Huh? Wha?
Seriously, you turn your back for two months…
We know we promised you a full report on the UAW negotiations on the 24th…of July. In our defense, CE had to work out a few administrative details (see here) that took a little longer than expected. All of the sudden it was
the 62nd day of the UAW negotiations, and we were sitting around talking about the Second Amendment or some other arcane, unused law like nothing was going on. Honestly, it’s not like they’re actually negotiating at the moment, so maybe we just saw this coming and didn’t want to waste space on the boring parts. All the same, we’re a little embarrassed.
Not as embarrassed as, say, Rick Wagoner‘s gonna be if this strike thing keeps up. Honestly, did anybody realize the UAW still knew how to strike? Of course, each side is blaming the other for the stoppage, but that’s not the interesting part of this story.
According to the New York Times, GM is in a much better position to handle a strike now than it has been in the past, but that’s really bad news for the company. Confused? We were. For the Times’ analysis, and some more stellar CE commentary, keep reading.
First, how great is Rick Wagoner’s name? That guy was born to run a car company.
Anyway, according to production guru James P. Womack, this strike is some kind of watershed moment, marking a change for better or worse in Detroit. He says that though GM has backed away from “defining moments” in the past, someone this time finally said enough’s enough. Ok, first: backing away from “defining moments” just shows that GM is still the leader of the American Auto Industry. Plus, as the Times article points out, the car company hasn’t done anything yet, and it has a, um, “spotty” track record of standing up to strikes. From the article:
In the past, its response, by and large, was to cave in to U.A.W. demands. That happened during the last big walkout, at two parts plants in Flint, Mich., in 1998. That seven-week standoff occurred when Rick Wagoner, the current chief executive of G.M., was president of its North American operations.
(What does this guy have a 10-year itch or something?)
G.M. never recovered the 31 percent market share it held before the strike, and was forced to offer rebate deals to get customers back into showrooms.“G.M. has made deal after deal that didn’t deal with fundamental problems,” Mr. Womack said. “This time they have to hold the line on a contract.”
“Hold the line”? Yeah, we may not hold our breath. G.M. has about 2 months of reserves to hit the market – not exactly going to get the dealership guys their Christmas hams. Oh, also: the Times article fails to mention that Womack is the chairman (and founder, apparently) of the Lean Institute, which advocates Toyota Production System application to American industries. While there’s nothing wrong with that, we’re thinking he may have a little bias in defining those “defining moments”.
Regardless, it’s the other issue here that has the CE staff buzzing like a Halo 3 Mountain Dew Big Gulp: The link between GM’s financial difficulties and its negotiating ability. Again, from the Times piece:
G.M. is better positioned to handle a strike now than in earlier contract talks, though not for reasons that have to do with strength. With its operations shrinking in the United States, the majority of its sales and profits are now coming from abroad.
It is selling more vehicles built in Canada, Mexico, and Europe, the source of new models for its Saturn division. And it is rapidly expanding production overseas, especially in China, which is fast becoming one of the world’s major car markets.
The company’s problems at home, which resulted in losses of more than $12 billion in the last two years, have forced it to close all or parts of a dozen factories, cut tens of thousands of jobs and offer deals to workers to quit or retire. A smaller G.M. means there are far fewer workers involved in this strike, so a halt in production inflicts less pain on the company.
The U.A.W. membership at G.M. has shrunk by more than 80 percent since the 1970 strike, when 400,000 workers were off the job for 67 days.
So, GM falls flat on its face financially, which ends up benefitting its bargaining ability and the bouyancy of its bottom line.* When you view this in the light of GM’s major goal in this negotiation, the VEBA it hopes will rescue it from the pensions** of the UAW workers, a cycle emerges that is worth some discussion. Since we make it a point not to take sides, the rest of this topic belongs to you – in the comments.
Talks Continue in G.M. Strike
*Intentional alliteration
One last thing – This VEBA has not gotten much attention (alas, ERISA issues never do), so we’re promising you a whole post on G.M.’s VEBA proposal and its potential effect on the situation in Detroit…once we track down our Benefits guy. They’re so antisocial in the ERISA department…
**UPDATE: Did we say “pensions”? We meant “health and welfare benefits”. Thanks to the tipsters for pointing out our mistake – and we reserve the analysis of the value of our education for another discussion.
NLRB: Less “Of the Earth”, More “In the Wound”
But to do it without being asked, in the headwind of a still-young Supreme Court decision protecting salts under the NLRA is pretty ballsy, you have to admit.
Salts, of course, are the much-maligned folks that seek employment at non-union shops for the express purposes of unionizing the company’s workforce. They have the protection of the NLRA, according to the Supreme Court (well, the old one at least), but now the Board has changed the burden of proof in cases where companies refused or fired a salt. From now on (if that phrase is ever applicable to the NLRB), if a salt is going to get back pay for a company’s refusal to give him a job, his union will have to prove that he was planning to stay after he was done, ahem, “seasoning”.
