The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace is a legal treatise written by Charles J. Morris which analyzes collective bargaining under the National Labor Relations Act (NLRA), the federal statute governing most private sector labor relations in the United States. Published in 2005 by Cornell University Press, the text claims that the NLRA guarantees that employees under that Act have the right to bargain collectively through minority unions—but only on a members-only basis—in workplaces where there is not an established majority union, notwithstanding that the present practice and general understanding of the law is that only majority-union employees are entitled to engage in collective bargaining on an exclusivity basis. Contracts resulting from such minority-union bargaining would apply to union members only, not to other employees.
Structure of the book The Blue Eagle At Work contains three parts: 1) An overview of collective bargaining law in the U.S.; 2) The legal framework in which members-only collective bargaining could occur; and 3) How unions could implement and strengthen members-only collective bargaining and use it as a strategic organizing tool.
Part I Part I of the book addresses collective bargaining law in the United States. It is broken down into four chapters.
Chapter One provides a historical overview of the rise of membership-based collective bargaining in the period prior to federal recognition of the right to bargain collectively, the provisions of the Norris-LaGuardia Act, and the enactment and legal meaning of Section 7(a) of the National Industrial Recovery Act (NIRA). Attention is paid to The Conference Board survey of labor relations conducted in November 1933.Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, pp. 26-31. Morris points out that the survey results indicate that members-only recognition and bargaining were common when the NLRA was enacted.
Chapter Two provides an in-depth and exceedingly detailed history of legislative attempts to enact improvements in federal labor law. The chapter provides an extensive analysis of the nine legislative drafts of Senator Robert F. Wagner (D-NY) for his 1934 bill. The chapter also discusses the implementation of the NIRA under first the National Recovery Administration (NRA) and then the National Labor Board and the National Labor Relations Board (NLRB). Morris documents how the concepts of representational exclusivity and majoritarianism were developed in cases such as Denver Tramway Corporation, 1 NLB 63 (1934)Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, pp. 36-40. and Houde Engineering Corp., 1 NLRB (old) 35 (1934)Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, pp. 48-52. and cites cases showing that employers refusing to bargain with a minority union violated the NIRA.National Lock Co., 1 NLB (Part 2) 15 (1934); Bee Line Bus Co., 1 NLB (Part 2) 24 (1934); Eagle Rubber Co., 1 NLB (Part 2) 31 (1934).
Chapter Three is an extensive consideration of the legislative history of Wagner Act. The three drafts of the Act, committee hearings, floor debates, and committee reports are closely examined to tease out the meanings of the changes made. Morris uncovered one feature that required no teasing, a "smoking gun" that shows that congress clearly intended that collective bargaining would not be confined to majority unions only, to wit, the deliberate rejection of a version of the duty-to-bargain contained in Section 8(a)(5) that would have so confined the bargaining process. Instead, the present wording, which does not so limit the bargaining obligation, was selected.Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, pp. 62-63. Morris notes that the Senate committee and debate statements disparaging minority or plurality bargaining all referred to bargaining after a majority representative had been chosen. None referred to bargaining before majority selection, which was not a controversial issue.
Chapter Four contains the history of members-only minority-union organizing and bargaining during the decade following passage of the NLRA and what followed. Morris notes: For several years following the passage of the Wagner Act in 1935, there was never any legal question raised as to the scope of its bargaining requirements, either as to minority-union members-only bargaining or majority-union exclusivity bargaining. Both types of bargaining had prevailed earlier under the Blue Eagle administration of Section 7(a) of the NIRA and both were now widely accepted under the new NLRA.Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, p. 81. Morris points to the organizing history of the Steel Workers Organizing Committee and United Auto Workers as prime examples of members-only organizing and collective bargaining, and cites statistics from Bureau of National Affairs (BNA) and Twentieth Century Fund reports which document the widespread use and acceptance of members-only contracts.
Morris concludes that several factors led unions to become dependent on representational elections. The NLRB itself favored representational elections, "for they provided a relatively simple pattern for bargaining-unit determinations, conduct of elections, and certification of majorities for exclusive union representation."Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, p. 87. The conflict between the American Federation of Labor and the Congress of Industrial Organizations refocused attention away from organizing. The rapid expansion of unions during World War II and the massive waves of strikes which came after the war continued to divert attention away from organizing. Morris also argues that the Taft-Hartley Act led to "the phenomenon of unions becoming busily engaged in a multitude of legal defensive actions generated by the numerous union restrictions that the new law had created."Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, p. 88.
