Senator Wagner Still Speaks, And We Should Listen

Charlie J. Morris

Charles J. Morris is Professor Emeritus at Southern Methodist University's Dedman School of Law.

My new book, How the Working Class Can Help the Middle Class: Reintroducing Non-Majority Collective Bargaining to the American Workplace, verifies and explains the legal basis of a little-known collective bargaining process, to wit, members-only minority-union bargaining, and how it is expected to function, plus its role in history, and how it can be achieved as an alternative procedure for union organizing and collective-bargaining.  This book provides the answer to organized labor’s long-sought and yet unfulfilled search which AFL-CIO President Trumka expressed six years ago: that America’s “basic system of workplace regulation is failing;” therefore “the labor movement  must embrace new models of representation that exist outside of traditional unionism,”  Although enforceable non-majority collective bargaining is not such a new model, it is new in today’s labor-relations environment. It’s actually a practice that flourished in the early years of the Wagner Act, and is based on legislative provisions that are still viable in the current National Labor Relations Act (NLRA or Act).  What Senator Wagner said through legislative language speaks to us today, and if the National Labor Relations Board (NLRB or Board) and the enforcing courts will but read and follow that text, the American labor movement will be able to avoid the irrelevancy to which it has been steadily heading; and the resulting better wages and working conditions will provide the countervailing force needed to help the middle class regain the strength that a healthy democratic economy requires.

The problem is indeed serious.  The current scarcity of unions means that anti-union employers and their Republican supporters are on the verge of realizing their ultimate goal of reducing unions either to nothingness or idleness.  Their success to date in making it virtually impossible for workers who desire union representation to achieve that goal is due in large measure to their effective creation of oppressive legal rules.   They secured those outcomes by ensuring that the selection of Republican-majority Board Members and most NLRB General Counsels would be appointees who in reality were opposed to the official national labor policy of encouraging collective bargaining and union membership—which is expressly spelled out in the Act.  That history is well documented.

As a result of that history, much of the original text of this Act has been either ignored or misconstrued.  As I have contended for many years, some major improvements in the Board’s functions could be achieved by lawful innovative interpretations based on existing legislative text.  I’ve described some examples of those constructions and their accompanying procedures in three recent publications (the titles of which indicate their coverage and purposes):  (1) Undercutting Linden Lumber: How a Union Can Achieve Majority-Status Bargaining Without an Election.  (2) Freeing the Captives: How Captive-Audience Meetings Under the NLRB Can Be Controlled.  And (3) A “Tale of Two Statutes” Redux: Anti-Union Employment Discharges Under the NLRA and RLA, with a Solution.  Although each of those proposals would significantly improve the Act’s efficiency, any such adoption would require a supportive NLRB, for each relies upon the agency’s exercise of a Chevron step-two interpretation where “the statute is silent or ambiguous with respect to the specific issue.”  It’s thus a certainty that President Trump’s pro-employer NLRB would never enact any of  those proposals.

In contrast, however, this same Chevron judicial-oversight decision calls attention to the different nature of non-majority collective bargaining, for that vintage proposal, which is contained in my new book, is based entirely on clear non-ambiguous statutory language, not on the agency’s construction of ambiguous text.  Thus, paving the way for its validation can begin at any time, for it could  be initiated either later by a supportive NLRB at a more propitious political time, or at any time through judicial action that would overrule or bypass a non-supportive Board or General Counsel, for this proposal is based wholly on Chevron’s step-one concept of “an unambiguously expressed intent of Congress,” for which no administrative discretion is required.

This process of restoring health to an ailing labor movement should therefore begin with an understanding of the legal premises and characteristic procedures of minority-union collective bargaining that are spelled out in this new book, plus many other features not contained in its 2005 predecessor, The Blue Eagle at Work.  Much has happened to the concept since that time.  In particular, a small but propitious event occurred while the NLRB was issuing its final decision in a relatively non-controversial but complex unfair-labor-practice case, Children’s Hospital and Research Center of Oakland.  In that “sleeper” case, which was decided unanimously on other grounds, Board Member Kent Hirozawa issued a concurring opinion to which the other two Board Members in the panel raised no objection, thereby infusing that old non-majority collective-bargaining concept with the beginning of a new life.  That opinion courageously held that the statutory phrase “subject to the provisions of section 9(a)” in Section 8(a)(5), a key bargaining provision in the Act, “does not mean that for an employer to have a duty to bargain with a union on behalf of its employees, the union must be a Section 9(a) exclusive representative.”  As this concurring opinion concluded from unambiguous language in the Act, that section requires only that a union which represents a majority of the  employees in an appropriate unit be the exclusive representative of all the employees in that unit; it does not say that majority representation is a prerequisite for bargaining.  That conclusion is also supported by a Senate committee report that had not been highlighted in the earlier Blue Eagle At Work, a report that specifically recognized the legitimacy of minority-union bargaining, limited only with regard to union-shop agreements.  This new book also contains many other features that bring this issue up to date, especially the political events and circumstances that postponed the final determination of this concept.  I recommend its reading by all who recognize the importance of a strong and healthy labor movement.

The stakes are indeed high.  Union representation should be available for all employees who want it, not only for the rare majorities of employees who have had the good fortune to be recipients of majorities who voted for it sight-unseen before it could function.  When that availability is fully established, American capitalism will have earned the title of democratic capitalism.

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