Editor’s Note: This statement was originally sent in an email from James Monroe Professor of Politics Chris Howell to faculty on July 3, before it was posted on the Oberlin Beyond Austerity’s Facebook page on July 6. Trustee Charles S. Birenbaum, OC ’79, wrote a response to this letter which can be read here. Read more of the Review’s coverage of the plan to outsource UAW employees here.
In a book that I assign in one of my labor classes, Thomas Geoghagen, a Chicago-based labor lawyer, argues that trade unions and collective bargaining are more alien to most Americans than Abbie Hoffman and the Yippies. Unions operate by seemingly arcane rules, are heavily regulated by law, privilege collective rights over individual rights, fiercely protect internal solidarity and are steadfastly skeptical of market outcomes. By now, when only about one in ten Americans belongs to a union, it is no surprise that most of us don’t understand the intricacies of collective bargaining or what is at stake in bland and often opaque contract language. And yet it is vitally important that we do. This is the context in which I find the negotiating stance of the College over the last four months to have been profoundly problematic, and the communication we have received from the College administration in the last two weeks to be misleading. There is a lot one could say, but my concerns are both with the process and the substance of the College’s actions since mid-February when it first announced the possibility of outsourcing custodial and dining services but claimed itself willing to bargain in good faith to avoid that outcome.
First, the process. Collective bargaining is a long-established process, established both in past practice and labor law. It begins with each side setting out its maximal position in a first set of contract proposals. In these initial offers, each side explains to the other what it would take to reach agreement. Subsequent rounds of bargaining narrow the gap, reach agreement in some areas but not others, and come as close together as possible, at which point the union will take the product of negotiations to its membership for a vote. None of this happened in bargaining with the UAW. The College never produced an initial contract proposal, nor subsequent ones; its last proposal was also its first. This meant that for four months, the UAW was negotiating in the dark, negotiating with itself essentially, making offers and concessions, with no sense of what the magic number was, or indeed if there was a magic number. This does not meet any definition of bargaining in good faith.
Worse, when the College finally issued a take-it-or-leave-it proposal less than two weeks ago, it entirely shifted the terrain on which bargaining had been taking place. It: 1) simply announced that the dining service workers would be outsourced regardless of the outcome of bargaining; 2) suddenly insisted that new categories of worker beyond dining and custodial workers (the remaining third of UAW members in the skilled trades and transportation pool) be covered by its terms; 3) fundamentally re-wrote the management rights sections of the contract (see below). And throughout the entire process, including the final proposal, the College still refused to guarantee that workers would not be outsourced in the near future. In other words, it insisted that the UAW agree to a contract containing massive concessions on wages, benefits and workers’ rights without even the guarantee that it would save the jobs, which was the entire point of the bargaining process.
And in a final indignity, it insisted that the UAW immediately take a vote on its final offer, in the middle of a pandemic, without the ability to hold a meeting of its members, and without any further bargaining or clarification of the College’s proposal, despite the fact that the current contract doesn’t expire until the end of September. It is the prerogative of a union to decide when to take a contract offer to its members, not the employer. It is for this reason that the UAW has filed Unfair Labor Practice charges against the College for violations of the National Labor Relations Act, charging that in multiple ways the College bargained in bad faith.
Next, substance. When most of us think about the purpose of unions, we probably think about wages and benefits. And indeed, by and large, and holding occupation and skill constant, union members tend to be better paid with better benefits than their non-union counterparts. But these material benefits are not in fact the primary purpose of unions nor the reason for their genesis. Unions exist to offer protection from arbitrary management power. That is why it is often said that employers get the unions they deserve. This protection comes in various forms. First and foremost, it requires that managers show cause before firing workers; in other words, it ends “employment at will” for unionized workers, the doctrine that a worker can be fired for “any reason or no reason at all” which governs the vast majority of American workers (eagle-eyed colleagues will have noticed that the College now uses explicit employment at will language for visiting faculty hires).
Second, it provides a grievance process that protects a worker from dangerous or unsafe work, from overwork or compulsory overtime, from the absence of personal protective gear, from doing work for which they are not trained, from threats and intimidation — the petty tyranny — on the part of managers and supervisors. At its most essential, it gives workers a voice at work; it is what guarantees the right to disagree and be heard without fear of being fired. In contract language, management rights are everything not specified in the contract. All collective bargaining agreements preserve these so-called management rights in the form of broad managerial prerogative, but prerogative that is bounded by reasonable protections for workers. Protection for us, too, because an employer who is unconstrained by such clauses, especially a for-profit employer, is more likely to cut corners with health and safety in ways that also put the rest of us at risk.
It is here, in the management rights clauses of the College’s final and only contract proposal, that there is the most striking departure from normal language. By the point two weeks ago when the proposal was made, the UAW, negotiating in the dark, had already offered substantial wage cuts, accepted the CDHP-only health plan and zero retirement contributions, and was willing to give up vacation days to pay for winter shutdown pay. The College, in its proposal, took those material concessions and then completely re-wrote the management rights section, undoing 27 years of contract language carefully crafted between the College and UAW, in a manner spectacularly outside the norm of typical labor relations. The scale of what the College was demanding was breathtaking; just aesthetically, looking at the proposed language, one sees vast swathes of strikeouts from the previous contract, with agreement replaced by stark language in which supervisors make all decisions unilaterally. The College would not guarantee not to outsource further, current union positions could be replaced with non-union ones, and managers no longer had to explain or bargain over changes to working conditions, schedule changes, and so on. Such language makes a union fundamentally irrelevant; the workers would be union members in name only. When some in our community have charged the College with union-busting over the last few months, they have been referring to replacing unionized workers with non-union ones, which indeed has happened through outsourcing. But this contract language literally empties union membership of its most basic purpose and function.
This then is how we got here. A process of changing targets in which the UAW never knew what, if anything, it would take to reach an agreement to save jobs and offered up concession after concession. Then at the last minute, a single take-it-or-leave-it contract proposal which outsourced the dining service workers anyway, took the wage and benefit concessions and applied them to new categories of worker, imposed management rights language that eviscerated union and workers’ protections and rights and, all the while, still refused to guarantee that the College would not turn around six months from now and outsource the remainder of the workers. No responsible union could accept that offer or take it to its members in that form. The UAW did what it had to do, which was politely reject that proposal but offer to continue bargaining now that it at least knew, four months into the negotiation process, what the College’s maximal position was. The College’s immediate response was to announce the outsourcing of custodial workers, too. It can still step back from the brink and take up the UAW’s offer to keep bargaining. I hope it does.
In solidarity, Chris