Questioning the unquestioned in collective labor law

Catholic University Law Review

Volumn 47, Issue 3, 1998, Pages 791-822

  Summers, Clyde W ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 33749826945     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (153)

1. National Labor Relations Act of 1935,29 U.S.C. §§151-169 (1994).
2. Id. §151.
3. Id.
4. Vegelahn v. Guntner, 44 N.E. 1077,1081 (Mass. 1896) (Holmes, J., dissenting).
5. J. JOSEPH HUTHMACHER, SENATOR ROBERT F. WAGNER AND THE RISE OF URBAN LIBERALISM 195 (1968).
6. MILTON DERBER, THE AMERICAN IDEA OF INDUSTRIAL DEMOCRACY, 1865-1965, at 321 (1970).
7. 29 U.S.C. §151.
8. See, e.g., First Nat'1 Maintenance Corp. v. NLRB, 452 U.S. 666, 674 (1981) ("[A] fundamental aim of the National Labor Relations Act is the establishment and maintenance of industrial peace to preserve the flow of interstate commerce.").
9. 29 U.S.C. §151.
10. U.S. DEP'T OF COMMERCE, STATISTICAL OF THE UNITED STATES 1996, at 436 (1996). Only 10.3% of the wage and salary workers in the private sector are union members and another 1% of non-members are covered by collective agreements. See id.
11. See id. at 443. In 1992 dollars, the Gross Domestic Product was $4,661.9 billion in 1980 and was $6,739.0 billion in 1995. See id.
12. See id. at 424. The average hourly wages in constant dollars of workers in the private sector shrunk by five percent between 1980 and 1995. See id.
13. Compare Markets, WALL ST. J., Jan. 2,1980, at Al (stating that the Dow Jones industrial average was at 838.74), with Markets, WALL ST. J., May 12,1998, at Al (stating that the Dow Jones industrial Average was above 9000).
14. See U.S. DEP'T OF LABOR, EMPLOYMENT AND EARNINGS 39 (1997) (noting that in October 1997,6.3% of all employed persons age 25 and over worked multiple jobs).
15. See Richard B. Freeman & Joel Rogers, Who Speaks for Us? Employee Representation in a Nonunion Labor Market, in EMPLOYEE REPRESENTATION: ALTERNATIVES AND FUTURE DIRECTIONS 13 (Bruce E. Kaufman & Morris M. Kleiner eds., 1993). In a Gallup poll, 90% of all respondents agreed with the proposition that "employees should have an organization of co-workers to discuss and resolve legitimate concerns with their employers." Id. at 32.
16. See id. at 16-22; see also Mark Barenberg, Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production, 94 COLUM. L. REV. 753,890-904 (1994).
17. See Freeman & Rogers, supra note 15, at 16-22.
18. Union membership grew in numbers until the 1980s. However, the percentage of non-agricultural workers in unions decreased after 1955. The following chart illustrates the total union membership and the percentage of nonagricultural employment: Year Union Membership Percentage of Employment 1940 8,944,000 26.9 1950 15,000,000 31.5 1955 17,749,000 33.2 1960 18,117,000 31.4 1970 19,757,000 28.0 U.S. DEP'T OF COMMERCE, STATISTICAL OF THE UNITED STATES 1971, at 233 (1971); U.S. DEP'T OF COMMERCE, STATISTICAL OF THE UNITED STATES 1981, at 411 (1981).
19. By 1996, union membership in the private sector was 10.3% and in the public sector, it was 37.7%. See U.S. DEP'T OF COMMERCE, STATISTICAL OF THE UNITED STATES 1996, at 436 (1996).
20. See, e.g., U.S. DEP'T OF LABOR & U.S. DEP'T OF COMMERCE, FACT FINDING REPORT: COMMISSION ON THE FUTURE OF WORKER-MANAGEMENT RELATIONS (1994);
21. WILLIAM B. GOULD IV, AGENDA FOR REFORM: THE FUTURE OF EMPLOYMENT RELATIONSHIPS AND THE LAW 259-64 (1993); PAUL C. WEILER, GOVERNING THE WORKPLACE: THE FUTURE OF LABOR AND EMPLOYMENT LAW 186-306 (1990).
22. 29 U.S.C. §159(a) (1994).
23. Id.
24. See George Schatzki, Majority Rule, Exclusive Representation, and the Interests of Individual Workers: Should Exclusivity Be Abolished?, 123 U. PA. L. REV. 897,898 (1975).
25. See Matthew W. Finkin, The Road Not Taken: Some Thoughts on Nonmajority Employee Representation, 69 Cm.-KENTL. REV. 195,218 (1993).
26. 29 U.S.C. §157.
27. See id. §159(a).
28. 321 U.S. 332 (1944).
29. 420 U.S. 50 (1975).
