With the impending autonomous automobile era, comes the next iteration of collective bargaining concerns. When an employer is organized by a union the jobs are normally what is part of the union and spoken of in the labor contract – not the individual workers that hold the job. Therefore, when jobs and job security intersect, the issue of work classification changes are what is of concern to the union.

With autonomous driving vehicles, the job of the driver will be outsourced to the system that drives the vehicle. As an example, in days of yore, the auto industry laborer gave up their job to a machine.  In the next iteration the auto industry operator of the machine gave up their job to a robot [system]. With the next iteration in labor outsourcing driven by advances in technology comes the outsourcing of driving positions to the software and systems that will drive the car/truck.

Pursuant to the National Labor Relations Act (NLRA) and U.S. Supreme Court decision in Fibreboard Paper Products v. NLRB, it was held that the NLRA requires the employer to negotiate with a union over the replacement and loss of a job even for purely economic reasons. In this decision the Fibreboard Court stipulated that the “reasoning and holding were narrow and limited, and that its reasoning should not be used to expand the scope of mandatory bargaining to include all subcontracting cases…That stipulation becomes critical when Fibreboard is applied to robotics, automation, and artificial intelligence replacing unionized employees.^”

In their article cited below, Alan Levins and Amanda Osowski describe the hypothetical scenario of a unionized trucking company that is acquiring and putting into operation “self-driving” transportation vehicles to transport goods. The autonomous trucking would start out with several trucks being “platooned” together with the lead vehicle having a driver for safety purposes. The following trucks would “train” behind the lead truck using artificial intelligence and constant communications to safely follow the lead truck in all sorts of changing traffic conditions. The union drivers would be phased out to the driverless trucks. The reasons for eventually eliminating the union drivers are lower fuel costs, lower emissions, and continuous operations – all resulting in lower operational costs.

The Fibreboard case outlines where the U.S. Supreme Court draws a line between the company’s right to invest in labor saving machinery and making commitments of capital which is purely in the company’s purview and the union’s right to negotiate these changes because they are considered under the NLRA to impact wages, hours, and terms and conditions of employment.  It is a mandatory subject of bargaining.

Importantly, the U.S. Supreme Courts’ Fibreboard ruling outlined and analyzed whether the contracting or subcontracting of work (technology driven or not) must be bargained over (mandatory vs. permissive subject of bargaining) using a three question analysis:

(1) whether the company's basic operation changed or whether the basic operation did not change as a result of the decision to contract out work;

(2) whether capital investment was required or contemplated; and

(3) whether the work contracted/subcontracted out is similar to the work performed, under the "similar conditions of employment," as the employees they replaced.

The authors above note that so far there are no cases dealing with artificial intelligence and not much in the application on robotics and automation as mandatory subject of bargaining. Most cases to date on technological change come from the printing industry. In those cases, the Court found that when implementation of technological change is due to economic necessity, the employer should only be required to bargain with a union over the effects of their implementation, not whether they can do it at all. This is now known as “effects bargaining.”

Getting back to the hypothetical trucking company and applying the analysis above, the trucking company’s transition to the new autonomous vehicles would not have to bargain over whether they could do it but would have to bargain over whether those lost jobs could be regained in the eventuality that new jobs are created at the company such as truck and software maintenance.

Source: Littler Self-drving Trucks and Labor Law – A Look Ahead. 12/12/2018 by Alan S. Levins and Amanda M. Osowski