Wednesday, November 02, 2005

The Blue Eagle: reviving an old legal weapon to open a new road for labor

The Blue Eagle at Work; democratic rights in the American work place, by Charles J. Morris. Cornell ILR Press. 310 pp. 2005.

Reviewed by Herman Benson

Law professor Clyde W. Summers inspired this book. Theodore J. St. Antoine, who writes the foreword, calls Summers “that imaginative legal thinker and doughty champion of workers’ rights.” In 1990, Summers wrote a short piece in the Chicago-Kent Law Review entitled, “Unions Without a Majority –a Black Hole.” His theme was taken up briefly and unobtrusively by a few legal scholars, notably Alan Hyde, apparently without making much of an impact at the time. But now, with this book-length treatment by law professor Charles Morris, Summers’s 15-year old law review piece commands attention.

Before writing this book, the author set out “to determine the accuracy of Professors Summers’s thesis.” After prodigious research, Morris was so convinced that he came up with a persuasive, closely reasoned work that is essentially a 230-page legal, moral, and practical brief in support of Summers, accompanied by 60 pages of bolstering citations and references in the form of notes.

The National Labor Relations Act, in section 9(a), provides that “representatives selected by a majority of employees in a bargaining unit shall be the exclusive representative for the purposes of collective bargaining of all employees in the bargaining unit.” But what about those situations where no majority union has been selected, or even where a majority of the employees have voted to reject any union representation? Where there is no majority representative, Summers insisted, the law clearly protects the right of unions which represent a minority to act on behalf of its own members, not to represent the majority but its own members. The “black hole,” he argued, was the failure of the labor movement to demand that right and to exercise it, and the failure of the National Labor Relations Board, in practice, to defend that right.

Summers wrote that in 1935 “Congress proclaimed basic rights of American workers in the sweeping words of section 7 of the Wagner Act” which reads:

“Employees shall have the right to self organization, to form join and assist labor organizations, to bargaining collectively through representatives of their own choosing, and to engage in other concerted activities, for the purpose of collective bargaining or other mutual aid and protection.”

This provision is reinforced by Section 8(1) which declares, “It shall be an unfair labor practice for an employer to interfere with or coerce employees in the exercise of their rights guaranteed by section 7.”

In the absence of a majority union with exclusive bargaining rights for all employees, Summers argued, the law gives a union representing a minority the right to act for its members and to seek bargaining rights to represent its members, not the majority but only its own members. And he listed a whole series of practical measures that such a minority union could legally undertake to enforce its rights, including a strike, so long as it seeks to represent only its own members, not the majority.

What are the obligations of the employer? Summers wrote, “We have probably proceeded too long on the questionable assumption that the employer has no affirmative duty to bargaining with a non-majority union to now recognize that duty short of a statutory amendment.”

In at least one respect, however, author Morris exudes a conviction, even an enthusiasm, that goes beyond Summers. Morris agrees that new remedial legislation to impose upon employers the obligation of bargaining with minority unions is not likely. But he is convinced that the law’s requirements are already textually so clear, and the arguments for them so persuasive, that new legislation is unnecessary. He concedes that it will not be easy to overcome employer hostility or to reverse the NLRB’s presumption against minority union bargaining. But what he presents is no mere intellectual exercise. In his own words he offers what “is in effect, a procedural manual on how workers and unions can more efficiently reach the goal….”

In the early confrontations between unions and employers, Morris notes, it was common practice for unions to represent only their own members, especially when employers, resisting the union shop, sought to limit union power. In the early days of the New Deal, before the adoption of the Wagner Act, minority union bargaining was an accepted fact. Even after the adoption of the Wagner Act, the first union agreements with U.S. Steel and General Motors recognized the Auto Workers and the Steel Workers as representatives only of their members and no others. It was only later that the unions won the exclusive right to represent all employees. Morris emphasizes that today, just as the in the thirties, wining the right to minority representation can be the first step toward wining the majority.

He piles up the evidence: from the plain text of the law, from the record of Congressional intent, from U.S. obligations under international law. And even from the constitutional right to assembly.

It has taken years of neglect, he argues, for the experiences of the past to be forgotten and for the assumption to prevail that only majority unions are entitled to collective bargaining rights, an assumption that is not backed, he says, by any case law. To reestablish minority rights he maps out a multi- pronged practical program of action:

He proposes that a union representing only a minority demand recognition by an employer as representative only for it own members. When the employer refuses, as is likely, the union files an unfair labor practice with the NLRB.

If the NLRB rejects the complaint, as is also likely, the union pickets the employer demanding recognition, always only for its own members. If the NLRB, at the behest of the employer, finds the union guilty of an unfair labor practice, the union can raise the issue in federal court by challenging the NLRB ruling.

To bring pressure on the NLRB and to help bring the whole issue to public attention, the labor movement, he suggests, can file a petition with the NLRB, backed by a public campaign, asking it to adopt a rule, substantially as follows:

Where employees in an appropriate bargaining unit are not currently represented by a certified or recognized section 9(a) exclusive/majority labor organization, the employer, upon request, has a duty to bargain with a minority labor organization on behalf of the employees who are its members, but not on behalf of any other employees.

This book can be heavy stuff for the general reader. Much of it seems designed to persuade union leaders, labor lawyers, judges, and NLRB personnel. But it is an important book; these days, it can be a very important book. The labor movement is looking for new ways, new weapons to organize the unorganized. The SEIU has formed a Wal-Mart Workers Association to bring workers together in a hostile anti-union environment. The Communications Workers of America has organized groups of workers in non-union GE shops. Author Morris shows one way to break through the anti-union wall. He seems so committed to the aim that he might even be available to help.

(The above is an advance copy of a review to be published in “Religious Socialism.” For a sample copy of the periodical, write to One Maolis Street, Nahant, MA .01908)

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