When You're Winning in the Streets, Don't Lose at the Bargaining Table
The final phase of bargaining can be intense. A strike authorization vote has been taken, or maybe a strike has begun. Members are fully mobilized and your corporate campaign is in high gear. Suddenly the employer is throwing new proposals onto the table.
These are the moments when union bargainers can make major mistakes—mistakes that will follow the members for years and even generations.
How can you avoid such mistakes? A controlling factor will be the preparation your union did for contract drafting, prior to the first bargaining meeting.
1. Seize the opportunity to fix vague contract language when your leverage is at its peak.
Buried in most contract articles are words that have a controlling effect, meaning they limit when the language applies. Example: “An employee is eligible for three weeks’ vacation, provided he or she has worked 1,250 straight-time hours in the last year.” Better language drops “straight-time.”
An easy start is to word-search your entire contract for “provided” to decide if what follows needs bargaining.
Another common problem is ambiguity: “To be eligible for the paid holiday the employee must work the day before and/or the day after the holiday.” It’s not worth paying for an arbitration to find out if a member has to work two days or one day to be paid for the holiday. Push to drop the “and/.”
Beware of undefined terms, like “regular part-time employee.” What does regular mean?
Here’s an example of language at a large Teamsters warehouse: “It is understood that when an abnormal situation occurs and the full complement of bargaining unit employees of the Employer proves inadequate to assure the uninterrupted conduct of the work, then in that event exempt or supervisory employees may be assigned work covered by this Agreement.”
“Abnormal” is never defined. “Full complement of bargaining unit employees” is also left undefined, and does not obligate hiring of new employees. Can the bargaining unit be reduced by attrition? “Supervisory employees may be assigned work” for how long: an hour? A week? Indefinitely?
When you’re sitting at the bargaining table at 11 p.m., with a promised strike the next morning, resist the impulse to conclude the tentative agreement when you’ve won your economics. Have a Columbo moment: “Just one more thing…”
Tell the company you still need to clarify a few points before you can recommend this contract to the members. Have replacement language drafted and ready to put on the table.
“When the current number of bargaining unit employees is inadequate to assure the uninterrupted conduct of the work, exempt employees may be assigned work covered by this Agreement. Exempt employees will not be used to avoid offering of overtime or hiring of additional employees. When the total number of hours worked by exempt employees exceeds 60 hours in a 30-day period an additional full-time unit employee shall be hired within two weeks for each 60 hours worked.”
2. Don’t adopt language from other contracts.
Especially with first contracts, don’t start by proposing language from another union contract.
It’s a common mistake. The wages and vacation numbers in the contract look good, so a drafter assumes the whole contract is okay and adopts its language without thinking.
But almost all contract language is a compromise, the end result of bargaining. If you take compromise language as your starting proposal, you will bargain down from there and end up making even greater compromises.
Carefully draft three or four fallback positions. Start by saying, “Employees with five years’ service will receive three weeks’ vacation.” That will be rejected by the company because there are no qualifiers. Counter with, “Employees with five years’ service and 500 hours in the previous calendar year will receive three weeks’ vacation.”
3. Get the definition of a grievance right.
Central to contract enforcement is the grievance procedure. Here’s typical language proposed by management:
“Should any controversy, dispute, or disagreement arise during the period of this Agreement out of the interpretation or application of the provisions of this Agreement, there shall be no form of economic activity by either party against the other because of such controversy, dispute or disagreement, but the differences shall be adjusted as follows…” Then the grievance process is described.
Look at the phrase I put in italics. This phrase limits grievances to the four corners of the agreement, excluding everything else.
Imagine you want to grieve a COVID-19 safety issue. The company lawyer denies your grievance. Even the union’s attorney recommends against arbitration, because it’s not covered in the contract.
How to fix this? Simple: delete those italicized words. Now it covers every possible dispute.
What if the company has historically accepted all grievances and allowed arbitration of issues outside of the contract—do you still need to fix this limiting language? Maybe not, if the union has kept careful records to prove a past practice.
4. Don’t allow management rights by failing to read carefully.
Reviewing a warehouse contract recently, I was pleased to find no ugly management rights clause. However, there was some real sneaky stuff buried in there. Here’s a clause on “Production Requirements”:
“The Employer may establish, implement, and/or continue systems of production requirements. The Union shall be notified of such newly established systems of production requirements and the date of implementation. The Union shall have the right to review any and all information pertaining to the establishment or implementation.”
This clause waives the union’s midterm bargaining rights over 99 percent of what takes place on the shop floor. Further, an arbitrator would probably interpret the first sentence, “The Employer may establish….,” as a management “right” to unilateral action.
New language: “The Union shall have the right
to review to bargain any and all information pertaining prior to the establishment or implementation of a production standard. Failing to reach agreement the parties will submit a dispute to arbitration.”
5. The union needs a quality note-taker.
In arbitration, the company attorney will argue that you cannot use “parol” evidence—evidence that’s not specifically in the contract—to interpret the contract.
Don’t believe this rule. In my local we had a dispute with UPS over the price of retiree health insurance. The section clearly said the dollar amount. UPS tried to increase the price based on “market increases.” We went to federal court.
Our note-taker produced detailed notes on who had said what in bargaining. The UPS spokesperson had said there would be “no change in the section” on retiree insurance. The court ordered hundreds of thousands of dollars refunded to our retirees.
6. Don’t leave money on the table.
The union must always cost the contract—that is, forecast what its proposals will cost. Before going into bargaining, set up a computerized costing model for each job classification, and one for the entire bargaining unit. (The manual Contract Costing for Union Negotiators will help you.)
Ideally the bargaining team includes someone from each classification to argue on their group’s behalf.
The cost of the proposals should be recalculated in advance of each bargaining session. You will recalculate the costs again, multiple times, as you exchange proposals during the sessions that determine whether to end a strike.
In the heat of bargaining during the strike, an offer that seems good may actually be leaving money on the table. Bargainers should be sure to get every penny.
7. Bargain plant rules.
According to the top labor law reference, The Developing Labor Law, “plant rules are considered subjects of mandatory bargaining, which means that an employer cannot unilaterally implement or change such rules.” (Ch. 16.IV.C.2.e.)
Suppose that, during the last contract, the company decided to make up rules as it went along, and these new rules went unchallenged. This does not mean the rules have to be there forever.
In bargaining, you can demand to abolish an arbitrary and capricious rule. Management would counter, “We need to have a rule.” Be prepared to propose a rule that the union can live with.
8. Engage in regressive bargaining.
The Labor Board says you need to bargain in good faith. You’re supposed to work towards compromise and reduce, not increase, your demands.
Don’t believe it. In the hours before a strike—or when you’re already on strike—it is fair to increase the cost of settling the strike by asking for more, not less.
You will be told this is an unfair labor practice. So what? The employer will file ULP charges. After endless litigation the Labor Board will tell you to play nice in the sandbox.
Incidentally: if, instead of making the demand across the table, you tell your federal mediator to tell the company you need the following demands as a condition of ending the strike, you avoid the ULP. The mediator cannot be called to testify against you.
A year before expiration, you should start carefully preparing what you want in your contract.
Involve many members in these conversations. Develop a widely shared understanding of why it’s worthwhile to hold out for better words on the printed page. After all, you don’t just want wins that sound good; you want an enforceable contract.
You and your co-workers will put in months of work into a contract campaign to maximize your strength. Don’t lose the moment by being unprepared on contract language.
Richard de Vries is a 25-year union representative at Teamsters Local 705 in Chicago (affiliation for identification purposes only). He teaches classes with the Rocky Mountain Labor School and always does various workshops at the Labor Notes Conference.