30. 29 U.S.C. §157 (1994); see also Emporium Capwell, 420 U.S. at 57.
31. See In re The Globe Machine and Stamping Co., 3 N.L.R.B. 294, 300-01 (1937); Thomas Page Sharp, Craft Certification: New Expansion of an Old Concept, 33 OHIO ST. L.J. 102,103 (1972).
32. See Peter Henle, Union Policy and Size of Bargaining Unit, in THE STRUCTURE OF COLLECTIVE BARGAINING: PROBLEMS AND PERSPECTIVES 107 (Arnold R. Weber ed., 1961); Douglas L. Leslie, Labor Bargaining Units, 70 VA. L. REV. 353,384 (1984).
33. J. I. Case Co., 321 U.S. at 338; see also Finkin, supra note 24, at 210.
34. 29 U.S.C. §159(a) (1994).
35. See Black-Clawson Co. v. International Ass'n of Machinists Lodge 355, 313 F.2d 179, 186 (2d Cir. 1962) ("Best [the grievant] is therefore without power to compel Black-Clawson to arbitrate the grievance stemming from his accusation of wrongful discharge. The Union is the sole agency empowered to do so by the statute and by the terms of the contract before us.").
36. Archibald Cox, Rights Under a Labor Agreement, 69 HARV. L. REV. 601, 624 (1956) ("[A]n employer may lawfully promise the union not to process individual grievances and may give the union the only legal right to compromise or enforce substantive obligations.").
37. 371 U.S. 195 (1962).
38. See id. at 200 ("[T]o exclude these [individual] claims from the ambit of section 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law.").
39. 386 U.S. 171 (1967).
40. See id. at 195-98. "[W]e do not agree that the individual has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement." Id. at 191.
41. See Graf v. Elgin, Joilet Ry. Co., 697 F.2d 771, 788 (7th Cir. 1983) ("[E]ven gross negligence... is not enough" to violate the duty of fair representation.); Huffman v. Lonza, 658 F.2d 519, 520 (7th Cir. 1981) (noting that the union "forgot" to file a notice of appeal within the time limits); Ruzicka v. General Motors Corp., 649 F.2d 1207,1212 (6th Cir. 1981) ("[OJrdinary negligence, without more, cannot establish a breach of the duty of fair representation.").
42. See Dober v. Railway Express, 707 F.2d 292, 294 (7th Cir. 1983) ("[Ne]egligence, even when gross, does not violate the duty of fair representation.").
43. See Harris v. Scherman Trucking Co., 668 F.2d 1204, 1206 (11th Cir. 1982) ("[NJeither negligence on the part of the union nor mistake in judgment is sufficient to support a claim that the union has acted in an arbitrary and perfunctory manner.").
44. See Local 13, Longshoremen's and Warehousemen's Union v. Pacific Maritime Ass'n, 441 F.2d 1061,1067 (9th Cir. 1971) ("[A] breach of the duty of fair representation would not be established merely by proof that the International union swapped" the individual's grievance for the benefit of other employees).
45. See Union News Co. v. Hildreth, 295 F.2d 658, 665 (6th Cir. 1961). In that case, the Union agreed to the discharge of an employee for cause without any proof of guilt. See id. at 666. The union used its best judgment to obtain the maximum benefits for the largest number of members. See id.
46. See Houde Engineering Co., l N.L.R.B. (Old) 38, 39-40 (Aug. 30, 1934) ("[T]he only interpretation of section 7(a) which can give effect to its purposes is that the representatives of the majority should constitute the exclusive agency for collective bargaining with the employer."); Richard R. Carlson, The Origin and Future of Exclusive Representation in American Labor Law, 30 Duo. L. REV. 779,825-33 (1992).
47. See 3 NLRB ANN. REP. 49-50 (1938). In the fiscal year 1937-38, the NLRB conducted 1152 elections, and some union won 945. See id. at 49, table XXI. In the 945 that a union won, there were 1963 union choices on the ballot. See id. at 50, table XXII.
48. Cf. 15 NLRB ANN. REP. 13 (1950).
49. See 23 NLRB ANN. REP. 6 (1958).
50. See 59 NLRB ANN. REP. 14-15 (1994). In 1994, there were 3437 elections with one union on the ballot and 135 multiunion elections. See id.
51. See id. Where more than one union was involved, "no union" won only 14% of the elections. See id. at 15. Where only one union was involved, "no union" won in 55% of the elections. See id. at 14.
52. This result is not compelled by the words of the statute. When the statute was passed, it was argued that section 8(5) obligated employers to bargain with non-majority unions when no majority union existed.
