The Blue Eagle at Work - Action By The NLRB

Action By The NLRB

The NLRB has not yet considered or acted upon Morris' thesis. In 2006, the United Steelworkers organized a members-only minority union at Dick's Sporting Goods, a sporting-goods retailer located near Pittsburgh, Pennsylvania. The Director of the NLRB's Region 6 asked the NLRB General Counsel's Division of Advice for guidance and received an "Advice Memorandum", on the legal merits of the case. In the Advice Memorandum, Associate General Counsel Barry J. Kearney of the Division of Advice rejected the argument that the NLRA contained an affirmative duty to bargain with members-only minority unions. That Memorandum has been challenged by the two rulemaking petitions now pending before the NLRB.

In his quarterly review of the activities of the Office of the General Counsel, Meisburg reiterated his conclusion that the NLRA does not require employers to bargain with members-only minority unions.

When Congress enacted Section 9(a), which sets forth the majority rule, it explicitly rejected other forms of representation, including plural and proportional representation, which were permitted under Section 7(a) of the NIRA. Statements by the Act’s sponsors show that they did not intend to require employee representation by minority-supported unions because it could not lead to a working system of collective bargaining. ... In the early enforcement of the Act, the Board held that an employer may recognize and bargain with a minority, members-only union, as long as the employer does not extend that union exclusive status. Consolidated Edison Co. of New York, 4 NLRB 71, 110 (1937), enfd. 95 F.2d 390 (2d Cir.), modified on other grounds 305 U.S. 197 (1938). However, nothing in the statutory language, legislative history of the Act, or decisions interpreting the Act, establish an employer's duty to do so. ... Rather, the statutory language, the legislative history, and Board and Supreme Court decisions interpreting the Act all mandate the conclusion that an employer is not required to bargain with a union seeking to bargain as a minority representative for its members.

That assertion was challenged by the rulemaking petition of the Steelworkers Union, et al., now pending before the NLRB, which noted that "not one sentence in either the Advice Memorandum or the Regional Director's Dismissal Letter" in the Dick's case presented any discussion of statutory language other than to reiterate the Morris reading without presenting any disagreement with that reading. It noted further that the Memorandum never addressed the relevant legislative history, particularly the "smoking gun" revelation. Regarding the alleged Board and Supreme Court cases, it pointed out that they are non-existent, for there are no cases holding that minority-bargaining for members only where there is not yet a majority representative is either legal or illegal, and the General Counsel was unable to cite any.

Unions appear determined to bring their case to the NLRB. Because the General Counsel's refusal to issue a complaint is not deemed subject to review, in order to bring the issue before the Board the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO (Steelworkers Union), joined by six other unions, on August 14, 2007, petitioned the NLRB in a substantive rulemaking case for issuance of the following rule:

Pursuant to Sections 7, 8(a)(1), and 8(a)(5) of the Act, in workplaces where employees are not currently represented by a certified or recognized Section 9(a) majority/exclusive collective-bargaining representative in an appropriate bargaining unit, the employer, upon request, has a duty to bargain collectively with a labor organization that represents less than an employee-majority with regard to the employees who are its members, but not for any other employees.

The six unions that joined with the Steelworkers Union were the International Brotherhood of Electrical Workers, Communication Workers of America, United Automobile, Aerospace and Agricultural Implement Workers of America, International Association of Machinists and Aerospace Workers, California Nurses Association, and United Electrical, Radio and Machine Workers of America. Following the filing of that petition, on August 14, 2007, 25 university professors of labor law submitted a letter to the NLRB indicating their agreement with the legal premise of the Steelworkers' petition and urged the Board to issue the rule proposed in that petition. On January 4, 2008, the Change to Win union federation, on behalf of its seven affiliated unions, to wit, 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, and UNITE HERE, filed another rulemaking petition requesting the NLRB to issue the above proposed rule. The proposed rule is thus now backed by several major AFL-CIO unions, one independent union, and all of the CTW unions with their six million members. These petitioning unions represent the overwhelming majority of all private sector union members in the United States who are subject to the NLRA.