Jottings By An Employer's Lawyer

Friday, August 17, 2007

Is the Blue Eagle Set to Fly? Minority Bargaining for Unions

Sometime ago I reported on Charlie Morris', formerly of Dedman SMU Law School, book attempting to resurrect a practice he argued had been common at one time in American labor law. I first mentioned Morris proposal in a comment about his book, The Blue Eagle at Work, more than two years ago here. Earlier this spring, in the context of a broader view of potential developments in labor and employment law (here) I noted Professor Rick Bales of the Workplace Prof blog's post that Morris was soliciting support for his view from other labor law professors.

A simplified view of the practice Morris is advocating, minority bargaining, would work this way. If there were a bargaining unit of 100 and twenty-five joined a union and then requested that the employer bargain with them, the employer would have to. Any resulting agreement would cover only those 25 employees.

Obviously that would be a major change from the status quo where it is all or nothing. Currently using the 100 employee bargaining unit, if 51 want to be represented by the union, the employer must bargain and any agreement covers all 100 employees. On the other hand, if 49 employees want to be represented by a union, the employer has no obligation to bargain with the union.

Professor Emeritus Morris' first attempt to move beyond theory was to support an unfair labor practice charge when an employer refused to engage in such minority bargaining. That effort ran aground when the NLRB General Counsel refused to issue an unfair labor practice charge, thus ending the matter.

Undeterred, seven unions led by the Steelworkers have now petitioned the NLRB for rule-making procedures that would authorize such bargaining. In support of that effort, 25 labor law professors have indicated their support. Professor Morris is the contact person for that group. He did not get any of his fellow Texas professors to sign in support. (Actually Professor Morris now lives in San Diego.) He did get George Schatzski, formerly at University of Texas and now at Arizona State University school of law.

None of the three professors who blog at the Workplace Prof blog are on the list either, nor is the other blogging professor, Ross Runkel. (Just because they are not on the list of course does not mean that they do not agree with the position.) However, they and others are blogging about it.

For some other views and links to the documents that have been filed with the Board see:

Minority bargaining required? Professor Ross Runkel

Minority Unions Professor Jeff Hirsch

Minority Unions, Part Two - Professor Rick Bales

Other non-professors are interested as well, from what may have been the first story to break the latest developments by Steven Greenhouse in Wednesday's New York Times, Seven Unions Ask Labor Board to Order Employers to Bargain to the blog of the National Association of Manufacturers, ShopFloor, Minority Bargaining: Unions Make the Big Play and an earlier post.

The folks at Kilpatrick, Stockton who started a blog (EFCA Updates) during the Congressional fight over the Employee Free Choice Act have been following the story in depth, complete with the first links to the petition, the professor's letter and other background documents, here and here.

The general consensus, which I share, is that this is a non-starter with the current NLRB, but is another agenda item if the political winds in Washington should shift. That agenda is beginning to grow, so much so that it probably merits its own category, the 2009 agenda.

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