Editor’s Note: A longer version of this analysis appeared on the Alumni Facebook page on July 9 in response to James Monroe Professor of Politics Chris Howell’s statement. Read more of the Review’s coverage of UAW outsourcing here. 

When I reviewed a commentary from James Monroe Professor of Politics Chris Howell on Oberlin College’s collective bargaining with United Auto Workers-represented dining and custodial employees, I admired how the intellectual curtain could be drawn over the complex area of labor-management relations to fuzz the realities. He conflates subcontracting and outsourcing with being anti-union with no evidence of union animus, and he holds the parties to a view of collective bargaining that is quite rigid. A more holistic view of Oberlin College and labor relations generally leads to different conclusions than the ones in Howell’s post.

Oberlin College as an Employer

Oberlin College, its administration and management, is a unique employer. Oberlin’s credo of Learning and Labor drives an enlightened approach to labor relations. A history of progressivism, often attacked by conservative commentators, impacts the administration’s approach.  

In this case, Oberlin had the right to make the decision to outsource and subcontract under the UAW contract, which institutionalized subcontracting. Oberlin workers ratified that management right in return for other conditions of the contract.

Nonetheless, Oberlin invited the UAW to bargain over the decision even though it had no legal obligation. The significance should not be lost: Oberlin is trying to address long-standing structural financial deficits within the parameters of the faculty-led and -endorsed One Oberlin report, the changing landscape of higher education, and the economic and human shortfall from a sudden pandemic that has thrown higher education into chaos. Reasonable people can disagree about how to do it. But casting aspersions and holding the parties to oversimplified standards undermines the purpose and promise of collective bargaining. 

The Collective Bargaining Process

Professor Howell says collective bargaining “begins with each side setting out its maximal position in a first set of contract proposals.” Howell reports that parties go through rounds of negotiation to “narrow the gap.” Howell says the parties regularly reach impasse and that a disputed employer proposal is provided to the membership for a vote.  

Nowhere in the National Labor Relations Act or in case law is there a set prescription for bargaining like in Howell’s oversimplified paradigm. Collective bargaining is a process that can be adapted to different situations. The parties often need to adapt if they are to solve tough economic and social challenges.

Leading unionists during this difficult and treacherous time have demonstrated to me that they get it — often remarking at the beginning of discussions that this is not about adversarial bargaining, posturing, or creating a record for grievances and unfair labor practice charges. It is not about reaching an impasse and voting a proposal over the union’s objection. Union leaders understand the need for speed.

Howell’s description also flounders by ignoring that there are often common interests addressed at the negotiation table. Collective bargaining is at its best when it results in the advancement of those interests in complex markets and market environments. 

Howell claims the College violated the process, that the UAW “was negotiating in the dark, negotiating with itself essentially.” But Howell omits the legal requirement that the employer provide all information that is presumptively relevant to the bargaining process when requested by the union. The information animates the employer’s proposals. The UAW is a sophisticated labor organization. It knows how to seek information used to establish a proposal and analyze it. Any union that is “negotiating in the dark, negotiating with itself essentially” is failing to represent its members adequately and may breach its legal duty of fair representation to the workers.  

Howell’s description of the bargaining process leads one to believe, in view of his experience, that he wrote about the process with preconceived views rather than taking an objective, factual, and clinical approach. 

Some of Howell’s other arguments:

• The College never produced an initial contract proposal. The UAW initially indicated that it had no interest in bargaining over the decision to outsource dining and custodial services. In context, Howell’s standard for bargaining over the decision is misplaced. No more than one proposal was needed. Nonetheless, it is clear the parties exchanged ideas and information thoroughly over four months, even though the union preferred to keep some of these exchanges informal.  
• The union never knew the “magic number.” Howell’s claim of union ignorance due to College stonewalling is at odds with the record from both sides. The union itself has quoted the numbers “the College was looking for ($2.4–2.6 million)” when presenting its “supposals.” The union was also aware of the capital financial investment the College wanted from its vendors. The College clearly responded to the union’s requests for that information.    
• The College issued a take-it-or-leave-it proposal. Howell’s attempt to describe a one-sided, sudden death negotiation is inaccurate if one reviews the union’s supposals and information requests. Supposals are less-than-binding proposals. They promote exploration of solutions without creating a legal record on a party’s position. The UAW used supposals to allow itself to walk away from commitments without bargaining in bad faith. A union’s use of supposals should not, as Howell seems to think, demonstrate bad faith by the College when the College offered a formal proposal that it was prepared to live by.
• On Howell’s point that the College sought a timely vote from the membership as the “final indignity,” the issue is not, as Howell argues, whether it is the prerogative of a union to decide when to take a contract offer to employees. That is a red herring. Employers regularly ask unions at the table about voting procedure because employers cannot control it.  

Often employees vote for employer proposals over union objection. And unions will take proposals to their membership and advise them on how to vote. There is no indignity to seek a timely vote when the College is undergoing one of the most challenging upheavals ever to its academic calendar. The College is planning to support students for the upcoming academic year — which starts before the UAW contract expires. This sea of change is expensive and is going to tax College resources like the endowment in unprecedented ways.

The Substance of Proposals

Howell’s approach on substance contains a number of oversights. Perhaps the biggest starts with his assumption “about the purpose of unions.” He observes that unions are not primarily about “material benefits” like wages and benefits. He says unions exist “to offer protection from arbitrary management power.” This assertion assumes workers know little about management power and that unions know better than the employees they represent.

I cannot speak for everyone in the labor bar, but I can say from 40 years’ experience working closely with executives, managers, supervisors, union leaders, union organizers, union negotiating committees, government regulators, and workers, that any assumption resting on the ignorance of workers is itself deeply flawed. Workers, not unions, have the ultimate say. As much as Howell may want to take that decision away from workers and place it with the union, the system is designed to let employees decide. Employee sensibilities and wisdom drive the results. It’s unfortunate that the union leadership declined to allow its members to vote on the College’s proposal.

Howell argues that the College’s management rights proposals are “spectacularly outside the norm of typical labor relations” and result in making the union “fundamentally irrelevant.” Howell misses the point of management rights.  

The law provides for bargaining in good faith over mandatory subjects of bargaining such as work rules on attendance, performance reviews, and the ability to direct and assign based on skills and abilities.

When there is an emergent situation that constitutes a crisis, an employer has every right, and in fact should always consider, expanding management rights to address the crisis mid-term. Nothing about this process has anything to do with making the union “fundamentally irrelevant.” Unions who can meet the objectives of the employer with operational efficiency become relevant. 

Howell ends by asking the College “to keep bargaining.” Again, the omission of fundamental law here is telling.  

The College has a legal duty to continue to bargain in good faith. At some point, when bargaining is no longer fruitful and there is an impasse under law, the College has the right to take steps toward self-preservation. It may unilaterally implement part or all of a best, last, and final offer. But even where it unilaterally implements, the duty to bargain continues. 

I hope for a new agreement soon, perhaps in effects bargaining. I leave it to those on the front line to try as hard as they can. Oberlin values require as much for all involved.