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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Another Labor Day, Time to Notice Workers and Skewer Unions

New Orleans    Most of the world celebrates workers and Labor Day on May 1st, but the vestiges of “better dead than red,” have diluted Labor Day in the USA to a celebration of the end of summer, school openings, and, oh, yeah, workers are worth noticing for a change.  For pundits and journalists, it seems to have become an opportunity to take a glance at the working class, their issues and aspirations for sure, but also an opportunity to skewer unions, as the organized voice and collective institution of labor.

There’s no question that unions are being kicked on their long slow way down.  There’s no way to pretend that a fall over the last seventy years from nearly a third of workers being union members to hardly one-tenth now being in unions now is a win of any sorts.  Nonetheless that shouldn’t mean that it isn’t worth understanding the challenges that unions face, both internally and externally, rather than using them as a punching bag for below-the-belt shots.  For example, on Veterans Day somehow non-vets and public talking heads are able to thank veterans for their service without pointing out the fact that the US armed forces have pretty steadily lost one war after another for the last seventy years even while sucking up the lions share of US tax dollars throughout the period.

The New York Times editorial for example powerfully pictured three workers in different locations trying to raise families while having to work long hours and multiple jobs because their primary employment just didn’t pay a family-supporting wage.  Ok, point well taken.

The article in the Business section though offered a strained argument that workers were rising and ready for action and organization, but, essentially, unions were lagging and asleep at the wheel.  The implicit recommendations were astounding.  First, they argued that unions, which are funded and led by dues-paying members, should represent and advocate for workers regardless of whether or not they might ever be members.  Secondly, stepping slightly back from that argument, the reporter suggested maybe the AFL-CIO, a federation of those same unions and supported by a small piece of those unions’ dues payers, should be the ones to fund and support nascent efforts at organizing disparate workers.  This despite a declining organizing budget because of declining members, see above, and the fixation of federation leadership and member-unions with the primary function of the AFL-CIO which has almost always been politics, both elections and lobbying.  Thirdly, there was a suggestion the federation should fund workers’ centers, which do many important things where they exist, but almost categorically do not see themselves as organizing sustainable unions.  All of this is wrapped into an unprovable proposition that there is a rising movement of workers who are “fired up and won’t take it anymore!”

Oh, how I wish and pray!  Show me where and take me there!

Meanwhile in the real world, almost weekly we read the latest decisions of the Trump NLRB eroding fundamental workers’ rights, changing workers classifications as employees, excusing employers’ deliberate efforts to rip them off, slowing down elections for organizing, giving incentives and faster elections to employers and workers challenging union representation and contracts, and all this is just the tip of that iceberg.  I would challenge anyone to find any mention of any of this on Labor Day.  Oh, but no one will have trouble finding some references to recent investigations involving the leadership of the UAW and its relationship to automakers.

Let’s celebrate all of labor on Labor Day, but let’s give some love to unions and the work unions do every day as well, and maybe for a change try to really understand the challenges they are facing in an environment and politics committed to their demise and dissolution.

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