While doing some background research on non-majority collective bargaining for the labour studies class I teach I discovered there was a conference just yesterday in Washington at which Catherine Fisk presented, "In Defense of Members-Only Unionism." In Canada, Roy Adams has written about collective bargaining as a human right, outside of the administrative union certification model. The canonical source in the U.S. is Charles Morris's The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace. John True offered the following useful summary in his review of Morris's book:
The fundamental principle animating the Wagner Act is that working people are supposed to be able to act in democratic concert, to get together, to talk with each other about the issues that concern them on the job, and to engage their employers in some constructive pushing and shoving about those issues. This right given to workers to combine, so the theory goes, will produce fairness and justice in the workplace by counteracting the innate strength of capital. Workers' institutions were supposed to prosper, to integrate themselves into the political fabric of the nation and to provide a counterweight in the market and in political discourse that was to inure to the benefit of society as a whole.
The NLRA also contemplates that employers -- though they have a First Amendment-based right to push and shove back against these workers' institutions -- are to permit, indeed respect, their workers' collective activities. Not only that, they are affirmatively obliged to respond in good faith to -- to bargain over -- their employees' proposals. The Wagner Act, modeled explicitly on the concepts underlying American representative democracy itself, requires nothing less than that workers be given the basic right to participate in discussions about the terms and conditions of their employment.
Why, then, does this almost never happen anymore? Why does the American labor movement-with union membership plunging below ten percent of the private-sector workforce-seem more and more "flat on its back" every time we look at it? Union leaders, members, supporters and activists ask themselves these questions incessantly, of course, and Professor Charles J. Morris is one of several eminent labor scholars among those doing so. His latest inquiry, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, slaps down a dramatic and provocative challenge in the middle of this discourse. Charting a new approach (that is not so new), he proposes that democratic rights have atrophied in the workplace because unions have fallen into self-defeating, addictive reliance on elections conducted by the NLRB as the way to organize workers. They have forgotten the remarkably broad promise set out in Section 7 of the Act: that all employees -- not just those who work for an employer where a union has won an election -- have the right "to bargain collectively through representatives of their own choosing."
Ignoring the elegant simplicity of this proposition, unions have swallowed the intoxicating potion contained in the election/certification procedures provided for in Section 9 of the Act. Under its influence, they have opted to confront employers only when and if they become the certified or recognized representatives of a majority of those in "appropriate" bargaining units. Though this "all or nothing" approach led the union movement to spectacular successes in its early days, it has resulted more recently in increasingly futile attempts to win the hearts and minds of workers in situations where the odds are impossibly long. The annals of the union movement in the late twentieth century are full of bitter stories of struggle and defeat in National Labor Relations Board (NLRB)-supervised, set-piece battles in which employers hold all or most of the power.