Imagine a World Where Employers are Required to Bargain with Minority Unions
Catherine L. Fisk and Xenia Tashlitsky, Imagine a World Where Employers are Required to Bargain with Minority Unions, 27 J. Lab. & Emp. L. 1 (2011).
Under section 7 of the National Labor Relations Act (NLRA), employees are entitled “to bargain collectively through representatives of their own choosing.” Yet union organizing efforts often fail before employees have a chance to vote, at the ballot box, or in subsequent litigation. For decades, scholars and union-side lawyers explained the gap between employee desire for unionization and declining rates of unionization by hypothesizing that employers are able to coerce, intimidate, or persuade employees to abandon their support for unions. Conversely, employer advocates insist that employees do not wish to unionize, that unions are the ones that are guilty of intimidation and coercion during the organizing process, and that unions do not adequately represent the interests of all employees once they establish a bargaining relationship. One way to test these competing hypotheses is to eliminate the long organizing process and allow only those employees who support a union to bargain collectively, leaving other employees free from union representation. This is known as members-only or minority unionism.
The law currently allows members-only representation. The question we consider is whether the NLRA may be read to require an employer to negotiate with a union only on behalf of those who join it. Imposing a duty to bargain with a minority union would be a significant change in federal labor law. After exploring current members-only bargaining proposals, this article assesses the advantages and risks of members-only bargaining. We begin with a brief analysis of statutory language and legislative history. We note that cases interpreting the NLRA, especially recent cases, offer only weak support for members-only bargaining. However, as we explain, we find nothing determinative one way or another on the proper interpretation of the NLRA. Because legislative change to the NLRA is unlikely until either the Democratic or the Republican Party controls both houses of Congress, more than sixty seats in the Senate, and the White House, we believe that any change must come from the NLRB. Thus, we believe that prior interpretations of the NLRA by the Board or the courts should be of less interest in the debate than what the statute should be read to say. In Part III, we turn to the heart of our argument, which examines the implications of members-only bargaining. We consider its impact for organizing campaigns (they would become less significant), for unions (they would need actively to seek support from members on an ongoing basis, rather than just at the time of a certification election), for employer-employee relations, and for relations among employees. Requiring members-only bargaining would allow those employees who wish it the benefits of collective representation. It could permit employees to preview the effectiveness of every potential union before electing a representative, thereby empowering employees to exercise their section 7 rights more intelligently. However, it could also permit employers to utilize interunion competition to undermine collective bargaining, thus making full protection of section 7 rights more difficult. We conclude that it is difficult to predict whether the benefits of members-only bargaining would outweigh the costs. We suggest that, at minimum, the NLRB should commence a rulemaking proceeding in order to obtain full and fair input and thorough study of these costs and benefits.