Charlie J. Morris is Professor Emeritus at the Dedman School of Law, Southern Methodist University.

Thank you, Andrew Strom, for calling attention to and describing NLRB Member Kent Y. Hirozawa’s end-of-term concurring opinion in Children’s’ Hospital and Research Center of Oakland, 264 NLRB No. 114 (2016), in which he unobtrusively began the belated process of opening a door to members-only minority-union collective bargaining.  This is an opening to what should eventually allow the NLRB to usher in that little-known rational bargaining practice, allowing it to become a viable alternative to the current backward-procedure of first requiring a union to prove its majority, rather than first allowing it to build that majority through a logical incremental process of bargaining for its members only.  Such bargaining would be in accord with the clear language of the National Labor Relations Act.  Hirozawa correctly held that the bargaining “right enforced by Section 8(a)(5) is unencumbered by any requirement of Section 9(a) [majority] status.”  He accurately pointed out that Congress had made it clear in the text of Section 8(a)(3) with reference to closed shops (and retained for the Taft-Hartley’s change to union shops) that the same restrictive language indicated that it knew well how to confine all bargaining to Section 9(a) majority unions—had it so intended.  Furthermore, as I pointed out in my 2005 book, The Blue Eagle At Work, this rejection of a majority requirement was also confirmed by Congress’s specific rejection of “smoking gun” alternative language that would have expressly confined all collective bargaining to representatives “chosen as provided in Section 9(a),” i.e., “designated” or “selected” by a “majority” of bargaining-unit employees.

Although I did call contemporary attention to members-only bargaining in the Blue Eagle, the concept is not new.  It was widely used during the decade following passage of that Act in 1935.  During those early years, minority-union members-only contracts became as prevalent as majority-exclusivity contracts, and their numerical coverage of employees may have been even greater.  Those contracts almost always developed into conventional majority/exclusivity Section 9(a) contracts.

It is noteworthy that this process received early input from a high management source.  If was the CEO of a major American corporation, Myron C. Taylor, chairman of the Board of U.S. Steel, who played a pivotal role that strongly influenced its rapid spread.  Taylor was an experienced lawyer (indeed he later became a major donor to Cornell University Law School, which was thereafter housed in the beautiful gothic-style building that bears his name).  Following the summer of 1936, which was when the Steel Workers’ Organizing Committee, which later became the Steelworkers Union, was busy organizing U.S. Steel employees in what could easily have culminated in a strike, Taylor—with obvious reference to the new labor statute—developed a members-only collective-bargaining formula.  Armed with that formula, he convinced John L. Lewis, leader of the massive unionizing drives then prevailing in both the steel and automobile industries, to accept its concept as the basis for settlement of the pending union-recognition confrontations in both industries.  The unions did not represent employee-majorities in either industry.  The resulting members-only minority-union concept became the basis for settlement of the UAW’s Michigan sit-down strikes, unionization of the General Motors and Chrysler corporations, and unionization of the bulk of the steel industry.  During those early years minority-union members-only contracts became as prevalent as majority-exclusivity contracts, and their numerical coverage of employees may have been even greater.  Those members-only contracts almost always evolved into conventional majority/exclusivity Section 9(a) representation, and the American labor movement grew strong accordingly.

Andrew Strom’s observation that this Children’s’ Hospital “concurring opinion by a highly respected Board Member will likely encourage proponents of members-only bargaining to make another run at the full Board” is a welcome reminder.  The last effort that brought this issue directly to the NLRB was through a rulemaking petition filed in 2007 by the Steelworkers’ Union, which was joined by six other national unions and the Change-to-Win federation on behalf of its seven affiliated national unions.  The Board dismissed it without prejudice on August 11, 2011, for the stated reason of overwhelming time-pressure caused by other pending major cases.  The time may now be ripe to begin rebuilding interest in refiling that petition, or something comparable.  The above signed-on unions will provide the natural a starting point.  Here are those unions:

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO (USW)

International Brotherhood of Electrical Workers, AFL-CIO (IBEW)

Communication Workers of America, AFL-CIO (CWA)

United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO (UAW)

International Association of Machinists and Aerospace Workers, AFL-CIO (IAM)

California Nurses Association, AFL-CIO (CNA)

United Electrical, Radio and Machine Workers of America (UE)

Change to Win (which signed on January 4, 2008) affiliates:

International Brotherhood of Teamsters

Laborers’ International Union of North America

Service Employees International Union

United Brotherhood of Carpenters and Joiners of America

United Farm Workers

United Food and Commercial Workers International Union

UNITE HERE.