Category Archives: Collective Bargaining

Alt-Bargaining

Source: Michael M. Oswalt, Law and Contemporary Problems, Vol. 82 no. 3, 2019

….The article proceeds as follows. Part II canvasses evolutions in organizing since the 1970s to show how innovations that start at the unionization phase don’t stay there. Corporate, comprehensive, and social movement advances all became mainstay bargaining strategies. While the present breakthrough, alt-labor, defies easy characterization, Part II tries based on its three exceptional relationships to law. Part III addresses the next question: when and how might alt-labor’s legal insights begin to reverberate in later stages of organizing. After identifying the existing echoes, I argue that time is now.

Part IV explores mechanics. Embedded in alt-bargaining’s three new legal orientations is a sophisticated understanding of interest formation that allows the campaigns to press for broad, “common good”-type community benefits with minimal outside conflict, minimal internal dissension, and—most critically— draw big crowds. In doing so, leaders use practices steeped in community-based activism that incorporate months of transformational political and relational education. As Gabe Winant has described, unions’ modern challenge is to get the nurse, custodian, fast-food worker—and, increasingly, Uber driver—to “understand their fates as intertwined.” The realities of “race, economic position, and social status,” can make the task feel intractable. Alt-bargaining’s approach suggests it’s not impossible.

Finally, Part V offers a vision of alt-bargaining’s ambitions, plus a slate of legal and structural reforms—especially the introduction of community “pool voting”—that might support them. Part VI briefly concludes…..

A New Approach to Contracts

Source: David Frydlinger, Oliver Hart, Kate Vitasek, Harvard Business Review, September-October 2019

…. Companies understand that their suppliers are critical partners in lowering costs, increasing quality, and driving innovation, and leaders routinely talk about the need for strategic relationships with shared goals and risks. But when contract negotiations begin, they default to an adversarial mindset and a transactional contracting approach. They agonize over every conceivable scenario and then try to put everything in black-and-white. A variety of contractual clauses—such as “termination for convenience,” which grants one party total freedom to end the contract after a specified period—are used to try to gain the upper hand. However, these tactics not only confer a false sense of security (because both firms’ switching costs are too high to actually invoke the clauses) but also foster negative behaviors that undermine the relationship and the contract itself.

We argue that the remedy is to adopt a totally different kind of arrangement: a formal relational contract that specifies mutual goals and establishes governance structures to keep the parties’ expectations and interests aligned over the long term. Designed from the outset to foster trust and collaboration, this legally enforceable contract is especially useful for highly complex relationships in which it is impossible to predict every what-if scenario. These include complicated outsourcing and purchasing arrangements, strategic alliances, joint ventures, franchises, public-private partnerships, major construction projects, and collective bargaining agreements. A growing number of large organizations—such as the Canadian government, Dell, Intel, AstraZeneca, and the Swedish telecommunications firm Telia—are successfully using this approach. In this article, we look at the theoretical underpinnings of formal relational contracts and lay out a five-step methodology for negotiating them. ….

A Seat at the Table: Negotiating Data Processing in the Workplace. A National Case Study and Comparative Insights

Source: Emanuele Dagnino, Ilaria Armaroli, A Special Issue of the Comparative Labor Law & Policy Journal on “Automation, Artificial Intelligence, and Labour Protection” guest-edited by Valerio De Stefano, Forthcoming, Date Written: June 13, 2019

