Friday, August 9, 2013

Morris on Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use

CharliemorrisNow that the Senate has confirmed an entire 5 member NLRB, Charlie Morris (SMU Law) reminds us that the time is soon coming for the filing of a members-only rulemaking petition. 

In this regard, he has posted on his blog, Charles J. Morris on Labor Relations, a warm-up for that prospect.  The post is entitled: Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use, and the full version of his post is available on Charlie's blog.

Here's a taste of Charlie's post:

It is especially important that the AFL-CIO and other participants in American labor relations become better acquainted with the concept of members-only collective bargaining because the National Labor Relations Board will likely be considering that process in the near future.  Validation of this innovative process can be of immense help in getting American workers back on the road to a robust labor movement and a major expansion of collective bargaining that will help build a stronger middle class. 

The need for such a process has been dramatically evidenced by recent work stoppages at various Wal-Mart and fast-food locations.  Although those walk-outs represent commendable examples of courageous workers fighting back, they will inevitably be unsuccessful in achieving significant change.  Despite their legitimate complaints, those low-wage workers have no effective mean to engage management in a dialogue about working conditions―much less in a consequential bargaining session that might significantly improve those conditions. 

They obviously need a union; but in accordance with prevailing conditions under the National Labor Relations Act (NLRA or Act), union representation is virtually unavailable to them and to most other American workers. The sad fact is that Wal-Mart and other anti-union companies are almost always able to prevent their employees from achieving union representation.  Many―if not most― nonunion companies routinely indoctrinate their workforce with anti-union rhetoric and frequently engage in aggressive conduct—both legal and illegal—to successfully discourage any support for workers organizing into groups for any purpose.  Employment discrimination and discharges for union activity, and the fear of such retaliation, are commonplace.

As Charlie points out, this is the same piece that he submitted to the AFL-CIO in its search for new ways of rebuilding the labor movement and collective bargaining.  Charlie is the master on this topic and I highly recommend that those looking for alternatives to increase worker voice in the American workplace give serious consideration to Charlie's proposals.


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At the risk of throwing cold water on this issue, the Division of Advice on the General Counsel's side of the NLRB took a look at this issue a few years ago. While their pronouncement is not binding on the Board, it does provide a counterpoint to the arguments raised by Prof. Morris in his seminal book "The Blue Eagle at Work".

Here is a link to to Advice Memo:

Posted by: Nick Ohanesian | Aug 11, 2013 8:18:54 AM

Nick Ohanesian’s reference to the General Counsel’s Advice Memo in the Steelworkers’ Dick’s case demonstrates what has now become that Memo’s improper purpose, which is to give an appearance of credibility to a position that otherwise lacks legitimate legal authority. The issuance of that Memo violated the G.C.’s proper function, which would have been to allow the Board, not the G.C., to interpret the text of the Act. As a result, decision on this issue has been delayed for several years. I hope Mr. Ohanesian will also examine the analysis of that Memo contained in the Steelworkers’ subsequent rulemaking petition, which the Obama Board, because of numerous inside and outside pressures chose to dismiss without prejudice for a good and obvious reason (which allows the issue now to resurface). That analysis demonstrates that the original authors of that Memo probably accepted the Steelworkers’ readings of the statute and legislative history, for they carefully repeated them in full and never contested their meaning. The alleged basis for the dismissal was simply a misreading of prior cases that never actually addressed the members-only issue. I look forward to the Board’s renewed opportunity to confirm that all employees covered by the Act, whether or not they are part of a recognized or certified majority, have the right to bargain collectively, which the Supreme court in the Jones & Laughlin case termed a “fundamental” right.

Posted by: Charles J. Morris | Aug 12, 2013 10:50:43 AM

I am certainly not attempting to suggest that the GC's position was necessarily correct. The GC's office offered their opinion much as an AG's office might offer on a proposed action. The GC's opinion is not binding on the incoming GC or the Board. I was simply pointing out a contrary argument.

Posted by: nick ohanesian | Aug 12, 2013 1:07:36 PM

While their pronouncement is not executed on the Panel, it does offer a counterpoint to the justifications brought up by Prof. Morris in his seminal guide "The Red Large eagle at Work".

Posted by: linkedin | Aug 8, 2014 10:51:27 PM

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