Category Archives: Collective Bargaining

Collective bargaining language on domestic violence, discrimination, disabilities, and LGBTTI rights

Source: Canadian Union of Public Employees (CUPE), 2015

Domestic violence and the workplace: A bargaining guide
September 29, 2015

Discrimination: A checklist and sample collective agreement language
October 19, 2015

Duty to accommodate: A checklist for collective agreement language
October 19, 2015

Bargaining LGBTTI rights: A checklist for collective agreement language
October 19, 2015

Three Recent Wins Prove Old-Fashioned Union Power Isn’t Dead Yet

Source: Jane Slaughter, Labor Notes, July 7, 2016

Three big wins for workers in the last nine months arrived where you might least expect them: in the old, blue-collar economy. That’s the economy where unions are down to 6.7 percent, where wins are rare and workers are supposed to be on their way out. Yet at Chrysler, Verizon, and a huge Teamster pension fund, thousands of union members mobilized to put a stick in management’s eye. Hundreds of thousands will see the benefit…..

Symposium: The National Labor Relations Board After Eighty Years

Source: Emory Law Journal, Vol. 64, Special Issue, 2015

Articles include:
Panel I: Assessing the NLRB’s Impact and Political Effectiveness
Toward Politically Stable NLRB Lawmaking: Rulemaking vs. Adjudication
Charlotte Garden

For the last several decades, there have been two constants with respect to the National Labor Relations Board. First, the modern Board has been notoriously reluctant to use its rulemaking authority; until recently, it had made only one significant substantive rule via the notice-and-comment process. Second, commentators—academics, lawyers, judges, and politicians—have issued a steady stream of calls for the Board to make law via rulemaking rather than through adjudications, arguing for the rulemaking process on both pragmatic and normative grounds. In recent years, however, the first of these has changed: the Board has engaged in two significant rulemaking processes. Each of these processes was both time intensive and politically and judicially fraught, calling into question whether the Board can achieve the process benefits of rulemaking in the current contentious political environment. This Symposium Essay explores the extent to which the Obama Board has been able to achieve the purported benefits of rulemaking, and therefore whether the benefits of making labor law through the rulemaking process exceed the costs, especially where the Board could alternatively make law via adjudication.

The NLRB: What Went Wrong and Should We Try to Fix It?
Julius G. Getman

For eighty years, national labor policy as set forth in the National Labor Relations Act has been committed to overcoming the “inequality of bargaining power between employees . . . and employers” by “encouraging the practice and procedure of collective bargaining” and by “protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives.” The basic tenants of national policy may be restated in terms of a series of commands directed at the National Labor Relations Board and the courts. These may be stated as follows: (1) Promote and protect the right of workers to organize for the purposes of collective bargaining. (2) Prevent employers from using their economic power to inhibit free choice by workers. (3) Leave the parties free to negotiate their own agreements. (4) Recognize and protect the right to strike. The key to turning these commands into a living reality was the establishment of the NLRB, an expert agency that was to use its understanding of labor relations reality to establish national labor policy by defining more precisely the general terms of the NLRA subject to minor and supportive review by the courts. When the law was first enacted, its drafters probably assumed that the Court would be instructed in the realities of labor relations by the newly established NLRB and its presumed expertise. That has failed to happen, in part because the expertise of the Board is largely fictional and because the Court regularly ignores and overrides even sensible Board opinions.

Politics and the Effect on the National Labor Relations Board’s Adjudicative and Rulemaking Processes
William B. Gould IV

The National Labor Relations Act has never explicitly required political balance in the National Labor Relations Board’s (NLRB or Board) appointment process. But the Eisenhower administration demonstrated that policy shifts could be initiated through changes in NLRB composition. The Kennedy Board shifted gears again, prompting critics to say that the Board was on a “seesaw.” More pronounced polarization began to emerge in the 1980s as political party divisiveness and union decline created more adversarial relationships. In the 1990s, divided government produced a “batching” of appointees (in contrast to annual Senate confirmation votes on each appointment as their term expired), horse trading of “interchangeable elites engaged in an insider’s game” as Professor Calvin McKenzie said. Ultimately, the consequences of impasse through this process twice resulted in Supreme Court decisions interpreting the Act and the Constitution so as to alter the relationship between the President and the Senate. But the Senate, under Senator Reid, was to trump the practical effect of these holdings by eliminating the filibuster, which frequently stalled or stopped NLRB appointments. Paradoxically, however, through both oversight hearings and the Congressional Review Act of 1996, legislative interference with the work of the NLRB has never been more extensive.

