The Blue Eagle at Work

The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace is a legal treatise written by Charles Morris which analyzes collective bargaining under the National Labor Relations Act (NLRA), the federal statute governing most private sector labor relations in the United States. Published in 2005 by Cornell University Press, the text claims that the NLRA guarantees that employees under that Act have the right to bargain collectively through minority unions--but only on a members-only basis--in workplaces where there is not an established majority union, nothwithstanding that the present practice and general understanding of the law is that only majority-union employees are entitled to engage in collectie bargaining on an exclusivity basis. Contracts resulting from such minority-union bargaining would apply to union members only, not to other employees.

Structure of the book

The Blue Eagle At Work contains three parts: 1) An overview of collective bargaining law in the U.S.; 2) The legal framework in which members-only collective bargaining could occur; and 3) How unions could implement and strengthen members-only collective bargaining and use it as a strategic organizing tool.

Part I

Part I of the book addresses collective bargaining law in the United States. It is broken down into four chapters.

Chapter One provides a historical overview of the rise of membership-based collective bargaining in the period prior to federal recognition of the right to bargain collectively, the provisions of the Norris-LaGuardia Act, and the enactment and legal meaning of Section 7(a) of the National Industrial Recovery Act (NIRA). Attention is paid to The Conference Board survey of labor relations conducted in November 1933. Morris points out that the survey results indicate that members-only recognition and bargaining was common when the NLRA was enacted.

Chapter Two provides an in-depth and exceedingly detailed history of legislative attempts to enact improvements in federal labor law. The chapter provides an extensive analysis of the nine legislative drafts of Senator Robert F. Wagner (D-NY) for his 1934 bill. The chapter also discusses the implementation of the NIRA under first the National Recovery Administration (NRA) and then the National Labor Board and the National Labor Relations Board (NLRB). Morris documents how the concepts of representational exclusivity and majoritarianism were developed in cases such as Denver Tramway Corporation, 1 NLB 63 (1934) and Houde Engineering Corp., 1 NLRB (old) 35 (1934) and cites cases showing that employers' refusing to bargain with a minority union violated the NIRA.

Chapter Three is an extensive consideration of the legislative history of Wagner Act. The three drafts of the Act, committee hearings, floor debates, and committee reports are closely examined to tease out the meanings of the changes made. Morris uncovered one feature that rquired no teasing, a "smoking gun" that shows that congress clearly intended that collective bargaining would not be confined to majority unions only, to wit, the deliberate rejection of a version of the duty-to-bargain contained in Section 8(a)(5) that would have so confined the bargaining process. Instead, the present wording, which does not so limit the bargaining obligation, was selected.

Chapter Four contains the fundamental statement of Morris' thesis: "Union elections are habit-forming." Morris notes:

For several years following the passage of the Wagner Act in 1935, there was never any legal question raised as to the scope of its bargaining requirements, either as to minority-union members-only bargaining or majority-union exclusivity bargaining. Both types of bargaining had prevailed earlier under the Blue Eagle administration of Section 7(a) of the NIRA and both were not widely accepted under the new NLRA.

Morris points to the organizing history of the Steel Workers Organizing Committee and United Auto Workers as prime examples of members-only organizing and collective bargaining, and cites statistics from NLRB and Twentieth Century Fund reports which document the widespread use and acceptance of members-only contracts.

Morris concludes that several factors led unions to become dependent on representational elections. The NLRB itself favored representational elections, "for they provided a relatively simple pattern for bargaining -unit determinations, conduct of elections, and certification of majorities for exclusive union representation." The conflict between the American Federation of Labor and the Congress of Industrial Organizations refocused attention away from organizing. The rapid expansion of unions during World War II and the massive waves of strikes which came after the war continued to divert attention away from organizing. Morris also argues that the Taft-Hartley Act led to "the phenomenon of unions becoming busily engaged in a multitude of legal defensive actions generated by the numerous union restrictions that the new law had created."

