Now that the ILA short-lived but eventful strike is over, it is important to understand what this strike and the two noteworthy strikes of last year by the Autoworkers and the Actors-Writers have in common and what we might learn from them. Technology. Or, to put it a bit more expansively, the march of advancing technology pitted against the anxieties over job loss. The Autoworkers’ union picketed in part because of job vulnerability due to the increasing market share of electric cars, which require a different process to manufacture. Actors and Writers protested the way artificial intelligence is affecting and will affect their work. The ILA struck in part due to the threat automation presents to their jobs on the docks. The strikes were all viewed as successful by the unions because of significant wage increases. But were they successful at stemming the tide of technology or have they just plugged the dam? Put another way, what can employers do to embrace technology while also embracing its employees and maintaining labor peace?
The technological possibilities in the auto industry, dock industry and entertainment industry, as in most industries, are enormous. They are altering how work is performed, who performs work, and how many current jobs are impacted. Yet, these industries and the changes at play may be remote for many people who don’t work in those areas to grasp. It is easier instead to understand the implications by thinking of two examples we all know on a regular basis – tollbooth workers and retail cashiers. We all know how EZ Pass has almost eliminated traditional tollbooth jobs, while self-pay in retail stores has dwindled the number of cashiers needed. At one time, the employers in these businesses had to grapple with whether to use the new technology and how to implement it. Do we benefit from this new technology? Of course. Who doesn’t prefer EZ Pass to tollbooths when driving? But these advances came at a steep price of job loss for many, and it’s critical to account for jobs impacted by technology. In fact, ILA President Harold Daggett railed against EZ pass and how it eliminated jobs as he explained his rationale for the dockworkers’ strike. How should companies face industry-altering technological changes?
There are three approaches companies might take. The company could ignore the technological changes, not implement them, and just keep working as is. This may keep jobs as is, but it also could leave a company behind the market. Will customers continue the old way in the noble effort to save jobs? Think of how this plays out at supermarkets with self-checkout. The inevitability may be that the change will be embraced by other companies and the company that does not adapt risks obsolescence. In any event, costs associated with not implementing technology must be evaluated.
A second approach would be to fully embrace the changes. A company might act quickly to integrate the new approach. This might make the company a market leader, but it might also cause the company to be vilified by its own workers, and maybe even customers, which could have detrimental effects at least in the short run. Another risk might be that the new technology is not the panacea it was thought to be, which could also ruin a business that acts too fast.
A third approach would be to find a middle ground. Under federal law, absent a contract clause to the contrary, a company that has a bargaining relationship with a union is generally obligated to bargain any changes that alter the work of the bargaining unit employees. This means that technological advances like electric cars, or AI, or remote-operated cranes on the docks, are subjects of negotiations. It doesn’t mean these changes can’t be implemented, because ultimately a company is permitted to run its business as it feels best. But it does require implementation in a deliberative collaborative manner. The Union will naturally want to protect existing jobs, but they also might have ideas on how to integrate the technology and train valuable current workers. The company will want to maximize profits while avoiding a labor dispute if possible. An incremental approach may be beneficial for both sides, as the company will not be rushing into the newest shiny technology before it is fully tested and matured, and the union/workers will maintain jobs and be included as an integral partner in the evolution of the business.
When companies are faced with new technology, it is critical to consult with legal counsel over how best to implement these changes while considering the implications to the workforce. Besides changing the nature of a job, innovation and technological change may also result in a change to the location of the work. Changes in location and other offshoots of technological advances may themselves result in job loss. Counsel can help navigate the laws on what constitutes a mandatory subject of bargaining and where a company might have unfettered leeway to implement. When technological change does augur job loss or job restructuring, counsel can advise on the best plan for a seamless transition.