53. See E.G. Latham, Legislative Purpose Administrative Policy Under the National Labor Relations Act, 4 GEO. WASH. L. REV. 433, 453 (1936);
54. Clyde Summers, Unions Without Majority - A Black Hole?, 66 CHI.-KENT L. REV. 531, 538-39 (1990).
55. See Finkin, supra note 24, at 218; Schatzki, supra note 23, at 898.
56. See 29 U.S.C. §158(c) (1994).
57. Id.
58. See 3 NLRB ANN. REP. 59 (1938).
59. See 6 NLRB ANN. REP. 89 (1941);
60. NLRB ANN. REP. 92 (1940);
61. NLRB v. Ford Motor Co., 114 F.2d 905, 913-15 (6th Cir. 1940) (holding an employer's labor views expressed in distributed pamphlets to be protected speech);
62. Montgomery Ward & Co. v. NLRB, 107 F.2d 555, 559 (7th Cir. 1939) (holding an employer's individual conferences with employees constituted unprotected speech); Jefferson Elec. Co. v. NLRB, 102 F.2d 949, 956 (7th Cir. 1939) (rejecting the Board's findings regarding employer speech).
63. 121 F.2d 954 (2d Cir. 1941).
64. Mat 957.
65. 314 U.S. 469 (1941).
66. See id. at 479.
67. See 29 U.S.C. §158(c) (1994).
68. See AFL v. Swing, 312 U.S. 321, 323, 325 (1941);
69. Thornhill v. Alabama, 310 U.S. 88,106 (1940).
70. 310 U.S. 88 (1940).
71. See id. at 105-06.
72. 312 U.S. 321 (1941).
73. Id. at 325.
74. 315 U.S. 769 (1942).
75. See Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722,728 (1942).
76. See Building Serv. Employees Int'l Union, Local 262 v. Gazzam, 339 U.S. 532, 540-41 (1950) (holding valid a state court injunction against picketing on the basis of state public policy); International Bhd. of Teamsters v. Hanke, 339 U.S. 470, 476-78 (1950) (same); Hughes v. Superior Court, 339 U.S. 460,463-64 (1950) (same); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) (upholding an injunction on picketing based on a state antitrust statute).
77. 354 U.S. 284 (1957).
78. See id. at 294-95.
79. Id. at 286 (quoting Vogt, Inc. v. International Bhd. of Teamsters, 74 N.W. 2d 749, 753 (Wis. 1956).
80. See 29 U.S.C. §158(b)(4), (7) (1994).
81. See Livingston Shirt Corp., 107 N.L.R.B. 400,405 (1953) ("Section 8(c) of the Act specifically prohibits us from finding that an uncoercive speech, whenever delivered by the employer, constitutes an unfair labor practice."); see also May Dep't Stores Co. v. NLRB, 316 F.2d 797,799-801 (6th Cir. 1963).
82. 395 U.S. 575 (1969).
83. Id. at 620 (internal citation omitted) (alteration in original).
84. See 29 U.S.C. §481 (g) (1994).
85. Id.
86. See Marshall v. Local Union 20, Int'l Bhd. of Teamsters, 611 F.2d 645,650-51 (6th Cir. 1979).
87. See supra note 45.
88. See International Bhd. of Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284, 286 (1957).
89. 29 U.S.C. §158(d) (1994).
90. See NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 348-49 (1958) (finding that outside of "wages, hours, and other terms and conditions of employment ... each party is free to bargain or not to bargain, and to agree or not to agree").
91. See First National Maintenance Corp. v. NLRB, 452 U.S. 666, 667 (1981); Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 204-05 (1964); Furniture Rentors of America Inc. v. NLRB, 36 F.3d 1240,1245-46 (3d Cir. 1994); United Food & Commercial Workers, Local 150A v. NLRB, 1 F.3d 24,25-26 (D.C. Cir. 1993); see also James Atleson, Management Prerogatives, Plant Closings and the NLRA, 11 N.Y.U. REV. L. & SOC. CHANGE 83 (1982);
92. Kenneth G. Dau-Schmidt, A Bargaining Analysis of American Labor Law and the Search for Equity and Industrial Peace, 91 MICH. L.REV. 419, 465-67 (1992);
93. Robert J. Rabin, Fibreboard and the Termination of Bargaining Unit Work: The Search for Standards in Defining the Scope of the Duty to Bargain, 71 COLUM. L. REV. 803, 821-836 (1971);
94. Lorraine Schmall & Charles Cappell, The Impact of Diibuque Packing Company on the Collective Bargaining Practices of Attorneys and Their Clients, 24 STET. L. REV. 111,122-36(1994).
95. See Michael C. Harper, Leveling the Road from Borg Warner to First National Maintenance: The Scope of Mandatory Bargaining, 69 VA. L. REV. 1447,1447-48 (1982).
