Bargaining for Power

My last newsletter talked about no strike clauses, contract length, and the question of power. Bargaining, power, and a Left approach to labor relations is a topic I’ve written about before, especially in this essay and this essay, both for Protean Magazine.

So I’m writing (somewhat extensively) on what the Left misses about bargaining, elements of bargaining that directly address worker power, why we need to bargain for power and not just raises, and some practical elements to address in doing so.

Bargaining from the Left

A candid assessment of the prevailing Left view of labor relations shows that there is little nuanced understanding of the role of collective bargaining and industrial action in advancing Left politics. To the extent that such an understanding exists, it exists primarily in two registers:

a.) Industrial action is good because it raises worker consciousness
b.) Industrial action is good because it leads to better economic outcomes

If examined, a.) falls apart. Strikes may beget strikes (itself somewhat questionable), but there is little evidence that striking in of itself leads to a progressive class consciousness — what Marxists call a class “for itself.” Many strikers in West Virginia were conservative Trump supporters, and there is little evidence that the West Virginia education strikes measurably changed the political consciousness or landscape of the state. Although it’s nearly heretical to say — and in fairness, it remains to be seen — there is strong reason to be pessimistic about the long-term outcomes of the so-called “red state revolt.”

Indeed, the emphasis on striking related to b.) reduces the strike to strictly instrumental ends: that we strike to obtain the maximum possible economic terms out of an agreement. A wage increase is a win, even though maximizing economic wins is not in of itself a meaningful change in the power relationship between labor and capital. Wage increases are, at best, a shift in the distribution of profit — and one which unions struggle to maintain amidst soaring corporate revenues and executive and shareholder profiteering.

As I addressed in one of my pieces for Protean, there are structural limitations here: namely, the localized nature of bargaining, and the power asymmetry between a multinational corporation and firm-level representation, especially when points of struggle may be limited to individual worksites. Union ability to sustain strikes — a topic for another discussion — is also key. In the case of the ongoing Nabisco strike, there’s a clear difficulty in maintaining a multistate strike action, and there have been reports of union supporters crossing the picket out of economic necessity.

So what is the purpose of bargaining? How can it advance the task of building worker power?

The most obvious manner in which it can advance power is the opportunity to organize. Contract campaigns offer unmatched organizing opportunities, and building rank-and-file strength builds the capacity of the union to strike, and win. Numerous examples, such as the CTU and UTLA strikes, show the potential created by serious organization, serious capacity building, and rank-and-file buy in.

But a crucial item often left neglected in contract negotiations, and in Left analysis of the purpose of collective bargaining, is straightforward: how the contract alters the balance of power in the labor-management relationship.

Negotiations and Power

The relationship between workers and management is necessarily a power relationship, and one usually made unequal both by immediate structural power (the ability to hire and fire) and law (the long history of pro-management labor law interpretation), among other factors. Collective bargaining agreements codify that relationship in ways advantageous and disadvantageous to both parties: an aspect that management often appreciates more readily than the union.

So what are these elements, and why do they matter?

Basic elements such as union rights, so-called “management rights,” the structure of grievance procedures, the presence or absence of no strike clauses, the scope and structure of labor-management committees, and other elements structure how power is distributed. Grievance arbitration — already a problematic process — is often crafted to advantage management. Usually, grievance processes stipulate that if the union misses a timeline, they lose the grievance; in contrast, if management misses a deadline, the grievance simply advances to the next level. This, coupled with long windows for management to respond, drags out the arbitration process over the span of months, or even years.

Shop floor control is also a key arena, and one in which unions are typically more active. In waged and especially manufacturing settings, mandatory overtime, shift-setting, and other basic items of when and how you work — and how you’re compensated — are key elements of the struggle for shop floor power. More broadly, items such as health and safety committees, transfer language, access to new employee orientations, etc., are practical elements of control and power.

There are elements that are often outright conceded by unions for a variety of reasons, typically due to a narrow interpretation of the union’s role or interest. A less dramatic example is demonstrated through the prevalence of probationary periods during which employees lack access to the grievance procedure, and lack just cause protections. Probationary periods are often conceded because unions believe that defending new hires is potentially wasteful or costly, or that it would be protecting “problem” employees. In essence, probationary periods — many of which can last up to or longer than a year, with managerial discretion for extensions — create a second class of employee that enjoys only limited contractual rights.

A more consequential example is the rarity of union proposals regarding hiring. With the elimination of the closed shop with Taft-Hartley, unions went from enormous control over the hiring process, to virtually none: an element that, by design, significantly weakened union power. Unions rarely negotiate any stipulations on the hiring process, in part because strict control over hiring is one of management’s most jealously guarded rights. A key exception can be found with recent victories by the New York News Guild, which bargained diversity requirements into hiring as part of recent contract negotiations.

All of these matter, and all are typically less understood by outside observers — and sometimes less prioritized by unionists themselves. Convincing rank-and-file workers to view union release time as a priority ranked alongside a wage increase is difficult, and requires patient and extensive member education and organization. Major fights over power also ensure protracted, ugly negotiations, which requires the ability to make and deliver upon the threat of a strike. As the Treaty of Detroit demonstrated, power is far more important to management than the economics, and they will more readily share the wealth than share the power.

Taking the Reins

Why should any of this matter as much as a raise, whether to workers or the Left?

