Tell the Bosses We're Coming. Shaun Richman

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      But not so much the CIO unions. Union leaders like Walter Reuther, who were more social democratic in their outlook, viewed health care and enhanced retirement benefits as the purview of the federal government. They wanted to win these things as universal rights for all Americans, as a part of a renewed New Deal.

      This vision was frustrated by the Republican congressional victories in the 1946 midterms, but even congressional Democrats didn’t feel the same urgency of the Depression years to put money in workers’ pockets even at the risk of incurring the wrath of the ruling class. At their 1946 convention, CIO leaders vowed not to wait “for perhaps another ten years until the Social Security laws are amended adequately” and to use their collective bargaining power to address their members’ health and retirement security.²⁹ The UAW believed that by forcing all the auto companies to pay for the same benefits for their employees, these benefits would be taken out of competition. Reuther’s hope was that by loading these additional payroll costs onto the auto companies’ bottom line, it would give them a financial incentive to lobby the government to assume these responsibilities.

      Think about that. The celebrated Treaty of Detroit was a five-year deal to make progress on a ten-year problem. And yet the private welfare system it built up has been a source of pride for union leaders and members for generations. Pensions and “Cadillac” health care plans and a host of other fringe benefits are the “union difference.” Bargaining for them is for many the sine qua non of what unions do.

      Today, many unions face round after round of concessionary demands to cut back member benefits. The “union difference” of substantially higher payroll costs gives employers a strong incentive to offshore, outsource, and fiercely resist union organizing efforts. And we’re stuck with the trade-off to win that private welfare system: long-term contracts that give management wide leeway to do what they want while we are saddled with severe restrictions on protest activity.

      Most union activists view our job as organizing as many new members and new shops as we can to increase density and get back to an era where the Treaty of Detroit framework still works. I say that the framework has become a trap, that we should critically evaluate it and be willing to blow it up.

       Mandatory Subjects of Bargaining

      The corporate executives at General Motors fiercely resisted the union’s attempt to have a say on its business decisions, and they won. Today, there are few unions that would even dare to offer an opinion on how their employer profits or how they should bill the public, and fewer still that view co-determinism or joint decision-making as a legal right or even an achievable goal.

      Labor law hasn’t helped. The National Labor Relations Act’s directive to employers to bargain with certified union representatives “in good faith” over “wages, hours and other terms and conditions of employment” is as broad as it is vague. There is no statutory requirement to actually reach an agreement, only to meet and respond to proposals.

      The benefit of the NLRA is in restraining and enjoining Unfair Labor Practices (ULPs). Bargaining in bad faith only occurs when one party refuses to meet or refuses to respond to a so-called mandatory bargaining proposal. ULPs over the failure to bargain in good faith can bring significant leverage as remedies include orders to meet more frequently, the furnishing of budgetary and other documentation to justify a bargaining position, and orders to cease, or even reverse, any changes made prior to reaching agreement or impasse.

      Unfortunately, the obligation to bargain in good faith has been drastically narrowed by the Supreme Court’s artificial invention of “mandatory” and “permissive” subjects of bargaining. “Permissive” subjects are those that either party can simply refuse to discuss with no legal repercussions. Of course, the Court has privileged “managerial decisions, which lie at the core of entrepreneurial control” in this way.³⁰

      The road to this dichotomy also came through auto negotiations, albeit in a much more obscure event. Just three years after the Treaty, a UAW local in a contentious round of bargaining with an auto parts supplier rejected management’s wage offer. The company refused to make another offer unless and until the union put the company’s last offer up for a secret ballot vote by its membership. They refused to budge from this position. The union, eager to be done with the negotiations, put the offer up for a vote. It was swiftly rejected and management was compelled to improve on their last wage offer.

      The union filed an unfair labor practice charge over management’s intransigence in order to discourage such behavior in the future. Today, one of the five broad categories of ULPs by employers that the law spells out is “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”

      This is the provision that bans company unions, and an employer dictating how the UAW should conduct its internal decision-making would seem to be a clear violation. But the years following the Treaty of Detroit were much more about managing and restraining union demands and protest activity than they were about reining in bad behavior by employers.

      Instead, in the 1958 decision NLRB v. Wooster Division of Borg-Warner, the Court decided to tinker with bargaining rights. Once judges get in the business of weighing which demands are fair and which are foul, they almost inevitably privilege business. As legal scholar James B. Atleson has observed, courts make “the assumption that certain rights are necessarily vested exclusively in management or are based upon an economic value judgment about the necessary locus of certain power.”³¹

      So what kind of managerial decisions has the Court decided employers have no obligation to negotiate? Only the small matter of whether a union can protect members’ jobs from subcontracting and outsourcing! An employer can hire another company or staffing agency to employ workers side-by-side with bargaining unit members, doing work that the now laid-off co-workers of union members used to do, but now at lower pay and little or no benefits. The employer has no legal obligation to negotiate with the union over the decision. The only right that the union has is to bargain over the impact of the decision that’s been made.

      So the union can propose how and in what order union members are laid off. They can ask that the laid-off workers get retrained and placed on a priority recall list for other jobs in the bargaining unit or for their old jobs with the new subcontractor. They can bargain for severance and COBRA health insurance payments. What they can’t do is force the employer to bargain over the decision itself. They can’t use the bargaining process to slow down the decision. They can’t force the employer to open its books and justify the economic need for the decision.

      Many unions, however, do have language in their collective bargaining agreements to prevent subcontracting. But keeping that language in their contracts has all too often turned into another way that union negotiations are done on a concessionary basis, as most employers would dearly love to be free of such “restrictions.”

      A union that doesn’t have a contract, one where the workers have just organized, is particularly vulnerable. I’d say that every fourth organizing campaign I ever worked on involved the boss simply subcontracting a chunk of the bargaining unit, just to shake things up a little. It’s a great way to drag out negotiations and make the workers question whether organizing was worth it. Worse, I can’t think of a single campaign I’ve ever worked on where at least one worker didn’t have a story about how she or a family relation lost a previous job and the union couldn’t do anything to stop it.

       A Temporary Truce That Became a Permanent Surrender

      The five-year duration of the UAW’s 1950 GM contract was unprecedented. It was a product of the union’s annual threat to strike and its proven track record of being able to do so effectively. And, crucially, management paid for it with a very pricey СКАЧАТЬ