"As a consequence," Morris concludes, "only a few years after Taft-Hartley, the NLRB and its union and employer constituents were routinely viewing majority-union bargaining—which was certainly the ultimate goal intended by the Act—as the only bargaining contemplated by the Act. Although unions had originally favored NLRB elections out of sheer convenience, their reliance on the election process had now become routine, with attendant misunderstanding of the true scope of bargaining offered by the statute. ... Thus was born the latter-day conventional wisdom that assumes that majority-union representation is the sine qua non of collective bargaining."

Part II

Part II of The Blue Eagle At Work examines the legal interpretation of Section 7(a) and the NLRA, and concludes that Morris' construction of the law is consistent with existing legal rulings and treaty obligations. Part II consists of five chapters.

Chapter Five engages in a Plain Meaning Rule construction of the language of Section 7(a) and the NLRA. Morris examines Section 7, Section 8(a)(1), Section 9(a), and Section 8(a)(5) of the NLRB for their plain meaning, and concludes they are consistent with members-only minority-union collective bargaining.

Chapter Six examines several rulings by the Supreme Court which are often cited as supportive of majority-only collective bargaining. Morris reviews the First Amendment guarantee of freedom of association, and how the concepts of indirect state action (as elucidated in NAACP v. Alabama, 357 U.S. 449 (1958), and Bates v. City of Little Rock, 361 U.S. 516 (1960), and the test of indirect state action as outlined Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)), direct state action and compelling government interest protect and affirm members-only minority-union collective bargaining. Morris also discusses three key Supreme Court rulings—NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568 (1988) and Communications Workers v. Beck, 487 U.S. 735 (1988)—and concludes that they conform to the concept of members-only bargaining as well.

In Chapter Seven, Morris discusses how the Supreme Court's doctrine of "administrative deference" (outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)) also works in favor of Morris' argument. Morris claims that not only would the Court have to defer to the NLRB's past practice of supporting members-only organizing and bargaining, but that Chevron points to a legal strategy which unions should undertake: Unions should begin pressing the NLRB to reaffirm its previous members-only minority-union rulings as a means of laying the groundwork for possible employer challenges to the practice.

In Chapter Eight, Morris outlines U.S. obligations under international law. He points out that the International Covenant on Civil and Political Rights and the International Labour Organization's 1998 Declaration of Fundamental Principles and Rights at Work both compel a construction of the NLRA which protects members-only collective bargaining.

Chapter Nine discusses the current state of NLRB and court rulings which appear to exclude members-only minority-union collective bargaining. Morris identifies eight "false majority" cases in which the NLRB or a court appears to rule out members-only unions. Morris distinguishes these cases, however, by noting that in none of them did the union actually engage in members-only representation and bargaining. Morris also dismissed four "group-dealing" cases, in which the question was whether an employer has a duty to meet and bargain with groups of nonunion employees under Section 8(a)(1). But once more, Morris distinguishes the cases by noting that in none of the cases did the union engage in members-only representation or bargaining as defined by Section 7(a) or in NLRB past practice.

Part III

The three chapters of Part III discuss how unions might go about reaffirming the right to engage in members-only minority-union collective bargaining.

Chapter Ten discusses using the NLRB and the courts to reaffirm the minority-union concept. Morris outlines how unions might use NLRB representational procedures or direct court rulings to revitalize the concept of members-only unions. Morris also discusses novel approaches, such as direct legal action against the NLRB's General Counsel and picketing for members-only recognition. Other approaches he suggests include amending a Section 8(a)(3) complaint (made to the NLRB when an employee is discharged for engaging in protected union activity, a fairly common occurrence in NLRB representation elections) to establish the fact of members-only unionization and to force the employer to bargain. He also advocates petitioning the NLRB to engage in administrative rulemaking on the subject.

Chapter Eleven discussed how unions should establish members-only minority unions. Morris discussed the role of the union steward, Weingarten rights, employer notification, and how to force employers to engage in collective bargaining.

Chapter Twelve concludes the work with a vision of industrial democracy. Morris argues that members-only unions represent the best way to revitalize the American labor movement. He outlines how workplace democracy is stunted without collective bargaining, argues for productivity is greatly enhanced when unions exist, and that strong unions strengthen social capital inside and outside the workplace.

