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PORTSIDELABOR  September 2010, Week 3

PORTSIDELABOR September 2010, Week 3

Subject:

Should Nonmajority Unions Have Right to Bargain?

From:

Portside Labor <[log in to unmask]>

Reply-To:

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Date:

Fri, 17 Sep 2010 20:08:41 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (187 lines)

Should Nonmajority Unions Have Right to Bargain? 

Judy Atkins & David Cohen 

Labor Notes

http://www.labornotes.org/2010/08/should-nonmajority-unions-have-right-bargain



It's time to take a new look at our old rights under the
National Labor Relations Act.

With any luck, the National Labor Relations Board could
soon issue a rule that would require employers to
bargain with members-only unions--that is, unions that
have not demonstrated their majority status through a
representation election.

Recent surveys have shown a majority of workers want to
belong to a union. If just 40 percent were willing to
stick their necks out at a workplace and this rule was
in place, these workers could not only belong to a union
but bargain with their employer. Building workers' power
at the job would take a giant step forward.

A group of 46 labor lawyers, led by NLRA expert Charles
Morris, a law professor at Southern Methodist
University, urged the NLRB to do so this June,
organizing an amicus brief to a long-delayed case to add
pressure.

The brief grows out of a 2005 case in which the
Steelworkers (USW) had organized workers at a Pittsburgh
warehouse but did not have majority support. The union
demanded that the owner, Dick's Sporting Goods, bargain
with the workers over health and safety issues. The
company refused and the case went to the NLRB.

The following year, NLRB's Advice section urged the
board to turn the Steelworkers down. Its interpretation
said unions must prove they have the support of a
majority of workers, usually through an NLRB election,
before an employer can be compelled to enter into
negotiations.

Of course, as every union activist knows, the NLRB
election process has become so perverted that employers
can engage in all sorts of behavior--firing workers,
making their work life hell, threatening to close the
shop--that make elections nearly futile.

Seven unions responded to the advice memo--the USW,
Electrical Workers (IBEW), Electrical Workers (UE),
Communications Workers, Auto Workers, California Nurses,
and Machinists--filing a petition with the NLRB in 2007
in support of restoring the idea of members-only unions
and forcing employers to bargain with unions for their
members.

The new amicus brief was filed in support of the unions'
petitions, which went nowhere under President George W.
Bush's NLRB. Now that President Obama's NLRB is finally
up to its full five-member complement, the labor lawyers
think the petitions stand a better chance. REDISCOVER
NONMAJORITY

Historically, the NLRA did not require that majority
support for the union be proven before an employer had
to engage in collective bargaining. Consider how the
UAW's 1937 sit-down strike at the General Motors plant
in Flint, Michigan, was settled:

"The Corporation hereby recognizes the Union as the
Collective Bargaining agency for those employees of the
Corporation who are members of the Union."

Like the majority of agreements reached in the early
years of the NLRA, the employer recognized the union as
the bargaining agent for its members only. The majority
of Flint workers were not UAW members at that point.

The members could use the fact that the company now had
to bargain with them over grievances, however, to build
majority support. It was the same in the electrical
industry: General Electric first recognized the UE as
the bargaining representative for its members only in
1938. The union's majority status came later.

This bargaining for "members only" was considered legal
because Section 7 of the NLRA says,

"Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection..."

Nowhere does the law describe unions as having to enjoy
majority support in order to engage in collective
bargaining. In fact, Morris's history of the NLRA and
its use from beginning to present, a book called The
Blue Eagle at Work, finds no legal barrier to this
interpretation.

But as the labor movement picked up steam, unions began
to use another provision of the NLRA, Section 9, which
held that if a union proved majority support through an
election, then the union was recognized as the sole and
exclusive bargaining representative for all employees,
whether or not they were members or supported the union.

By the beginning of World War II, members-only
bargaining as a way to build the union through struggle
had fallen by the wayside and was forgotten by the labor
movement. PLENTY OF PRECEDENTS

Several unions experimented with the idea of building
"nonmajority unions" in the 1980s and 1990s as a prelude
to winning majority support. The UE first experimented
with this strategy in the plastics industry and then
among public employees in North Carolina. CWA used this
approach with public sector workers in the South and
among IBM employees nationwide.

"Members-only" organizing could be a democratic,
bottom-up way to organize. Workers don't have to wait
for a union organizer and a union with huge resources to
show up, and then endure the rigors of an NLRB election
that gives all the advantage to the employer.

With training and backup by unions, worker centers, and
other progressive community organizations, workers can
sign up their co-workers and begin a collective struggle
for their rights and against the company's takeaways.
Once workers show their strength, and a significant
number join the union, a demand to bargain can be made.

This strategy could even be done across a region or
industry, coordinating demands for the same holidays,
similar health insurance, or recall rights after
layoffs, especially if there were unionized workplaces
that had better conditions than non-union workplaces.

Coordination and solidarity would be needed on a
regional and national level to make sure these struggles
are cultivated and supported by the institutional
strength of unions and their allies, and not left to
wither on the vine by their lonesome selves. This could
be a job for central labor councils or Jobs with
Justice, but it would have to be organizations that
could rise above petty turf fights, which may mean that
new forms will be needed.

We need to see this type of organizing as a strategy for
the whole working class. Just as the civil rights
movement allowed local groups to decide just how they
would oppose Jim Crow, but came to their support in
times of struggle, so must we allow for local ingenuity
but come to their aid when needed. The lessons will be
learned from experience or, as others have said, "the
road will be made by walking."

The failure to win labor law reform, despite a
Democratic majority in Congress and the presidency,
forces unionists to take a new look how to organize the
unorganized. We need to figure out how to move forward
with what we have, and reclaim some old rights from the
past.


Judy Atkins is a retired machinist and librarian and was
president of UE District 2. David Cohen is a
soon-to-be-retired UE international representative.

PortsideLabor aims to provide material of interest to
people on the left that will help them to interpret the
world and to change it.

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