The Blue Eagle at Work - Legal Analysis

Legal Analysis

The book was widely praised for its scholarship. " is a remarkably compelling, innovative stroke, one which should be taken very seriously by those who wish to see any kind of renaissance for workers' collective power," wrote one reviewer, whose assessment was typical.

Almost all of the labor law professors who have publicly commented on the members-only minority-union bargaining thesis have agreed that the Morris thesis is legally correct. Twenty-five of those professors joined in a letter to the NLRB on August 14, 2007, endorsing the rulemaking petition that was proposing adoption of such a rule. They stated to the Board that

(A) The plain and unambiguous language of the Act guarantees that in workplaces where there is not currently a Section 9(a) majority-exclusive representative in an appropriate bargaining unit, employees have an enforceable right to bargain collectively through minority unions of their own choosing, but for their employee members only.

(B) Such reading of the statute is fully supported by clear and consistent legislative history.

Nevertheless, Morris' theory has been challenged. Although a few of the reviewers disagreed with some of Morris' secondary conclusions, none disagreed with his critical reading of the statutory language on which he relies. One supportive reviewer, Judge John True, wrote: "Nothing in the actual language of the NLRA, in its legislative history, in NLRB or court cases, in the constitution, in international law, or indeed in common sense or sound policy suggests that unions could not still use this 'members-only' bargaining approach." He reads the language of Section 7 as "all inclusive," explaining that

It does not by its terms limit in any way the rights it confers, including "activities for the purpose of collective bargaining," to those who have designated a union as their exclusive representative. The clear language of the statute confers this right on all employees. So as a matter of simple logic, a minority group of employees is entitled to engage in "activities for the purpose of collective bargaining:" including, presumably, the right to make their employer respond to its bargaining demands.

Morris never denied, indeed emphasized, that the ultimate objective of the Act was majority-based collective bargaining. Nevertheless, minority-union bargaining was always protected as a stepping-stone stage of bargaining that could be expected to lead to majority bargaining, which is exactly what happened during the decade following passage of the Act. None of the facts reported by historian Tomlins, on whom one historical criticism was erroneously based indicated the contrary; indeed The Blue Eagle at Work cited Tomlins.