From the abstract:
It is already a common understanding that datafication is one of the most important trends in our society and, as a consequence, in the economic environment. Datafication and big data are not only the core of the two most debated new business and technological models – platform economy and Industry 4.0 (or smart manufacturing) – but have also permeated more traditional organizations, entering all their departments (marketing, production, sales, finance). In the latest years, datafication is becoming ever more a reality in work organization and human resource management, considerably impacting on the way work is organized, managed and performed. Stemming from this background, this paper wants to analyze the topic of data processing in the employment context focusing on the specific role that collective representation can play. Although there are some interesting antecedents in research regarding the role of workers’ representatives in this context, the topic has received very limited attention as far as the new wave of digitalization is concerned, and almost no interest in its double — individual and collective — dimension. By contrast, we believe that ongoing technological and organizational changes raise new challenges and open a new room for intervention for workers’ representatives. In this sense, they are expected not only to limit the quantity and fix the typologies of data collected and processed, against the risk of workers’ surveillance, but also to co-decide over purposes and procedures of data processing, for the self-determination and concrete participation of workers. Negotiating the algorithm, in our opinion, starts here. In order to achieve the above-mentioned purposes, a case study analysis is developed and focused on the Italian context. Firstly, we focus on the legal framework to shed light on the prerogatives and powers formally attributed to workers’ representatives in the field of data protection and workplace monitoring. Emphasis will be placed on the changes made by the so-called Jobs Act reform from September 2015. Secondly, we examine a set of 1,161 company-level collective agreements concluded in Italy between late September 2015 and 2018 to investigate the actual role played by labor representation in this field. Moreover, we provide some insights into other national contexts, with a view to comparing the results of our analysis with the negotiated outcomes achieved in other countries, in an attempt to better understand the institutional determinants of varieties of actors’ orientations and collective solutions.

Related:
Introduction: Automation, Artificial Intelligence, and Labour Protection
Source: Valerio De Stefano, Comparative Labor Law & Policy Journal, Vol. 41, No. 1, 2019

From the abstract:
The Comparative Labor Law and Policy Journal is publishing a collection of articles on “Automation, Artificial Intelligence, and Labour Protection” edited by Valerio De Stefano (KU Leuven). This collection gathers contributions from several labour lawyers and social scientists to provide an interdisciplinary overview of how new technologies, including smart robots, artificial intelligence and machine learning, and business practices such as People Analytics, management-by-algorithm, and the use of big data in workplaces, far from merely displacing jobs, profoundly affect the quality of work. The authors argue that these issues depend, and can be affected by, policy choices – since they are not just the “natural” result of technological innovations – and call for adequate regulation of these phenomena. Contributing authors are Antonio Aloisi, Ilaria Armaroli, Fernanda Bárcia de Mattos, Janine Berg, Miriam Cherry, Emanuele Dagnino, Valerio De Stefano, Elena Gramano, Matt Finkin, Marianne Furrer, Frank Hendrickx, Parminder Jeet Singh, David Kucera, Phoebe Moore, Jeremias Prassl, and Uma Rani. This article introduces this collection and gives an overview of the issues discussed by the authors.

Steward’s Corner: Legal Rights in a Contract Campaign

Source: Robert M. Schwartz, Labor Notes, May 16, 2018

In today’s dysfunctional economic climate, straightforward bargaining frequently comes up empty.

Employers come to the table with lengthy lists of takeaways and refuse to compromise. Claiming impasse at the earliest opportunity, they threaten to carry out their final offer or impose a lockout. To cope with these realities many unions are turning to militant contract campaigns. Creative and aggressive tactics can demonstrate members’ solidarity, resolve, and willingness to act…..

Wage Boards for American Workers: Industry-Level Collective Bargaining for All Workers

Source: David Madland, Center for American Progress, April 9, 2018

…. The United States needs a different kind of collective bargaining that responds to the changes in the economy over recent decades. In this modernized bargaining system, virtually all workers would be able to collectively bargain; bargaining would occur primarily at the industry level; and workers would have sufficient power to negotiate with employers. This new kind of bargaining can be created through a national policy of bargaining through wage boards, where employers, workers, and the public negotiate collectively. Wage boards would represent a significant change from the current bargaining process, but they have a proven track record in several U.S. states as well as in other countries.

Wage boards raise compensation for all types of workers, whether they are contracted temp workers or employees of a dominant firm; whether they are in a union or not; and regardless of race, ethnicity, gender, and sexual orientation. Rather than allowing potentially arbitrary or discriminatory factors influence workers’ pay levels, wage board panels set minimum pay levels based on measurable indicators such as the work and required skills. Furthermore, because wage boards raise minimum standards for wages and benefits across an industry, they help reduce firms’ incentives to try to cut labor costs by discriminating, contracting out work, or fighting unions.