Appendices

The book contains two substantive appendices. The first is an appendix to Chapter Two. It contains all the relevant provisions of the proposed 1934 "Labor Disputes" bill and the proposed 1934 "National Adjustment Bill" substitute for S. 2926. Both proposed bills are crucial to understanding the evolving concept of collective bargaining which led to the Wagner Act.

The second appendix is meant to accompany Chapter Three. This appendix contains all relevant portions of the 1935 drafts of the National Labor Relations Act (S. 1958). The drafts, introduced in Congress at various points in the legislative process as substitutes for Wagner's original bill, provide the critical textual evidence for Morris' legislative history and plain-meaning interpretive arguments.

Scholarly history

The scholarly pedigree of The Blue Eagle At Work is somewhat lengthy. Although many in the labor movement saw the treatise as novel, the concept had been proposed as early as 1975. Morris himself published an early version of his thesis in 1989. But the most prominent and complete statement of the legal theory came from Professor Clyde Summers in 1990 (which Morris acknowledges in his book).

The "Blue Eagle" theory of members-only unions received additional attention through the 1990s. Legal scholars addressed the merits of the theory, and discussed its application to a variety of other "pre-union" organizations such as worker centers.

Non-legal and labor press reviews

The Blue Eagle At Work was highly anticipated by many labor scholars, labor attorneys and activists in the labor movement. After its publication, the work was widely reviewed in the scholarly and labor press, including Labor Studies Journal, the Journal of Industrial Relations,WorkingUSA, and the Annual Review of Law and Social Science. Nearly all the reviews expressed greater or lesser degrees of skepticism about the theory, but praised the work highly.

Legal critiques

Morris' text received a more rigorous and critical reception among legal scholars. The book was widely praised for its scholarship, however. "[It] 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.

Nevertheless, Morris' theory has been challenged. Most reviewers are skeptical of Morris' claims that the NLRA forces a duty to bargain with members-only unions. As one supportive critic said, "The best that can be said about these obscure and now somewhat dated cases is that they do little to put to rest the question of whether ad hoc groups seeking to exercise their right to take collective action 'for other mutual aid or protection' are entitled to get a substantive response from their employer."

Problems in historical interpretation

Some labor historians have noted that the shift from members-only minority-union bargaining to majority-union representational exclusivity happened much earlier than Morris claims. At least one scholar says the shift occurred as early as 1934 and was one of the factors in leading to passage of the Wagner Act. Senator Wagner himself noted the shift, and viewed unions as agents requiring evidence of majority support. The Houde Engineering decision, discussed so prominently in Morris' book, also clearly indicates that the shift from members-only unionism to representational exclusivity occurred much earlier than Morris concludes.

Criticisms of the legislative history

Morris' interpretation of the NLRA's legislative history has come under fire by some scholars. As one critic noted:

Morris's argument involves close reading of the pre-NLRA administrative cases, and then the successive drafts of the NLRA. ... I was not convinced. While I agree that the NLRB should have required employers to meet with organizations representing only a fraction of their workforce, I do not find a clear Congressional command that requires the Board to do so. Morris shows that, at several stages in the drafting process, such clear language was briefly part of the bill, but was later deleted as part of a general process of simplifying language and delegating detail to the new NLRB. Drafters similarly rejected a proposal that would clearly have restricted the duty to bargain to majority representatives. I read this history to mean that Congress delegated this issue, along with many others, to the new NLRB.

Additional evidence indicates that the Congress did not intend the NLRA to protect members-only unions. One historian notes that the Senate committee which approved the Wagner bill endorsed banning member-only unions.

The "false majority" cases

Morris' discussion of the "false majority" cases has also been criticized. In a somewhat laudatory piece, Judge John True concluded that Morris read too much into otherwise ambiguous decisions:

A number of the other cases [Morris] characterizes as "false majority" claims feature ambiguities similar to Mooresville Cotton Mills. To be sure, none of them squarely disposes of Morris' interpretation, but neither does any seem like the "myth" and dicta that he says stand in the way of minority bargaining rights.

Weakness in constitutional and international law arguments

Others have argued that Morris' constitutional arguments based on freedom of association are not valid under current case law. Critics take issue with Morris' claim that collective bargaining under the NLRA constitutes direct or indirect state action.

