Should non-majority unions have the right to bargain?

Abstract

FOCUS □ COLLECTIVEBARGAINING Should non-majority unions have the right to bargain? ByWorldWarII, members-only bargainingas a way to buildthe unionthrough strugglewas forgotten bythe labour movement JUDY ATKINS isaretired machinist and librarian and was president of UE District 2. This article first appeared in US union journal LaborNotes www.labornotes.org It's under ONLRA'). time the to With take National any a new luck, Labor look the at National Relations our old Labor rights Act under the National Labor Relations Act ONLRA').Withany luck,the NationalLabor Relations BoardCNLRB')couldsoon issuea rulingthat wouldrequire employers tobargain with members-only unions - thatis,unionsthathave notdemonstrated their majority status through a representation election. Recent surveys haveshowna majority ofworkerswantto belongto a union.Ifjust40 percent werewilling to sticktheir necksout at a workplace and thisrulewas in place,theseworkers could not onlybelongto a unionbut bargain withtheir employer. Building workers' powerat thejob wouldtakea giantstepforward. A groupof 46 labourlawyers, led by NLRA expert Charles Morris,a law professorat Southern Methodist University, urgedtheNLRB to do so this June,organising an amicusbrief to a long-delayed case to add pressure. Thebrief growsoutofa 2005case inwhichthe Steelworkers CUSW')had organised workers ata Pittsburgh warehousebutdid nothave majority support.The uniondemandedthatthe owner, Dick'sSporting Goods,bargain withtheworkers over health and safetyissues. The company refused and thecase wenttotheNLRB. The followingyear,NLRB's Advice section urgedtheboardto turn theSteelworkers down. Its interpretation said unions mustprove they havethesupport ofa majority ofworkers, usuallythrough an NLRBelection, beforean employercan be compelledtoenter intonegotiations. Of course,as everyunionactivist knows,the NLRBelectionprocesshas becomeso perverted thatemployers can engagein all sortsofbehaviour - firing workers, making their worklifehell, threatening to close theshop - thatmakeelectionsnearly futile. Sevenunionsresponded totheadvicememothe USW,Electrical Workers ('IBEW'), Electrical Workers CUE'), Communications Workers, Auto Workers, California Nurses,and Machinists - filinga petition withtheNLRBin 2007in support ofrestoring theideaofmembers-only unionsand forcing employersto bargainwithunions for their members. The new amicusbrief was filedin support of theunions'petitions, whichwentnowhere under PresidentGeorge W. Bush's NLRB. Now that President Obama's NLRBis finally up to itsfull five-member complement, the labour lawyers think thepetitions standa better chance. Rediscoveringnon-majority unionism Historically, theNLRA didnotrequire that majoritysupportfortheunionbe provenbeforean employer hadtoengageincollective bargaining. Consider how theUAW's1937sit-down strike at theGeneralMotors plantinFlint, Michigan, was settled: 'Thecorporation hereby recognises theunion as thecollective bargaining agency forthose employees ofthecorporation whoare members oftheunion Likethemajority of agreements reachedin the early yearsoftheNLRA, theemployer recognised theunionas thebargaining agentfor itsmembers only.The majority of Flintworkerswere not UAWmembers atthatpoint. The members coulduse thefactthatthecompanynow had to bargain withthemovergrievances ,however, tobuildmajority support. Itwas the same in the electricalindustry: General Electric first recognised theUE as thebargaining representative foritsmembers onlyin 1938.The union'smajority status camelater. Thisbargaining for'members only'was considered legal because of Section7 of the NLRA, whichstates that: ' Employees shallhavetheright toself-organisation ,toform, join, orassistlabourorganisations , tobargaincollectively through representatives oftheir ownchoosing, and toengage in other concerted activities forthe purposeof collective bargaining orother mutualaid or protection..'. Nowhere does thelawdescribe unionsas having to enjoymajority support in orderto engagein collective bargaining. In fact, Morris's history of theNLRAand itsuse from beginning topresent, a book called TheBlueEagleat Work , findsno legalbarrier tothisinterpretation. Butas thelabourmovement pickedup steam, unionsbegan to use anotherprovision of the NLRA,Section9, which held thatif a union proved majority supportthroughan election, thentheunionwas recognised as thesole and exclusive bargaining representativefor all employees, whether or nottheyweremembers orsupported theunion. By thebeginning of WorldWarII, membersonly bargaining as a way to build the union through struggle had fallenby thewaysideand was forgotten bythelabourmovement. Thereare precedents Severalunionsexperimented withthe idea of building'nonmajority unions'in the 1980sand 1990sas a preludeto winning majority support. The UE first experimented withthisstrategy in the plasticsindustry and then among public INTERNATIONAL union rights Page 8Volume 17Issue 4201 0 FOCUS □ COLLECTIVE BARGAINING employeesin NorthCarolina.CWAused this approach with publicsector workers intheSouth andamongIBMemployees nationwide. 'Members-only' organising could be a democratic , bottom-up wayto organise. Workers don't haveto waitfora unionorganiser and a union with huge resourcesto show up, and then enduretherigors ofan NLRBelection thatgives alltheadvantage totheemployer. Can thisworkinthe future? With training andbackupbyunions, worker centres , and otherprogressive community organisations , workers can signup their co-workers and begina collectivestruggle fortheirrights and against thecompany's takeaways. Once workers showtheir strength, anda significant number join theunion,a demandtobargain can be made. This strategy could even be done across a region orindustry, coordinating demandsforthe sameholidays, similar healthinsurance, orrecall rightsafterlayoffs, especially if there...