The NLRB, the Courts, the Administrative Procedure Act, and Chevron: Now and Then
Theodore J. St. Antoine

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency’s statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, but if a statute is silent or ambiguous on the precise issue, then the court will defer to an agency’s determination that is a permissible construction of the statute. More recently there has been a revival of interest in the earlier, more flexible Skidmore approach. That would call for considering a variety of factors, including whether the issue was one of “pure law” or the application of law to facts and the formality or informality of the agency’s decisional process. It has even been suggested that these deference tests could be reduced to a single inquiry: was the agency’s decision “reasonable”? Empirical studies have indicated not only that the political backgrounds of NLRB members substantially affect its decisions but also that the political backgrounds of judges substantially affect the decisions of reviewing courts.

Panel II: A Conversation with Members of the National Labor Relations Board and the General Counsel
A Conversation with Members of the National Labor Relations Board and the General Counsel
Mark Gaston Pearce, Richard F. Griffin, Jr., Kent Y. Hirozawa, Harry I. Johnson, III, Lauren McFerran, Philip A. Miscimarra, Charles A. Shanor

A conversation with the NLRB Members and General Counsel. Beginning with remarks from the General Counsel of the Board, reviewing issues related to wage stagnation, inequality in the workplace, and the role of the Labor Board and the General Counsel. Second, Chair Pearce and Member Miscimarra review the new representation rule. Third, Member McFerran discusses the relationship between Congress and the Board. Fourth, Member Hirozawa provides an overview of recent NLRB decisions of substantial importance in the workplace. Fifth, Member Johnson reviews some pending issues before the Board. Finally, the Board and General Counsel address questions from the audience.

Panel III: Opportunities for Improvement in Changing Times
Labor Law 2.0: The Impact of New Information Technology on the Employment Relationship and the Relevance of the NLRA
Kenneth G. Dau-Schmidt

The NLRA system of collective bargaining was born during the industrial age of the early twentieth century. As a result, key terms in the statute such as “employee,” “employer,” and “appropriate bargaining unit” were first interpreted in the context of long-term employment and large vertically integrated firms that dominated this era. Beginning in the late 1970s, the new information technology wrought a revolution in the organization of production increasing short-term contingent employment and the organization of firms horizontally in trading and subcontracting relationships across the globe. To maintain the relevance of collective bargaining to the modern workplace, the interpretation of the key terms of the NLRA must be updated to recognize the changed circumstances of production and interpret union access and employee mutual support in light of the new technology. However, new information technology promises further changes in the workplace with the accelerating mechanization of many jobs and perhaps a fundamental change in the relationship between labor and capital with the development of artificial intelligence. In this Essay, I explore the implications of new information technology for the workplace, the interpretation of the NLRA, and the continuing evolution of American labor policy.

‘Depoliticizing’ the National Labor Relations Board: Administrative Steps
Samuel Estreicher

Complaints about the political forces arrayed against the basic labor laws and about the increasing “politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legislative change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers?

The NLRB as an Überagency for the Evolving Workplace
Michael Z. Green

As a result of having this full complement of NLRB members, this Essay asserts that the NLRB has become the premier administrative agency for addressing workplace matters across a broad spectrum of employee–employer concerns. In this respect, the NLRB represents a super—or über—agency that points a spotlight on important workplace issues that no other administrative agency could or should address. With the five appointed members’ outstanding expertise in labor law, as well as in broader workplace concerns under employment discrimination and employment law, these NLRB decisionmakers offer an unusual level of knowledge to operate on the front line in adjudicating perplexing issues that continue to evolve in the workplace.

