Bargaining Rights for Non-Majority Unions

NLRBLogo1New Orleans Kenneth Stretcher faxed me an article from the September 2010 edition of Labor Notes knowing that I would be desperate to read it, and I was.  The piece was “Should Non-majority Unions Have a Right to Bargain?” by Judy Atkins and David Cohen both of the UE.  They speculate that with a full panel on the NLRB now, a decision could soon be coming from the Board on the question of referred by the NLRB’s Division of Advice on whether or not unions should be allowed to bargain without having a majority standing and certification.

This is an issue near and dear to me.  The instate case goes back to 2005 and Mike Yoffee, the United Steelworkers Union organizing director, and I discussed it several times at length.  They had been organizing a warehouse unit at Dick’s Sporting Goods and though they didn’t see the full majority coming together after a long drive and deep investment in the unit, made a demand to bargain on certain health and safety issues for the members they had.  Much of this strategy was informed by a controversial, though exciting book by Charles Morris, a senior often dissenting law professor from SMU, called The Blue Eagle at Work. I was able to enlist SEIU’s general counsel, Judy Scott, into hosting a discussion with some of the organizing department and the SEIU legal department with Morris in DC on the issues about nonmajority standing that the book raised.

Seven unions filed a petition challenging a negative opinion by NLRB’s Advice in 2007 including Steel, IBEW, CWA, UAW, IAM, and California Nurses, but not SEIU it seems all supporting different forms of “members-only” bargaining and representation.  History is on the side of such practice as is section 7 of the NLRB, though over the years NLRB decisions have migrated heavily towards the creation of “labor peace” standards that favor “exclusive representation” by one union for specifically defined units of workers that act as “an appropriate” bargaining unit.

It would be important to get a decision finally, though I wouldn’t hold out much hope of a breakthrough here (see above about “labor peace!”).    I’ve been interested in recent years as I’ve spent more time outside of North America, how common multiple representation situations are in workplaces in most countries.  It is a very North American and occasionally European conceit that exclusive representation is the order of the day.  India is certainly a good example of many federations and unions having membership within the same workplace.  Strength is still important and coalitions are necessary, and workers vote strongly with their feet, but the world and labor relations move forward without too much confusion.

I doubt if even the unions agree with diluting exclusivity, but there’s no question that in looking at mega-employers (Wal-Mart is the outstanding example), the work of the Wal-Mart Workers Association proved that close to 1000 members would join, pay dues, and engage the employer directly, where it seems folly under current conditions to believe that an NLRB certification strategy makes any sense in these large and complex employers.  A chance to build a new strategy of “majority unionism” out of non-majority unions would be a breakthrough in giving us a new strategy for mass representation in a new day.

I’d love to believe the NLRB would do the right thing, though that runs way outside of my experience with their decisions over the years.

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