rights clause was okay for the last contract but not this contract would be greeted by negotiators on both sides of the table as stark raving lunacy.
But here’s the crazy thing about that. A union with its back against the wall, bargaining for a successor agreement against an employer that’s clearly aiming to gut the contract or bust the union, can find it very advantageous to continue to bargain after the contract’s expiration and continue to stay on the job.
I mean, there are entire strategy manuals on working without a contract. It’s a critical escalation of what are called “work to rule” or “inside” campaigns. When a collective bargaining agreement expires, the terms of the agreement don’t automatically go away—just the management’s rights clause. As a movement, we know there is power in this.
I run the risk here of oversimplifying, or having the NLRB change the rules two months after this book is published, but the basic rules of bargaining go like this: A non-union employer gets to make all the decisions. Once a union has been recognized as the representative, a kind of status quo is established. Oh, the employer can make changes, but if those changes affect those pesky “mandatory” subjects of bargaining (wages, hours, and working conditions), they must first be proposed to the union that represents the workers. The boss can only make the change if the union agrees, or if he can bargain the union to what’s called “impasse.” Impasse essentially means, “We don’t agree.” However, a union can drag out the process of not agreeing by pushing paper back and forth with minor changes to the boss’s demands, or by requesting detailed, onerous, and relevant information requests.
Even where there’s a well-established collective bargaining agreement, when it expires the workplace returns to the status quo of a newly organized shop. It is perhaps more disruptive in a workplace where management has been used to the routine of having the broad powers of a management’s rights clause.
What’s a mandatory subject of bargaining in this scenario? New uniforms for the workers, moving the start of the a.m. shift from 7:00 to 7:30, switching up the menu in the employee cafeteria, lowering the thermostat by one degree. Sometimes it takes a keen eye and creative mind. In contract rights at the Hotel Employees union, we would demand to bargain over new carpets and coffeepots in the guest rooms. Even the threat of us filing an unfair labor practice charge, seeking a remedy that the new carpeting should be removed until the hotel bargains in good faith over the change, was enough to provoke some movement by the other side.
Such a charge is obviously unlikely to be successful under a Republican majority NLRB. Nevertheless, we clearly understand that there’s power in denying the boss his management’s rights, but we don’t pursue the strategy of denying management its unfettered right to run the enterprise as a matter of course.
Instead, we have capitulated to the notion that the boss gets to run his business, and we just get to ask for more money. This is, literally, not what workers want. Researchers Richard B. Freeman and Joel Rodgers have conducted deep surveys of workers’ desires regarding workplace representation. Their book What Workers Want concluded that workers want “more” from workplace representation: “More say in the workplace decisions that affect their lives, more employee involvement in their firms, more legal protection at the workplace, and more union representation.”
But “most workers do not believe that, under current U.S. policies, they can get the additional input into workplace decisions that they want.”33 Workers have very limited influence over the state of labor law, but we do control what we demand and fight for.
I want to take the briefest of respites from this fairly pessimistic narrative to acknowledge that most union members really value their collective bargaining agreements. Collective bargaining has improved the pay and working conditions of millions of workers, and most union members shudder at the thought of losing the protections of their CBAs.
But, that said, we have allowed a moral and strategic rot to set in. I can’t tell you how many times I’ve overheard a union representative respond to a member’s complaint with a gruff, “They’re allowed to do that. It’s management’s rights.” Look, I get it. Most union representatives work very hard; they’re overwhelmed with how many grievances and negotiations they’re juggling; and this is an easy way to make one more problem go away. Plus, whatever training they’ve received has probably emphasized the strict boundaries of management’s rights, and for them to “tell the difference” between a grievance and a “gripe.”
But what, exactly, do we expect a union member who’s been told, “There’s nothing we can do” to tell a friend or family member about their experience of being in a union? And why are we surprised that more workers aren’t organizing?
“The Union Can’t Protect Your Job”
So, finally, this is the trap in which we find ourselves caught. Unions can only represent us on a workplace-by-workplace basis, and only if a majority of eligible voters in a bargaining unit vote for union representation. When we represent a workplace, we must do so on an exclusive basis that forces us to take both the credit and blame for the pay, benefits, and work rules that everyone must labor under. We are also responsible for ensuring that all members of the bargaining unit do not protest, except under incredibly proscribed limits and during a small window of time. And if we’re in a “right to work” state—or, thanks to the Supreme Court’s Janus decision—in the public sector, unions have to expend significant financial resources representing workers who refuse to pay for them.
We’re expected to deliver big wages and generous benefits for our members, but that only worked when we represented all the companies in the major industries and were able to make employers bear the costs equally, thereby taking wages (and benefits) out of competition. Once that became the framework, any foreign competitor or start-up could be instantly competitive by dint of their lower payroll costs. Our existing unionized employers had a financial incentive, and legal protections, for outsourcing and subcontracting jobs to remain “competitive.” And all bosses have an economic drive to bust their unions or remain union-free.
Our “right” to strike, which would only be meaningful if it included the right to return to the job, has been severely curtailed. As a result—even with the recent uptick in strike activity—industrial actions are at a historical low ebb and very few workers understand their power and how to exercise it. One reasonable pathway to reviving the strike could be the spontaneous protest activity of union members, but the no-strike clauses in most collective bargaining agreements legally bind union representatives to clamp down on such job actions.
Meanwhile, management’s rights and our restricted scope of bargaining give bosses near-dictatorial control over daily decision-making, and whether union members can even have reasonable job security.
Finally, when a group of workers gets brave enough to join together, when they have a union certification election scheduled, and when their employer exercises his right to force them to attend mandatory captive audience meetings to campaign against the union vote, what are the devastatingly effective statements he’ll make?
• A union could make our company less competitive, and we might have to lay some people off.
• Unions only get what they want by going on strike, but if you go on strike you could lose your job.
• The union can’t protect your job.
There is truth in all those statements. We let this happen. This is our trap.
FOUR
Two
