By Moira Herbst

Bargaining

The Rebirth of Minority-Union Bargaining? (April 29, 2005)

Review: "The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace," by Charles J. Morris, Cornell University Press, 2005.

By Moira Herbst With the labor movement facing a crisis of declining numbers and power, the publication of a new analysis of the possibility of using the law to advance workers rights is welcome. In "The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace," labor law scholar Charles J. Morris’ looks to the law for a lifeline. In it he claims that there is a hidden legal tool that unions should now use to gain leverage and grow their membership: the right to minority-union bargaining. Morris bases his argument on the 1935 National Labor Relations Act’s Section 7, which “declares in plain English that collective bargaining shall be available to every employee who wishes to join a union—not just employees who manage to achieve a numerical majority in the employer’s bargaining unit.” That means a given group of workers can join a union without an NLRB election, without card-check recognition — and without the obstacles workers typically face in these processes. What are the practical implications of bringing back Section 7? Morris argues that with minority union representation employees can claim new levels of legal protection. As workers organize into members-only groupings, employers will be forced to recognize them— and face unfair labor practice charges and legal picketing if they do not. Even a union too small to apply economic leverage against an employer will have power nonunion workers do not, such as the right to request information, the right to an on-site union representative for grievances and a general a sense of empowerment at work. In most cases, Morris says, members-only bargaining will be an interim stage ultimately followed by conventional exclusivity bargaining. The hope is that democratic procedures can become the norm on the job, helping build solidarity and lay the ground for more robust union representation. But how revolutionary can Morris’ findings be? Is his rediscovery of Section 7 a “startling breakthrough” that could fundamentally transform American labor relations, as his book jacket proclaims? It seems that while unions and their legal counsel can break new ground by organizing minority unions, doing so is no panacea for the many problems unions face. It is naïve to think that employers will somehow be “discouraged from engaging in excessive anti-union activity” simply because there is no election or card-check process involved. A number of other complications are inadequately addressed in the book, such as employers’ ability to simply co-opt the minority union—to extend to nonunion employees whatever economic benefits the minority union negotiates in order to show the irrelevance of the union. Morris himself warns the reader that his “inveterate optimism might distort [his] judgment” in his argument, which it seems it has. Part of the problem seems to be his narrowly legalistic viewpoint. (He claims that law, “more than any other factor,” controls American labor relations.) In his focus on the law, Morris fails to fully address the other challenges unionized labor faces, namely the challenges of globalization and an aggressively anti-union White House and Congress. As trade unionists know these are no small challenges, and challenges that will not disappear overnight. While Morris says he wants to avoid legal jargon to make his book is accessible to the general reader, his actual audience is likely to be labor lawyers and experts in the area. Much of the text is dense and slow going, and for the argument to have real-life import it will need to be rewritten in a more user-friendly format. It is also heavy on history and legal analysis and lighter on practical application, which only comes in the final chapters of the book (Part III). Most useful for labor leaders and strategists are Chapters 11 and 12 (“Union Organizing through Members-Only Collective Bargaining” and “Industrial Democracy at Work: Turning Wagner’s Vision into Reality”), which together form a sort of manual of how minority-union bargaining can be applied in practice. Chapter 12 discusses how the process might work at large-company employers like Wal-Mart, followed by a look at how the scenario might play out at smaller companies. Labor history buffs and legal scholars will be impressed with the exhaustive and methodical research of Part I (history) and II (legal analysis). Part I for example explores why the concept of minority-union bargaining is virtually unheard of today. Morris argues that over time the emphasis shifted away from members-only bargaining—which was actually commonplace during the New Deal era—and toward exclusive bargaining rights for one union at a worksite. Unions left behind minority-union bargaining because they found they could grow faster by winning majority recognition. With a favorable NLRB in its early days this was true; unions had an 85.5% win rate in the board’s first decade of existence, and the labor movement “for the most part prospered” through the 1960s. But as times have changed radically, argues Morris, it is time to revisit the minority-union option. While Morris’ argument will undoubtedly provide labor lawyers and strategists with new ideas and resources, it seems a long shot to augur that a “new age of minority- union bargaining” is upon us. Rediscovering Section 7 may be helpful but it will not be a silver bullet for reviving the labor movement, which is navigating a complex and ever- changing global landscape.