Friday, January 11, 2008

Another possible new tactic from the Good Old Days

Continuing a series of posts from subject matter experts about the potential sea change in Labor/Management relations we may soon be facing as Human Resource professionals:

Is minority bargaining the next big thing?

Participants in the August 2, 2007 webinar “After EFCA – What’s Next?” (Co-sponsored by the National Association of Manufacturers and the law firms of Kilpatrick Stockton LLP and Kreitzman, Mortensen & Borden) were not surprised by the report in yesterday’s New York Times that the Steelworkers Union and others have petitioned the National Labor Relations Board to use its rulemaking authority to mandate members-only minority-union collective bargaining . The webinar included a brief discussion of the efforts of Southern Methodist University Professor Emeritus Charles J. Morris to bring this issue to a head.

For those who missed the webinar, Professor Morris, 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 union’s 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.

As the Times story notes, 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.

It is interesting to note that the labor movement as a whole is apparently not endorsing this effort. The Times mentions only the Steelworkers and the UAW and five other unnamed unions. 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.

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.

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