The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (review)

The thesis of this book is that minority unions—those representing less than a majority of the employees—have the legal right under the National Labor Relations Act (NLRA) to bargain collectively with employers, and that employers are legally obligated to recognize and bargain with such unions on a members-only basis.

I support and applaud the motivation behind this book. One major cause of union decline is NLRB election procedures that often drag out, giving employers time to engage in a variety of anti-union tactics with virtually no penalties, even for egregious illegal acts such as firing union supporters. Numerous studies have found that employer anti-union tactics have a strong effect on election outcomes.

Morris proposes an end run around the election process, arguing that minority unions should demand recognition and members-only bargaining. While the "conventional wisdom" holds that employers are only required to recognize unions representing a majority of workers, Morris claims this is not the case. He bases his main argument on 1) the plain language of the NLRA; 2) the legislative history of the NLRA and its preceding statute, the NIRA; and 3) the historical experience of minority unions in the 1930s and 1940s, particularly in the automotive and steel industries.

Morris points to the broad language of Section 7 of the NLRA, which guarantees employees the right to engage in activities for the purpose of collective bargaining. He emphasizes that this right is not limited to situations where a union is certified as the exclusive representative of the employees, and argues that Section 8(a)1 makes it an unfair labor practice for employers to refuse to recognize and bargain with minority unions.

Morris's legislative history argument reveals that the language of Section 7 is almost identical to that in the earlier NIRA, which existed during a period when non-majority union bargaining was common. He claims that the drafters of the NLRA were very aware of non-majority unions and that, even though they didn't deal with this issue directly, by keeping the same language for Section 7 they implicitly recognized that minority unions were also protected under the NLRA. He supports his argument with historical examples, describing how the fledgling UAW in the 1930s was able to force General Motors to recognize it as the bargaining agent of those employees who had become its members.

Where there is a majority union, it is the exclusive representative of the employees under Section 9(a), and Section 8(a)5 makes it an unfair labor practice for an employer to refuse to bargain with a majority union. However, Morris argues that this has nothing to do with the employer's obligation to bargain with minority unions under 8(a)1—it is a "myth" that the addition of 8(a)5 pre-empted the employer's general duty to bargain under 8(a)1.

Neither the NLRB nor the Supreme Court has ever ruled directly on the issue of whether employers must recognize and bargain with minority unions that do not claim majority status. The NLRB did, however, issue non-binding dicta in the Pennypower Shopping News case in 1979, saying that employers have no obligation to meet with employees or entertain their grievances where there is no exclusive bargaining representative. Morris argues that this is pure dicta and not controlling. While this is technically correct, it is not uncommon for dicta to become the standard for future decisions. For example, the Supreme Court's dicta in Mackay Radio that economic strikers could be permanently replaced—which arguably violated 8(a)1 and deprived employees of their Section 7 rights—became accepted as established law.

Morris outlines several legal strategies for achieving recognition of minority unions. I am skeptical, however, about whether this can be achieved, given the current legal and political climate and the NLRB's narrowing of Section 7 rights in other...