“A standoff at the bargaining table over the Chicago Teachers Union’s (CTU) package of housing demands[.] The union is asking Chicago Public Schools (CPS) to provide housing assistance for new teachers, hire staff members to help students and families in danger of losing housing, and take other steps to advocate for more affordable housing overall in the city…It’s true that CPS has no legal obligation to bargain with the union over affordable housing policy.” [Emphasis added]
– Burns, Rebecca (2019, Oct 14). “What’s at Stake in Chicago Teachers’ Strike: Whether Unions Can Bargain for the Entire Working Class.” (http://inthesetimes.com/working/entry/22115/chicago-teachers-union-strike-ctu-lightfoot-seiu-housing-labor)
The bargaining table is a place to discuss wages, hours, and working conditions. Recently, that list has expanded to matters of “social justice,” environmental concerns, and other “woke” issues. Employers may be sympathetic to their employees’ concerns, but hesitant to use the labor contract to redress these “wrongs.” Unions are also using social justice issues as a ruse to demand increases in pay or benefits, hiding demands for more money behind emotionally charged claims of social inequality. Employers can easily step around these issues at the bargaining table, because social justice issues are almost always “permissive subjects of bargaining.”
Permissive subjects of bargaining
Permissive subjects of bargaining are not directly related to the work. They are topics outside of wages, hours, or working conditions. Often, they are subjects that have a minimal impact or relationship to work. They could be subjects that concern the nature, direction, or management of the business. Many social justice proposals fall in this latter category – decisions that management should control.
If the union presents a proposal that addresses a permissive subject of bargaining, you may agree to bargain over it but are not required to do so. Refusing to bargain a permissive subject of bargaining is not an unfair labor practice. However, it is an unfair labor practice for a union to bargain a permissive subject to impasse or strike over it. In other words, no matter how hard they push, the union cannot go on strike over permissive subjects of bargaining.
Here are some actual examples of social justice proposals that are permissive subjects of bargaining:
- A union proposal that prevents the hospital (employer) from sending employees to ‘collections’ for failing to pay medical bills incurred at the hospital. (Permissive – “medical bills” are not considered wages, hours, or working conditions.)
- A union proposal demanding the creation of a new labor-management committee to investigate matters of discrimination, equity, and inclusion in the workplace. (Permissive – the employer is responsible for managing the business, including how discrimination claims are addressed.)
- A union proposal requiring the employer to notify the union about employment status requests from ICE. (Permissive – the company is simply following the law and has no legal obligation to notify the union.)
- A union proposal to divest the employer’s pension funds of companies engaged in the extraction of fossil fuels. (Permissive – the company is responsible for selecting pension fund investments and ensuring there are sufficient assets to meet payout obligations.)
- A union proposal to set aside thousands of dollars to help recruit more minority applicants. (Permissive – the company is responsible for recruitment and hiring.)
You can see that many of these proposals seek to pull control of the company away from management or direct the company to do something that is management’s responsibility (management rights). If you get a union proposal that crosses the line into your management rights, it is probably a permissive subject of bargaining.
Before rejecting a permissive subject, ask yourself if there’s some value to the proposal? Would the gain in ‘goodwill’ outweigh the cost? Can you leverage it for something you really need? Can a minor tweak turn it into a ‘win-win’?
Warning: Rejecting social justice proposals can be a delicate dance. For example, saying “no” to the union’s proposal to “improve the community’s environment” by using more “Eco-Friendly” cleaning products may make you look insensitive, cold-hearted, and putting profits over the environment and future of our children. A better response may be to point out where you’ve already introduced “green products” in the company and assure the union that you will continue to look for opportunities to switch where the efficacy and cost make sense.
Scott Allan, JD, is the founder of The Allan Labor Group and curator of Healthcarelaborlaw.com. He’s spent over 25 years representing healthcare employers in their labor relations activities. He has worked in the public and private sector, represented rural nursing homes, small town clinics, state healthcare facilities, standalone hospitals, multibillion-dollar healthcare systems, and everything in between. He also spent seven years on the “inside” working for unions.
