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[IWS] U.S. Chamber of Commerce: THE BLUE EAGLE HAS LANDED: THE PARADIGM SHIFT FROM MAJORITY RULE TO MEMBERS-ONLY REPRESENTATION [16 April 2014]
IWS Documented News Service
Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
U.S. Chamber of Commerce
Workforce Freedom Initiative (WFI)
THE BLUE EAGLE HAS LANDED: THE PARADIGM SHIFT FROM MAJORITY RULE TO MEMBERS-ONLY REPRESENTATION [16 April 2014]
[full-text, 42 pages]
INTRODUCTION: WORKER CENTERS AND THE PROMOTION OF MEMBERS-ONLY UNIONS
For nearly a century, the labor relations system of the United States has been premised upon the principles of industrial democracy and majority rule. Under this system, created by the National Labor Relations Act (NLRA), if a majority of employees in an appropriate unit wishes to be represented by a labor organization, then — assuming the proper steps are followed to objectively establish that majority status — the labor organization becomes the exclusive representative of all employees in the unit and an employer must bargain with that labor organization. The U.S. system differs from that which exists in other parts of the world, most notably in Europe, where employers are regularly required to bargain with unions solely on behalf of their members under a system known as minority, or members-only, unionism. Congress considered such a system during its debates over passage of the NLRA (also known as the Wagner Act) and the Taft-Hartley Act, and it was expressly rejected.
Organized labor has seen union density rates fall from roughly 35% of the workforce in the 1950s to 11.3% today. It is not necessary to discuss in this paper the reasons for this decline; of greater interest is labor’s response to what it considers a significant problem. Its efforts have ranged from promoting the failed “card check” legislation to seeking policy changes through the regulatory agencies and utilizing new organizing tactics such as corporate campaigns.
One of the most recent efforts embraced by traditional labor unions to reverse their decline has been to promote and embrace so-called worker centers. The worker center model of representation differs significantly from that envisioned under U.S. labor laws. Specifically, worker centers seek to negotiate with employers on behalf of employees whom they may not actually represent. In fact, many of the recent protests promoted by worker centers are conducted with the support of, at most, a handful of employees. There is no evidence that a majority of workers wants these groups to advocate or negotiate for them.
Worker centers originated in the American South in the 1970s and 1980s. As mentioned above, however, traditional labor unions have begun to support and finance worker centers, and have actively engaged with them. The AFL-CIO has even attempted to establish its own worker center through its “Working America” initiative, which claims to have 3 million members. What has been missing, though, is a strategy for organized labor to turn its investment in worker centers into actual union members with an accompanying revenue stream. The solution may lie in a significant paradigm shift in labor law toward a members-only union model.
At the same time worker centers have become an increasingly important part of the union strategy for renewal, the institutions charged with administering the nation’s labor laws have started to subtly accommodate or even promote members-only representation.
The principal actors include the National Labor Relations Board (NLRB, or “Board”) and the United States Department of Labor (DOL). These agencies have taken positions and issued decisions that, when viewed as a whole, have advanced a members-only model of representation. For example, the NLRB has issued several decisions that empower small groups of workers and enhance their ability to influence employers. A number of key prosecutorial decisions also appear to favor members-only representation. Similarly, the DOL has taken measures to empower worker centers by funding them with grants and according them a special role as advocates for workers.
This shift toward a members-only model could represent the leading edge of a significant change in labor law — with far-reaching effects. Not only would a members-only system empower and embolden groups that have not been selected by a majority of employees to speak on its behalf, but it would also enable traditional labor unions to organize and begin collecting dues from small pockets of workers recruited through worker centers.
Such a system would be fundamentally at odds with the principles of workplace democracy as we have known them for decades. It would also undermine the intent of the NLRA, which was to strike a balance between the right to freedom of association and collective bargaining, and the free flow of commerce. Unless Congress changes the law to offer an alternative structure, the agencies responsible for administering that law should stay true to that mandate.
This article will address this subject in three sections. The first will cover the legal theories behind the viability of members-only representation. The second will address how that theory is inconsistent with the basic principles of U.S. labor laws. The third will survey how organized labor, the NLRB, and the DOL have begun to effectuate the paradigm shift toward members-only representation.
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