"As a consequence," Morris concludes, "only a few years after Taft-Hartley, the NLRB and its union and employer constituents were routinely viewing majority-union bargaining—which was certainly the ultimate goal intended by the Act—as the only bargaining contemplated by the Act. Although unions had originally favored NLRB elections out of sheer convenience, their reliance on the election process had now become routine, with attendant misunderstanding of the true scope of bargaining offered by the statute. ... Thus was born the latter-day conventional wisdom that assumes that majority-union representation is the sine qua non of collective bargaining."Morris, The Blue Eagle At Work: Reclaiming Democratic Rights in the American Workplace, 2005, p. 88 (emphasis in original).
Part II Part II of The Blue Eagle At Work examines the legal interpretation of Sections 1, 7, 8(a)(1), 8(a)(3), 8(a)(5), and 9(a) of the NLRA, and concludes that Morris' construction of the law is consistent with the statutory requirements and also with existing legal rulings and treaty obligations. Part II consists of five chapters.
Chapter Five engages in a Plain-Meaning-Rule construction of the language of Section 7(a) and the NLRA. Morris examines Section 7, Section 8(a)(1), Section 9(a), and Section 8(a)(5) of the NLRB for their plain meaning, and concludes they guarantee the right of all employees to bargain collectively, whether before or after majority-union designation. Bargaining before such selection must be for members-only through a union of the employees' choice; bargaining after majority selection must be for all employees in the bargaining unit through the selected union only. This chapter provides the heart of Morris' thesis, for although it is supported by legislative history (and constitutional and international law), its primary basis is contained in the unambiguous text of the statute. The critical language is short, simple, and of clear meaning. Fourteen words in Section 7, borrowed verbatim from Section 7(a) of the NIRA, provide that "Employees shall have the right...to bargain collectively through representatives of their own choosing...." This is guaranteed and enforced by Section 8(a)(1) and reinforced by Section 8(a)(5) (which by its clear wording and its "smoking gun" legislative history requires bargaining both before and after majority selection). The only limitation on this bargaining right is a conditional limitation on the choice of representatives, but not on the duty to bargain. This limitation is contained in Section 9(a) which does not operate unless there is a majority representative, in which event the selected majority union becomes the exclusive representative. Morris points out that both the Supreme Court and the NLRB have approved minority and members only bargaining and resulting members-only contractsMorris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, 2005, pp. 94-97. where they exist voluntarily, and that the time is now ripe for a decision confirming that such bargaining is enforceable where there is not yet a majority representative. This universal concept of collective bargaining conforms to the "policy of the United States" expressed in Section 1 of the Act, which policy was expressly reconfirmed in the Taft-Hartley Act.Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace, 2005, pp. 97-98.
Chapter Six examines several rulings by the Supreme Court which are often cited as supportive of majority-only collective bargaining. Morris reviews the First Amendment guarantee of freedom of association, and how the concepts of indirect state action (as elucidated in NAACP v. Alabama, 357 U.S. 449 (1958), and Bates v. City of Little Rock, 361 U.S. 516 (1960), and the test of indirect state action as outlined in Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982)), direct state action and compelling government interest protect and affirm members-only minority-union collective bargaining. Morris also discusses three key Supreme Court rulings—NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568 (1988) and Communications Workers of America v. Beck, 487 U.S. 735 (1988)—and concludes that they conform to the concept of members-only bargaining as well.
In Chapter Seven, Morris discusses how the Supreme Court's doctrine of "administrative deference" (outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)) could provide another avenue for judicial articulation of his thesis. Although it is a basic premise of his book that the defined duty to bargain is mandatory under the Act, if the NLRB were to find the applicable language ambiguous it could and should exercise its discretionary authority and require bargaining in accordance with the thesis—which under step two of the Chevron doctrine would be confirmed by a reviewing federal court even if the court were in disagreement, for the determination would not be "arbitrary, capricious, or manifestly contrary to the statute."