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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NLRB Decision on Aircraft Mechanics at Boeing South Carolina is Huge Setback

Dusseldorf       Under this US administration, never say, “It can’t get much worse,” because it will.  In the assault on workers’ fundamental organizing rights under the National Labor Relations Act, the latest decision by the Trump-stacked board is potentially disastrous.  In a 3-1 decision with the NLRB’s Trump-appointed members outnumbering the lone Obama appointee with the other seats vacant, the board ruled that a unit of aircraft mechanics being sought by the IAM, the International Association of Machinists, was inappropriate.  In so doing, they overruled an earlier decision by the NLRB regional director sustaining the unit.   It’s really even worse than that.

This was a case where the Machinists had filed for a unit of 178 workers in March 2018.  A solid majority voted to join the union in June 2018 and were certified by the regional director of the NLRB.  The Machinists already represent 35,000 Boeing workers in Washington State facilities, but despite that, or perhaps because of that, Boeing refused to bargain with the union and instead challenged the unit on appeal after the election.  The regional director upheld the certification, so Boeing took a shot with the new Trump majority on the board and overturned the whole shebang.

Why is this important and so profoundly adverse for organizing?

Failing to amend the more than sixty-five-year-old labor law, the NLRB under Obama had allowed petitions to go directly to election on a somewhat faster timetable forcing companies to appeal later.  This small change was huge, because it eliminated employer tactics of trying to stall the election with delay tactics, hearings over trivial and nonexistent unit issues, until there was turnover or they had depressed the bargaining unit, adding to their ability to defeat the union in an election.  In this case, Boeing filed an appeal to thwart the will of the workers in the face of their victory.

The Obama NLRB had also allowed unions to carve out smaller units.  The language in the Act says “an appropriate bargaining unit” can be certified, meaning there is no such thing as a legal definition of one and only one appropriate unit.  Unions didn’t take much advantage of this, but in trying to organize huge plants, both the UAW in Tennessee and the IAM in South Carolina have tried this strategy.

Reading the NLRB decision, the Trump board has upended all precedent and the Act itself by declaring that this unit of 178-workers was inappropriate for two reasons.  First, they claim it involves two job classifications that do not have a “natural” community of interest.  Secondly, and more importantly, they claim the 178-workers have a community of interest with all 2700 production-and-maintenance workers in the Boeing plant.  Who know the merits of their first claim, but the clear signal on the second is that this radical NLRB is now claiming that there is only one appropriate unit, and that is the largest possible unit, where there is arguably a community of interest, making it virtually impossible to carve out smaller units under this board.

The NLRB in recent years has been a precarious harbor for advancing workers’ interests in organizing a union, and many unions have assiduously avoided going there and facing the uneven contests with employers in union elections.  The Trump NLRB has now signaled to companies and management attorneys everywhere that they should appeal all unit determinations that are anything short of including the kitchen sink, because they will now determine there to be a single allowable and appropriate unit, rather than “an appropriate unit” that might be within the scope of the union petitioner’s filing.

The Machinists leadership told the Post and Courier that they would keep on fighting.  They likely meant on the shop floor.  Given the makeup of the Supreme Court, an appeal of the NLRB’s Boeing decision would likely be a waste of time and money.  Given this decision of the NLRB, many union organizers will likely see bothering to go to election under this board will also likely be a waste of time and money.

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