Jottings By An Employer's Lawyer

Friday, March 09, 2012

Thinking About A Different World Under the NLRA

I have been quite busy lately but finally began catching up on some past reading and one of the first things was the most recent edition of the ABA Journal of Labor and Employment Law, Fall 2011, and its first article, Imagine a World Where Employers are Required To Bargain with Minority Unions by Catherine Fisk and Xenia Tashlitsky.

Professor Charlie Morris' book advocating for minority member bargaining, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, remains only partially read on my bookshelf.  So, I was quite interested to see what another academic would have to say about an intellectually challenging idea, one that would clearly turn the world of labor relations on its head from anything that I have known in the now more than 35 years I have been practicing.

It is not altogether an academic question given that there are currently requests filed with the Board for such a rule making endeavor, and a Board that has shown its willingness to engage in rule making far more than in the past.

But what was clear from the article is just how complex an issue it really is. It is clear that Professor Fisk and her student co-author, clearly are intrigued by the idea, but intellectually honest enough to realize (and point out) just how many other questions it would raise, and how incomplete the data is that we would need to resolve those questions.

Their view is that the proper approach  should not be whether or not bargaining with a minority union is legally mandated, but whether or not it makes sense from a policy viewpoint. They believe it is clear that it would be a permissible reading of the NLRA, but that by no means does that answer whether it would be the wise course.

For anyone looking for a simple solution to current problems in the world of labor relations, even a cursory review of the questions that the authors raise should be enough to make clear that mandating minority bargaining is not a panacea.

They end by concluding that  NLRB rule-making on the subject would be worthwhile, but more for the process of a full exploration of a novel idea than as a foregone conclusion that we should end up with such a rule. Their words are more eloquent than mine:
"while one part of the benefit of any legislative process, whether through legislative enactment or agency rulemaking is judged by the rules that are adopted, another part of the value is the process itself.  All the stakeholders in the labor law world would benefit if the NLRB were to conduct rigorous study of this important policy question and offer substantive reasons for its decision to issue or reject a rule."
In one more burst of candor, they admit that in today's partisan atmosphere, it is highly unlikely that the Board will undertake such a review. My two cents, in this highly partisan atmosphere, the Board should not.

That doesn't address the bigger question however. A review of serious policy issues, in the world of labor and employment law, as in other areas of the body politic, are necessary from time to time, and as long as we remain paralyzed by our increasing political divide, problems that need addressing with wisdom and compromise, remain far from our reach.

It's not good for the world of labor and employment law, or for the bigger political world in which labor and employment law is just our narrow corner.


With 50+ years of labor law practice behind me, I firmly believe there is almost nothing the Obama NLRB would consider off base to further his agenda to pay off the unions. Note that in a recent press release the NLRB completely ignore its role under the Taft Hartley Act amendments:
“The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The Agency also acts to prevent and remedy unfair labor practices committed by private sector employers.”
At least the NLRB now admits that it doesn’t really act to prevent or remedy unfair labor practices committed by unions.
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