In the Fall 2011 issue of the ABA Journal of Labor & Employment Law, Vol. 27 No. 1, authors Catherine Fisk and Xenia Tashlitsky urge us to "Imagine a World Where Employers are Required to Bargain with Minority Unions." The authors observe that while case law says it cant be done, that is not an inevitable conclusion based on statutory language. They also see many potential benefits in such a requirement.
First, they analyze the statutory language and conclude that "the language of the National Labor Relations Act (NLRA) "does not expressly preclude a duty to bargain with a minority union until a majority has selected the same union." Next they review the legislative history. When the Act was first enacted, employers often engaged in minority or "members only" recognition, and the Legislature rejected language that would have expressly prohibited the recognition of minority unions. Based on this, the authors say the Act could even be interpreted to require the recognition of minority unions, although they do not propose that "maximalist" view. Finally, the authors point to the International Labor Organization's (ILO) Declaration on Fundamental Principles and Rights at Work and International Covenant on Civil and Political Rights (ICCPR), which arguably compel recognition of minority unions.
After making a case for how and why minority recognition should be supported, the authors outline the benefits of such a scheme. Benefits include the following:
- Unions would gain access to the workplace as soon as employees desired it, rather than after a lengthy campaign if at all.
- There would be less incentive for employers to hire consultants to keep unions out.
- Unions losing certification would not simply disappear.
- Far less time and money would be spent litigating union access.
- Employees desiring it could have union representation without such representation forced upon unwilling employees.
- It could provide a "preview" of collective bargaining processes, "neutraliz[ing] employer rhetoric with demonstrations of added bargaining value."
- It would improve union-member relations because unions would have to get members rather than just authorization cards, and it would promote competition between unions.
- Could enhance employee free choice.
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