NLRB Unilaterally Shrinks the Value of Collective Bargaining

Tunis   As fewer and fewer workers are members of unions and enjoying the rights and privileges of working under the protections of a collective bargaining contract, perhaps the National Labor Relations Board thinks that it doesn’t matter if they take away rights from such workers.  Maybe the raw business and political calculation is that just like there is a 1% at the top that they serve, there is less than a 7% at the bottom who are union members under the NLRA jurisdiction in the private sector, so what could be the backlash for them.  It’s not going to come from the 93% of the private sector workforce that doesn’t enjoy and may never had worked under a union contract their entire working lives.  It’s not going to come for workers under contract until it happens to them, so what the heck, hammer them often and hammer them hard.

Obviously, I can’t prove that the NLRB’s majority say those exact words, but I can read between the lines in this cascade of recent decisions and understand clearly that that is their operating philosophy now.  The proof of their positions seems to come day after day.  After the decision exploding the definition of bargaining units for workers trying to organize new unions, the NLRB issued a decision striking at the heart of collective bargaining by sending a green light to companies that they can make unilateral changes.

A unilateral change is an alteration of the fundamental wages, hours, or terms of conditions for workers without first meeting with the union as the legal representative of those workers and seeking a solution before making any change.  After a collective bargaining agreement is reached between the company and the union, the agreed upon terms chart the path for the years covered in the contract.  The union agrees that it can’t reopen the contract during that period, unless there is express language for a reopener or some other trigger.  The company agrees to the same.  In the starkest terms, the NLRB by changing the rules for unilateral changes, says the company can in fact get another crack at making changes, regardless of the union’s position.  It goes without saying, but just to be clear, I will say it, that the union has no ability to make a unilateral change to such working conditions and in 99.9% of the agreements is barred from taking strike or similar actions as well.

The decision in MV Transportation and Amalgamated Transit Union #1637 (28-CA-173726) from Las Vegas was about a series of proposed changes the trucking company wanted to make.  They reached out to the union, and the union agreed to some, disagreed with others, and made counterproposals.  Rather than continuing to negotiate over their proposed changes, the company simply implemented them, the devil takes the hindmost, so it ended up at the NLRB once the union filed 8(a)5 unfair bargaining charges over the unilateral changes.  This should have been open-and-shut, but not under the Trump board.

In a convoluted, lawyers-only decision, the Trump NLRB argued that they wanted to move from a “clear and unmistakable waiver” standard to a “contract coverage” standard.  In plain language, rather than bar all unilateral changes after a contract is agreed they want to allow companies to make such changes unless there is clear language in the contract expressly denying them such a right.  Under management rights clauses which are common in contracts, companies already have all the rights to operate that are not expressly detailed in the formal agreement.  The exception has always been the overarching “wages, hours, and terms and conditions of employment” that would always trigger bargaining or block such changes legally.  Without knowing for certain how many companies will see this as a greenlight to workplace anarchy, it is clear that it imposes huge burdens on the union in a process that is never equal in collective bargaining to now win language that restricts unilateral actions.

Makes you wonder if collective bargaining will continue to have any advantages for the elite workers who were lucky – and strong – enough to continue to work under them?

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