The Artificial Intelligence wave has landed on the shore and as it moves further inland, it is rearranging more than a few beach chairs. Because of this, AI is inspiring both excitement and panic. All people, whether near the wave or not, should be prepared.
This article discusses how AI could transform work, particularly traditional union work, and what lessons we might already draw about how labor relations may change. The question on the minds of many is how will work be affected. It is certainly on the minds of unions trying to preserve work for their members and potentially show themselves as the defender of the status quo. Unions and other worker advocates are already at the front lines of navigating the on-rushing tide.
Technological innovations that have disrupted work are not novel. Throughout history, new technologies have shifted workplace dynamics — boosting workplace efficiency, changing the nature of work, and eliminating some jobs and creating others. Entire job classifications have disappeared. Look at your morning breakfast table and notice what is no longer there. The newspaper/magazine industry—once an industry dependent on print and print shop employees—is now predominantly digital publishing. For the last 25+ years we’ve seen a drastic decline in traditional printing jobs and a tremendous growth in digital journalism.
The same can be said for automated cranes being used at docks, or casinos now using payout vouchers instead of slot attendants. In fact, with both these changes, the unions representing employees fought to preserve some semblance of the status quo.
When you go to the supermarket, count how many clerks you see bagging groceries in the line compared to 15 years ago. Maybe you’ll find two or three aisles with cashiers, while many of the remaining lights on supermarket aisles are dark. The self-checkout aisles are bustling with customers but no cashiers. These changes also occurred in the context of contentious union negotiations.
All these specific industry examples and more prove the same thing. Technology catches on quickly, is constantly evolving, and has dramatic consequences for the workplace. There will continually be watershed changes for almost every industry. And while these examples are significant, they offer just a small glimpse of the potential transformative capabilities of AI, far beyond mere automation.
If you scan today’s current landscape, you see that AI is everywhere already. Almost every industry uses AI to some degree and companies which fail to adopt this technology risk falling behind competitors. This raises many questions for both employers and employees. Employers want to explore ways to implement AI to increase productivity,
improve efficiency, and if possible, reduce costs. Employees want this same productivity in theory, but have a much more anxious outlook, especially when AI affects hiring, scheduling, performance evaluation, restructuring, or even job elimination.
AI is not a homogenous tool. Different forms of AI raise different labor and employment considerations. Generative AI models such as ChatGPT, CoPilot, and more, are the most well-known and are often used in industries to assist with tasks such as drafting, data analysis, and document review. Algorithmic Management is a software systems that performs more managerial functions that have been traditionally carried out by supervisors. Using data collection to assign tasks, evaluate performance, and even make disciplinary decisions, is often at the center of controversy when it comes to collective bargaining. Finally, Agentic AI is a relatively newer wave of artificial intelligence that can autonomously execute complex tasks, often with little to no human supervision. In sectors such as finance and logistics, these systems rise beyond just being an assistive tool and are much more transformative. In terms of labor relations, it is important to understand the distinctions between the different types of AI and their functions, as different forms are likely to give rise to different bargaining obligations.
This rapid innovation has placed labor relations, especially at unionized workforces, at the center of the AI discussion. The above examples occurred within the context of protracted labor disputes. As in other examples of technological advancements, unions fight to preserve the status quo as long as they can or at least build a barrier reef to hold back the wave for a time. This is fundamentally job preservation which is at the heart of most union contracts and union campaigns. Unions tout promises of job preservation to organize new employers and even new industries.
Organized labor may recognize that the implementation of AI or any similar progress is inevitable, and if used correctly, can have a tremendous impact on efficiency. However, the focus for unions is not so much if AI will be used, but when and how.
Under the National Labor Relations Act (NLRA), technology related workplace changes, such as AI, generally trigger an employer’s duty to bargain when the changes affect wages, hours, or other terms and conditions of employment. The implementation of these changes is a mandatory subject of bargaining unless the labor agreement definitively reserves these rights to management. Also, implementing AI to directly replace union jobs may be considered as a form of subcontracting, which is also a mandatory subject of bargaining.
Even when an employer’s decision to adopt AI itself may not be subject to bargaining because of an entrepreneurial decision to change the nature of the business, the employer is still obligated to bargain over the effects of that decision, known as effects bargaining.
Effects bargaining can involve negotiations over such things as job creation, severance pay, retraining, and the timing and extent of new work processes. The motivation of the employer when implementing AI also plays a key role. If AI is introduced primarily to reduce labor costs, bargaining is much more likely to be legally required. If the decision to implement AI is driven by a core entrepreneurial direction to advance the business, an employer may not have to negotiate over the decision itself, but rather just over the effects of that decision, upon request.
Employers also may not unilaterally implement material workplace changes without notice or an opportunity to bargain unless the union has clearly and unmistakably waived its right to do so, or the new change to employment terms and conditions is indisputably minimal. However, a large amount of AI-driven changes will likely constitute a material change in employment terms if they affect work expectations, supervision, discipline, and termination decisions.
In sum, employers must be mindful of their bargaining obligation before implementing AI-related changes. A properly worded management rights clause can potentially permit unilateral action, but only in instances where the union’s waiver of bargaining rights is explicit. It is critical for employers to avoid broad or general language in their contracts, regarding the implementation of AI. It’s not that changes cannot be implemented. Early notification and engagement with the unions to help them understand what AI changes are coming will help.
Understanding that a union’s goal and even legal duty is to preserve bargaining unit work, the two sides can work together to craft retraining programs, new bargaining unit positions or reasonable severance packages. Astutely fulfilling the bargaining obligation while embracing the inevitable progress will ensure a business does not fall behind on technology and will better ease the workforce transition. The AI wave is coming. Companies need to prepare so that they can ride the wave rather than wipe out. One way to prepare is knowing how labor unions and labor law operate in times of technological disruption, and factoring in the bargaining obligation.
Edward J. Bonett, Jr. and Christian Doran of Genova Burns LLC
