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The Future of Work is Now BARGAINING STRATEGIES: From Machine Breaking to Artificial Intelligence David Rosenfeld1 Weinberg, Roger & Rosenfeld Alameda, California September 2018 1 Thanks also to Caren Sencer, David Fujimoto and Andrea Don for reading, commenting and criticizing the paper. TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. “THE WITHDRAWAL OF EFFICIENCY” HOW THE LUDDITES AND THE WOBBLIES DEALT WITH TECHNOLOGY .................................................................. 2 A. THE LUDDITES .................................................................................................... 2 B. THE WOBBLIES ................................................................................................... 3 C. THE PRESENT ...................................................................................................... 5 III. MANAGEMENT UNDERSTANDS THESE CHANGES AND IS PREPARING FOR THEM ................................................................................................. 6 IV. ARTIFICIAL INTELLIGENCE IN THE WORKPLACE................................................. 9 V. THE APPLICATION OF THE UNILATERAL CHANGE DOCTRINE TO TECHNOLOGY ............................................................................................................... 23 A. THE BASIC PRINCIPLES REGARDING BARGAINING OVER ARTIFICIAL INTELLIGENCE ARE NOT NEW, BUT THERE ARE NEW TECHNIQUES THAT WE CAN USE TO MAKE SUCH BARGAINING MORE EFFECTIVE................................................................... 23 VI. THE BOARD HAS FACED THE PROBLEM OF TECHNOLOGY CHANGES IN THE WORKPLACE.................................................................................................... 27 VII. THE EFFECT OF THE CHANGING LEGAL LANDSCAPE ON THE UNILATERAL CHANGE DOCTRINE .......................................................................... 32 VIII. THE CONTRACT WAIVER VERSUS THE CONTRACT COVERAGE DOCTRINE ...................................................................................................................... 35 IX. THE USE OF INFORMATION REQUESTS TO BARGAIN OVER TECHNOLOGY ............................................................................................................... 41 A. THE GENERAL STANDARD FOR PROVIDING INFORMATION................ 41 B. THE USE OF THE RIGHT TO OBTAIN INFORMATION IN THE TECHNOLOGY SETTING.................................................................................. 42 C. CONFIDENTIALITY ASSERTIONS CONCERNING INFORMATION ......... 44 i X. TAKING ADVANTAGE OF BARGAINING OVER THE FINANCIAL ASPECT OF TECHNOLOGY ......................................................................................................... 48 XI. BARGAINING OVER EMPLOYER RULES WHICH CONCERN TECHNOLOGY ............................................................................................................... 49 A. INTRODUCTION ................................................................................................ 49 B. EMPLOYER RULES REGARDING TECHNOLOGY ...................................... 50 C. THE COMPETING DOCTRINES UTILIZED IN EVALUATING RULES...... 51 XII. MOST COMPANIES HAVE RULES WHICH REQUIRE THAT EMPLOYEES MAINTAIN THE CONFIDENTIALITY OF COMPANY INFORMATION; THESE RULES ENCOMPASS TECHNOLOGY ISSUES............................................. 56 A. EXAMPLES OF SPECIFIC RULES.................................................................... 57 1. Use of Recording Devices.............................................................................. 57 2. Broad Prohibition Against Use of Company Systems ................................... 58 3. The Reporting Provision ................................................................................ 59 4. Employee Privacy .......................................................................................... 60 5. Surveillance.................................................................................................... 62 6. Confidential Information................................................................................ 63 7. After Employment Ends................................................................................. 66 XIII. TECHNOLOGY WILL CREATE MANY OTHER OPPORTUNITIES ........................ 67 A. BARGAINING OVER DATA RETENTION AND SECURITY........................ 67 B. BARGAINING OVER DATA BREACHES ....................................................... 67 C. UNION’S AFFIRMATIVE BARGAINING PROPOSALS ................................ 67 D. BYOD ................................................................................................................... 68 E. ACCESS ............................................................................................................... 68 F. BARGAINING OVER MONITORING AND SURVEILLANCE...................... 69 G. BARGAINING ABOUT SOCIAL MEDIA......................................................... 70 H. WORK PRESERVATION ................................................................................... 70 ii I. UNIONS CAN NEGOTIATE WHETHER THE WORK IS PERFORMED BY BARGAINING UNIT MEMBERS OR OTHERS OUTSIDE THE BARGAINING UNIT........................................................................................... 70 XIV. CONCLUSION................................................................................................................. 70 iii I. INTRODUCTION The Future of Work is Now. Short term and long term. We have to address it. There is nothing new about the obvious proposition that technology is changing the workplace. The Luddites opposed mechanization in the early part of the 19th Century. They did it through industrial sabotage. They failed. There is a long history of industrial sabotage as the weapon of workers to avoid changes in the workplace. The real difference between then and now is the speed and breadth of change. Artificial intelligence is not just on the horizon; it is already here in many forms and affects members of all unions. It affects them in two ways, which are converging. It affects the nature of business and it affects the nature of work, along with the management of workers. Not to be lost in this equation are the forces of competition, both national and transnational. The Labor Board has faced issues about bargaining over technology, whether we call it automation, robotics, mechanization, artificial intelligence, or any other similar term. It has always delayed its reaction to these issues for years and sometimes decades. It is, in that regard, an agency which is truly ossified. The purpose of this paper is to address how, with offensive bargaining techniques, we can respond to and be prepared for these changes in the workplace. These technological changes offer more opportunity to bargain than other changes. The courts and legislatures are slowly facing these problems. When they do, they often ignore the rights of workers, and unions must assert and protect workers’ rights. Throughout this paper, we use various terms. We would use the term artificial intelligence shortened to “AI,” but few readers would feel comfortable. It should, however, be understood that our references to technology include all forms of technological change, including automation, robotics, digitalization, and other such forms that are transforming the workplace. Below, we first address how labor has historically approached forms of technological advancement. The historical references are to establish that techniques of resistance are ineffectual in the long term and short term. More effective is to leverage protection and change which benefits workers. We use this paper to show how unions can use bargaining techniques to obtain leverage when issues of technology are raised either by the employer or a union. Initially for example, data breaches are becoming more and more common. Employers are subject to them. Unions have the right to bargain over the impact they may have on the privacy of their members. Employers should have to respond to requests by unions to bargain over cybersecurity issues, including seeking information on the data security measures taken by their employers. This will raise confidentiality and security issues. But certainly it is a mandatory subject of bargaining. This is just one example of the myriad of issues which can be raised. 1 This naturally leads to bargaining over data storage. What data is stored about employees and their work? How is it used? What controls are there? How much of the data is confidential or proprietary? Do we get to bargain about such data and its use? II. “THE WITHDRAWAL OF EFFICIENCY” HOW THE LUDDITES AND THE WOBBLIES DEALT WITH TECHNOLOGY A. THE LUDDITES Luddite song: And night by night when all is still And the moon is hid behind the hill, We forward march to do our will With hatchet, pike, and gun! Oh, the cropper lads for me, The gallant lads for me, Who with lusty stroke, The shear frames broke, The cropper lads for me!2 The term “Luddite” applies to the English workers who are also known as “machine breakers.” They arose rather suddenly in March of 1811 and were largely defeated by early 1813. There was an active period of frame breaking, which occurred for about a year between November of 1811 and the fall of 1812. The Luddites were groups of workers located in the “Midlands” of England who, usually in small groups, would enter factories to destroy certain of the machinery

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