At an Impasse: Collective Bargaining Under the Judicial Amendments

This is the sixth article in the Judicial Amendment Project on the history of the NLRA. The stories in the series to date include:

1. Why Today the National Labor Relations Act Is a Weak Law – and How We Can Restore its Power 28 March 2013

2. Judicial Amendments and the Attack on Worker Rights 4 April 2013

3. Solidarity NOT Forever: How the Supreme Court Kicked Retirees Into the Gutter 11 April 2013

4. Strike and You’re Out: The Supreme Court’s Destruction of the Right to Strike

5. A Strike Is a Strike and Only a Strike

At one time or another, most of us have heard our mothers or fathers say that we have to do something we don’t like because they are “the parent.” We also know that, because they are the parent, we have to comply with what they say.

When we grow up and leave home, that relationship changes, but, as anyone who has ever held a job knows, we must follow our employers’ orders. (After all, that’s why we call them “bosses.”) Those of us in the private sector who are not represented by unions can be fired at our employer’s will, or, as it’s often put, for a good reason, a bad reason, or no reason. As a result, most private-sector workers have little bargaining power.

Congress enacted the National Labor Relations Act (NLRA) to create equality of bargaining power between employers and employees, because decades of experience showed that employers used their greater power to impose worse and worse working conditions for employees. The result was depressed wages and working conditions that reduced workers’ purchasing power, which caused recessions and depressions and led to strikes and industrial strife. Congress observed that employers had more power than employees because employers had the legal right to organize as corporations and partnerships, while employees had no such protected right.

Congress’ solution was to protect employees’ rights to form, join or assist unions; to bargain collectively through representatives that the employees chose by majority vote; and to give mutual aid or protection to other employees – whether or not they worked for the same employer.

Union representation created more equal bargaining power. The NLRA gave workers represented by unions a say in negotiating their working conditions by creating a legal obligation to bargain over workplace conditions. Workers still have to follow their employer’s work orders, but they have protections from arbitrary decisions by their employer. In other words, the NLRA replaced unilateral employer control with collective bargaining.

To make certain that employers understood that they no longer had the right to make unilateral decisions, the NLRA defined the obligation to bargain collectively in Section 8(d). The duty to bargain means the duty to “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” It also requires negotiating an agreement or any question about the meaning of an agreement, and then signing a written contract based on the terms agreed to by the parties.

Apparently, some judges had difficulty accepting that the NLRA had changed the process of setting workplace conditions. Within a few years after the NLRA was enacted, judges began amending the NLRA to reinstate pre-NLRA bargaining rules. Judges amended the NLRA to allow employers to impose workplace terms when the employer and union reached an impasse and were deadlocked.

Over time, judges made it increasingly easier for employers to implement new terms unilaterally.

Detroit labor attorney Samuel McKnight says implementation upon reaching impasse is the dominant consideration of virtually every negotiation that he has been involved in. “It is a prospect that is so attractive to employers and so menacing to unions and workers that we don’t really like to talk about it,” he said. “The possibility of impasse and implementation has reduced the language of collective bargaining to a list of words and phrases that unions can never use and employers must always use, such as ‘deadlock,’ ‘bottom line,’ ‘best offer’ and ‘final offer.'”

Over time, judges have continued to make getting to impasse easier. For example, they have divided bargaining issues into mandatory and permissive subjects of bargaining. Union negotiators must take care not to be confused about which is which. If they are wrong, they may find that they have created an impasse that allows the employer to impose its offer.

As for employers, these judge-made rules create incentives to reach an impasse so the employer can implement its desired terms instead of negotiating a contract that both parties agree to.

Congress enacted the NLRA to give employees a protected right to bargain collectively about wages, hours, and other working conditions. In addition, to make bargaining meaningful, Congress enacted the NLRA to restore equality of bargaining power between employers and employees.

But judges have apparently thought that they know better. They have continued to expand employer rights to implement their final offers despite the policies of the NLRA and Taft-Hartley.

Taft-Hartley’s policy says that having a “sound and stable industrial peace” depends on settling issues through “conference and collective bargaining between employers and the representatives of their employees.” (Section 201) Taft-Hartley says nothing about giving employers unilateral control over working conditions. The ideal that Congress envisioned – two equal parties bargaining and reaching an agreement on terms both are committed to – has, instead, evolved into maneuvering for advantage using judge-made rules at odds with the purpose of the law.