Vindicating Clyde Summers, Unions and scholars petition NLRB: Make employers recognize non-majority unions

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Back in 2007 seven major AFL-CIO unions, including the Steel Workers and Auto Workers, petitioned the National Labor Relations Board to adopt a regulation that would require employers to recognize and bargain with unions, only on behalf of their members, in cases where a majority of the workers had not voted for union recognition. The petition was endorsed by Change to Win in 2008 when it still represented six influential unions. In June this year, 46 law professors around the country submitted a 60-page amicus brief in support of the union petition. For unions, the event represented a big turn in the approach to organizing. For the law scholars, it was an unusual, but powerful, practical support by the world of academia to the labor movement. For Clyde Summers, it was dramatic recognition and a vindication of what he had first advocated as a lonely voice some 18 years ago.

At the time, Clyde Summers was Professor of Law at the University of Pennsylvania and chairman of AUD's Legal Review Committee. He opened a 1992 law review essay entitled "Unions without Majority -- a Black Hole" by recalling the clear words of section 7 of the 1935 Wagner Act. "Employees shall have the right to self organization, to form, join, and 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 and protection." This provision was buttressed by section 8(1) which declared, "It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed by section 7."

In implementing the administration of the act, section 9 provided that "representatives selected by a majority of employees in a bargaining unit shall be the exclusive representative, for the purposes of collective bargaining, of all employees in the bargaining unit." Summers noted that although this provision "does no more than give special status to a majority union, it in no way derogates from the section 7 rights of a union where there is no exclusive representative." And so he concluded that where no union had won exclusive bargaining rights, employers should be required to recognize and bargain with non-majority unions as representative of their members only.

But with time, the NLRB allowed the right of non-majority unions, embodied in section 7, to atrophy. The NLRB held, he wrote, "that where there was not a majority union 'the interests in assuring such representation under section 7 are less numerous and less weighty than the interests apparent in the union setting.' Starting from the premise that without a majority union there is no 'union setting,' the Board discounted the employees' section 7 rights."

The labor movement readily went along with that interpretation. "Unions, by their focus on organization campaigns for the purpose of winning elections," Summers wrote, "have helped foster the assumption that a union without a majority has no significant role to play." And so, despite the clear meaning of the law, the right of workers to representation through non-majority unions was allowed, through neglect, to shrivel away. So it remained for many years. His essay was kept alive by AUD which continued to reprint and circulate it, but his clear call for change was ignored.

All that changed in 2005 when Charles J. Morris, a law professor at Southern Methodist University, rediscovered Clyde Summers's essay. Inspired by the thesis on the black hole, he expanded the argument at length in his 300-page book "The Blue Eagle at Work", adding a wealth of convincing detail. By that time, much had happened in the labor movement to make it newly receptive to the message. John Sweeney had ousted the Kirkland regime in the AFL-CIO. Andy Stern led the Change to Win out of the AFL-CIO in revolt against Sweeney. In all the debates and splits, everyone seemed to agree that in this difficult era of union decline, they had to find new ways to organize the unorganized. By 2007, Morris had convinced them all, on both sides, to demand that the NLRB revive section 7 and compel employers to recognize non-majority unions in the spirit of Clyde Summers.

In his essay in 1992, Summers had written that non-majority bargaining had been so deeply discredited by the hostility of the NLRB and by the indifference of the labor movement that it would require a major change in the law to restore that basic union right. But Morris felt that the case for change was so persuasive that a more direct route was possible. Once Morris convinced the union leaders, they began by petitioning the NLRB; and he rounded up all those academics in support of the union petition. In their amicus brief, they presented a mountain of evidence. They showed that non-majority bargaining was familiar and customary in days before the Wagner Act and in the early years after it had been adopted. The U.S. Supreme Court, they pointed out, had held that it was legal for employers to reach agreement with unions on behalf of their members only. A change at the NLRB would simply make clear that such bargaining was not simply permissible but was obligatory.

If the unions succeed in turning the NLRB around, it would mean that in the early period of organizing, even before an NLRB election, they could call an employer to account and show workers the advantage of unionization; and, if they lost a collective bargaining election, they need not walk away but could remain on the site, fighting for their members and await a better day.

Summers’'s essay inspired all this in 1992. From that little acorn, a mighty oak is growing.

Editor's note: Clyde Summers is incapacitated after a severe stroke. Comments can be transmitted to him via his wife (contact AUD).