96. See Ford Motor Co. v. NLRB, 441 U.S. 488, 498-99 (1979) ([T]he basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement.). As illustrated by the facts of this case, substantial disputes can arise over the pricing of in-plant-supplied food and beverages. Id. at 499. National labor policy contemplates that areas of common dispute between employers and employees be funneled into collective bargaining. The assumption is that this is preferable to allowing recurring disputes to fester outside the negotiation process until strikes or other forms of economic warfare occur. Id.
97. 343 U.S. 395 (1952).
98. See id. at 409-10.
99. Clyde W. Summers, Worker Participation in Sweden and the United States: Some Comparisons from an American Perspective, 133 U. PA. L. REV. 175,185 (1984).
100. See Lag om Medbestammande i arbetslivet. Den 10 jun 1976, reprinted in FOLKE SCHMIDT, LAW AND INDUSTRIAL RELATIONS IN SWEDEN 234-46 (1977).
101. See id. Section 10 defines the union's right to negotiation to include any matter relating to the relationship between the employer and any member of the organisation who is or has been employed by that employer. Id. at 235.
102. See Summers, supra note 90, at 198-200.
103. See id. at 181.
104. See generally supra note 5 and accompanying text.
105. See supra note 10 and accompanying text.
106. See supra notes 15-17 and accompanying text.
107. This adamant denial is epitomized by the Court's language in NLRB v. Insurance Agents' International Union: And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract.... Our labor policy is not presently erected on a foundation of government control of the results of negotiations. Nor does it contain a charter for the National La-bor Relations Board to act at large in equalizing disparities of bargaining power between employer and union. 361 U.S. 477,490 (1960) (internal citations omitted).
108. 29 U.S.C. §163 (1994).
109. 108 F.2d 390 (7th Cir. 1939).
110. Id. at 397.
111. See Honolulu Rapid Transit Co., 110 N.L.R.B. 1806,1807,1811 (1954).
112. See Scott Lumber Co., 117 N.L.R.B. 1790,1803-04 (1957).
113. See NLRB v. Montgomery Ward & Co., 157 F.2d 486,496 (8th Cir. 1946).
114. See In re Elk Lumber Co., 91 N.L.R.B. 333,337-38 (1950).
115. See NLRB v. Blades Mfg. Corp., 344 F.2d 998,1004-05 (8th Cir. 1965).
116. 336 U.S. 245 (1949) overruled on other grounds by Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976).
117. See id. at 250.
118. See id. at 260.
119. Id. at 264. In later overruling this decision, the Court openly acknowledged that a state court's enjoining of employers from refusing to work the increased hours scheduled by the employer altered the balance of bargaining power. See Lodge 76, Int'l Ass'n of Machinists & Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. 132,149-50 (1976).
120. 304 U.S. 333 (1938).
121. See id. at 345-46.
122. Id at 345.
123. 473 U.S. 95 (1985).
124. See id. at 100.
125. 467 U.S. 837,844 (1984).
126. See Pattern Makers' League, 473 U.S. at 100.
127. 93 CONG. REC. 4310 (1947), reprinted in 2 NLRB, LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT RELATIONS ACT, 1947, at 1106.
128. 75 F. Supp. 672 (S.D.N.Y. 1948).
129. See id. at 674.
130. See id. at 674-75.
131. Id. at 675.
132. See id. at 676-77.
133. 95 CONG. REC. 8709 (1949) (statement of Senator Taft).
134. 366 U.S. 667 (1961).
135. See id. at 669-70.
136. Id. at 680.
137. Id. at 681 (omission in original).
138. 377 U.S. 58 (1964).
139. See id. at 60-61.
140. See id. at 60.
141. See id. at 61-62,73.
142. Id. at 63.
143. See id. at 63-64.
144. See id. at 64 n.7.
145. See id.
146. 447 U.S. 607 (1980).
147. See id. at 609.
148. See id. at 609-10.
149. See id. at 614-15.
150. See id. at 614.
151. Carpenters & Joiners Union, Local No. 213 v. Kilter's Cafe, 315 U.S. 722, 728 (1942).
152. Other Board and court decisions governing the legality of economic weapons similarly affect the balance of bargaining power. See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26,32 (1967) (finding that paying benefits to one group of employees while withholding them from another group who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on... concerted activity); American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 310 (1965) (holding that the employer's use of a lockout solely in support of a legitimate bargaining position is [not] in any way inconsistent with the right to bargain collectively or with the right to strike); NLRB v. Erie Resistor Corp., 373 U.S. 221, 231 (1963) (finding that a super-seniority plan render[ed] future bargaining difficult, if not impossible, for the collective bargaining representative). In these cases the Court similarly refused to acknowledge that it was determining bargaining power or to disguise what it was doing with obscuring euphemisms. In no case did the Court openly consider which way the balance should move.
153. In 1933, union density was 14.7%. See Leo Troy, The Rise and Fall of American