NLRB Elections: Ambush or Anticlimax?
Jeffrey M. Hirsch

The National Labor Relations Board’s (NLRB) new election procedures represent a comprehensive reform of its representation process. As is the case for many broad reforms, the new rules have prompted significant criticisms and accolades. Many employers have decried the new rules as implementing an unfair “ambush” election process that will deprive employees of needed information and employers of their right to express their views about unionization. In contrast, unions have largely applauded the new rules as an improvement on an election system that they view as stacked against them. The truth appears far less monumental. Although the NLRB’s new rules provide a much-needed update to election procedures and aim to decrease many sources of unwarranted delay, they seem incapable of causing a significant impact on employees, employers, or unions. The new rules should result in a quicker election process, but not so quick that they can be fairly described as “ambush” or a deprivation of employers’ ability to communicate with employees. Moreover, the modestly shorter time periods for elections are unlikely to improve unions’ election win rates or increase union density in a significant way. In short, the NLRB has implemented a modest set of improvements to its representation process, and critics and proponents should not exaggerate the limited impact of those reforms.

Toward a 21st-Century Labor Movement

Source: David Rolf, American Prospect, April 18, 2016

The old model of collective bargaining can’t be resurrected. Herewith, some new models of how workers can win and wield power. ….

…..Borrowing from labor law in other countries, from U.S. history, and from promising experiments happening in the United States today, there are several potential overlapping strategies for how future forms of worker power might operate and that suggest what U.S. labor policy might eventually look like. • Geographic and/or sectoral bargaining. …..
• Worker ownership. …..
• Control of work-distribution platforms. …..
• Labor standards enforcement. …..
• Certification and labeling. …..
• Benefits administration. …..

Bargaining for the Common Good

Source: Joseph A. McCartin, Dissent, Spring 2016

….Two things made the Minneapolis People’s Congress particularly significant. First, it signaled a deep alignment of community and labor organizations, a potentially potent melding of their interests, organizational energies, and agendas that went well beyond the merely transactional forms of coalition-making that we have often seen between labor and community organizations in the past. Unions did not merely enlist community groups to support their contract campaigns; instead unions and their allies built a common agenda from the ground up. Second, this extraordinary gathering was the most fully articulated example of a growing phenomenon: unions and community partners collaborating to challenge twenty-first century capitalism, reviving democracy and government integrity in the process….. But the Minneapolis gathering was more than simply another iteration of an oft-repeated union tradition. It represented something new, a conscious effort to tie union-community mobilization to the function that lies at the very heart of unionism: collective bargaining. Since the rise of a routinized collective-bargaining regime—first in the 1940s and ’50s in the private sector, and then in the 1960s and ’70s in the public sector—collective bargaining had come to mean a binary negotiation between unionized workers and their direct employers. Although unions repeatedly sought community allies, they never tried to enlist them in a common effort to break out of the employer-union binary and bargain together on behalf of workers and their communities. The Minneapolis effort is a significant step in that direction…..

Control the Negotiation Before It Begins

Source: Deepak Malhotra, Harvard Business Review, Vol. 93 no. 12, December 2015

Focus on four preliminary factors that can shape the outcome….

….Countless books and articles offer advice that can help deal makers avoid missteps at the bargaining table. But some of the costliest mistakes take place before negotiators even sit down to discuss the substance of the deal. That’s because people fall prey to a seemingly reasonable—but ultimately faulty—assumption about deal making. Negotiators often take it for granted that if they bring a lot of value to the table and have sufficient leverage, they’ll be able to strike a great deal. While those things are certainly important, many other factors influence where each party ends up.

In this article I draw on my experience advising scores of companies on deals worth millions or billions of dollars to present four factors that can have a tremendous impact on negotiation outcomes. In each case, I provide guidance on what negotiators should do before either side starts making offers or counteroffers…..

Emotion and the Art of Negotiation

Source: Alison Wood Brooks, Harvard Business Review, Vol. 93 no. 12, December 2015

How to use your feelings to your advantage. ….

….Over the past decade, however, researchers have begun examining how specific emotions—anger, sadness, disappointment, anxiety, envy, excitement, and regret—can affect the behavior of negotiators. They’ve studied the differences between what happens when people simply feel these emotions and what happens when they also express them to the other party through words or actions. In negotiations that are less transactional and involve parties in long-term relationships, understanding the role of emotions is even more important than it is in transactional deal making.

This new branch of research is proving extremely useful. We all have the ability to regulate how we experience emotions, and specific strategies can help us improve tremendously in that regard. We also have some control over the extent to which we express our feelings—and again, there are specific ways to cloak (or emphasize) an expression of emotion when doing so may be advantageous. For instance, research shows that feeling or looking anxious results in suboptimal negotiation outcomes. So individuals who are prone to anxiety when brokering a deal can take certain steps both to limit their nervousness and to make it less obvious to their negotiation opponent. The same is true for other emotions.

