The Blue Phoenix: If pushed, the current NLRB could recognize the legal status of members-only unions

Introduction to members-only unions

In his 2005 book The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, veteran labor law scholar Charles Morris asserts that, contrary to contemporary conventional wisdom, the National Labor Relations Act provides legal collective bargaining agent status to members-only unions. As their name suggests, members-only unions represent only their members, who usually constitute a minority of the employees in the bargaining unit; employees who are not in the union continue to deal with the employer as individuals. According to The Blue Eagle, as the legal representative of their members, these unions possess all of the rights guaranteed to collective bargaining agents by the Act, including the right to engage in good-faith negotiations with the employer regarding members’ pay, benefits, and other terms and conditions of employment. Members-only unions are contrasted with conventional majority/exclusive unions, which become the legal representative of all of the employees in a bargaining unit after winning the support of a simple majority of the employees in that unit.

In The Blue Eagle, Morris shows through exhaustive research and analysis that under any prevailing theory of statutory interpretation the Act provides legal status to members-only unions. I will not recount Morris’s evidence and analysis here (interested readers can find summaries on Morris’s blog or can check out the book itself), but suffice it to say that both the Act’s plain meaning and legislative history make clear that the Blue Eagle thesis is correct.

As Morris and others have pointed out, enforcement of the Act’s legal guarantees for members-only unions may be the best path to a rejuvenated American labor movement, which in turn will mean a rejuvenated American middle class. The Bureau of Labor Statistics reports that a mere 6.6% of private sector workers belong to labor unions, marking yet another low point in a four-decade decline. As currently (and erroneously) administered, the Act requires workers who wish to organize to win unfair Board elections in which the employer unleashes sophisticated barrages of both legal and illegal intimidation tactics to defeat unionization, often going so far as to directly threaten the livelihoods of the organizing employees. Recognition of the Blue Eagle thesis would allow all workers to exercise their statutory right to bargain collectively without having to win one of these unfair elections, thereby bringing the Act’s administration into line with its framers’ intentions. Employees represented by members-only unions would be able to use their collective strength to obtain a better life for themselves right away. Then, as these unions proved their value, more and more members of the bargaining unit would join up, leading ultimately to conventional majority/exclusive representative status for the union.

Test flights: The Blue Eagle at the NLRB

Recognizing the enormous potential of members-only unionism, the United Steelworkers* sought to obtain an NLRB decision enforcing the rights of members-only unions in 2006. A group of employees at Dick’s Sporting Goods designated a USW-affiliated organization as their bargaining agent. When Dick’s refused to deal with the organization as the legal representative of its members, the USW asked the Board’s General Counsel to bring an unfair labor practice charge. The Bush-appointed General Counsel, management attorney Ron Meisburg, refused to issue a complaint, thereby preventing the Board from considering the issue of members-only unions. In support of his decision, the General Counsel cited badly mischaracterized legislative history and off-point Board and court decisions, and did not directly respond to Morris’s textual or legislative intent arguments.

In the aftermath of the Dick’s memorandum, worker advocates sidestepped the obstructing General Counsel by urging the Board in two separate petitions to use its rule-making power to endorse The Blue Eagle thesis. These petitions were signed by many of the leading unions in the nation, and 46 top labor law professors filed an amici brief attesting the correctness of The Blue Eagle thesis. The Board took no action on the petitions until the end of President Obama’s first term, when it quietly dismissed them without prejudice so as to ensure that a Republican Board majority could not dismiss them with prejudice if Obama lost reelection.

New sheriff in town: Right now is the time to push for legal recognition of members-only unions

Present political and legal conditions, which may be fleeting, make right now the perfect time for unions and other advocates to renew their push for legal recognition of members-only unions. Ideally these advocates would pursue a Board decision (as the USW did at Dick’s) and rule (as the many unions did with the petitions) simultaneously to maximize the probability of success. There are lots of reasons to believe that the outcome of this second push will be different from the initial one. First, the Board’s General Counsel is now Richard Griffin, an Obama appointee who spent many years as the top attorney for the International Union of Operating Engineers. Griffin has demonstrated a willingness to correct the errors of activist Republican Boards of the past and a commitment to enforcing the Act according to the intent of its framers. Given the overwhelming legal support for members-only unionism, Griffin would likely permit the issuance of a complaint against an employer who refused to recognize such a union.

Once he did so, the complaint would likely receive a fair hearing in front of the current Board, a majority of whom have also shown a willingness to correct the errors of the past and a genuine desire to effectuate the Act’s policies. With the confirmation of Lauren McFerran to replace outgoing Board Member Nancy Schiffer, a Democratic majority on the Board is guaranteed at least through the end of Obama’s administration and possibly for some time after that, meaning there is time for the often lengthy process of Board decision- or rule-making to play out. This majority, firmly in place for the foreseeable future, may well be persuaded by the powerful legal support for members-only unions. Moreover, unlike many past Boards, the Obama Board has proved willing to use the NLRB’s rule-making power to effectuate the policies of the Act.

President Obama has re-shaped the federal appellate courts as well as the NLRB, with many new judges on the bench who are more sympathetic to the Act and its purposes. These new judges are likely to uphold a Board decision or rule correctly granting legal status to members-only unions. It’s true that the Supreme Court remains unfriendly territory for working people, but unions and advocates should not let this stop them—things may have changed by the time the issue reaches SCOTUS, if it ever does, and the other favorable conditions make now as good a time as we may see for a members-only unions push. Obama (by veto) or Senate Democrats (by filibuster) can stop any effort by the Republican Congress to destroy members-only unions through legislation. And the public and media are increasingly attentive to the plight of working people and will likely back legal status for members-only unions.

Who knows when a moment like this may come again? Here is a chance for the labor movement to jump-start itself and in turn the American middle class without an act of this at best dysfunctional and at worst outright hostile Congress. Let those who care about working people seize it.

*An early version of this post incorrectly stated that the labor organization in the Dick’s Sporting Goods case was affiliated with the United Automobile Workers. It was actually affiliated with the United Steelworkers.