Getting to Contract: Negotiating and Winning Against the Odds

Getting to Contract: Negotiating and Winning Against the Odds

Getting to Contract: Negotiating and Winning Against the Odds

Workers learn governing power through high-participation negotiations. That’s also how they can get employers to the table.

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Do a quick scan of the major news sites right now, and you’ll see headlines like “Starbucks Illegally Refused Union Contract Talks at 21 Cafes, NLRB Says” and “Trader Joe’s Accused of Bad Faith Bargaining by Union,” along with “Amazon Could Stymie Unions for Years by Going to the Courts.” Fifteen months after the first successful National Labor Relations Board election at a Starbucks, in Buffalo, N.Y.—a shot of adrenaline for the lethargic US labor movement—and almost a year after the shocker in Staten Island, where workers defeated Amazon’s union-busting and voted yes on a union at the company’s JFK8 warehouse, neither of these efforts has produced a first collective bargaining agreement. Amazon even refuses to accept that the JFK8 workers voted for a union. On its website, Starbucks Workers United has posted 15 noneconomic demands under the heading “What Are We Fighting For?” Yet the coffee chain’s management still won’t meaningfully engage with workers in any of the 280 stores unionized since December 2021, deploying a predictable arsenal of stalling tactics.

There’s nothing surprising about today’s ferocious union-busting. The litany of ominous headlines might be an education for younger Americans about the scale of this long-running class war, but workers form unions to win respect and material gains, not to learn about yet another way their bosses exercise too much power. Employers understand that they always get two chances to destroy a unionization effort. The first is to terrorize workers so they won’t vote yes in the first place. The second is to creatively refuse to negotiate. Workers can’t begin the process of realizing the concrete gains that will lead to a better life—from ending torturous scheduling to achieving real cost-of-living wage increases to obtaining the health care and retirement plans everyone deserves—until they secure a first union contract. For two decades, research showed that over 52 percent of workers don’t have a contract within a year of winning unionization. Unfortunately, the feisty new unions have also not been able to force their employers to seriously negotiate, let alone win a first contract. Apple and Microsoft have taken a slightly less aggressive stance than most companies by recently agreeing to talks, but it’s not yet clear how these tech giants will approach their newly unionized employees either.

The question for today’s new unions—as well as for workers hoping to rebuild established ones—is: Can they learn the lessons that most legacy unions have failed to understand? The most important of these is that the high-energy organizing work never stops, from the first conversations among workers considering a union all the way to winning the hard fight for a first contract. Until last year’s revival, the most recent reform movement among unions (the “New Voice” program that began in the mid-1990s) blundered big-time on this front: Not only did the unions fail to continue the high-participation approach that won their unionization elections, but they often explicitly deprioritized the fight to secure a first contract. Instead, they left that effort to inexperienced, newly organized rank-and-file workers—or to less-than-competent staff representatives who weren’t intent on teaching workers what it takes to win and how to build workplace power and organization during the campaign for a first contract.

There are worrying signs that some newly unionizing workers are slipping into “lawfare,” in which lawyers are allowed to make the decisions, when what’s urgent is the kind of rank-and-file organizing that brings the entire workforce and the workers’ communities into the fight to beat back union-busters. Many of the recent, exciting campaigns rushed forward quickly, without giving workers time to build organizations resilient enough to win sustained battles. Which means the approach that workers choose for getting to negotiations is especially critical.

In the initial unionization election, workers learn to overcome adversity, but it’s in the campaign for the first contract that they learn to build governing power. To do this, workers must sustain high levels of participation in the negotiations process itself by being fully transparent in constructing their demands, by electing large and representative committees that develop proposals, and by allowing all workers who will be covered by the contract to engage directly in the negotiations. How workers approach negotiations is crucial to whether they succeed in getting the bosses to show up at the table. If workers choose the high-participation path, they can build governing power.

What is governing power? The ability of workers to self-govern—which requires the kind of high-participation, workplace-based, bottom-up organization that can enforce the achievements won in the eventual first contract. Why? Because while the ink has yet to dry on the new agreement, union-busting managers will set out to violate the contract immediately. If workers fail to fight back collectively, they risk becoming a grievance-heavy, customer-service-style union— which will eventually stunt the organization.

For detailed examples of workers using a high-participation approach and winning, see my forthcoming book with Abby Lawlor, Rules to Win By: Power and Participation in Union Negotiations. Whether a union is new and independent or long-established, the questions of how to negotiate, and how to get to the bargaining table, represent strategic choices. Framed as such, more unions need to embrace a high-participation approach, which leads to high-powered negotiations. It’s power that workers and their communities absolutely need to win the real improvements that propel yet more workers to take the risk of unionizing.

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