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

THIS TECHNICAL legal study will be closely studied in the US but may hold limited interest for Canadian readers. The decline of the unionization rate in the US (now 7.9 per cent in the private sector) has focused attention on the rights, privileges, and powers of unions that represent less than a majority in a given workplace. Such nonmajority organizations include some of the most vital, movement-like organizations in US work life, and protecting their existence and privileges could play an important role in keeping the union movement alive. Examples include such projects of the Communication Workers of America as WashTech and Alliance@IBM; Restaurant Opportunities Center [ROC-NY], a project of the Hotel and Restaurant Employees; and advocacy groups for immigrant workers, some with union support.

Most of the legal questions concerning nonmajority unions are uncontroversial. Employees who seek to organize or maintain a nonmajority union are engaged in concerted activity protected by the (US) National Labor Relations Act. As such, they may not be discharged or disciplined in any way for such activity. Employers are privileged to recognize nonmajority groups as the representatives solely of their members, and to conclude binding agreements with them. Nonmajority groups may engage in just about any kind of economic pressure that a majority union can. They may strike, call for a boycott of the employer’s products, or pursue any other kind of lawful consumer pressure. Indeed, a number of US unions in the past decade or so have attempted to maintain such a workplace presence through groups like those mentioned in the last paragraph, despite representing less than a majority. They sometimes seek to have employers deal with them and sometimes succeed. We have no systematic study of such groups.

Morris addresses the only significant legal uncertainty in the U S about nonmajority groups. If the employer refuses to meet with a labor union or other group representing some of its employees, purely as the representative of its own members, will the National Labor Relations Board [NLRB] order it to do so? When I wrote about this question in the Rutgers Law Review in 1993, I could find only one such order, Lundy Mfg. Co., 136 NLRB 1230 (1962), enforced 316 F.2d 921 (2d Cir.), cert. denied, 375 US 895 (1963). Morris doesn’t have any others, so we may be pretty confident that this case is unique. On the other side are a series of cases, going back to the earliest volumes of Labor Board decisions, in which the Board has stated, sometimes in dicta, sometimes as holding, that the employer’s duty to recognize and bargain with a union applies only to unions that have demonstrated support from a majority of the workforce in an appropriate unit. Morris characterizes all these statements as dicta, but he himself shows that, in at least one, General Counsel had claimed that the employer’s refusal to meet was an unfair labour practice, and the Board was removing that issue from the case. I concluded that, under US administrative law, the Board’s lengthy and mainly consistent practice meant that it was probably no longer free to order recognition of nonmajority unions, even as representative only of their own members, absent some action by Congress.

Morris argues that this is wrong, and that an employer who refuses to meet and bargain with a union representing a subset of the workforce indeed commits an unfair labour practice. The originality of his study is his focus on the decisions of the early New Deal labour relations boards (1933–35) that preceded passage of the National Labor Relations Act [NLRA] in 1935. Morris shows convincingly that these early boards routinely ordered employers to meet with nonmajority unions if no union had a majority. The boards applied general language, later transferred to the NLRA, guaranteeing employees the “right to bargain collectively through representatives of their own choosing.” (Some of these predecessor boards functioned as part of an early New Deal program, later declared unconstitutional, whose symbol was the blue eagle; hence Morris’s title, which will be incomprehensible to anyone under the age of eighty unless he or she is well versed in the administrative history of the early New Deal, cutting Morris off from most of his potential readership.)

Morris argues that since the pre-NLRA boards ordered employers to bargain with nonmajority unions, and since the NLRA used the same statutory language protecting employees’ “right to bargain collectively through representatives of their own choosing,” the NLRB is now, and always has been, obligated to order employers to recognize nonmajority unions. To reach this conclusion, Morris must reject an alternative reading, under which the scope of the employer’s duty to bargain was merely delegated by Congress to the new NLRB. Since the NLRB has, with but the one exception noted, never issued such bargaining orders, Morris needs to show that this refusal violates Congress’s delegation. If Congress merely delegated the scope of the employer’s duty to the Board, then the Board’s limitation of its powers to majority unions, while unfortunate, would be within the scope of its authority and not something that a reviewing federal court of appeals might properly correct.

Morris’s argument involves close reading of the pre-NLRA administrative cases, and then the successive drafts of the NLRA. It is too fine-grained for reproduction here, but will be read very carefully by US labour lawyers. I was not convinced. While I agree that the NLRB should have required employers to meet with organizations representing only a fraction of their workforce, I do not find a clear Congressional command that requires the Board to do so. Morris shows that, at several stages in the drafting process, such clear language was briefly part of the bill, but was later deleted as part of a general process of simplifying language and delegating detail to the new NLRB. Drafters similarly rejected a proposal that would clearly have restricted the duty to bargain to majority representatives. I read this history to mean that Congress delegated this issue, along with many others, to the new NLRB.

Morris also shows why the Act’s proponents, and Congress, might have pre-ferred to leave open the issue of nonmajority unions. Union leaders were themselves reevaluating their attitudes during the period of his study. At the beginning of the decade, with no history of US law that addressed union recognition, unions outside the railroads normally understood their claim to representation to rest on their designation by their members. In a 1934 case that Morris makes much of, the union, after defeating the company union in a government-run election, still sought recognition as the representative solely of its members. The pre-NLRA board held that any agreement would apply to all employees. Morris notes that the two most influential US labour leaders, Presidents William Green of the AFL and John L. Lewis of the United Mine Workers, disagreed, believing that a union’s representational powers extended only to its own members. The necessary implication was that in a work-place with no majority union, and even in one that had one, there might be multiple competing representatives, each speaking only for its members. However, this attitude among union leaders began to change as US employers became more aggressive and sophisticated in sponsoring rival unions loyal to the employer. Legislators and witnesses sympathetic to unions (such as Harry Millis, whom Morris quotes), and union leaders themselves, no longer regarded with equanimity the vision of a workplace with multiple competing unions, only some of which were loyal to the labour movement. This may explain why the NLRA as adopted does not address the status of nonmajority unions and might be said to have left the matter to the NLRB’s administrative interpretation. A desire to keep matters fluid, depending on the Act’s efficacy in ending company unions, is at least as consistent with the legislative history as is Morris’s argument that the Act contains a secret command that the Board must order employers to meet with nonmajority groups.

Whether or not Morris is correct, the issue of nonmajority bargaining will not go away. If US unions represent new groups at all, those groups will increasingly fall short of a majority. Unions will increasingly demand recognition for these groups, which employers will resist, and unions will attempt to force such recognition through economic pressure. The study of existing nonmajority bargaining, and the design of new workable institutions for it, remain open questions not discussed in Morris’s book. Out of that study may come important innovations in US union practice, and further successes will come only out of those successes, irrespective of the intentions of Senator Wagner’s associates over 70 years ago.

Alan Hyde
Rutgers University