Richard Hankins, a partner in the Labor and Employment Practice Group at Kilpatrick-Stockton, provides a full briefing today on organized labor’s new push for “minority bargaining” at his blog, EFCA Updates. As reported in the New York Times on Wednesday, seven unions have written the National Labor Relations Board, arguing that the National Labor Relations Act allows a minority of company employees to form a bargaining unit. (Our previous post here.) As Hankins explains, this theory has been kicking around for a while now, developed by Southern Methodist University Professor Emeritus Charles J. Morris, who expounds on it in his book, “The Blue Eagle at Work.”
After covering the history and theory behind labor’s argument, Hankins speculates:
Word of the union’s plan to request NLRB rulemaking was leaked in March 2007 when Professor Richard Bales noted on his Workplace Prof Blog that Professor Morris and Professor Charles Craven of The George Washington University Law School were circulating a letter to the NLRB in support of the then-unfiled petition.
As the Times story notes, there is little chance that the current Board will grant the request for rulemaking. But if some in the labor movement have their way, a President from the Democratic Party would be expected to appoint Board Members who will promptly do so.
It is interesting to note that the labor movement as a whole is apparently not endorsing this effort. The Times mentions only the Steelworkers and the UAW and five other unnamed unions. This is hardly the type of full court press that we saw behind the Employee Free Choice Act. Whether the rest of the movement will sign on now that the petition has been filed is yet to be seen.
Novel legal theories have way of finding sudden favor, especially if by doing so, proponents can circumvent the political and legislative process. An activist NLRB backed by activist courts? New laws and vast new union power in the economy. Something to worry about.
P.S. Odd how little news coverage this story got. Seems like a major new ploy by organized labor.
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