In the pages that follow, I discuss—and share coping strategies for—many of the emotions people typically feel over the course of a negotiation. Anxiety is most likely to crop up before the process begins or during its early stages. We’re prone to experience anger or excitement in the heat of the discussions. And we’re most likely to feel disappointment, sadness, or regret in the aftermath…..

Widening the Scope of Worker Organizing: Legal Reforms to Facilitate Multi-Employer Organizing, Bargaining, and Striking

Source: Roosevelt Institute, October 7, 2015

From the summary:
For legal, social, and economic reasons, it is difficult for worker organizations to organize, bargain, and strike across entire contractual supply-chains, networks, industries, occupations, or regions.

This paper proposes four large-scale reforms to diminish these difficulties and actively facilitate organizing and striking across multiple employers:

First, an entity should be deemed an “indirect” employer of multiple “direct” employers’ workforces if it has “sufficient bargaining power” to determine the standards of all the employees in question, even if the entity is not currently exercising such power. By organizing and bargaining with that single entity, a worker organization would effectively organize and bargain with what is currently deemed a multi- employer association.

Second, the law should authorize worker organizations to unilaterally choose multi-employer units. And, if a government agency is called upon to select among differing units chosen by different worker organizations, the agency should define units based on the criterion of “maximum potential worker empowerment.”

Third, legal reform should authorize bargaining units that are defined not only by employer boundaries but also by such categories as geographic region, production-and-distribution network, occupation, or industry.

Fourth, bargaining rights or the substantive terms of collective agreements should extend across multiple employers even if only a minority of unit workers have affirmatively shown their support for the organization.

Each of these reforms would require large-scale legislative transformation and zealous enforcement that are only imaginable in the event of deep progressive renewal in our politics. The four reforms could be enacted separately but would, if concurrently implemented, be mutually reinforcing.

Tackling Workplace Segregation Through Collective Bargaining: The Case of UNITE-HERE and the Hotel Industry

Source: Dorian Warren and Virginia Parks, Roosevelt Institute, October 7, 2015

From the summary:
More than 50 years since passage of the landmark 1964 Civil Rights Act, the little progress we have made as a country in ending job segregation by race and gender has stalled. As women and people of color make up a growing majority of America’s workforce, we must find new and innovative solutions to ending workplace segregation and promoting equal opportunity for all. This case study of UNITE-HERE’s work in the hotel industry demonstrates one effective solution in light of the inadequacy of the Civil Rights Act: collective bargaining.

We identify direct ways in which UNITE-HERE, through the collective bargaining process, influenced the racial and ethnic division of labor beyond network recruitment among individual members. We show how outside of apprenticeship programs, unions may directly influence racial, ethnic, and gender representation by legislating hiring practices through specific contract language, such as mandating diversity commitments from employers, implementing stronger nondiscrimination practices, and requiring direct outreach to underrepresented applicants.

Opportunistic Proposals by Union Shareholders

Source: John G. Matsusaka, Oguzhan Ozbas, Irene Yi, University of Southern California, CLASS Research Paper No. CLASS15-25, October 8, 2015

From the abstract:
Effective corporate governance requires mechanisms that allow shareholders to influence corporate decisions. This paper investigates the use of shareholder proposals, an increasingly prominent governance mechanism, by labor unions. Activist union pension funds are subject to cross-pressures: they wish to increase fund returns to help beneficiaries but also to aid current union workers. We show theoretically that shareholder proposals can be used as bargaining chips in contract negotiations. Empirically, we use variation in the expiration of collective bargaining agreements to identify exogenous changes in the value of making proposals. We find that during contract negotiation years, unions increase the number of proposals they make by about one-quarter (and by about two-thirds during contentious negotiations), and change the subject of proposals to focus on matters personally costly to managers. We do not find similar changes in proposal behavior by nonunion shareholders. Opportunistic union proposals are also associated with better wage agreements for the union. The evidence suggests that some union proposals are intended to influence collective bargaining outcomes rather than maximize shareholder value, and that increasing proposal rights will not necessarily help shareholders at large if some shareholders use those rights to advance their private interests.