Big Labor Academic Wants to Have It Both Ways With Workplace ‘Majority Rule’

Charles J. Morris on Labor Relations

Prof. Charles Morris, an avid proponent of “Blue Eagle” collectivism, believes that when a majority of workers want a particular union, the freedom of the minority to bargain for themselves (much less through another union) is completely extinguished. On the other hand, when a majority of workers don’t want a union, says Morris, the right of the minority who want a union to have it as their “members-only bargaining” agent is absolute. Image: Source unknown.

For a decade or more, Charles J. Morris, professor emeritus at Southern Methodist University’s Dedman School of Law and a lifelong cheerleader for monopolistic unionism, has been crusading for the expansion of “members-only bargaining” as a means for union officials who are seeking monopoly-bargaining privileges at a workplace to get their foot in the door.  Morris clearly believes the spread of members-only bargaining would lead to more, not less, monopoly unionism in the workplace.

Members-only bargaining is a form of workplace representation about which most labor-policy professionals nowadays rarely speak, but a perfectly valid one, far preferable for anyone who cares about individual freedom to the monopoly-bargaining system authorized and promoted by federal law.  Morris and other like-minded pro-forced unionism academics who are seeking to raise public awareness about members-only bargaining are, therefore, deserving of commendation for their efforts on that front.  In fact, if Morris et al sought legislation that simultaneously expanded members-only bargaining while prohibiting forced union representation, many Right to Work supporters would probably be inclined to work with them.

Unfortunately, the specific changes in federal labor policy recommended by Morris would, unless accompanied by other significant reforms, amount to a major step in the wrong direction.

To understand what Morris is advocating in writings such as his 2005 book, The Blue Eagle at Work, and the essay linked above, one has first to know what members-only bargaining is. As the name implies, under this system union officials negotiate with the employer the terms and conditions of employment only for the members of their union, and not for union nonmembers or for members of another union.  In contrast, federal labor statutes such as the National Labor Relations Act (NLRA) empower unions deemed to have majority support among all the front-line employees in a workplace or other federally delineated “bargaining unit” to act as the “exclusive” bargaining agent for all the employees, union members and nonmembers alike.

As Morris has pointed out many times over the years, U.S. Supreme Court decisions such as Consolidated Edison Co. v. NLRB (1938) and a host of National Labor Relations Board (NLRB) rulings specifically uphold the right of union officials and employers to negotiate members-only contracts in any workplace where there is no recognized union monopoly-bargaining agent.  Members-only contracts can be negotiated by a union supported by a minority or a majority of employees, as long as the union is not already established as the “exclusive” bargaining agent.

Consolidated Edison and subsequent High Court rulings such as Retail Clerks v. Lion Dry Goods (1962) found members-only contracts to be permissible and enforceable in federal court, but did not clearly suggest employers had any legal obligation to enter into them.  For decades, the consensus among labor policy experts is that if a union with or without majority support among workers, but lacking formal recognition as an “exclusive” bargaining agent, sought recognition on a members-only basis, the employer could agree, but could also refuse.

Morris begs to differ.  For years, he has passionately argued that if any group of employees, regardless how small, petitions the employer to bargain collectively through a members-only union, the employer is obliged to do so under NLRA Sec. 7.  His interpretation of this provision is extraordinarily one-sided, however.

In full, the provision in question reads:


 Sec. 7. [§ 157.] 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

In the longstanding interpretation of Sec. 7, employees’ “right to bargain collectively through representatives of their own choosing” and “the right to refrain from” collective bargaining are both conditional on the stance of the majority of employees in the workplace.  Employees who want to bargain with the employer through a particular union have the legally protected right to do so, but can only effectuate that right by persuading a majority of all front-line employees to support that union.  Employees who wish to bargain for themselves have the right not to be subject to a collectively negotiated agreement, but only if they can persuade a majority to oppose unionization.

Of course, under the current interpretation of Sec. 7, if both the employer and union officials agree to respect the personal preferences of employees who aren’t in the majority, that is permissible.  Members-only bargaining by a minority union is legal when the union asks for it and the employer agrees.  Individual unionized employees can be exempted from some or all of the union contract if they ask to be and both the employer and the union agree.  (This happens routinely in unionized entertainment and sports, where star actors and athletes get paid far more than union scale even though, strictly speaking, they are under a union contract.)  But except in such “consensus” cases employees who find themselves in the minority either because they are pro-union or anti-union are out of luck.

Morris tendentiously argues that the traditional interpretation of NLRA Sec. 7 is right when it comes to workers who don’t want a union, but wrong when it comes to workers who want one.  That is, employees don’t have a personal right “to refrain” from collective bargaining if a majority of their fellow employees want a union, but they do have a personal right to bargain collectively even if a majority of their fellow employees don’t want a union.

Basically, Morris and the other academics and union officials who support his position toss out the window the notion that there should be equal protection under the law for workers who want a union and workers who don’t want one.

It is true that current law already accords less protection to anti-union workers than to pro-union workers, but the disparate treatment stems from the authorization for contracts, as Sec. 7 puts it, “requiring membership in a labor union as a condition of employment . . . .”  Federal courts have for six decades permitted contracts extracting forced union dues and fees from workers who won’t join a union, while never permitting contracts denying pro-union workers the freedom to pay union dues, based on the so-called “free rider” theory.  As I have argued repeatedly on this web site, the “free rider” theory is fundamentally flawed, but it undeniably has been accepted by the U.S. Supreme Court for over half a century.

To institute a whole new form of disparate treatment under federal labor law, Morris and his ilk would have to concoct an entirely new excuse as to why workers who have different views about unions should be accorded more or less legal protection based on what they believe, and persuade federal courts to accept their logic as constitutional.  That’s a very tall order, and Morris and his allies for some reason seem unaware that they are making it.