What we can accomplish and the extent of workers’ rights correlates directly to their power, and their power reflects a number of elements. Organization is crucial, but what organization can accomplish is mediated through structural limitations. In West Virginia, statewide collective action was necessary to secure something matter of course in other states with collective bargaining: a raise.

As I’ve mentioned elsewhere, there is reason to believe this is not enough to build durable power. West Virginia teachers struck in the 1990s for similar reasons, and ended up right back where they started. In contrast, wildcat strikes among Pennsylvania teachers — and public employees throughout the United States — in the 1960s demanded not only raises, but bargaining laws. In doing so, they codified additional power into law, making durable organization and more control over working conditions possible.

Similarly, how ambitiously we bargain and the structural power we achieve shapes what we can accomplish, even with organization. Narrow interpretations of collective bargaining agreements and union negotiations ensure that not only will we not accomplish more ambitious aims, but that we will less effectively achieve even basic aims like wage increases.

If our goal is to use the process to build power, there are a number of items that unions should more closely pay attention to, and bargain:

  1. Information requests. Unions need information, and many employers have limited obligations to provide it. Although unions are entitled to some information as part of bargaining and grievance handling, there are exceptions, and management often stonewalls or interferes with information requests. Outside of grievances and bargaining, unions are entitled to very little. Expanding the power of unions to regularly request detailed information, including operational and financial information, can dramatically expand union power.

  2. Probationary periods. There should be no exceptions to “just cause,” and employees should, upon hire, have the same contractual protections and full right to participate in the union as any other employee. In the event that probationary periods exist, they should be bargained down to the shortest possible period, with no management right to unilaterally extend them.

  3. Grievance procedures. Grievance procedures should have extensive timelines for the union to first file, the minimum practical number of steps, a requirement that management meet timelines or the grievance is awarded to the union, and the shortest possible window for selection of an arbitrator and the return of an arbitration award. Unions should be able to file at whatever step they deem appropriate to the issue, and arbitrators should be empowered to craft remedies that expand contractual rights. Grievance procedure language should also be measured against existing case law to ensure they do not create an extensive implied no strike clause, especially for emergent issues for which grievance arbitration is too slow a remedy.

  4. Management rights. “Management rights” should not exist, and existing language should be continually whittled away through direct changes to limit existing management rights’ clauses, and through contract proposals explicitly providing for union input in or control of things normally deemed matters within inherent managerial control.

  5. Hiring. Unions should bargain on the hiring process and staffing decisions as much as possible, shaped to fit their workplace. Negotiating over the addition of positions, staffing requirements, etc., are all key ways in which unions can directly address control over the shape of the workforce. Addressing diversity requirements, what information new hires are provided, and union access to employee orientation — without management present — are all crucial elements.

  6. No Strike clauses. No strike clauses should similarly be curbed, though as I’ve argued elsewhere, control of terms of agreements is a crucial intermediary step. Unions should carefully balance preserving access to grievance arbitration (when deemed the appropriate remedy) vs. preserving the right to strike over emergent issues (e.g., workplace safety during a pandemic, or reinstatement of a fired worker).

  7. Shop floor control. How this is structured varies from workplace to workplace. One key example is safe staffing ratios in nursing, which both exercises shop floor power, and extends union power into the hiring process. Strengthening the right to refuse unsafe assignments, protections against public reprimand by supervisors, the right to wear union buttons and apparel, and other items are all ways to assert union power and control over the shop floor.

  8. Scope of bargaining. The bargaining process is structured by mandatory subjects of bargaining, and “permissive” subjects. Unions often drop or fail to propose items that are permissive subjects of bargaining due to management pushback — however, this is both unnecessary and a mistake. Both the CTU and UTLA strikes involved key issues that were permissive (and even prohibited) subjects of bargaining, such as charter expansion. Determine importance by the urgency issue — not whether it’s permissive or mandatory.

  9. Directing the enterprise. There are few if any examples of unions successfully bargaining much control over the actual enterprise, though it was a goal of the United Auto Workers’ prior to the Treaty of Detroit. The closest unions come to control over the enterprise is negotiations including investments in new lines of manufacturing, plant closures, etc. Expanding these roles and giving unions regular decision-making power or voice in investment decisions and directing operations is utterly essential.

This is by no means comprehensive, but these issues expand negotiations from dollars and cents to a direct contest of workplace power — not just the terms of their exploitation. In doing so, it directly undermines the power of capital, and builds worker power and a more emancipatory worker politics.

In summation: unions often think of it as their job to police management excesses and curb the worst tendencies of the boss. Often, they explicitly reject courses of action because they believe it’s “management’s job.” But if we’re bargaining for power, and bargaining for more than kinder and gentler capitalism, we have to assume that the more functions we can take from management, the better.

We must fight and bargain accordingly. Unions have to remember that management has no rights, except those stolen from their workers.

Writing

I’ve co-written several articles for Truthout with Tyler Walicek on India Walton and the Buffalo mayoral race. Here’s one of the most recent, on the potential for eliminating the office of Mayor altogether.

I also wrote a piece in early August on unions and the shifting landscape in Arizona.

In solidarity,
Connor

I'm through with doubt
There's nothing left for me to figure out
I've paid a price, and I'll keep paying

I'm not ready to make nice
I'm not ready to back down
I'm still mad as hell, and I don't have time
To go 'round and 'round and 'round
— The Chicks, “Not Ready To Make Nice”

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