business is usually built, from the ground up, starting small and growing larger-not by the upside-down method of having to demonstrate mature majority-status before it has any members and before it has had any opportunity to demonstrate its bargaining capability and potential for effective representation.

Obviously, this process cannot work effectively unless the employer complies with its duty to bargain. In due time, however, the NLRB and/or the courts should properly construe the law and require employers to meet and bargain in good faith with unions that seek to represent only their members in places where there is not yet a recognized majority-union representative. Numerous labor-law scholars and attorneys have recognized this original-intent and commonsense interpretation of the NLRA. Despite the passage of time, as was the case with the long delayed Supreme Court's recognition of the full meaning of a Reconstruction period Civil Rights Act, the NLRA can be expected to eventually receive the same kind of accurate judicial reading. Assuming that the members of the NLRB and the federal judges who make this decision adhere to the letter of the law and the clear intent of Congress-and refrain from engaging in administrative and judicial activism by re-fashion the law in a manner that pleases only anti-union employers-members-only collective bargain may again provide employees and unions with a feasible means to expand the presence and role of labor unions in America.

Charles Morris is professor emeritus, Dedman School of Law, Southern Methodist University.

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