In 1967, the Supreme Court decided a case called NLRB v. C & C Plywood. Its principle has become a foundation of fair collective bargaining. But this week, the House will vote on an amendment to the National Labor Relations Act which will undo the principle entirely. And the proposed change is stealthy—it doesn’t mention that its purpose is to undermine both the case and the portion of the statute which forces good faith bargaining on both management and the union. And it’s deceptive in its appeal.
In an April 20 article in The Hill , Indiana GOP Congressman Todd Rokita explained the amendment’s purpose:
More than 8 million Americans are now prohibited from ever getting a performance-based raise, no matter how well they do their jobs," he said. "We can't expect American businesses to be competitive in a globalized economy under a system that forbids individual raises and discourages hard work.Well! [sarcasm on] Here’s a wrong which needs immediate correction! And Congressional action to do it! [/sarcasm off] But look at how Rokita sells it: Good ole American effort deserves a bonus! And those darn old unions are preventing deserving employees from getting it! Plus, the bogeyman NLRB is complicit in this un-American wage limitation.
Boy! If only any of this were true, Rokita might have a point. But it’s not true. And the main purpose behind this amendment is to sow discord among employees to encourage them to decertify the union.
Let’s look at the actual facts. Section 8(a)(5) of the NLRA mandates an employer to bargain collectively in good faith, reach an agreement and embody its terms in a collective bargaining agreement, usually lasting several years. Both the union and the employer are obligated to honor its terms, meaning that changing the deal unilaterally (i.e., without the other party’s consent) violates that law. Labor Board case fact patterns are widely varied, but there are a couple of issues which are sacred cows. The first is that the union under Section 9(a) is the exclusive bargaining agent with whom the employer must deal when it comes to changes. Another is that changes in wage levels, hours and terms and conditions of employment must be bargained through that agent—employers cannot skip the union and directly deal with its employees. Lastly, an employer cannot make changes on its own.
C & C Plywood was the Supreme Court’s imprimatur upon those concepts. The facts were pretty simple: A new CBA had established various hourly wage scales for different job classifications in the plant. Another clause allowed the employer to recognize excellent workmanship by permitting the employer to give a bonus to individual workers who had done something outstanding. Shortly thereafter, the employer scrapped the job classification wage system and went to an incentivized system whereby the entire crew would get a higher level of pay if the crew as a whole reached a production level established by the company.
The Court held that the group incentive was not in compliance with the CBA, that a unilateral wage change had taken place and that it violated the NLRA. It also said the new system was not what the parties had in mind under the bonus clause—that the bonus was to reward individual excellent workers.
Here’s Rokita’s proposed amendment to the NLRA:
Section 9(a) of the National Labor Relations Act is amended by inserting the following language in Section 9(a):It doesn’t take a rocket scientist to see that this is a license for an employer to do what C & C Plywood prohibited. Beyond that, though is the question of why an employer wants to have the authority to grant wage increases on an ad hoc basis.
“Notwithstanding a labor organization’s exclusive representation of employees in a unit, or the terms and conditions of any collective bargaining contract or agreement then in effect, … nothing in [the Act] shall prohibit an employer from paying an employee in the unit greater wages, pay or other compensation for, or by reason of, his or her services as an employee of such employer, than provided for in such contract or agreement.”
I understand that there are employers who legitimately want to encourage increased production and want to offer a carrot to the workers who do best. On the other hand, individual bonuses can lead to favoritism, disharmony and a divide-and-conquer strategy aimed at sparking a decertification movement. (Employee: “Why can’t I get a raise like Jones?” Boss: “The union says I can’t give bonuses to everyone.” Employee: “It’s the union’s fault?” Boss: “Yup. The only way to get you a bonus is to get rid of the union.” [The last is a bald-faced lie.]
As we have already seen in C & C Plywood, bonus provisions can be put into CBAs. A union may or may not think bonus clauses are desirable. In production line industries, bonuses may not really be feasible. In intellectual industries, they may well be. One thing is for sure: a bonus clause can be negotiated. And many CBAs have such clauses. So Rokita is basically wrong about the need to modify the statute.
So what is Rokita really doing? Keep in mind that the GOP generally opposes regulation of private businesses. Yet, this proposed amendment butts into the CBA that the company and the union have wrangled out. So the amendment changes the dynamic and allows the company to disrupt the agreement based on its own motives. And if the employer's motive is to sow discord, it can do so virtually free of any oversight—“Oh, we just thought that the anti-union employees deserved a bonus for their excellent workmanship.” Uhhh…right….
Rokita said in The Hill his Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act, H.R. 4385, would not affect existing union contracts but would allow individual pay hikes or bonuses in future contracts.
Sure, Congressman. What a load of hooey! You are trying to fix what ain’t broke in order to undermine a union’s representative status. And you are doing it deceptively. It has no purpose other than to reverse C & C Plywood in order to give employers a tool to defeat every union’s effort to negotiate a contract for the employees as a whole.
Rokita and his GOP cohorts should be called out and exposed.