Wage boards would also help boost productivity by ensuring that similar work receives similar pay. This enables a more efficient allocation of resources and encourages more cooperative firm-level relations between workers and their managers.11 Wage boards would help high-road businesses compete on an even playing field, as low-road employers would face new minimum standards for pay and benefits. ….

….In order for bargaining above the firm level to function properly, workers must be able to take collective action without fearing retaliation from their employer. Not only does current law fail to protect actions necessary for firm-level bargaining, but it also provides fewer protections for the kinds of actions—such as boycotting and striking—needed to make industry-level bargaining work. This is why policymakers must broaden and enhance worker protections.

Additionally, wage boards create a free-rider problem because workers will benefit from higher standards even if they do not pay the costs of achieving them. As a result, wage board policy reforms will need to establish new ways of joining unions and other worker organizations that do the work necessary for industry-level bargaining…..

What Would You Do For A Raise? | 35% of Americans Would Give Up the Right to Vote

Source: Mike Brown, LendEDU, April 3, 2018

….But, just how far would the average worker go to get a bigger paycheck? Would they do something drastic like breakup with their significant other? How about something a little more watered down (for some at least) like giving up watching Game of Thrones? To gauge how far Americans would go to receive an immediate 10 percent raise in their annual wages or salaries, LendEDU asked 1,238 respondents a series of “would you rather” questions where they had to weigh making a steep sacrifice in order to get a nice pay bump…..

Related:
A Third of Americans Would Forfeit Their Voting Rights For a 10% Pay Raise, Says Study
Source: Jennifer Calfas, Time, April 5, 2018

More than a third of Americans would give up their right to vote for a 10% annual pay raise, according to a new survey.

Pause for a second to let that sink in.

The peculiar findings come from a survey conducted by LendEDU, an online student loan marketplace, that polled 1,238 working Americans. In exchange for the hypothetical pay bump, about 35% of these employees said they would sacrifice their voting rights for life. In addition, just over 9% of respondents said they would give up their children’s (or future children’s) right to vote for life for the make-believe raise.

Organizing On-Demand: Representation, Voice, and Collective Bargaining in the Gig Economy

Source: Hannah Johnston, Chris Land-Kazlauskas, International Labour Organization, Conditions of Work and Employment Series No. 94, 2018

…. We begin with an overview of gig and platform work and the structural and institutional challenges that gig- and platform-based workers in building collective, group agency. This is followed by a review gigworker organizing strategies based on the institutions or organizations that workers have formed or joined for the purpose of building agency. We stress the importance of workers’ organizations – broadly defined – as a site to agglomerate the economic, political, and cultural resources necessary to provoke change. The tenure of organizations allows workers to experiment with various tools and strategies to improve conditions and adopt those that are effective. The four organizational structures we explore (union renewal strategies and new organizing initiatives, worker forums, worker centres, and cooperatives) represent a comprehensive list of organizations that are actively organizing and supporting gig economy workers. Given the rapid turnover of the on-demand workforce, we view the tenacity and adaptive strategies of workers’ organizations as vital to developing a sustainable and dynamic labour movement. Each initiative examined has its own section delineated by a heading and a summary of the principle strategies used. We then turn to efforts by employers’ organizations to support their members in adapting to, and influencing these new realities.

The paper ends with a discussion of barriers that self-employed platform workers face to effectively achieve collective bargaining and efforts to achieve effective representation and collective bargaining for workers in the gig economy. In this section we discuss important steps that could be taken to ensure the right to freedom of association and the effective recognition of the right to collective bargaining among independent contractors, who often find their these rights curtailed by anti-trust legislation. This section also highlights a number of recent efforts at collective regulation undertaken by workers and platforms in the gig economy…..

Supreme Court: Union Retiree Health Benefits Weren’t Vested for Life

Source: Allen Smith, SHRM, February 22, 2018

Draft language in CBAs and benefits documents thoughtfully.

Retiree health care benefits end when a collective bargaining agreement (CBA) between a company and a union expires, unless the CBA provides otherwise, the Supreme Court ruled Feb. 20. The decision underscores the importance of giving careful thought to all language proposed and agreed to at the bargaining table, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. Make sure the language in the CBA clearly expresses the parties’ intent, he stated. Benefits documents should as well, labor relations attorneys say. ….