Critics also point out that Morris' reliance on international law is a weak reed. As Morris himself admits, "it is widely known and fully documented that the United States does not comply with ILO standards regarding the right of workers to engage in collective bargaining." Morris also admits that the International Covenant on Civil and Political Rights does not permit private citizens to sue in U.S. courts.

Pragmatic problems

Several reviewers have pointed out that Morris' prescriptions for reaffirming members-only minority-union collective bargaining contain problems of their own. They applaud Morris for crafting some inventive and aggressive strategies and tactics.

One problem critics have noted is that members-only collective bargaining creates problems of competition within the workplace. Employers may not respond favorably when a proposed solution will force them to alter work rules and personnel policies across the entire workforce. As one reviewer argued: "Bargaining over wages for members only or a grievance procedure for members only may be possible. Many subjects will have an effect upon non-members and potentially all other non-represented employees. Such issues may adversely impact non-members who do not want representation."

Workers who are not part of the members-only union have legal recourse to challenge such workplace-wide solutions. Non-members could file an unfair labor practice charge with the NLRB claiming that the employer dealt with a union as the exclusive representative on a given subject even though the members-only union sought simply to protect only its members. Seniority rights and recall rights, for example, affect all workers and not just those in the union.

Morris also fails, some say, to address whether the Labor Management Reporting and Disclosure Act would cover member-only unions. The act could impose numerous disadvantages on a members-only union which would not affect a union with representational exclusivity.

Morris' suggestions that legal action be taken against the NLRB's General Counsel or petitioning for administrative rulemaking "each seems a bit desperate in its own way. Neither is remotely likely to produce results."

NLRB response

The NLRB itself appears to have already rejected Morris' theory. In 2006, the United Steelworkers organized a members-only minority union at Dick's Sporting Goods, a sporting-goods retailer located in Pittsburgh, Pennsylvania. The Director of the NLRB's Region 6 asked the NLRB General Counsel's Division of Advice for guidance and received an "Advice Memorandum", on the legal merits of the case. In the Advice Memorandum, Associate General Counsel Barry J. Kearney of the Division of Advice rejected the argument that the NLRA contained an affirmative duty to bargain with members-only minority unions.

In his quarterly review of the activities of the Office of the General Counsel, Meisburg reiterated his conclusion that the NLRA does not require employers to bargain with members-only minority unions.

When Congress enacted Section 9(a), which sets forth the majority rule, it explicitly rejected other forms of representation, including plural and proportional representation, which were permitted under Section 7(a) of the NIRA. Statements by the Act’s sponsors show that they did not intend to require employee representation by minority-supported unions because it could not lead to a working system of collective bargaining. ... In the early enforcement of the Act, the Board held that an employer may recognize and bargain with a minority, members-only union, as long as the employer does not extend that union exclusive status. Consolidated Edison Co. of New York, 4 NLRB 71, 110 (1937), enfd. 95 F.2d 390 (2d Cir.), modified on other grounds 305 U.S. 197 (1938). However, nothing in the statutory language, legislative history of the Act, or decisions interpreting the Act, establish an employer's duty to do so. ... Rather, the statutory language, the legislative history, and Board and Supreme Court decisions interpreting the Act all mandate the conclusion that an employer is not required to bargain with a union seeking to bargain as a minority representative for its members.

Nevertheless, unions appear determined to force the issue. On August 14, 2007, seven American labor unions asked the National Labor Relations Board to force employers to bargain with their member-only unions, even though the unions represent a minority number of workers. The case is seen as a major test of Morris' "Blue Eagle" legal theory of members-only minority unionism.

Title

The NRA Blue Eagle

The title of the book refers to the symbol adopted by the National Recovery Administration. The National Industrial Recovery Act was enacted by Congress in 1933 to stimulate the American economy and help the nation recover from the Great Depression. The law created the NRA to administer the act. Section 7(a) of the Act promoted the formation of labor unions, and created a tremendous upsurge of union organizing.

The NRA adopted the "Blue Eagle" icon as its symbol.

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