The salting process is typically thought of like this: the union assigns a salt to a particular company. The salt then applies to the company, who either hires him or turns him down. If the salt gets hired, he attempts to unionize the company’s workforce and then moves on to another company as assigned by the union. If the employer refuses to hire a salt, or fires him when they find out why he’s really there, the salt files a refusal-to-hire or unlawful discharge claim with the NLRB, bringing the company’s non-union stance into the fore.
It is deception at its greatest, as far as most non-union companies are concerned. But to the unions, salting may represent their only real chance to gain access to a closed shop.
So, here’s the situation – When an employee is fired, or wrongfully refused a job, he or she is entitled to backpay for the period starting at the employer’s unlawful act (the firing) and going until the act is remedied, usually by an offer of reinstatement. The presumption was that, if hired or retained, the employee would have continued working at the shop for an indefinite period of time. The burden is squarely on the employer’s shoulders to prove why that isn’t the case.
In ’95, the Supreme Court held that salts are protected employees under the NLRA. That means that refusing to hire one of them, or firing one of them, should carry the same consequences as any other employee, right? Here’s where we pick up our most recent Board decision, already in progress:
The Board, in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, decided that – for salts – the backpay presumption just doesn’t work. According to the Board, “rote application of the presumption has resulted in backpay awards that bear no rational relationship to the period of time a salt would have remained employed with a targeted nonunion employer.”
The majority (it’s a 3-2 decision) admits that there are times where a union could leave a salt in his position after the salting campaign, but claims that it should be the union’s job to prove it – not the employer’s to prove the salt would leave.
What’s the problem with all of this? Well, according to the dissent, the biggest problem is that nobody asked the Board to reconsider the issue. So, in the face of a Supreme Court decision, and without prompting from any of the parties, the Board has turned 180 degrees in its treatments of salting campaigns. It’s telling that, in referencing the Supreme Court’s holding that salts are people too (to paraphrase a little), the majority makes it clear that SCOTUS displayed “considerable deference accorded to the Board’s interpretation of the Act”. I was trained in my labor law class to take this as a sign to the Circuits that they should reconsider the issue. Is the Board trying to fire a case up to the Supremes now that their ranks have shifted?
So, now here’s the question – is the change in policy justified? Given the nature of salting, isn’t it better to presume the employee is temporary? It is a pretty big burden on the employer to prove a negative, but they still have to do it in wrongful discharge cases of non-salt employees, so is that really a good justification for the change?
Oil Capitol – via Law Memo
So it begins…
I have been trying all day to figure out how to appropriately open CE’s doors – what first post would really capture the purpose and importance of what we’re trying to do here, and I had come up with zero. Then the Chicago Tribune did all my work for me. 
Right on the front page of the Business section was this article. It details how the Senate’s energy bill (requiring all vehicles to average 35 miles per gallon by 2020) may be the final straw for a few key truck- and suv-manufacturing plants. According to the article, the current law has different requirements for cars than for trucks and suv’s.
The thing that struck me was that the UAW is supporting an alternative measure in the House that would raise the corporate average fuel-economy rating to 32-35 mpg by 2022. A little better, right? Wrong, say the workers at the plants that might close. They produce a product that currently gets 16 mpg. So even the plan their union supports wouldn’t keep them in their jobs.
The article outlines some workers and former workers – all of whom are supplementing their income. One guy installs solar panels, but says business is “kind of slow”. A retired employee is working at a food processing plant, where he makes $15/hour. “A far cry from the $27 that GM paid.”
With negotiations between the UAW and the Big 3 looming, does anyone think the issue of fuel economy will even have a minute’s worth of debate? Probably not. Plant closures are nothing new these days, and there are a lot of other issues that will take precedent at that table (retiree benefits, anyone?). So, what about this article makes it opener-worthy? Well, nothing – on it’s own.
It’s just that, for some reason, the Trib posts its almanac and obituaries in the inside pages of the Business section. So, right across the page, as I’m finishing the UAW article, tucked away on page 3, in tiny font, is the following:
ALMANAC, published July 5, 2007…
In 1935 President Franklin Roosevelt signed the National Labor Relations Act, which authorized labor to organize for the purpose of collective bargaining.
Hmm. It has been a long 72 years since the NLRA came into being. Now, the unions are finding themselves conceding hard-won benefits to their employers just to keep the businesses – and in the case of the UAW, the whole industry – afloat. It seems every modern movement, from globalization to universal healthcare to, apparently, environmentalism is affecting the Union’s (capital U) chance for survival as an effective way to do business. The future of the labor movement is unstable, and creative solutions are few and far between.
Is the movement in flux? Or is this the end of an experiment that began with that Almanac entry? Our best attempt at finding answers starts here, in the comments. See you there.
Chicago Tribune: M.P.G. bill could cost UAW jobs
Almanac – July 5, 2007
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