Yesterday’s NLRB’s decision on the collective-bargaining rights of employees hired through “temp” agencies has meant that very little attention has been paid to a decision handed down yesterday by an NLRB Administrative Law Judge.
Although the change in how contingent employees are defined has potentially broad direct ramifications and signals an important, fundamental shift in attitudes toward the legal marginalization of exploited workers, this second case may have more significant, immediate implications for our existing collective-bargaining units.
The case was brought by the AFT Local 4412 representing the Berklee College of Music faculty in response to changes in the minimum enrollment thresholds for courses announced by the institution’s administration. The union argued that because the administration had not negotiated the changes, as required by contract, and because it had announced the changes just before the semester started, when they could be challenged only after the fact, the administration should be found to have engaged in unfair labor practices.
The judge, however, noted that the administration cannot be charged with a failure to negotiate on the issues when the union itself failed to pursue opportunities to negotiate them. Clearly, the changes in the minimum enrollment thresholds were meant as an ongoing, rather than a one-time, change in policy. So, the judge argued that the union had the responsibility to attempt to negotiate with the administration on the ongoing effects of the changes, which presumably might have led to some retroactive accommodation on their very immediate effects.
The complete decision on this case is available at: file:///C:/Users/Michael/Downloads/Board%20Decision%20(1).pdf
Before I comment on this case, I want to be clear that I am not an expert on labor law, and, therefore, my summary may very well be deficient in some respects. Likewise, I do not wish my commentary to suggest that I agree with this decision or that the leadership of this faculty union deserves to be criticized for some failure to adequately represent its members. If anything, I suspect that the leaders of most of our CB units would have taken the same stance as that taken by the leadership of this AFT local. So, I am less interested in looking backward in order to determine responsibility and more interested in looking forward in order to understand the implications of this decision.
At my university, we sometimes hear complaints that we have been “too aggressive” or “too insistent” in requiring that negotiable items be negotiated. Such responses seem to conform to the hackneyed characterization of unions as obstructive, rather than constructive, forces in the workplace. In effect, each new complaint gains credibility from and provides additional credibility to the hackneyed characterization.
Nonetheless, if one takes a broader view of our contracts—which someone “stymied” by some element of a contract is very unlikely to do—the contracts really cover only a very small fraction of the subjects and issues that they might conceivably cover. Much of the “smaller detail” stuff in a contract has been included in response to significant or recurring issues not previously covered by the contract. So, beyond their fundamental elements, our contracts are typically much more reactive than proactive documents. They are generally much more selectively than broadly prescriptive or proscriptive. And their size is typically more the result of accrual than of any sort of obsession with thoroughness.
So, we somehow need to convey to our members that when we attempt to enforce our contracts, we are protecting their rights not just on the specific issues that have arisen but by the more fundamental exercise of our right to raise issues of concern to our members. For what this decision conveys is that a union that has exercised its right to negotiate has, in effect, abdicated that right—that a failure to insist on negotiations in the face of administrative fiat is, in effect, a shared failure in shared governance.