In one of the final decisions of his expired term, Board Member Kent Hirozawa sanctioned a long-rejected interpretation of the National Labor Relations Act which would impose an obligation on employers to bargain with “members only” unions. Endorsing a theory outlined most thoroughly by Professor Charles Morris in his 2005 book, “The Blue Eagle at Work,” Member Hirozawa would not require a union to obtain “exclusive” recognition or majority status before Section 8(a)(5) bargaining obligations attach.

At issue in Children’s Hospital of Oakland, 364 NLRB No. 114 (Aug. 26, 2016), was whether an employer has an obligation to arbitrate earlier arising grievances with a superseded union that no longer represents a majority of the employees. The majority decision, signed by Members Lauren McFerran and Philip Miscimarra, found that such an employer must do so because it has “a continuing duty to arbitrate grievances that arose during its bargaining relationship with the Union.” Member Hirozawa, however, would go farther than this and require resolution of the grievances regardless of the majority or non-majority status of the union.

Member Hirozawa’s concurrence highlights two sections of statutory text in support of his position. First, he notes that Section 8(a)(5) simply requires bargaining “subject to the provisions of section 9(a)” — and not specifically only if the union is “the representative of the employees as provided in section 9(a).” (Emphasis added). Next, he suggests the breadth of Section 7’s text — “Employees shall have the right…to bargain collectively through representatives of their own choosing…” – is unfettered by express reference to Section 9(a) majority status.

The notions laid out in this concurring opinion, however, have found little or no support historically — underscored by the fact that no Board majority has read the largely unchanged statutory text this way in several decades. In 2006, the Steelworkers filed an unfair labor practice charge against Dick’s Sporting Goods, asserting the employer’s refusal to recognize and bargain with a minority union violated the Act. The Board’s Division of Advice directed the Regional Office to dismiss the charge, squarely rejecting the arguments advanced in the concurrence here:

We conclude that the Employer did not violate Section 8(a)(1) or (5) because the Employer in these circumstances had no obligation under the Act to recognize the Charging Party in the absence of a Board election establishing that it represented a majority of the Employer’s employees. This principle is well-settled and is not an open issue. Our conclusion is based on the statutory language, the legislative history, and Board and Supreme Court decisions interpreting the Act, which underscore that the statutory obligation to bargain is fundamentally grounded on the principle of majority rule.

Undeterred, the Steelworkers and a consortium of allied labor organizations filed rule-making petitions with the NLRB in 2007 and 2008. Despite the Board’s aggressive rule-making agenda during President Obama’s administration, it has to date declined to modify its “well-settled” principle requiring union majority status before imposing a bargaining obligation.